Petition for Writ of Certiorari — Gulf Power Co. v. Shahid

Supreme Court brief1962

Ask Donna

What actually matters in this document.

Text

. MIE a. WD hes ica dad

‘ ete ts , ie IS JIRT: . &S ,

ey 1 1959

aa.

he. i

IN THE :

SUPREME COURT OF THE sirius STATES

October Term. 1961

No. .996

GULF POWER COMPANY,

Petitioner,

ERNE ST W. SII AIID axp M: ARG ARET P. SILATLLD,

Responde ut: ‘,

PETITION FOR WRIT OF CERTIORARI TO UNITED STATES

' COURT OF APPEALS FOR THE FIFTH CIRCUIT

' Sie

Beceés, Lane, Dante,

Mippteprooks & GaiSes,.

P.O Box 1351,

Pensacola, Florida,

Of Counsel.

Kk. Dixie Becag,

Pensacola, Florida, .

Attorney for Petitioner.

INDEX

Preliminary- State ‘inent

Opifiions Below

Jurisdiction ;

Questions Presented PALIT,

(1) Should not sumimayy judginent’ fule apply to

negligence cases where its. requisites are

met?

(2) Should summary judgtuent for defendant be

reversed where there is no issue of faet and

plaintiffs rely on pyramided imferences con-

' trary to law~

Rule Involy ed (Rule 56, Federal Civil Procedure )

Statement of the Case °

Reasons for Granting the Writ

Argument A

Cases dealing with Suminary Judgment

. Decision below conflicts with decisions of this

Court and other circuits .

» The Non-existent Issue ¢ "reated by the Court of.

Appeals -.. ——_—---"—

Electrical Fire Cases

A Case may not rest only on Py ea eae Enter;

na z,

ences .

——

The Enannieiie «1 cases on which the Reversal Was |

Predicated

Conclusion

ApPE NDICES

Fas at

A @pinion-ot District {‘ourt granting iianaiee

Judgment

+ B. Opinion of Court of Appeals, with dissent

-(. Opinion of Court of Appeals on second application

for rehearing

D. Judgment of Court of Appeals

= *

“

hi a “IN DEXS

List oy Ay ruorities

Alabania Great. So, R. Co. v. Louisville & Nashville

R.Co., 5 Cir., 1955, 224 F.2d 1,5

Appolonio v. Baxter, 6th Cir., 1954, 217 F.2d 267

" Arenas vy. United. States, 322 US, 419 (1944)

Associated Press v. United States, 326 US. 1

(1945)

Automatic Radio Manufacturing ( 0... Hazeltine Re-

search, Inc., 339 U.S. 827 (1950) ’

* Berrg vy. Athantic Coast Line Railroad Company, 273

F.2d 572, 582-583 (1960) ~

Chapman v. Hawthorne Flying Service, 287 F.2d 30,

541 (1961)

Demandre v, Liberty Mutudl Lisurance Company,

Cir., 1959, 264 F.2d 70, 72 ,

Dick v.N.Y. Life Ins. Co., 359 US. 437

Dyer v. MaeDoigatll, 2nd Cir., 1952, 201 F.2d 265,

269

Elgin, Joliet & Eastern Ry, Co. v. Burleigh, 325 US

711 (1945)

. Firemen’s Mut, Ins. Co. v. _Aponaug Mfg. Co.,. 5th

Cir., 1945, 149 F.2d 359, 363 a

Food .Fair Stores, Inc., v. T russell, 131. So. 2d 730

(1961) f

Ford vy. Luria Steel é Trading C orp. sth-Cir., 1951,

192 F.2d 88) .

Page

Gillis v. Miners and Mere haute Bank of Alaska, Oth ©

Cir., 1959, 271 F. a oe

Griffin v. Griffin, 327 U.S 24H (1946)

‘International Sait Sg: v. A, Se, 332 U.S. 292 1947)

— Kennediy v. Silas Mason Co., 334 U 8. 249 (1948)

Lané v. Dollar, 330 U.S. 73137 (34, N 2

Larton v. Hatzel & Buehler, 142 F. : 913 (6th ( ‘ie

1944)

Lopez v. Denver - & Rio Grande Weste mm Railroad

(o0., 277 F.2d 830, 852 (1960)

McCormick Shipping Corporation vy. Warner, 129 So.

2d 448, 449 (3rd District, Fla., May 8, 1961)

Manning v.’ Insurance Company, 100 U.S. 693, 698 —

ere

To .

“Morton Salt Co. vo Suppiger Co... S14 US. ASS oe

INDEX et

(1942) cs 0,10

Palmer vy. Chamberlin, 5 Cir., V1 F. L532, 540 2

Piller vy. Columbia Broadcasting System, — US. —, /

SZ SCL. 486 (February 19, 1962) ‘i ae . 12

Port of Palm Beach District v. Goethals, 5th Cir, /

1939, 104 F.2d 706 | * | pf]

Reicholdt v. Union Electric C ompany, 329 SW 2d 634- ;

(1959) ea 17

Sartor v. Arkansas Natural Gast’ orp., 321 U Ss. 62

(1944) ae fo FB

Sentilles v. Inter- Caribbean ¢ jorporation, 1959, 361

U.S. 107, 109, 116 7 / 27

Smith vo Nentucky-West Virginia Power C., 283 ;

SW. 2d 376, 378 (Kentucky, 1955) +7 19

Subin v. Goldsmith, 2nd Cir., 1955, 24 F.2d 753,

eg 27

U.S. v. Schaefer Bre wing C Ong Be 56 pe S. 227 (1908) at

Arurk Crrstioss

J’

‘Federal Rules of Civil Procedure—Rule a6

Title 28, See. 1254, USC iy de ge

Title 28, See. 1352, U S.A 3

Rul&2 ofa), Fifth Cirémit, 28 ULS.C.A., page 5 of

191eumulativ e supplement to Rules of Courts of

Appeals 10

Advisory Conmittee Notes to Rule 56, 28 USC. A. )

3 | C J. S. 1115 / . 15

38 Columbia Law Review 1436 9

6 Moore's Federal Practice 2020,9 56.02(10) - ”* ° 29

_ FF

/ z

IN THE

SUPREME COURT OF THE UNITED STATES

— Term, 1961

No.

GULF POWER COMPANY,

. Petitioner,

“ERNEST W. SHAHED asp M ARGARET P. SHATID,

Responde ute,

PETITION FOR WRIT OF CERTIORARI TO UNITED STATES |

COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioner prays that 4 writ of certiorari be issued to

_review the judginent of the United Statés Court of Ap-

” peals for the Fifth Circuit reversing (by a vote of 2 to 1)

‘the summary judgment entered by the United States Dis-

trict Court for the Northern District of Florida.

Opinions Below

The opinion of the Distriet Court dated May 1, 1959,

"(R 232-236) is reported at 23 F.R.D. 245. This cpinion

is appended. (Appendix A) +.

The ‘opinion of the Court of Appeals dated June 6, 1961,

is reported at 291 F.2d 422 and is appended. (Appendis

.B) Petitioner's first application for rehe ‘aring was denied

without opinion on July 19, L461. (291 F.2d 422

The opinion of the Court of Appeals dated February 1,

(1) .

1962, denying tha second applic ation for re shearing is re-

ported at 298 F.2d 793 and is Sppended. a games C)

‘Jurisdiction

The fodement of the Court of Appeals i= dated Sein 6,

1961, but was entered and became effective on February 1,

1962, the date of the denial. of the second application for —

rehearing. : .

Jurisdiction is conferred,on this Court to review the rs

judgment by writ of certiorari by Title 28, Section 1254,

s of the U nited States Code. |

ie Questions Presented .

(1) Should not: summary judgment be as available in

a simple negligence case as in any other type of case where

the facts have been fully developed by depositions. and

it is clear that negligence has not been, and cannot he,

‘proven according to legal ‘standards?

(2) Should Court of Appeals reverse a summary judg-

ment. without pointing oat’ any overlooked fact issue for -

the guidance of the district judge who found that none

existed, and ‘without considering the ‘‘matter of law’’ re-

lied on by’a district judge that a case niay not rest on

pyramided inferences, thus leaving the trial court and the

parties at a complete loss as to any fact issue to try or

.rule of law to apply, the reversal being grounded merely

on the nebulous pbrase ‘*vood judicial administration’’ and

other wholly inapplicable statements borrow ed out of con-

text and at random from nee different and more e complex

actions? . oe

; Rule Involved

This case turns upon the application of Rule 56 of the.

. . : * *

Federal Rules of Civil Procedure relating fo swnmary

judgments. (Title 28, US.CLA.) The pertinent portion of

the ruje, extracted from paragraph (c), ix as follows:

“The judgment sought shall be rendered forthwith

if the pleadings, depositions, and admissions. on file,

, together with the affidavits, if any, show that there is

"no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of. law.”’ : F o

Statement of the Case

The basic issue here, ast stated in’ the dissenting opin

ion in the Court delow, ix whether the tendency of. some .

courts ‘to, emaseilate the summary judgment rule as a

mechanism for shortening the tedious proceedings by which

justice is meted out”’, should be curbed. to preserve the

salutary purpose of the rule.- | ee

This case originated as a diversity action in the Dis- -

trict Court for-the Northern Distriet -of Florida. (See.

4332, Title 98, U.S.C.) The réspondents, Ernest W. Shahid

and wife (hereinafter frequently. referred to as the plain-

tiffs), sued the petitioner, Gulf Power Company (herein.

after referred to as the defendant), for $500,000.00 dan

ages for alleged negligence in the destruction by fire of

their Shoreline Hotel on April 16, 1957. ‘ j

‘The hotel was situated between U.S. Hizhway 98 and

the Gulf -of Mexico about 15 miles east of Fort Walton,

Beach, Florida. It was a two-story motel type holding

with wings extending in the shiape of a eu. The power

lines entered the hotel through a-oose-neck “metal -erv-

ice mast on the roof above the second floor, The lines

of de fendant terminafed just outside this goose-veck where.

they were spite ed tgplaintiffs’ lines. The goose- neck mast,

‘the wires encased in it, and all ‘of: the wires, switch boxes,

cireuits, fuses, electrical outlets, appliances,’ ete., within

the hotel belonged to the plaintiffs, were installed by them

and were thei ir sole resporsibility. “(Ro 12-15, 19, 198),

The fire was discovered about 3:30 AcM. by va guest

who arfused the plaintiffs by yelling ‘fire’? and blowing

K+) The fire started in a ground

floor storage and se, room, All electrical wiring and

equipment therein JPelonged exclusively to the plaintiffs.

(R 64-65, 69) The fire with attendant sparks was initially

‘concentrated in this downstairs. storeroom, Shortly some

‘additional sparking. was observed in. the upstairs store-

room immediately over the ground floor room where the

- fire first started. (R 72-74) The main switch to the hotel

power supply (owned and installed by the. plaintiffs x) was

located in this upstairs. storage room. (R40)> |

the hiorn of his ear.

Vice

No one, nat even the plaintiffs, ventured to give the ¢anse -

of the fire or to specify arty act of vegligence chargeable

to Gulf Power. . One plaintiff testified as follows: —

“Q Mrs. Shahid, do you know what caused this fire?

» th Feould not say what eaus sed it.

**Q. Has any one professed to tell either you or. your

husband or any one else, to your. knowledge, what

caused the fire? ae

‘A. No, sir, not that I know of. Of course we. dis-

cussed it quite often among ourselves and other peo-

ple.”’

Mr. Shahid, the other plaintiff, while admitting that he

‘never even knew anything about electrical work’? (Tt

112), ventured the guess that there was a dang>tous over-

‘Joad of electricity ‘ton the basis. of the arcing and spark-

ine T’saw before T left to call Gulf Power Company abd

(R132) The only areing and agg he saw Was con-

fined to his own premises (R35 2119) and his own elec-

trical equipment. How this sin any ne wwligefice onthe

part of the defendant ix not explained. 3

The: plaintiffs do lain the two emergency repairmen

made Statements that in effect inferred a ‘inalfunction

of equipment but, as will be. disc vussed more fully dater,

they quote both repairmen as stating that ‘they did not

know’? what caused the supposed malfunction, and there

ix nothing in the statenients indicating aly hegligence or

“any causal connection with the fire whatever.

“The case was fully developed on depositions. Mixten-

sive discovery depositions, of both of the plaintiffs appear .

at Ho18-143, They in turn took the depositions of thie

— defendant's two. eme regency linemen (Ro133-177), its hoe ‘al

Jnanager at Fort Walton Beach (Ro178-191) and its dis-

trict engineer. (R 191-230) - These five depositions cover

all the known evidence bearing on the case other than

emnulative) or. e¢or roborating testimony, The defendant

also filed an affidavit hy its vice-president and operating

manager giving his expert opinion on the. technical elec. .

trical aspects involved. (R. 10-16) The plaintiffs in op,

posing the suniniary judgment motion relied on the same

‘depositions (R 231-232) and, although they reserved the

right to submit “further affidavits: and reles ‘ant matter’,

‘they came forward with nothgis more,

The summary judgment Was the result of careful and

‘deliberate action in thé trial court. Mére than two years

elapsed between the filing of the suit:(Mareh 15, 1957,

R. 2) and the Egrmary judgment (May 4, 1959, R256).

‘The affidavit of defendant's expert was served on the

plaintiffs more than four months before the he faring on

the summary judgment motion. (R9) The i ad-

mitted in their depositions+ wthat they had conulted two

independent experts and. had creceived. a written report,

from one (R pes 142) but they offered no opinion or

affidavit from either and announced that they did) not me

‘tend to use an expert. (R17) |

The district judge smmnarited the situation when he

said : |

‘To the case bélone thise¢ ‘ourt we ds not have merely

strained evidence in support of plaintiff" conte wtion,

we do not have merely weak evide nee in its probative

force, we simply do not have any substantial evi-

dence Of any nature which could vive rise even to -

an inference, from substantial evidence, Conjecture of

otherwise, that fhe fire w as due to the negligence of

the Qiendant. .<?

“To hold otherwise would he to subuit to a jury

conjecture, inference, speculation without even a jump-

ing off ‘place to reach some kind of a ve side

e ° e * * * ~ 7 oo

“The mere fact that premises are burned to which

electrical current is supplied, standing alone, cannot.

be the basis for an action in negligence - against the

supplier of the current thereto.’ (Ro 225-236) °

The Court of Appeals reversed, hy a vote “of 2 to ‘1.

The majority opinion points ‘to no factual issne in dispute.

It does unfortunately attempt to create an issue as to the

admissibility in ev idence of statements attributed to de-

fendant’s two linemen. However, these statements were

admitted without.exception in the trial court and duly con-

sidered by the district judge in the eranting of summary

~ judgment so no issue of admissibility was in the record or

before the Court of Appeals. Indeed, if any part of the

statements received in evidence be inadinjssible, only the

defendant power company, not dhe pkaintitf-, would gain

from having them stricken. Henee, this issue, erroneously

cre ated by the Court of Appeals itself, does net exist and

should not be injected to de uy defendants an otherwise

proper suMiniary jrédernent,

~The. two opinions jot the Court of Appeals emphasize

that the woving party must under Rule a6 be entitled toa

jadgeme nt tas a Matter of law. * However, the opinions

do not coms sider at all the ‘matter of law’? on which the

district judze entered “Sumnimary judgment, to-wit: that a-

case may not rest on pyratmided inferences. Instead, the

ajority opinion equates toa ‘matter of law’? quotation=

nied holdin taken entirely ot of context cautioning

neainst tow ready a use of summary judgments in quite

different and much more complex eases. The opinion never

reaches the busie matter of law" ‘as to whether there is any

legally sufficient evidence or proper inferences (as opposed

to the. prohibited pyramiding of infe rrenices) to erefite an

i-suecas to any ne weligence of the defendant with iss gale

to the fire.

‘

Reasons for Granting the Writ

(1) The Court of Appeals has consider ably restricted

the scope of dhe summary judgment rule by cneratting on

it for general ap pic “ation various limitation~ theretofore

. imposed in complex. or yuu-ual cirennist: aces, Tt has

equated these imap propriate limitations to a disentitlement

to summary judgment .as a matter of law" even thoush

the case itself presented ne factual i-sne and the depositions

of the plaintiffs themselves and admissions of their counsel

showed they could not make a case without resorting to

pyramided inferences comtrary to both state and federal

law.

= ~

(2) Uncertainty and confusion will result itt the appli

cation of Rule 56 unless this Court reviews the decision

below and sets forth affirmatively the area in which summary

judgments may properly be vranted, and makes clear that

‘cantions heretofore expressed by it: and courts of appeal

are not to be applied out of ‘context, and indiscriminately

and cumulatively, as a reason for setting aside a summary

judement otherwise properly entered under the rule.

(3) The deeision below is not, in accord, with decisions

of this Court, and conflicts with, decisions from cother

circuits, in that it unduly restricts the use of the summary

judgment rule. -

* Argument

This case marks the exfrente in judicial narrowing of

the salutary summary judgment rule promulgated by this

Court. Review by this Court is. urgently required if

plaintiffs and defendants alike are to have. the benefit: of

this wholesome ‘‘mechanism for shortening the, tedious

proceedings by which justice is meted a

The sigitificance of this urgency can be appreciated when

it is realized that the volume of tort litigation exceeds any

other type of civil action and constitutes 360 of the total

civil case load of the district courts (1961 report of Admin-

istrative Office, page 152). Summary determination of

whether a ease presents a triable issue is beneficial to plain-

tiffs and defendants alike. ‘A plaintiff should be able, in

a case of clear liability, to obtain simmmary. judgment en

that issue with the beneficial resulf of a prompt settlement

or a trial limited to the measure of damages. A defendant ©

- should be. able in a ease such as the one at bar, where the

facts have been fully developed and even the Court of

Appeals in reversing can pinpoint no issue of fact to he

1 Dissenting opinion in court below, .291 F.2d 422, 433.

tried, to avoid the unecessary “expe nse of ‘preparms for

and conducting a long and expen> ive trial Indeed, both:

plaintiffs and defendants profit when spared from this

unnecessary expense and time consuming effort.

The orig}nal notes of the Advisory Conunittee on rules

traced the development of this summary judgment qpre-

cedure in Bagland and elsewhere and pointed out that

while some jurisdictions om: ade it available -only as to

liquidated claims or as to claims other than negliscence

actions, others had made if available in wy action, They

made it.elear that the rule they were submitting ‘tis appli

cable to all aetions. See notes to Rule 56 in 28 USC AS

That a case in the posture er the present one (the re+

versal of a summary judgnent enter red ne the district

court) i procedurally ripe for review on certiorari ts

well established by precedent.’ The judgment of the ‘ourt

f Appeals ic deserving of review not only because it is

ae CIEE, to the, further condnet, of the cense’ ! but

alse because the inte rpretation and ap yplication of an iin

portant rule of civil procedure is invelvedt.” eet

viewed hy the Supreme Court at this stage, the que-tien

‘of whether summary judgment shonld have: heen reversed

‘in this or any other case will bécome moot hy the renyaried

‘from the Court of Appeals to the Di-triet. Court tor trial.

Any further appeal avonld be from a judgment | predicated

* Law ‘Revie woartielesthated this proviste one that “will result net

only ina wide nee of the devgre but alee eh hate th veh: quibblinn: ae ote

the nature ef the Vartous setions nnd ther dex crew ot Sheantedatien oS

Columbia Law Resiew D456. ; ;

SVerton salt Co, NV. Sapper c . 8 28: ges 90923. Blin, Ietet

af Fast rn fia Co. 8 Burlergh. mS. Fib CMD)...

S fund \. Dyllar, KAU, XN. $58. Be ‘2

* Uniformity at uaale ateon of this rule ae peromnafeatedd by this Ceoart

compares Wa itr pee tances With mnifermery of apps! '

which pren pod ecertierary i i. \ ‘> hevter Brewing ¢ ip LS. ee

(1958). : :

: °

“és

on a jury verdict or’a direct@ verdict, or ion a judg

mient 0.1. Hhenee,. if ‘the rule is to. Ie protected from

erosion by overly cautious. or overly sensitive appellate

courts, a review by this Court of an improper reversal

of # summary judgment is required, The decision be

low was by a divided court on a vote of Zto dl Tt never

theless establishes an unfortunate pree wdent, Petitioner

sought in vain to obtain a considerition © bane by the

Court - Page under its vecently adopted Rule 2o(a), ’

(28 UUS.CLA. Rules ‘of Courts of Apreals, page 9 ae | of 161

pana pocket, part}.

' Cases Dealing With Summary Judgment

We start with the premise. that Rule OGG) meats what :

it. says and that symiuary - —piderent “hall be rendeqed

forthwith” if the recard shows “that there is ne-ge nuine

_ issue as to any mate rial fact and that the moving party

Is entitled toa judgment as a matter of law.”

This rule has been given effect by the wie Court.”

On the other hand the Court) bas re versed 2 summary,

jucdgnie ait where the moving party was not ontitled to.

as a matter of law,’ or where ‘att the record the fact issue

appeared to be settled contrary to the conte nition of the

wey ant.”

In addition, thie Court ha- announced certain cations

- limitations that should be observed in unusual or com

ies cases, — It reversed the Fifth Cirenit’s affirmance- of

/ é

® VYorton Salt Cav. Suppiger Co,, 314 US, S88 oEM2),

Asso sate d Pre ae Tptte d Nate %, ae) t =. 1 ' Tb °

International Salt Coon. Us., 332 US. pe C1

antomatyu Radio Manufacturing Co. v. Hacelting Research. Tne, i

US. S27 (1950),

U Griffin v. teri fin, 327 U8. cae (146).

* 4renas¥. United States, 322 US. 419 C1944).

coutrary to their testimony.” ‘

judee, net for is cog of nine.

it <mmnary judgment fixing damages om tha bast~ of di,

puted atlidavil= a~ te value from person~ who were either

officers of the def ondant or whose ifiterest< were eonimnen:

with the defendant and whe lewd given lke testimony ut

a previews trial of the same ¢ cause | in Which the jury found

This Court again reversal the Kitth ¢ ‘irenit's) afliem .

avee of a <wamary judgment Uf a gitne iwolvineg at tiat

ter of great public prolies where mew contention Wire

advanced in she Supreine Court ‘for the first time. where —

the case was ‘Yerund 1d be Stalmest ie a statins an whielt -.

it should come to a trial’ conrt So requiring the sortine

of documents. analy sin of statutes, the hearing aml:

duction of a thass of conthiet ing contentions as to fact

and inference, @te.. 'a- ask primarily for a,court of one

“Tt was in this back

xreuned that this Court sails, : ° :

° Pm -

“We aon sjder it the part of good judicial ay Aniinis

tration to withhold decision of the ultimate questions"

invelved i in this ease aintil: this er another record

chall present a more solid Dinnis oof findings ber-ed on

litigation: or on a comprehensive “tatement of agreed

facts. W hile we might be able, on the prese int ree

ord, to Peach a cone dusion that would: decide the case,

ito micht well be found later te pe lacking in the

tharenghnes~ that should precede judgment of thi-

» importance and which 1 js the purpose of the jad

‘celal process to. provide.

L Without intimiating ana cone Ans<ion oon the mertt..

we vacate the judginent= below mel rete fle ea-i

to the Distriet Court fer reconsideration® camel carnpeli

1 Kennedy vy Stids Mason C0 SON ts, 249 ¢1tss

? .

fication of-the reeord in the ligit of this opinion and

of present contentions.”" ¢

; Kenne dy v. Silas Mason Co., 334 US) 249, 257

’ (1048) | ‘i oe

-Following this secon? reversal the Fifth Cireuit: has he-

come ‘guneshy’ as to summary judemenfs, It lifted the

language quoted above. from Kennedy v.-Silas Mason Co,

and applied it in a case entiref® devoid of both the wreat

public poliey question. and the record difficulties there.”

The quoted language wa@- removed e®en farther from its

original setting when J court below lifted it a second

time (from its own fir-t quote. of it rather than directly.

from Kennedy v. mere Mason Co.) and applied it: here.

(391 F.2d 422, 429). ° The ca-e at bar lacks not only the

involyed record ail ulties and public policy question of

Kennedy vy. Silas Mason Co, Wt, also the situation ia the

Fifth Cirenit case in which the quote was first used where

the facts were peculiarly within the knowledge of officer-

of the defendant. Here the plaintiffs, not the defermdlant,

have all of the knowledge of the fire on their own premises.

The most recent opinion of this Court deafing with the

summary judgment rule isin Poller vy. Columbia Broad

casting Sustem.— US. ©, 82 8.01 486 (Pebruary 1,

19624. The Court reversed a summary judgment on a

vote of 5.to 4. In a substantial antitrust action defen.

ant relied on affidavits from three of its own: principal

actors and/a fourth affidavit from a party whe stood to

make a substantial profit. In that background the Court

said: , .

‘ ‘ ; ‘

“We believe that summary. procedures should be used

“sparingly ‘in complex antitrust litigation where motive

"Chapman v, Hawthorne Flying Service, 287 Ftd 539, SAL (19674.

~*~

and intent play leading roles, the weet ms largely 1

the hands of the alleged conspirators, and ok

Witnesses thicken the plot. It is only when the wit-

Hesses aire presgut and subject to Cross-examination

that thei ar credibility and the weight to be given their

testimony can be appraised.’

Even in that background. four Justices strongly dissented

and felt there is good reason for giving the summary

judement rule its+full le vitimate’ sweep.) That case is

in marked contrast with the ease at bar where there is

not the slightest suggestion of improper motive, intent

or conspiracy, and there are no complex ixsues or hostile

Withesses. ,

Conflicts Created by Decision Below

z . .

The decision below is net in accord with applicable

“eeisions of this Court inthat it goes well beyond any

limitations or cautions imposed or suggested by this Court

ini the above cases ap plying the summary judgment rule.

Moreover, it is ‘int eontlict with eases from ote r circuits .

where the rule bas been given full effect in ——

situafion~.- For example, the Tenth Cirenit: affirmed

> stminary judgment in favor of the defendant vallrogd

in a vegligence case gre wing out of a crossing accident.

Its summary of the case before it could be applied ver-

hatin heres : ° ; i a y

The intecilaisls here do: wot contend that all of the

pertinent faet= were not They simply say that

they presented: a jury question, Le. that the estab-

lished facts were susceptible of an inference of ae

tionabie: negligence of the part of the railroad. If.

therefore the established facets do not ‘vive rise to

b permissible inference of actionable negligence, the

14 ;

summary judgment was appropriaté and ought to he

affirmed.’”’ ,

Lopez v. Denver & Rio Brande Western’ Railroad

Co., 277 F.2d. 830, $32. (1960)

| ea

The Fourth Circuit similarly affirmed a summary jude

ment in favor of a power company and a‘ railroad in an

accidental electrocution case. What that Court said could

also be applied here, as follows:

“There is no evidenct of the existence of any fact

which, when construed in the light’ most favorable

‘to the plaintiff, will support the requisite inference

that either defendant was negligent in respect to the

death of Robert Berry. Here the parties do not dis- cS

agree. as to the material facts of the case, their dis-

agreement resting solely upon the application of the

law to the facts. We are of the opinion that the

action of the District Court in ordering summary

- Judgment was proper and must be affirmed.’’

Berry v. Atlantic Coast Line Railroad Company,

273 F.2d 572, 582-583. (1960)

The Non-Existent Issue Created by the Court of Appeal»

We emphasize. again that the opinion of the Court of

Appeals fails to bring to light a single factual issue for

trial. The opinion, unfortunately and erroneously, does

express doubt as to the admissibility of statements attrib-

uted to the defendant's ‘two emergency repairmen and -

states that the scope of the agency of these repairmen to

hind the defendant by their statenrents should be ‘‘more —

“fully developed .upow the trial.’. “However, neither the

agency nor the admissibility of the statements was chal- |

- @

15° - @

lenged in the district court. Henee, no error was assigtied,

or could have been assigned, of this question. The defend-

ant did argue in the Court of Appeals that the statements

might not be competent, not only as beyond the scope of

ageney but ‘as mere expressions of opinion rather than

facts, citing 3t CUES. 1115. The Court of Appeals dis-

avreed with this argument, unfortunately misconstrued it

as if it were a ruling of the trial vourt, and gave this as the

only specific ixsue to be **developed upon the teal’

‘But this <cope of agency Was a ndu-existent issue, The

trial court had accepted and considered the statements of

the repairmen, whether rightly or wrongly. The defendant

sought earnestly to point thix out to the Court of Appeals

in both petitions for rebearing. In <o doing, and in order

to avoid an unfortunate and unneéessary reversal for an

expensive and time Céff-uming-trial, the defendant readily

conceded arguende the agency of the repairmen, even to the

extent of accepting the ‘expressions of opinion attributed

to theni, and proceeded to point out that there was still no

jxsue of fact presented or a basis for an inference of nex-,

ligence.- :

The lineman Barfield ix supposed to havé said Two well

placed bullets could have ended all of that."" This is the

complete “ adniission.”” What inference of negligence docs

it support? ‘Any customer can cut off his power by shooting -

out the transformer, through which the current flows, re-

wardless of whether bis building/is on fire or he just want~

to indulge in a Jitthe mischief. ‘Even Mrs. Shahid herself

took the <tatement to mean only that the shots ‘could have

covered their enrrent from our buildings.” (R37) The

cocond statement attributed to Barfield is that *“T truthfully

don’t know why those jack< didn’t work, but if vour jack

had worked your hotel would, never have burned down.’

A similar statement ix attributed to the other lineman,

‘g

ae 16

Ratliff. According to the statements themselves she line-

men said that they just ‘didn’t know’’! Certainly no

admission of negligence flows from Inck of knowledge.

The power within the hotel had-gone off by the time the:

@-« . “4 * . **

plaintiffs were awakened by their guests shouting **fire

and, as power was still supplied to their neighbor's beer

sign, obviously plaintiffs’ own fuses had blown, probabiy |

because of a short or an Overloaded circuit within: the

hotel itself (R 13, 213) for which the defendant would in

no wise be responsivie. 4

It may be reasonable to assume that the fire started from

a short-circuit in plaintiffs’ own interior wiring or etynip-

ment. - However,-it would also be just as yeasonable to

assume that a small fire, not_of elect ricaLorigin, had started’

in-the storage room, and tliat it broke down the insulation

on plaintiffs’ wiring or equipment, theréby cansing electri-

cal sparks. The record suggests a number of sonrees of |

such a fire. Extensive carpenter work was in progress in

the wing where the fire started. (R32, 102) The storage ,

room where the fire began contained ‘linens, ‘toilet | tissue,

mops, buckets,’ brooms, wax (R 99) and perhaps some

furniture polish with rags. (R100) The air conditioning

: unit for both floors of that wing was also located in this

storaze foom. (R75) In addition, it contained a Butarre

gas hot water heater (R 75) which doubtless included a

' burning pilot light. Indeed, the flashes.that the plaintiffs

claim shot from this. storage room ivross a five foot con-

crete sidewalk out on the grass lawn were ‘the type that

would be characterisitie of gas flashes rather than eleetri-

‘eal, (R-13-14) cee eT me |

In-any event, whether the fire was of electrical origin

or was of some other-origin with an early involvement of

electricity, it had been in progress for some_little ‘time

before the arcing and flashing on the outside wires -leading

- , ie

- fis *

> ° . a

* Tu : . 7

=” |

“~s

17 5

into the service mast began. It is therefore most’ likely

that the fire that had originated on the plaintiffs’ side of |

their main switch had in the meantime broken down the

insulation on the still lice wires in the seryice mast, pipe

that extended. from the opposite side of their main switch

out to defendant's wites and transformers. The inevitable

consequerice was a short-cirepit: in these comiuctor wires,

with the areing and flashing observed by the™ plaintiffs...

Thus we have the only reasonable explanation of this

arcing and flashing. “See the affidavit at R 10-16.

The jacks or fuses on the transformer pole, to whieh the

statements of the linemen refer, could not have become

involyéd sooner thar the occurrence of this arcing and

flashing, some time after the fire had originated and spread

upstairs.

‘

_ Electrical Fire Cases ‘

In the case of Reichholdt v. Enron Electric Companu.

329 SW 2d 654, (199) the Supreme Court of Missouri

reversed the trial court for failure to grant a direéted

verdict in favor of the defeidant power company, There

the fire started on wires of the home owner between. the

connection with the: power company wires at the service -

mast and the customer's main’ switch. ‘This point was

therefore on the power company side and beyond the’

protection of the'enstomer’s main switeh or cireuit breaker, -

In contrast, the evidence in the present. case conclusively

ostablishes that the fire originated on the plaintiffs’ side

‘and within the protection of ‘their main cirenit: breaker

—orswiteh. (R25, 39, 87). In the Missouri case, as here,

he power company tine ran from a transformer to the

top of a service pole and the customer's. Wires ran from

that point through a conduit te the cirenit breaker or

main switeh and it was i this streteh of wire owned by

‘

the customers. but located on the power side of their

main Switeh that the fire originated. They claimed, with

the aid of expert testimony, that the power company

should have’ used .transformer fuses (jacks) ofa lower:

rating sufficient te protect them from a short on their

own wires that were not within the protection of their

own circuit: breaker. The, Missouri Supreme Court «dis-

agreed. ,

“We have concluded that defendant. did not owe any

duty to plaintiffs to’ fuse its transformer so as to

afford protection to plaintiffs’ property from dam-

age resulting from detects in the wires owned and

controlled by plaintiffs and hence the trial court erred

in overruling defendant's mation | for a direeted ver-

dict. We think that the rule we. hereafter. approve

is not only * reasonable and logical but. is supported

by the ereat weight of authority. ©

“The duty and responsibility of a mere generating

egmpany is eenerally held to be-limited to making a

proper, connection ‘and delivering the electric current

to the purchaser's w.res and appliances in a manner

which, so far as such delivery is concerned, protects

life and. property, and there is no duty of inspection

to see that the purchaser's wires and appliances are

in a safe condition and kept. so. +

baal e @ * * *. *

“In considering the difficulties that would attend the

adoption of a contrary rule, the court, in Minneapolis

General Electrie Co. v. Cronon, ath Cir., 166 F. 691,

695, -stated: ‘Can the company, unbiddem, enter at

will’ the privaté house of the eitiZen and pass mto—

its various rooms to inspect these wires every cay

19 ? 4

to see that they are in proper condition for the re-

ception of the electricity it has contracted ‘to’ sell?

If so, it must employ a large retinue of competent

men to do this werk; and, as ‘absolite, insurers under

the rule contended for, the necessities of the “situa

tion would demand that they should have free access

to these buildings at all hours and under all condi. -

tions. ‘Such a rule of jaw would tend to put concerns

furnishing electricity to private‘ houses out of bus

te ° , 99

Hess,

In a suit seeking damages for the destruction of a dry

cleaning plant by fire jon the alleged negligence of a power

company a directed ‘verdict for the defendant. was sus-

stained on appeal in the following language: 7

“The most that the evidence shows is that there was

a fire; that the conduit housing the wires was rup-

tured, and that this rupture could have caused the

fire or that the’ fire could have eaused. the rupture.

“As far as this record shows, the fire ‘could have

started in.any one ‘of many different ways. Fires

and their. origin: are of a mysterious character and

it. is not within the province of a jury or court to

» speenlate as to their beginnings. The mere fact that

the fire damage was greater in the vicinity of the.

meter board and conduit does not furnisly the basis

for a finding of fact that the fire originated im the

conduit, A verdict against the defendant would neees-

sarily. be based upon conjecture and speentation, We

consistently have held that. liability cannot fe-t” on

such A basis. (Citing cases). iy ° .

Swath \e, Keitucky-West burqa Power Co., 283

SW. 2d 376, 308, (Kentucky, 1999)

A Cane May Not Rest Only on ‘Pyramided Inferences

The district court well cummarized the pyramided in-

ferences upon which, the plaintiffs rely :

‘Here plaintiffs and their witnesses merely describe

certain electrical phenomena upon © ‘hich they “wish

the jury to be permitted to infer (1) thaf some un-

identifiable dangerous cofidition existed, . 2). further

infer that the defendant was ‘responsible for the con.

dition, and 43) still further infer that this conditions

caused the fire”? (R255) (Numbering of inferences

added) nes

The plaintiffs conceded that they were relying on these

pyramided inferences. The pertinent portion of their

brief in the Court of Appeals” is quoted in the second foot-

note to the dissenting opinion below as follows: ,

“The appellants are unable to pinpoint the exact —

‘cause of the fire, except that it ean be reasonably

inferred from their testimony (1) that there were

some defects in Gulf Power Company's equipment,

(2) which caused dangerous amounts of electrical

eurr@ht to come into the hotel, (3) starting the fire

and preventing the appellants from extinguishing the

said fire.’ (291 F.2d. 422, 430) (Numbering of in-

“ferences added.)

A surprisingly parallel recent ‘Florida case iMustrates

the rule that prohibits building an inference upon an’ in-

ference, A passenger sued a common carrier tor injuries

suffered on a cruise ship “when -she fell from a ladder ih

descending from an upper” bunk. Notwithstanding the

duty ‘resting on a common carrier to exercise the highest

degree of care for. the safety of its passengers, : and al-

though the fall was due te an unexpected eaneinecnt - of

the ladder, the appellete court reversed a judgment for

the plaintiff and ordered the entry of ta summary judy

ment for the carrier. | The Court said:

“Viewing the testimony and evidence in the light

most favorable toe the aphellees, it appears that for

approximately six days they had used the ladder in

ue stion without? mishap and on the seventh day,

When the appellee wife was attempting to descend

“from the bunk, she placed her foot on the Indder,

it moved and she fell to the floor, There is an ab-

senve of any evidence ‘relating the movement of the

Jadder to the alleged breach @f duty on the part of

the appellant and, under sueh circumstances, -L0 per-

mit the case to ge to the jury invited specalation

and conjecture on their part es to how the aecident

occurred, There is no question that the movement.

‘of the tadder was ee immediate cause of the appel-

lee'’s fall, but there is nothing in this record to show

why it moved. The jury Was required under the.

circwnstances to infer that’ there was negligence on

the part of the appellant in providing a defective or

inadequate ladder. and upon that inference, to infer

further that such neghgence was the proximate cause

of the fall, Clearly the record does not suppoet the

conclusion that the initial inference was justified to

the exclusion of any other re asonable inferences cand

therefore, the rule prohibiting the finding of an ‘ulti

mate fact onan inference based pon an inference

- controls. (Citing che sex)" | _ =

MeCoriivick Sripping ¢ ‘upporation ve Warner, 120

Sood 448, 40 (3rd District, Fla, May s, 161.)

So)

* The Florida rule has been clarified. and underscored by. *

the orida Supreme Court in Food Fair Stores, Tne., ¥-

Trussell, 131 So. 2d 730 (1964). The Court quashed a

reversal by the Florida district court of appeal and yein-

stated the summary judgment entered on affidavits by

the triai court. This was a ‘slip and fall’” case brought

by a customer against a super market. The rule against

pyramiding inferences is state@l in that opinion as follows:

‘On the basis of the statement that in the past ‘some-

times loose leaves would fall from the buggies to the

floor’ the respondents urge that a jury would be justi-

fied in inferring that in the instant case the loose

leaves dropped from a buggy being pushed by an em-

ployee, ‘that the leaf on the. floor in this particular

situation created a hazardous condition and that this

condition was the proximate cause of Mrs. Trussell’s

injury. It-is apparent that a jury could not reach a

conclusion imposing liability on the, petitioner without

indulging in the prohibited mental’ gymnastics of con-

structing one inference upon another inference in a

" situation where, admittedly, the initial inference was

‘not justified to the exclusion of all other reasonable

inferences.’ mt

A we

The federal rule against pyramiding inferences 1s,

equally favorable to our position.” In a landmark case,

Manning v. Insurance Company, 100 UA. 693, 698, (1ST),

using the word ‘presumptions ”” interchangeably with ‘‘in-

ferences’’, this Court said: . | ,

“The only presumptions of fact which the law ‘recog:

nizes -are immediate inferences from facts proved.

12 Until now in the Fifth Cireuit the state rule has been followed in

testing the sufficiency of the evidence. Whether this is correct remains

in-doubt. Dick v. N.Y. Life Ins. Co., 359 US. 437. ¢

»”

Remarking upon this subject ‘in United States v. Ross

(a2 US, 281, 284), we said: * Whenever circumstantial

-evidence.is relied upon to prove a fact, the circumstances

must he proved, and not’ themselves be presumed.”

Referring to the rule laid down in Starkie on Evidence,

page SO, we added : * Tt is upon this principle that,court~

are daily galled upon to exclude evidence as too remote

for the consideration of the jury. The law requires an

open and visible connection between the principal or

evidentiary facts and the dedugtions from them, and

does not permit a-decision to be made on remote infer-

ences. Best on Evid. 95. A preswurption which a yary

may make is nota circumstance im proof, aud it is not,

therefore. a legitimate foundation for a presumption.

There. is no open and visible connection. between. the

fact out of which the first presumption arises and the

fact sought to be established by the dependent pre-

sumption. Douglass v. Mitchell, 35 Pa. St. 440°."

(Kanphasix added.)

Ine Laston, ve Hatzel & Buehler, 142 F.2d 913 (6th Cir.

1944) plaintiff’ case rested upon a proven failure of

equipment. ~The. plaintiff was a night watehman for an

important defense plant. The defendant, under contract

with plaintiff’s employer, had installed extensive illumi-

nation of the plant grounds. A heavy exterior lamp fell

on the plaintiff causing serious, and permanent injuries.

The lamp was se rigged that it conld be lowered bya heavy

chain in event of bulb failure or other troublé, Various

safety devices were provided to prevent the damp from

falling. . For some unexplained reason the lamp fell and

plaintitt was the pathetic victim. After pointing out that

there must be more than a mere possibility of faukt on the

_part of defendant, the Court said: <i

% hess

ie Lat

‘Before appellant was entitled to have bis case =u)

mitted to the jury, he was required to introduce sub

stantial proof tending to show-that some neghgenes of-—

‘appellee was. the proximate cause.of his injuries. Our:

conclusién is that no such proof, direct or cire ‘umstantial,

is found in the record. | As above indicated, there is an-

inference: that the lamp ‘el! because the chain was not

attached to the hook, bw there is no evidence, if --uch

condition existed, that appellee was responsible there

for. (142 F.2d 913;916) .

The Court proceeded to affirin a directed verdict for the

defendant, stating that: ‘

“**Before a Court may submit to the jury the question

of whether an act is negligent there must be at least

some substantial evidence of what the act i-.""

In cases where the dead maii's statute and ‘the parole

evidence rule would prevent the plaintitt from “making

a case a summary judgment has been entered tas a matter

of law."’) The same result should follow here where the

plaintiffs cannot Winke a case heeause of the rule against

pyramided inferences.

The Inapposite Cases‘ on Which the Reversal Was Predicated

Finding no fact issue afd no substantive, “matter of

~ law"? on which to predicate its reversal, the Court of Ap

peals relied instead on a conglomerate of quotations taken

out of context from earlier cases quite distinguishable

from the present case. If these quotations and citations

3 Appalonio v. Barter, 6th Cir. 1954, 217 shoo a” .

19 Ford v. Luria Steel & Trading Corp., Sth Cir, 191, 192 Fd sso,

Gillis ©. Miners and Merc hante Bank of Aiaska, i (ir, 1959, 271 F.2d

‘163. -

are- permitted to apply in the case at bar, they can with

equal justification by applied to reverse any summary judz

meat regardless of the type ‘of action in which it arises.

i allowed to stand as the law of the Fifth € ireuit cwith

probable ~pread fo Or erretited the summary judgnnie’ tite.

rile might as well be repealed. We examine these cases

briefly. Riss * . od

i Valmet ve. Chamberlin, 5 Cir. VV Fi2d a2, 540, AN

quotation from thi< case <tutes that the Court should mot

erant # sufeiary judgment mstil all of ‘the f fact~ and cir

cumstances have been sufficiently developed to enable i te

wiake a correct determination af the question of law. The.

opinion, hawever, omits the last sentences of the paragraph

from-which the quote is taken which reads as follows:

“Tn the ease at bar that bad been done. amd we have

ne doubt that the Court correctly determined that the

contract was valid.’ (Page 540)

Tu ott case the record refleets 252 pages of proceedings

and testimony fully covering the entire case. There is ne

suggestion that any other witvess could add anything but

cumulative testimony. “There ts ne -intimation that any

information has been withheld by either party. There wis.

nothing more te do atta trial exeept fo rehash the <arne

testimony. Tf Palen vo Chow fe rlin is to be correct],

applied, the Court here should ~as that as the law and the

facts were tully developed the trial court corres tly entered

a ttre juedgcreent.

Ih mandre ¥. Lihewta Mataal lusuranes Company, Be

Cir, 150, 264 Bid 70, 72. Dn this ease althoneh the re

fice: Wann cletsompsitiatech a reeotions Por seatetears jredaeienst, the

The di-senter below aptiv rencarkeed thot “beth puartie~ boce toothed

the-cow dts - LOR Fd 422. 455 y

Court treated it as a motion for a jndement on the plead

ings as there wa. no evidence or affidavit-. only the plead

ings plus an endorsement to the insuranes poles Involved

ithe suit, Broad coverage question were presented on

which evidence ‘gould supply the ‘tspecitie facts" instead.

of the general allegations in the plaading= Tn reversine,

the Court of Appeals merely held that absent the essential

facts ia judgment on the ple: uding Wits iniproper, - Kven the

passage the opinion below ytlotes from this case is limited

jo whether the ‘facts’ stated am the complamt present a

‘cenuine issue ats te any inaterial faet’2° We sibrit that

the more than 2OO page. of actaal testimony covering all

of the esential facts make it entirely mmappropriate te apps

here a rule announced as to the propret of a judement

on the pleadings. .

Alabama fireat Soo Wh. Co. V. Lowisedt af Nashvill.

Roo. 5 Cir, 1955, 224 Pitd 1.5.0 Here again, the quota

tien is out of context. Phe’ ease invelved only the ames

‘tion of whether wanton negligenee, as distin: tisherk fron

sirnple negligence, hod been ostablished as a matter of Law

That ease points out that under Alabama law there 4-

inherent in waaton negligence ‘the idea cof moral fault.

arising from, a consciousress that the aet done or omitted

to be done would probably cause serious injury, anid the

doing or failing to do, the avt, despite such conse ioustiess,

with reekless indifferenee to consequences" 0 The Cost

then sated:

, ¢

‘In MANY recent cases, Where motive, intent, subjective

feeling-~ camel reactions, CONKMOBANPS< anid Cote ome e

were to be se are head, ated ox: ay recat ian and Cross eNaty

Hation Were necessary instruments in obtainier the:

tratho we have pointed ouf that amg why the issues

mis not be disposed of on saiary judement.~

~ .

-~?

Noe wWantonness. ne motivesno intent, no subjective feelines

and reactions, ete, are involved in the case here on appeal.

4. Dory. Mar Houser. rid Cir, 1592, 201 Peed 26, Mj)

Even the Court of Appeals itself, ty denvine The secre

appleation for rehearing, admitted ‘there t- no indies

tien here that any Witness Was relnetant so as to spustits

the application of Judge Learned Hand + comment ‘thet

the immediate presence of a judge ina courtroom was likels

te take hiny tell more 7° Ewen so, the Cour below af

hered te it~ reversal and. refused te recognize that the

testimony discloses no factual issue.

» Subin vy. Groldsmith, 2nd Cir, 155, 224 2d re ae

This was a stockholder’s derivative action attacking the

proposed purchase by his corporation Of another busines

to dis alleged detriment. The defendant corporation

moved fora summary judgment based on three afliday ite

that were found te be ausufficient because thes were either

material or not based on personal knowledge, and a>

fourth affidavit by only one member ef the board whe:

Wits Withont authority to -peak for the other members Wt

Wa in this cbackeround that the language quoted in the

opinion below wa. used, te the effect that where the tact.

are geenliarls in the knowtedes of the dafendant~ or ther

witnesses, and the motive. and manipuiation~ of the «be

tendant. are in issue, the plarotiff should have an opps

tunity te examine the Witnesse. at) the trial ae ther

demeanor tas be the most effective iapeachment

6. Sentille. vo date , ‘ avihhe an Corporation, VII SON

TLS. 167, 10, 11 Thi- cine eatt ands with the quros int

ot the Juans ter sbriaw prifewe rier ath Perego d Peo acgipacet ives

ON Pron ttiate eatse. wot woetl inte Vere. "Ge for the gere-

enjetenes ot neulpyenas iteelt 1 Sentille hee tyre pers rere

(or Unseuworthine==) was not conte fered root Wie st fe tiga

Om ; .

that the petitioner suffered a seriou-~ ‘case of tuberculosi-~

The sole question was whether his fall on respondent’=~

vessel could have proximately caused his tubercular coud

— tien.

Three links are essential if a plaintiff is to torge a ehain

* id . .

sufficient to make out a ease; toowit: (1) negliwenfee, (2)

- causation or proximate cause, and (5) resulting damage er

injury: In Sentilles, the first and third were admitted and

ihere was some evidence sufficient to ge ty the jury on

number (2). Here however, oniy the third (damage) i-

established. Plaintiff< admitting that they” themselve-

caniot point out any negli¢gengs on the part of the defepd

‘ant, asked the Court first to infer some unspecified negli

genee as a result of the normal manifestations of a short

cirenit (areing and flashing) and then to infer. can-al

connection, They would build inference upon inferener,

Sentilles is no authority for this.

7. Chapman v. Hawthorne Flying Service, 5 Vi, VON,

7 F.2d 539, 541... This case i- comparable to case No.

+, Subin vy. Goldsmith, supre, where, unffke the present

case, the facts were peeyliarly within the knowledge of

the defendant. We have #lready noted how this Chapman

case lifted from the Supreme Court opinion mi Aennedy

v. Silas Mason Co., 334 U.S. 249, the high sounding phra-«

of ‘good judicial administration’’ and stretched, its" ap

plication to a situation quite different from: its original

employment. This lifting out of context was carried te -

an extreme when the phrase wa- borrowed fram Chay

man, rather than from its original seuree, and applied

here in a case having nothing in common either with

Chapman or Kennedy v. Silas Mason Co,

. Conclusion

Since it is clear that the polaainst itt ~" chain) test- on pyre

mnided inferences and theretore ‘as a matter of baw ** shane<

not present a jure imate, ceted ao~ Tiere ate tne (pines thon

of credibility, coneealment. conspiracy, bidtben imetives or

tine Nike requiring serutins aid persons obmerviation at

a trial, clearly the Conrt of Appeal fell be reversed

and the stmamary judsginent ststatnedd” Whey pout the pear

tres te the considerable « pense amd effort of a protracted

trial when a directed.verdiet will ines tally ensue! Cit

eine this Court in theetest. Moore in hie treatise sav-:

** Pout funetiongtly the theesrs under tvrnes a abetienr: fer

sunny judgment tis essentially tile same a~ the

theory underiving a motion for directed verdiet. The

ert. of both theorte i. that there ee te sennine is

sue of material fact to be dheternriteced bow thee Traew of

“the fact-,| nd that on, tie dew cappltcabte te the es

tabelistyerd Faet- the thevant ¢- entled te judement

Ae Sustict Jackson states in yoter \. Arkansas Net

PTT ae ee Siena rs dispagition ., shrothd be

on evidence whieh a jury would wet be lat Tiberty te

disbelieve and whieh would require a’directed verdtet

for the meving parts

rh Miiore’- Kevferal VP rstet tee ce ‘ wine Tire

P o-

An affirnmtive endorsement by thi- Cipnis at the peregerr

nee of simMary judgment Procedure.” would serve asanest

-alutars purpese wint at thi- tine, follow ine elemedy aahter

the limitation recently tupessedd an Mailer v.66 winbor Broad

TAL fem-t tur deyi-tomn “oot the Pitth © oreat etteserite te the alten:

principle tut are Aeprarted trea tt the eaee at eer, Pigamon'« Mut, te

to ¥. Aponwang Mia C+ Wh Gi 1s Ge ee, ee ee ee Lor

Valo Be ash Destruct \. teeethare. te Css. DM, berg Fd rior

: . - . .

“ by . e 2 nee : ve .

casting System, Ine., supra. It would also serve. to pre- . :

vent the further misuse as a basis for the indiscriminate

reversal of summary judgments of the phrase.** good judi-

cial asain nat this Court originated in Nenuedy

v. Silas Mason Co, 354 VS. 249 (1948). ‘Until there is -

an affirmative ERAS +, atv deliniation of the proper

use of the rule itis functus officio in thes Fifth Cirenit for

all practical purposes. It has been buried wrongfully in

sthe same of *vood judicial administration’? and on the

basis of the cumulative efféet. of a collection of quota-

tions applied contrary to the context from which they

were taken.

For. the Teasons above. set fortli the petitioner prays

that writ of certiorari be granted. .

Respectfully submitted.

EK. Dixte Beses,

Pensacola, Florida,

Attorney for Petitioner.

Beces, Lane, Dates,

» Mippesrooks & Gaines,

PO. Bor 151,

Pensacola, F lorida.

° — Of Counsel, .

—

APPENDIN A

‘As toe Uxrrep States Distnicr Corin ron tHe Norriens

Distiier oF Froniva, Pexsacory Divistox —s

Cavin. Actos No, S45 a

Eexest W. Suan and Mancesrer 2. Suan, individually ,

and doing business as Suonenixe Hore. aid Cortace

Corony, Plaintiffs, , ade

f fs

Geir Power Comrany, a corporation, Defendlauts,

Mesonannr a-Deecisten

This matter is before the Court on motion of detestd®

ant for. summary judginent pur-uant to Rule 56 of Soderal

Rutes of Civil Procedure. Plaintiffs’ complaint“consists —

of three Counts. —The motion is directed to, each of. the

Counts aid will be disens-ed here individually.

The material allegations of | the First Count are that

defendant Power Company nest lizently failed to cut off the

current after it Was notified of Aire at ulaintift.* byetiises,

resuiting in the destruction of plaintiff.” prope ry by fire.

The plaintiffs do net charge the defe Pod with any re,

sponsibility for the origtt of the fire in this Count,

The depositions and affidavits relied upon by defend-

ant in support of it~ motion in this regard are in no way

disputed by any of the documents relied upon by plain.

tiffs. It affirmatively appears in regaml to this issue as

to whether or, not the defendant negligently failed to eut

off power prouptty after notification by the plaintiffs that

the facts are not in di<pute.@ The plaintiff in their depo-

sitions aver that the det fondant’. servicemen were slow

ein argiving at the scepe. but it is riot disputed that the

power was not already off, and there ix no ‘showing that

the defendant could, oy should, have ent off the power

sooner than was acemuplished prior ‘thereto by safety

mechanisins. - This being -0, there is net even the possi-

bility of inference thatthe exertion of mors diligence by

defendant. would have prevented o mitigated the damage.

7 ’

ao?

) .

“Counts Two and Three of the complaint charge the de-

fendant with negligently starting the fire, either through

failure to provide wget 2 from an overload of current

or from transmitting curment to the hotel premises to the

defendants premises in such quantity er in sych matner

as to start the fire. Admittedly, the fire was of electrical

origin. ‘The depositions of plaintiffs establish that the

fire started on the ground floor of the hotel building in

a room housing the. electrical equipment of the plaintiffs.

Plaintiffs state that they sfiw arcing and sparking in this

‘room, and liter on the service lines running from the

defendant's transmitter pole to the service mast en top

of the hotel, and that. eee there must be an in-

ference at least that the fire might have started from some

negligence on the part of the defendant. . :

Even placing upon the defendant, as the law des, the

duty of extraordinary care in the operation of its busi-

nesscaml considering the matter, here on motion for sum-

mary judgment most stringently against the movant, the

Court concludes neverthefors that there is not even the

modicum of evidence necessary to submit a material ques-

tion of facet to the jury and that defendant's motion for

suinmary judgment, should be granted.

In reaching this conclusion, the Court) has considered

snost carefully the case of Yelverton vy. Adams, decided:

hy the United States Court of Appeals:for the Fifth Ci.

enit and: geported in 262-F.2d 146. In) Yelrerton the

District Court’s ‘granting of motion for sunimary judg-

ment was reve rsed with the following comment: +

7 hile the evidence as to whether the firé was: elec.

trically caused is wholly cireumstantial and looked. .

at as to ifs weight, seems rather too tailored, pieced

out and made to order to carry the fullest convie-

ne we are of the clear option that we cannot say

of it, as the district judge did, that it is. wholly in-, ~~

“athe ‘ent to take that phase of the case ‘to the jury.

On the contrary, circumstantial as the eyilence is,

holsteredas at is by self serving and interested testi-

mony and smac ‘king to-some extent of a contrived or

confected case, we think we must say that these mani-

ee. .

festations more affect its weight that its admissibility.

in ‘short, whether on the whole it presents a credible

or an incredible story is a question of fact and not

of law, is net for the court but for the jury to say,

and it was error for the district judge, without putyimg

the defendants to their proof, to: take the case from ~ al

In the case before this Court. we do not have merely

strained evidenge in‘support of plaintiffs’ contention, we

do not have merely weak evidence in its probative forces,

we simply do not have any substantial evidence of any

ature which could vive rise even to am inference, from

substantial evidence. Conjecture or otherwise, that the fire

here was due to the negligence of the defendant. In Pel

rerton there was at least some proof of a. jumper wire

or other specifie condition that the power eompany in that

‘situation was charged with having failed to deteet™ upon

inspection, or having failed to remedy after complaint,

Here plaintiffs and their witnesses merely describe certain:

electrical phenomena: from which they @ish the jury te

be permitted to infer that come unidentifiable dangerous

condition existed, further infer that the defendant was re-

sponsible for the condition, and till further infer that

this condition caused the fire,

The entire burden of all the evidence before ‘the Court

in this case compels the Court to the view that there ts

a very obvious distinction between the two cises, To hold

otherwise Would ‘he to subriit) te a jury conjecture, in-

ference, speculation without even a jumping off place to

reach some-kind of verdict, The mere fact that premises

are burned to which electrical current ix. supplied, stand-

ing alone, cannot. be the basis for an action in negligence

against the supplier of the current thereto.

Order will be entered this day in. conformity herewith.

Dated this Ist day of May, 100.

Gi. Liatkotup Carnsweir,

United States District Judae,

APPENDIX B

Ix rue Unirep STATES (" ‘OURT oF APPEALS FOR THE Pieris

; Cincurr

A ; No. 18177

dually

Erxesr W. Suan and Mayiarer P. Suan, Tn

and do boa SHortuine Hore, and Corrace CoLosy, Ap-

pellauts, -

Versus

Guir Power Company, Appellees

Appe ‘al from the United States District Court for the ?

Northern District of Florida 7

(June 6, 1961.)

Before Rives, Cameron and Brows, ( Socal Judges -

Riv es, Circuit Judge: This*appeal.is from a summary

judement in favor of Gulf Power Company, defendant

below, and against Ernest W. and Margaret P. Shahid,

_plaintiffs below. The plaintiffs sought $000,000.00 dami-

cages from the defendart for its alleged negligence Li

the destruction by fire of the plaintiffs’ Shoreline Hotel

on April 16, 1956. The sda presented are whether

there was ay venuine issue as to any material fact as to

the defendant's alleged neeligence, and whether the defend-

ant Was entitled to judgment as a matter of law. - Rupe

6 (¢), Federal Rules of Civil Procedure.

The salient facts were these: Plaintiffs’ hotel was <itu-

‘ated facing Highway 9S and the Gulf of Mexice about

fifteen miles east oft Fort Walton Beach, Florida, and a

ditthe less than a mile west of a substation maintained by

the defendant. At the substation the current which was

conducted to plaintiffs’ premises Prom the east was re:

diced to about 12,000 volts. P laintitfs’ hotel was serviecd

by wires passing through a tr: ansformer situated just off

of plaintiffs’»premises where the current Was further re-

duced to 208 and 120 volts.

On the morning of the fire, Hetween three and four

. o'clock, plaintiffs were awakened by loud shouting of a

guest accompanied by continudus blowing of his antomobite

horn. Upon arising they found that the hotel was in

total darkness, and upon looking across the road they saw

that lights were. burning in a tearby establishment, from

which they knew that the trouble was upon their own prem

ises. Dressing quickly, they went towards the point where

the guest-was giving the alarm and found sparks, which

they took to. be electrical sparks, being emitted from a

ground floor storage room through a louvered door. In

thix room were located: the fuse boxes and circuit breaker-

connected with the hotel's electrical system. The room:

above, from which some evidences of fire were “observed.

contained the main switch by which the electrical current

into the hotel could be cut-off. The electrical equipment on

the hotel premises and belonging to plaintiffs led te a a

goose-necked mast on top of the hotel where defendants

service Wires’ Were connected.’ Seon after —plaintiff~

arrived downstairs, bright flashing and arcing were ob-

served at and nearby this mast and along defendant's

wires where they were connected with the wiring system,

of plaintiffs. .

As‘*soon as they had heen able to size up the sitnation

and before much evidence of actual fire had appeared, plain-

tiff Ernest Shahid, finding all telephones ins the vicinity

inoperative, drove to Silver Beach, about seven miles away,

and called defendant's emergency serviceman Rat litf ‘in

Fort Walton ‘reporting the situation and asking that he

come vromptly and disconnect the electrical wiring. After

Ernest Shahid had returned, his. wife carried their children

to Silver Beach and there by telephone reported the fire

to several fire companies in nearby towns.

Ratliff, immediately upon being called by Shahid, tele

phoned his co-worker Barfield and the twe hastily dressed.

Barfield drave defendaut’S service track to Ratliff hone

and picked him up, and they proceeded to plaintiths’ liotel.,

When they arrived, the arcing at and around the Service

mast had ceased andthe wires to the hotel had been sev

ered and were lying on the ground, .

. “

The issues framed by the pleadings and further evidence —

developed by depositions and affidavits are stated in’ the

opinion of the district court granting the defendant's mo-

—tiow for summary judgment, which, opinion is reported in

»? Kederal Rules Decisions at page 245. ;

Before rendering summary judgment the district court

must determine both (1) “that there is no genuine issue

ns to any material fact” and (2) ‘that the moving party

‘is entitled ‘to a judgment as a matter of law.’ Rule’ 56 (ce),

Federal Rules of Civil Procedure. Requisite (2) does not

automatically follow from requisite (1).

In Palmer v. Chamberlin, 5Cir., 1951, 191 Bed 532, 340,

we said: °

«before rendering judgment the Court must be

catisfied not only that there is no issue as to any mia-

terial fact, but also that. the moving party ix entitled

to a judgment as a matter of hiw. Where, as itr this

case, the decision of a question of law by the Court

depends upon an inquiry into. the surrounding facts

aid Circumstances, the Court should refuse to grant a

motion for a sgmmary judgment until the facts and

circumstances have Deen sufficiently developed to en-

able the Court to pe reasonably certain that tt is

waking a correct determination of the question of

law. -

In Demandre v. Liberty Matual Insurance Company, 9

Cir., 1959, 264 F.2d 70, 42, we stated that :

«6 owhether the ‘facts’ stated in the: complaint

present a ‘genuine jxcue as to any matyrial fact” as

E.RCiv.P. 56 requires is really to be mezsured by

whether no evidence’ could be offered to support the

‘plaintiff's theory.”

Ini Alabama Great Sek. Co. v. Louisville & Nashville

R.Co., 3 Cir, 1955, 224 F.2d 1,5, we recognized ‘that as

‘a veneral proposition the issue of negligence, including

the related issue of wanton conduct. ix ordinarily + not

susceptible of summary adjudication."

In Dauer ¥. Mac Dougall, 210d Cir, Wz. LOL Piva 260,

269, Judge Learned Hand pointed out the necessity in

Rome cases of an examination of a withes. in open eourt,

that the immediate presence of a judge im a court-reem

was likely fo mike him tell mores

Tn Subin ve Goldsuath, nad Cin, Md, 224 Fite Ta, Tos,

referred to approvingly, by this Cirenit in Uabema Great.

Sok, ('o. Vv. Louisville & Nashodll BoCo.. Supa, Jucduee

Frank stated that:

Particularly where, as here, the fact~ are peeuliarly

in the knowledge of defendants or their Witnesses,

should the plaintiff have the opportanity fo impeach

them at atrial: and their demeanor tay Hee thie tert

effective impeachment.”

As to whether the first requisite: for -uriigacs jude

ment——'that there is no genuine dsste as to any nisterial

fact*’ — has been met,

6. the court should take that view of the evidence

moat favorable to the party aeninst whom it is directed,

eiving to that party the benetit of all faverable infer

ences that may reasonably: hedraw n from the es iehetree.

If, when so viewed, reasonable men ‘might reach dif

ferent conclusions, The motion ~hould be denied and the

case tried on its merits.”

Ramsoucr Wa Midland Valle “ I. ('00.,° sth: ‘Cir. 1455, hed

Fovd ot, 106: see also, 6 Moore’. Federal Practice, 2d

eh, p. ZY1A |

The evidence stowed -that the defendant furnished the

electrie power’ to plaintiff=" hotel. The district court

found that: | . .

“Admittedly, the fire was of electric: origin. The

depositions of plaintiifs establish that the fire started

on the ground floor of the hotel building ina roomehenu-

ing the eleetrical equipment of the plaintiffs, Piaintitts

ctate that they saw arcing and sparking in this reo,

and later on the service lines runing from the de-

os ‘

. . -

‘rendant’s transmitter pole to the service inast on top

of the hotel, and that, therefore, there must be an

inference at least that the fire might have started

fromsome negligence en the part of the defendant.”

Shahid v. Gult Power Company, S_D.Fla; 1959, of ERD.

Y45, LAO. : _ a

Mrs. Shahid testified that after all evidences of power

over the main switch of the hotel were gone, “it was evi

“dent that we were <till being fed current and vet there were

no lights on. Q. Whaf was the evidence that you were

still being. fed current A. Seeing the elect rical are through

from their transfermer into our building.” R. 1. Pulley,

defendant viee president and operating manager, testified

lyr aaffichawat :

that any short cirenit or failure between the

customers main fuses. awl the transformers would be

protected against by the fuses of the power company

on the pole with the transformers; that these fuses

npon disintegrating ordina rily canse the hinged holder

or ‘jack’.to drop down, viving a visual indication Frome

the ground that the cirenit is open, but the dropping

of the holder ar * jack ix not essential to the opening

of the cireuit, the protection heing afforded solely.

by the di-intes ration of the fuse: that it would he pes-

ible for the holder or ‘jack’ to fail to drop after the

‘Hlowing’ of the frse due to corrosion or other cause

but this rarely, fever, occurs."

Ernest Shahid testified in part:

“(. In the first.count of your complaint you =tete

that there was a dangerots coverload of electricity

where the wig ‘lines entered your premises, On

what do vou base that allegation?

A On the basis of the areing and sparking | ~aw

before [Teft to call Gulf Power Company Up- :

*(. Do you base it on anything else? , |

A. On the shooting coming through that) steraze

room next te room No.9.

ae | Fe De vou became dt cone teeey thie ebae ? P

** 4. Not unles~ it would be ou the trouble I becued boereons

having with ay Hight Wall and the Coins dying down

wad coming up instantly.”

. . ° sd ° - . . ¥ “1s

Mere Dawkin~, defendant’~ [intriet Engineer. testified

thet, *orelonarils areimg on the secenedars Vice will blow

the teansformer fuses.”

The deferndant’= fimetmuin. ene roetics serv ieennan, Woat

VitY testified:

“bave te exist boeefeores thre tts - cviilel Ledeow !

as’ |- there uy tbines ft thie prrle at fhe Sheorebine

Hotel wineh Werle ent off thee crpraenet feo thee beeoted on

the event of treotlele P a at P

N Thes baer igick= there.

ad * Phevw chen theses enpeen antes!

A Thes have a tise ite Qheeenes saried whiews the firs

Jilowe thes clrep out. ‘

0). What world camer a tise ter boleswe eotat

A. Shortage on the low “mth oof Nog June weld

canse them to bless. Ses

“ap dn other word-, if there Wie a byeort cone thee

Shoreline Hotel <tde of the trian-teortniet- it would blow

the fuse~! : .

ON. That’. richt, ;

Q). What wenld it take in tig ward of ce sheer t ter bhewe

a fuse? Can vou tell u- what sort of condition would

“A. No, I wonthel net. There wetted bee. bat~* et elit

ferent things that »wenid blew a “fuse, deast a shert

ave inside the -watebs ot anywhere in bin pelcvees worralel

"blow our fuse.

ee’ Wonld you ori a) that would nttened senttie porter

tien to the Shoreline fJooted, then! —

*N Yes. ong shertace it word.”

“Q. You <py ona shurtyige at would, Ps there cans

other thing that would blow a fuse in the jacks!

A. Did ven mean other. things besihes a -heort

age?

+H.

“Q. Yes, what fo mean, are there other things be:

sides a shortage whieh would cause the jacks to blow?

“NL Yes, overload ora lot of things can cause the

fuse to blow.

/ QQ. Assume that there happened to be an everload

on the line on this night, at what stage wouid the

jacks function in order to cut off the current,.on the

ote pe

. The same as tlie tther.

ps 2 Would the fuses blow in time to save the hotel

aie a dangerous overload of curfent?

They are supposed to.

i If there were arcing between the pole, which

| ounderstand is located right outside the Shoreline

Hotel, if there were arcing front the pole to the hotel,

would-vou say: there was a condition of overload or

shortage, involved? yan

“A. Well

"a. What would cause tive arcing!

‘A. Leould not tell vou what would cause the arcing

between the hotel/and the pole. Tt would blow the fase

alse. —

hy 4 It err blow the fuse?

‘A. Yu ~. if would olow the fuse that went to it

The defendant ’s other Jineman and emergency servier

nun. Barfield, testitied-

“OQ. Are there ans aneans whereby the enrrent would

ent off automatically in the event of trouble!

AL On the transformer pole.

i” The jack they” refered. to?.

. Yes.

4 f- W hat sort of trouh “e would if take for ae jacks

tes eae rate? =

"AL An overload.

“<2. Assoming there was a dange rows Ove rhoad cor

rie dyetes thee Shore ‘Hine Tlotel, would ‘those jiale ks, if

they were functioning, properly, cut off the current?

A. Vex, str.

YQ. Did you make any statement to any one at the

scene concerning shooting the transfor iets with’ it show

gunoor any other kind of gun?

oN. No, -ir

oY. You ake ne such statement!

‘*A. No, sir. :

“Q. ‘Did you make a statement to any one else con

cerning the use of a shotgun or some offer type of cun!

aA; Bear. ¢ -

Mr. Shahid hack testified :

“ALL 0. Mr. Barfield made this statement to thig

Brent Neilson, * Two well place al bullet~ cotld have

ended alfof that.’ P

12 Could have ended all of that?

‘TA. It could have severed their current from our

building. :

Q. How did he happen to make that <tatenuent!

"A. Mr. Neilson is noted for tis fanes guns, atid he

suwi him there, and he asked han where’ one of his -

2 faney guns was, and be sand * Why aed be told bine.”

’

District Muginess Dawkins testitied:

QQ. A statement has Deen attributed to one Gull.

Power Compatiy employee, Bartield, to the effect thaa

he could bave shot out the tean-foruers. L. that.

possible? :

“* A. Shot ont, what le vou mean? fm

“'n. Shot them out. rare. : z

“A. It ix possible. **

Ernest Shahod testified that:

eo Mr. Ratlitl told me? the nicht of the fire wie wn"

he came but there after Mr. Bartield left mee. lie cane

over when Twas on this end, and | was4alking to Mere

Ratliff, and he told me he could not Tniderstand why

those jacks didn’t kiek off and he -said) something

about using some kind of lone thing to cet those Wires

on, but he said he could not understand why those

jacks didn't go off. Mr. Rathitf inade that statement

tin me” ° ;

Ernest Shahid further te-tified:

at erate At a later time d asked Mr. Barfield I

wondered why these jack< didu't work on the hotel, and

he said, E trathfully don't know why those jack» didn't

work, but if your jacks had worked your hotel would

never have burned down, ak

4). Mr. Barfield said that? .

“A. Mr. Barfield made that statetnent to me the

morning of the fire.

"Q. When he serviewd the pump?

<A, ae.

Appellee argues that) the purported declarations by

Ratlitt and Bartield are not competent evidence. We quote

from appellee's brief: é

“' Bven if these purported declarations might, other’

wise present an issue, they are not admissible in evi

dener. :

’ .

"Competency of the agent to make admissions on

the subject is net alone sufficient; the admission

which it is songht to nse mmst hate been made in

vonnection with the discharge of the agent's duty,

and must be A statement of facet. rather than ’an

expression of pinion.” . a

31 CLES. 11S

The sole duty of these twe cnipleyees Wilts to render

emergenes repairs. They were not authorized to make

statenients or express opiniotis binding on the defend

Sint. The statements de not relate to diny repair work

by them bat te a stippesed condition extsting

‘before their arrival and with which they had nothing

te da, and which required ne work or repairs on their’

part. *” ,

slome

If the question be considered as tivelving merely a pre

cedural rule as to the admissibility of evidence, then, under

Rule 43 (a) Federal Rules of Civil Procedure, the rule.

whether federal or state, which favors reception of the

evidence governs. New Vork Life lus, Co. 0. Se hdather,

~ Cir, 1953, 2h Fatal 184, 8S; Mambrue vo. FW, Weel

worth Co. 5 Cir. No. US674, m=, decided) Maw %& Del

If, on the other ditind, the question turns upon substantive

law as to the svope of the agent's or a os authority

(see TV Wigmore on Evidence, Sra ed. See. Wes, ri).

then the state law would control. =

{un a recent Case involving injuries sustained as a result

of falling on stairs inumediately insiede the eon at the

service departinent entrance of a Montcomers Ward &

Company store, the Distriet Court of Appeal of Floricks.

Second District, held that a statement of the as-i- ~ tint

manager concerning a sign on the door at thy time of the:

accident was admissible, and discussed the Florida law a-

follows : .

“The courts of thix country are sontewhat in coonstliet

on the question of whether an agent's statements, whieb

are Vicarious admissions against the “interests of his

principal, are admissible in evidence in an action against

the principal by a third party. Df such an adsnis-ien

were made by the principal himself, it would be elearly

admissible asx an exception to the hearsay rule. This

question, therefore, turns upon the rules of ageney and

whether the agent was acting within the scope of hi-

authority.

“We think that in their many conflicting gpinion~ the

varions courts of thi< couggry have developed three

different rules, One of these rules allows the evidener

if the agent wax authorized by the principal te ticke

<tafements for him concerning the subject matter of

the statement. A second’? rile will allow the aqeut’s

admissionail the statement concerned a matter mithin

the scope of his aqeney and was made before thé tern

nation of the agency. S third rule adds to the former

two rules the requirement that the statenem Doe cn poet

of the res gestae. It ix vety obvious that the first rule

is far more strict than the second Because it requires

the agent to have express statement-making authority.

The second ruly does not require such atithority to have

been txpressty granted but implies it from the agent’s

aithority or employment with the subject matter of the

statement. [tis thix second rue, in.view of the Florida

“In Myrick v. Lhoyd, 168 Fla. 47, 27 So.2d 615, 616,

‘ we’ think the Supreme Court of Florida ha answered

one phase of the defendant ’s question. In that case a

father was being dyiven on a lmsiness trip by his sen,

who was also his emloyee, when the son ran over a hoy.

After the accident th? father directed the son to take

the boy's parents to the hospitas. While en route to

the hospital the -on told the parents of the injured bes

that the accident was his own fault and not the fault of

their boy. ‘The Sapreme Court held that the son was»

the agent of the father and theestatements of admission

made to the parents wat (sic) adinisible ‘against the

father. The court said, in part, as follows:

6, The best authority, fo our mind, is found in

Wigmore on Evidence, Vol IV, See, Wis, page 11:

He who sets another person fo do an aet in his stead

ax agent is chargeable in substantive law by such act>

as are done under that authority; .-0 toe, properly

enough, admix<ions made by the agent in the course

of exercising that authority have the same testimonial

value to discredit the party ’= present claim as if stated

by the party himself.”

We recognize a coutlict of authority on this ques-

tion: however we have chosen the above as the more

practical and liberal vale. | Phe po. pose here was not

to. prove agency. That fact had already heen estab.

lished. When this statement was made the status of

principal and agent continued: It is a fact that the

vent was activ€ pursuant to express authority und

ditection of the principal when the statement) was

made. It is also a fact that the statement had ret-

erence to matters occurring within the scope of his

@mployment. “When so acting the agent was acting

for the principal who might have made ‘such an ad

wission himself against bis own interest. [f-is our

conclusiow that in this case the statement was ad-

missthle, 2.”

The court held, in accordance with the. -@rond rule

stated above, sane it's cpriniions is aannpele Bh snot for

admission of the statement with whieh we are: con

corned, notwithstanding the faet that. the statement

in the instant’ ease was made nine days after the

accident.” (Mangehia-ts supylioed) |

Moutaqowe ria Ward & € 0, v. Rovtnquist, Jd 4‘tr.. Tay,

112 Se, 2d SS, SSE, SST. 5

Applying: Hie jtalicized **second rule’ sapra. lek ap

‘plicable in Mlorida, it ix not disputed that if, the state

ments were made at all, they were made hefore the tek

mination of the agency of either Ratittor Barfield, Ernest

Shahid testified that Ratlitf'< statement was made the

night of the fire, and Barfield» the morning of the fire

when he serviced the pump.. A prima facie case for ade

missibility bas, we think, been made,. The scope of the

agency of Rathi and of Barfield tay be more fully de-

veloped upon the trial. Summary judgment -loule bere

fused until the faet< have been sufficiently developed te

enable the court to be reasonably-eertain that it-is mak

ine a correct determination of the question of the scope of

agenes of Ratliff and of Bartield. See Palmer Vv. Chawher-

fin. 5 Cir, Wd, TO FB. 2, 40, ° ;

The defendant rests heavily on the extensive affidavit

of its vice president and oper ating manager, RL LL. Pulleys,

an expert electrical engineer, and emplas izes the faet

that the plaintiffs produced no opinion from an expert

and announced’ that they did net ‘Gntend to use an elve-

trical engineer or expert at the trial (other than W illace

Dawkins, an employee of the defendant. to be called as

an adverse witness. THis de ‘position taken hy plaintiffs is

also submitted for consideration in connection with this

motion.) "* Expert: Pulley*s afidavit concluded ;

“That based on his years of experience and knowl-

edge in the field and the testimony given in said depo-

sitions the aiffiant finds no evidence whatever indicat-

ing a failure on the part of the defendant to provide

protection to, the plaintiffs nor ix there any evidence

indicative of the transmitting of current ina quantity

ov a manner that would have contributed to the des

‘struction of the plaintiff's’ hotel.”

~ We think that there ds applicable’ here’ the principle

announced hy the Supreme Court in Sentilles ve Tuter-

Carnbbean Corporation, Woo, BOL UL, 107, 109, 110, fo.

the @ffect. that the anembers of the jury, rather than the

expert witnesses, are the ones sworn to inake a legal dle. |

termination of? the question of causation. The plaintiffs

are, of course, not bound by their expressed intention not

to use ait electrical engineer or expert at the trial,

We conclude as we did in Chapman v. Hawthorne Fly-

ing Service, 3 Cir, VOT, PST Biv 559, 541: yO

“Without intimating any conclusions on the merits,

and... Without implying that the plaintiit’s proo?

as it now stands would warrazit submission to a jury,

cave’ nevertheless conclude that it ix the part of good

judicial adininist. ition for the facts in this ease to

beemore fully developed before the trial court deter-

mines that there is trulysno genuine issue as to any

material fact. Rule d6, Federal Rules Civil Procedure,

IS TOS.CLA, |

oe 'The judement is reversed for further proceedings

not inconsistent with this opinion.

Reversep asp REMANDED.

sf ® . .

Camenos, Cireuit Indee, Dissenting:

[am unable te agree with my Brethren who have de-

cided that the, smnniary judginent entered be the court,

helow should be reversed. and this case sent hack fer a

hearing on the merits, [E think that a directed verdict will

inevitably ensue aid that, under the circumstances ap-

pearing ine this record, the long and tedious hearing npon

such a procedure onght to be avoided.

The case ix a close ones but PE othink that it is as uri

portant to see that dhe salutary STI LAG jrdgmient’ pre

cedures are utilized: ino proper cases as it is te protect

litigants from tueircimplovinent in cases where the ree +

sored shows that the party appealing i entitled to sueh i

hearing,

It should be understood that the testimony of every

single person who knew anything about the fire was taken

by deposition and Tull right of cross examination offered,

except for the affidavit of appellee ’s view president, Pulley,

which was not controverted or challenged by the appel

lants even thongh they had cmploved experts with the

view of using them if ther statements hyd been favorabls,

~The court below, therefore, had before it everything whieh

—would.be developed inet trial upon the merits, and it found

that noo negliges nee had been shown by appellants. This

hei ine true, Pe think we sheuld affirm, the concinsions reached

E. is helpful to consider at this point exaethy what the

jower court did say about the failure of the appellayts

to suStain thre burden resting pon thems in the presenta

tion to it. Tt will be found helpful, too, to set forth the:

Pe. Paints’ complaint consists of three counts,

“The material allecations oft the Kirst Count are that detendint,

Power Company neghvently failed te ent eff the enerent atter iy as

notified of fire at plaintitls premises, resubtine in the destenetren et

plaintiffs’ property by tire,

“The plaintiffs do wet charge the detendaut with ana responsthility

for the origin of the fire in this Count,

“The depositions and affidavits relied upon Se defendant ‘im -1ayp

port of its motion in this regard are in one wiv drpated by any et

the doctments relied npon by plamititfs. Dtoaffirmtativels appear. an

recard to this issue as to whether or net the defendgsat neeheenthy

failed te ent off power promvipriy after rote tic ‘tion by the pelamtett

that the faets are notin dispute, The plsintitls in there deposition.

waver that the defendant's servicemen were slew in arrive at tie

scone, but it is net dis puted that the power was aire addy off, ond there os

ne showing that the defendant could. or shonid. have ent off the pow dr

sooner than was accomplished prior thereto hy safety meehanisns.

siimary of the argument advanced hefore ns in the brief

of appellants. :

It is Well to recall also that the case was heard by the

court below on the second motion for surnimnary judaient

in whieh the appellee relied wpon the pleading=, the depo

sitions of the appellants, the affidavit of Rob. Pulley, ap

This bem so, there i net even thee posasbontity cf priteneniee Bart tow

exertion ef mere difizence by detendant world Rye presented ot

mitrgated: the damave, q :

“Kven placing pen thegsleferdant, as the law tines, the daty of

extranrdinves care in the apersutien ot ats buyities. aed comsnede rene

the matter here on tootton forse -aniinars jidertrenet paest trotecenitls

neinst the movant, the eourt concludes nevertheless that there te tet

even the modicum of esidence necessary te submit ao material qresten

of tact te the quiy and that defendant's meetin fer snr ars pide

ment should be granted. :

“Pn reaching this coneluston, the Court) hay con-tdered mont eare

fuliv the ease of Yelverton vo Aghems. dleeteledd bes the Cmitedk Styte

Caurt of Appeals tor the Fifth Cirenit ond reported: in 62 OF 2d

146, (Here the court below quoted from the deesroar tn the De

fom exee. | é 5 ; :

“In the case before thie court, we Ho not hiewe merely -tramed est

denee in suppert cof plamtil.” contention. we Ae mot hase meres

weal evidence im its probative force, Wy mitnspels de not have wy

substantial evidence’ of amy nuitare M4 biel ould give ree even te an

inference, fron substantial evidence, commeture or ctherwr-e, that the

tire here Was due to the neclirener of the detendant In Vol orton

there Wis At leet ~otne prrevert sort “ty pute per Wire of cot bves spereatie

condition that the paws. company in that <rtnation wae eharwed sith

having failed to deteet iipen im peetion, er ficesannee foiled ter rereeeds

after complaint. Tere plarntitte and there witnesses merely de-erthe

certar: electrical phenomena tron whieh they wish the sary te be

perinitted te inter that sere undente table danzerons econmditeon en

sated], further inter that the defendant was re-pom-tble fer tee eon

dition, and -ta)) further inter that. thie condition can ed the "re.

“The entire burden et all the evidence before the court im thie ease

eonrpeb the: eotrt A the view thet there gs a Sery etevteon- eh Tinie therty

between the (Wa evees. Teo held etherwiee werthd be tee sebonnt tea

jury cenjecture, mberenee, epeetitation withert ever a pitepare wtf

prlaee te reach scot bared oof verdict. The mere tart that poreaetse

ace burned te which eleetries entrrent os stippled =) ateedstier seleetie,

cannot be the feasts fer an etien i te lemee gazette t the ompepehiet

i Barngetansn. aedeed,

ot the enrrent therete.

“The Appellant. are unabl te prmpermt the exact eater of the

fire, except that it ean he rensenably mferred: tren there te afters

that there were seme defeets an Galt Power Company = equipment

: : ;

pellee’s vice presilAnt, amd a list of Wiltiesses furnished

by the apopeeibants pursing te pretyial eveler, imeluedine

the statement that they cid not interned te jaoduce asa

Wiltiess any eleetrieal enginesr or other expert: atid tpron

the Written opposition of appellants to this mietion apy Whieh

it Was stated that appellants would rely upon the prleaiel

ings, the (epositions of the two cape tliatets, atid the eleyoe

<itions of four of appellen’s eriployers, proechined ing thie we

cervieemen Ratlitt and Barfield whe were called te the tire.

Lio is undisputed: in the recors) that the serviee ten

arrived .well in ailvanee of the fire fighting equipment,

that the Weal end oft thie bigoted Wod= oer wendy mt jtavtraers,

that the arcing at and around the service mast had eeased,

cand that the wires to the hotel had been severed ated were

Iving on the ground. The testimony of aappedlant= thet

the serviee men came onte the scene slowly and stood

around doing nothing ts lacking in prrobuative vabue for the

reason that the severance of the ware- i fae Pacaed Sec ocss can Ubered ”

upon to effect had already been geconiptished.

Soon after the two servtectnuen bicaed carvavend the tlestne

Wits expressed that the bicote? waiter pounrespe Does porecopetaererteral

co that water from it could be used on the raging fire

One of the service men mounted the poke upon whieh the

transformer Was <iMusatedl ane. fiebine that ail of thes: Yas-s--

bisa disintegrated, Ver fir~eud one of the litue~ fated comtected

if up with the peurap. which tmediately began di-ehars

ing Water ina nerincah way. |

Todesal. first, with appeliants * cconterntions that ther -ers

ieeren died not pateeed wath reasonable speed in cuttin

off the electrical enrent after being advised of tie eter

owenmey. PE think threat the court below was corveet in held

ing that there was ne issne of fact om this port I oriae-

Soverethe settled principle that estinites. especially tribes

‘

whieh enticed danwerciis atieints of electrical enrrent tee anne inte |

beotet, ateertone the: tive sed prevention the ape thant trot eet

pnt the sad fire, There ts ates s pebe Proves Hhezet Dhee 00 Drewes. @ ste

delaved uprea-onabls ho enttine the eugregt eat, at A oaleecedy eomnentorl

with that theory of recovers bs the perogecition that the pecwer cor

pens Ware tenebisrent in ‘babar Tors poreen abe Pheer eeepc Meriere ante cielo eg tite

protective device Which weld erpoeriater fer at ell the ec urtent “ht eked

trouble -ueh as this developed”

circumstances. of stress) such as were present here, are

not highly probative, Hilinvis Central Railroad Coy: Uiuder- .

woud, 3 Cir., 1956, 235 F.2d S68, S73, and cases cited. Dis-

regarding the estimate of time given by the two Service:

Smen and accepting that of appellants, and relating it te -

the other testimony given by the two appellants, [de

not think that there was any substuntiaL.evidence that. -

the servicemen were guilty of any tinreasonable delay whtch

contributed in any way to the starting of the fire or its

spread. a ° aa

By appellants’ ewn proof, the current serving the -

liefiting system of the hotel, both imside ail out, brcael

been cut off by the operation of safety devices, before

appellants were awakened. | Assuming that the testimony

of appellants that) they discovered areing and flashing

at and near the entrance mast after they had gone inte

the yard of the hotel tended to proxé that current) wits

still being delivered to that prone, appellant Shahid test

fied that, after he had driven to Silver Beach and “phoned

serviceman Ratliff and had immediatel: returned at high

speed to the hotel, the arcing -at theeentrance miast had

ceased, There was iio evidence, therefore, that the cur-

rent had not then been cut off entirely, Which was con

siderably before the servicemen could have arrived; since >

the appel wat Shahid did not have to stop towdress after ,

he telephoned Ratliff. and hi< return journey was less”

than half that which the service men had to take. This.

coupled with the undisputed proot that the wires had sepa-

rated and fallen to the ground by the time the service-

men arrived, and that when, shortly: thereafter, one of

them mounted the pole to the transformer, he found that

all of the fuses had disintegrated, eliminated the time it

took the servicemen to arrive at the scene of the fire after

Notice ‘as ao significant element in the proof,

Much is.inade by appellants over statements the appel

tants claimed to haye eletted: fron Katlitt and Barfield

sometime after their arrival to the effect that chad. the

‘jacks’ worked on the nieht of the tire, the hotel would:

not have burned.’ Thi! staternent, attributed to Ratliff

anu Bartield by one or both of the p Haintites, Wiis ile scribed

in appellant=" brie! as thy far the vest “danagin evi

dence against appellee.

In describing these pre ‘ks, iille ee whe hicuel boereen chief on

vineer for appellee for tore than thirty vears, used these

words in his affidayi: these fuses upon distintegrat

ing ordinarily caused Pie hinwedt holder or ‘jack* te drop

down, giving a visual indication tom the eround that ‘es

circuit issopen, but the droppins of the holder or * jack’

not essential to the opening of the virenit, the eadantian

being afforded solely by the disifitegration of the ‘Tune :

These statements attributed to the service en were het,

therefore, of any probative value in the court's coms <tdera

tion of the case beenuse, by introducing the depositions of

Rath and Barfie dd sirnilitscimullie: the appellants saad

them their witnesses; Sand, moreover, the servicemen were

not asked about these alleged statements when “‘appel-

lant.’ attorney was examining them, so that the pred

cate Was hot laid to impeach these Withesses, This is so

even if, contrary to the Federal Rule, ap ipellants would

have had the right to impeach their own witnesses. 4

Moore's Federal Practice, 2d Edi. pp. 1204-1205, and 9

ib. pp. 1348-1340. Finally, opinions given by the service

men outside the scope of thei ii ageney (which involved only

emergency work -on the appellee's equipment) would not,

it’ entitled to any consideration at all, have aug effect

towards Hl OMOny 3 as fact a truth of the matter dealt

with the opimons, J 2E CLS. Evidence 9343. pp. Tn

_ et seq. ic. ;

Appellee filed the affidavit of its operating manager, a

vraduate electrical engineer duly registered in the State

eof Florida. . Substantially five nonths elapsed between the

filing of this affidavit and the hearing of the motion fer

sumnnary judgment, and appellants failed to avait thene

selves of the right to eross exainine this witness, and faite d

to offer any evidence coutravening what Pulley stated.

They admitted that they. had consulted and. he Wl reports

*Rule 2600) RRCP.

from one or more experts, but they did not offer thetr testi.

tony. Pulley was acquainted with appellee’s equipment.

at and near the hotel and the installations on ity premises.

“He swore that the transformers, fuses, lightning’ arrestors

and other items of equipment se¥ving appellants” property

were all standard equipment which was designed to pre-

tect, and did actually protect, appellants from overloading,

short cireuits and like occurrences which might endanger

the electrical svstem maintained by appellants and their:

property upon Which it ‘was sitrated. Hasing heard the

testimony of all of the Witnesses whos depositions were.

offered by the parties and being agquainted with the room

from whieh the sparks were said to have emanated, a-

well as all of the equipment in ane is the premises,

electrical and otherwise, he. gave as his expert opinion

that the sparks in the storage: room were produced by the

vas hot water heater and gas lines within that room:

that the areing and flashing at and near the service mast

were the aftermath, and not the cause, of the fire, being

the product of fire damage to the insulation of the se. vice

_ Wires sufficient to cause short eirenits, which in turn blew

the fuses on the transformer pole. What he sand was not’

disputed, but on the other hand the testimony of appellants

tended-to corroborate him. ne ae

They had, since the original wiring was installed in thre

hote] premises, added a walk-in freezer unit and air con

flitioning equipment, whieh latter gave them so mach trouble

that they had iistalled three additional towers to make the

equipment work inere efficiently. The trouble they ex:

perienced with bulbs burning ont and fuses blowing on the

“hotel premises was, Without dispute, attributable to their

own overloading of the electrical wiring in the hotel, With:

out quéstion, the trouble began within the hotel preys:

amd its own protective devices had operated to shatotf all

of the lighting within them; and the fire had been in progress

some time before there was,any arcing or flashing near or

upon the wires of appetlee. ‘

From the whale record it) + clear that appellants failed

to introduce substantial evidence of negligence to make

a case concerning which reasonable minds~ might reach dif

ferent conclusions. They have produced ne proof whieh

tends to establish that any negligence on the part of the -

appellee cansed the fire or contributed to its spread. In

a long line of cases this Court has held that **specnlation

cannot supply the place of proot.’’ Thersot ss. Mercer, W959,

262 Fold 754. 75: Smith ve General Motors Corp.. Wa,

227 F.2d 210; MeNamare vi American Motors Corp: Wi,

247 Fold 4459; du Pout v. Rissinaeé, W958, 250 Peld 40, eer.

tierart denied, 259 US. 050: and Nusheolle Briodav Co. xv.

Ritch, 160, 276 F.2d V7. 3

In this ease ne sach proof was made and ne circumstance

points te the probability that further proof willbe turned

up. Substantiathy a’ vear elapsed between the time of the

fire amd the beginning of this action, and two years he-

tween the time the action was begun atid the time of its

submission. The parties have developed their respective

contentions by faking the depositions of both appellants.

and of all of the employees of appellee who had any

knowledge of or dealings with appellants’ and appellee’s —

electrical installations at and near the damaged premises

or of the faet< attending the fire. Under these eqreum-

stances PT think that the court below was justified in dis.

posing of the case under summary judgment: procedures

In the manner and tor the reasons set forth in Footnote |

supra. Of. Chambers & Co. vs. The Equitable Assurance

Socity of the United States, ‘5 C*ir., D605, 24 Fivd : Le

Whitaker v. Coleman, th. W940, WS Fitd 205; Kang vo The

California Co., th WA, 224 Fit 18: Tnale tt & Co. +.

Ererqlades Fertiheer Co. th. (58, 255 F. 2d 342: and Dial

v. Vnion Baa Co., th., 1950, YO Bud OST.

Tam not unfamiliar with the fact that there is a disposi.

tion on the part of some courts to rule gts judgment

out as a remedy ino negligence cases. do not see any

justification for such an attitude: Indeed. a large propor

tion of the caces coming before us invelve negligence.

If. from the depositions and affidavits placed before a court,

it is clear that those claiming negligence have not proven

_it acecérding to legal standards; | think that summary judy-

ment ought to be entered in a negligence case to the same

extent that it is in any other case. .

Nor do’l adhere to the concept sometimes found in court

opinions that summary judgment ought to be denied be-

cause from the whole record it looks as if the party opposing

it might be able to find some evidence to raise an issue

of fact. On the other hand, I think it ix clear from all of

the authorifies that the duty rests upon one against whom

summary judgment is sought to bring forward competent

proof developing an issue with the facts which have been

‘adduced, under legal standards, by the person seeking

summary judgment. The Rules themselves, in my opinion,

make such an_ attitude mandatory.’ /

In thix ease both parties have ‘tmilked the cow dry.”

The ease has been pending a long dime. There is, in my

épinion, no indication that the appellants can ever improve -

upon the testimony they placed before the court. In my

opinion, the testimony justifies the granting of a summary

judgment, and the opinion of the nfajoritiy tends to emas-

ulate the sumunary judgment rule as a mechanism for

*E.g., Rule 56(¢) providing in part: . .

“ . . The judgment sought shall be rendered ‘ rthwith if the

pleadings, depositions, rmd admissions on file, together with the affi-

davits, if any, show that*there ts no genuine issue as to any material

fact and that the moving party t- entitled to a judgment as a, matter

of law.” we

Rule 56(e) provides:

“Supporting and oppo-ing affidavits ~hall be made on personal

knowledze, shall ~et forth such facts as would be admissible in @vi-

dence, and shall show affirmatively that the affiant is competent to

testify to the matters tated therein. -

And Kule 56(f) provides: ° ‘

“Should it appear from the prec of a party oppo-ing the mo-

tion that he cannot for reasons state? present by affidavit facts e--en-

tial to justify his opposition, the court may refuse the appleation

for judgment or may order a continuance to permit the affidavit to

be o'tained by depositions to be taken or diseovery to be had or may -

make such other order as it just.” fs .

-~ es)

shortening ‘the tedious proceedings by which justice ix

meted out. LT therefore respectfully dissent,

A true copy.

Test: Evwsnp Wapeworrn, Clerk, US. Court of Appeals,

Fifth Circuit.

By Cras RL Danvis, De pata.

New Orleans, Louisiana, *

Apr. 12, B62.

APPENDIX C

(February 1, 1962) 2

Jos Seconp APPLICATION FOR RENEARING

Belpre Rives, Cameron and Brows, Cireuit judges

_ Per ['vrtam: Some: parts of the majority opinion on

original-hearing, we now think, unduly restrict the. office

-* . . . ‘

of summary judgment if negligence actions. The test.of a

genuine isstig, of fact is not as indicated in our quotation:

from Demandre v. Liberty Mutual Insurance Company, 9

Cir., 1959, 264 F. 2d 70, 72, **whether no evideace could be

offered to support the plaintiff’. theory,”* unless that ex-

pression is considered along with the duty of the party

against whom a stunmary judgment ix moved to produce and

serve opposing affidavits. - Rule 96, Federal Rules of Civil

Procedure. Our quotation from Alabama Great Southern

R. C6. v. Louisville & Nashrille R. Co... 5 Cir., 1999, 24 F.

XP 1, 5, must be taken with the qualification that there are

‘axes. Where summary. judgment may properly be rendered

in the determination of issues of negligence. See 6 Moore's

Federal Practice, See. 56.17 (42), pp. 2281-2253. There is 10

indication Here that any witness was reluctant so as to

justify the application of Judge Learned Hand’s comment

‘that the immediate presence of a judge in a court-room Was

likely to make him tell more.” Dyer vt McDougall (2d Cir.,

1952, 201 F, 24 265, 269.

We thought that we had made clear that we were not

ruling that this case must be submitted to the jury. Thats

a question on which the district court inust rule when the

- evidence is all in and the defendant moves for a directed

verdict oy for judgment n.o.y, Riile 50, Federal Rules of

Civil Procedure. Nor did we intend to attempt to rule on the

admissibility of any so-called admissions by the defendant ’s

agents or employees. Our diseussion of that subject was

simply a part of owr seasoning that the defendant had failed

to show’ both that ‘there ix no genuine issue as to any

material fact and that the defendant is entitled to jidement

oe “oN

o-4

as a matter of law. Our re-study of the case has net con

Vinced us otherwise.

therefor

C'AMERON, Circuit Judge: ae dissent from the denial of

the Petition for Rehearing’ :

A true copy.

Mest: Evvarv W. Wavswonru, Clerk, U.S. Court of

Appedls, Fifth Cireuit.

By Ciara R. James,

Deputu

New Orleans, Louisiana.

_ April 12, 1962

The secord petition for rehearing t=

Desyiep.

; 08 ’

ae. .. . (APPENDIX D = | -,

: * 2 . é * f ¢ ?

{. JUpGMENT —

ae pated .

. ee No. 18177

, : | ,

Extract fro the Minutes of June 6, 1961_

vat

‘ > and {fircarer, P. Suauw, individuals

~b a SHoREL INE Hore and Corrack CoLoNy,

ry ;

He “Versus

é 3 .

GiuLF Power Company |

This canse came on to be heard on the transcript of the

record from the Wnited States’ District Court for the

Northert’ District of Florida, and was argued by counsel ;

Os Consiperation Wueredr, It is now here ordered and

adjudged by this Court that’ the judgment of the said”

Distriet Court in this cause be, and the same is hereby,

reversed; and that this cause be, and it is hereby, remanded

‘fo the said District Court. for further proceedings ‘not

incongistent with the opinion of this Court; ‘

It ‘is further orde red and: adjudged - that the. appellee,

Gulf Power Company, be condemned to pay the costs of

this cause in thr’ Court for which execution may he issued

out of the said District Court.

Camry, Cireuit ‘Judge, Dissenting”? 9

¥ ‘a x eres .

en, ;

. (2142-8) | pm

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.