United States Fidelity & Guaranty Co. v. Barnes

Evans, Judge. Apparently counsel for the defendant assumed that the entire policies of insurance were attached to the petition, when in fact, only the face of the renewal policy is attached as an exhibit. Defendant sought to pierce the allegations of the petition on summary judgment by having the court consider the pleadings, the exhibits, the answer and depositions taken, all of which it contends would demand a judgment in its favor. A [595] casual reading of the depositions suggests that the insurance policies were considered, but without them in the record we cannot assume the lower court ever saw them. Proof or admission as to the contracts of insurance and their contents is absolutely necessary as to a question of liability or non-liability thereon. Without the contents, we have no way to determine whether or not the lower court erred in denying summary judgment. Defendant seeks to establish certain facts by the contents of its answer and a statement of contentions, but these are not admitted by the plaintiff. Accordingly, we must affirm the lower court, for we have no way of ascertaining the contents of the policies of insurance. Judgment affirmed. Parnell and Quillian, JJ., concur.