# Petition for Writ of Certiorari — Gulf Power Co. v. Shahid > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0327%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 370 U.S. 923 ## 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, v. Petitioner, ERNE ST W. SII AIID axp M: ARG ARET P. SILATLLD, ~ 4 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 10 a = * “ hi a “IN DEXS List oy Ay ruorities ee 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 26 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 3 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 PA / 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) . 2 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 3 ; 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 4 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- 6. 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. . 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 1 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 y ® 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. 11 it 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 > ns 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 ° . a * Tu : . 7 =” | j i yy “~s 17 5 i 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. 4 ‘ _ 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 - a ‘ 18 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) 20 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- on 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. ¢ . »” Ww 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: 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 as are done under that authority; .-0 toe, properly enough, admix the appel wat Shahid did not have to stop towdress after , he telephoned Ratliff. and hi 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 o 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0327%3A2. Public record. Not legal advice.