Opinion
No. 61-65.
October 19, 1961.
Appeal from the Circuit Court, Dade County, Marshall C. Wiseheart, J.
Tobin, Rubin Salmon and Kenneth L. Ryskamp, Miami, for appellant.
Dixon, DeJarnette, Bradford, Williams, McKay Kimbrell and James A. Dixon, Jr., Miami, for appellee.
Before PEARSON, TILLMAN, C.J., and HORTON and BARKDULL, JJ.
A review of an adverse summary judgment in a malpractice and assault and battery action is sought by a former patient of the appellee.
The summary judgment rendered was based upon the pleadings, depositions, affidavits and exhibits on file in the cause.
The appellant contends there was a genuine issue as to certain material facts which precluded the rendition of a summary judgment. We have examined the pleadings, depositions, affidavits and exhibits on file and conclude, as did the able trial judge, that no genuine issue of material fact exists that would warrant this case being presented to a jury. We are aware of the numerous authorities to the effect that a jury trial should not be denied a litigant where a genuine issue as to a material fact exists, but conversely we are likewise conversant with those decisions which hold that summary judgment is proper in those instances where the pleadings, depositions, affidavits and exhibits on file in the cause fail to demonstrate that there is any triable issue of fact. This case falls in the latter category.
Accordingly, the summary judgment appealed is affirmed.