# DELCHAMPS, INCORPORATED v. Stewart

> Court of Civil Appeals of Alabama · October 20, 1971 · 47 Ala. App. 406

URL: https://www.frixlaw.com/law-library/cases/9687425

## Case

- **Full name:** DELCHAMPS, INCORPORATED v. Claudia STEWART
- **Court:** Court of Civil Appeals of Alabama
- **Decided:** October 20, 1971
- **Citations:** 47 Ala. App. 406; 255 So. 2d 586; 1971 Ala. Civ. App. LEXIS 477
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Wright
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9687425

## Opinion text

ON REHEARING
On rehearing—application denied-—opinion extended.
The writer of the original opinion in this case had mental reservations about including a discussion of the enumerated points of evidence set out in appellee’s brief. These points of evidence were insisted by appellee to be individually and collectively sufficient to present the scintilla of negligence for submission of the case to the jury. Our reservations were based upon the possibility, nay probability, that any response would be considered as an adversary approach. Appellee’s application and brief on rehearing convinces us that in future decisions we should have no reservation about heeding our initial mental reservations.
There was no intent or purpose in our response to appellee’s contentions as to the evidence to become involved in an adversary controversy. We do not think our response did so. We merely attempted to point out that the conclusions or inference drawn by appellee from the portions of the evidence set out were not reasonable, and as a matter of law in our opinion, did not comprise a scintilla of negligence by appellant when considered individually or collectively. The basis of our opinion was the criteria of required proof as defined, refined, and developed in the long line of prior decisions of our Supreme Court in similar cases.
Though charged by appellee in brief with failure to do so, we assure appellee that in this case, as in all cases of appeal from the refusal of the affirmative chárge requested by defendant, we viewed the evidence in its entirety in a light most favorable to plaintiff. It was only after so doing that we concluded the evidence, with all reasonable inferences possible to be drawn therefrom, was insufficient for the consideration of the jury. Such question is a matter of law. Having reached such conclusion the presumptions as to the verity of the jury’s verdict and the correctness of the overruling of the motion for new trial have no application.
We examined the trial court’s denial of the affirmative charge with all presumption of correctness and found it to be in error. Application for rehearing overruled.
Application for rehearing overruled— opinion extended.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9687425. Public record. Not legal advice.