Coats & Clark, Inc. v. Gay

• Decision Date: 25 March 1985
• Docket Number: Nos. 84-8147,84-8148,s. 84-8147
• Citation: 755 F.2d 1506
• Parties: COATS & CLARK, INC., Plaintiff-Appellee, v. Carlos G. GAY, Defendant-Appellant. WHIRLPOOL CORPORATION, Plaintiff-Appellee, v. Carlos GAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1506

755 F.2d 1506

COATS & CLARK, INC., Plaintiff-Appellee, v. Carlos G. GAY, Defendant-Appellant.

WHIRLPOOL CORPORATION, Plaintiff-Appellee, v. Carlos GAY, Defendant-Appellant.

Nos. 84-8147, 84-8148.

United States Court of Appeals Eleventh Circuit.

March 25, 1985.

J. Converse Bright, Valdosta, Ga., Charles F. Johnson, Thomasville, Ga., for defendant-appellant.

G. Terrell Davis, Atlanta, R. Dennis Withers, Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court Middle District of Georgia.

Before JOHNSON and CLARK, Circuit Judges, and LYNNE ^*, District Judge.

LYNNE, District Judge:

From judgments in favor of Coats & Clark, Inc. (Coats & Clark), ¹ and in favor of Whirlpool Corporation (Whirlpool) ² for damages to their goods stored in a warehouse operated by Carlos Gay (Gay), entered on a jury verdict in a consolidated trial, Gay brings this appeal.

The issues herein are briefly synopsized as follows:

1. Whether the trial court erred in granting partial summary judgment to Coats & Clark and dismissing Gay's counterclaim;

(2) Whether the trial court erroneously rejected as irrelevant proffered evidence of Coats & Clark's method of storage and caring for cotton in its Thomasville warehouse;

3. Whether the conduct of the trial judge deprived Gay of a fair trial by conveying to the jury an impression that he was antagonistic to Gay, and

(4) Whether there was an absence of evidence to support the verdict in favor of each plaintiff.

Applying the pertinent standard of review to each error assigned, and having conducted a painstaking examination of the ten volume record of a hotly contested, five day trial, we affirm.

Carlos Gay is the proprietor of General Bonded Warehouse in Thomasville, Georgia. He purchased the warehouse in 1972. On Sunday, March 14, 1982, the General Bonded Warehouse and its contents were destroyed by fire. Goods belonging to Coats & Clark and Whirlpool were damaged by the fire. The Coats & Clark property in the warehouse at the time of the fire was 2,750 bales of cotton that had a value of approximately $1,626,000. Coats & Clark salvaged cotton after the fire for a net of $8,941.80. The goods stored by Whirlpool were electrical appliances such as washers and refrigerators of the value of approximately $111,000. There was no salvage value of these goods as they were completely destroyed.

Coats & Clark delivered cotton to the warehouse and shipped cotton out of the warehouse with their own crews. Gay provided the forklift operator to bring the cotton from the storage area to the loading area of the warehouse. Coats & Clark's crews entered the warehouse to load and unload cotton and to sample cotton. They never objected to the method of stacking employed by Gay.

According to Gay, on Thursday before the fire a customer's truck struck the loading dock and a pipe that was part of the sprinkler system. The sprinkler system is a dry system in which the pipes are full of compressed air until the system is activated or unless a leak occurs, which reduces the pressure, allowing the system to flood. When Gay checked the system on Sunday morning March 14, 1982, the air pressure had fallen. He attempted to pump it up. When the air pressure seemed to be falling again, he closed the valves to turn off the system because he was afraid that if the system had a leak in it that it would flood the goods in storage and ruin them. Gay did not post a watchman nor did he inform the fire or police department ³ that he had turned off the sprinkler system. On the evening of March 14, 1982, a fire engulfed the building.

There was no contention by either plaintiff that Gay set the fire either intentionally or negligently or that he was responsible for its being set. Plaintiffs did contend that Gay was negligent in the manner in which the cotton was stored and stacked, in his maintenance of the sprinkler system, and in turning off the sprinkler system and failing to post a watchman or alert the police department. Plaintiffs' allegation was that Gay was negligent in not controlling, diminishing, delaying or avoiding the damage which was received in the fire.

Separate diversity actions were brought against Gay by Coats & Clark and Whirlpool, claiming damages to their cotton and appliances stored in General Bonded Warehouse as a proximate result of Gay's negligence. Each plaintiff insisted that Gay's negligence lay in the breach of his duty to exercise the degree of ordinary and reasonable care owed by a reasonably prudent warehouseman to protect property of which it was bailee.

In each case, Gay answered with a general denial of the allegations of the complaint. In addition, Gay asserted the affirmative defense of the contributory negligence of Coats & Clark. Gay also filed a counterclaim against Coats & Clark, contending that its negligence was the proximate cause of the fire which destroyed his warehouse. The court below granted the motion for summary judgment filed in behalf of Coats & Clark and dismissed the counterclaim. The two cases were thereafter consolidated for trial.

Throughout the trial, each plaintiff contended that Gay was negligent in turning off the sprinkler system and thereafter in failing to post a watchman and to notify the fire department that the system had been deactivated.

The jury returned a verdict against Gay in favor of Coats & Clark in the amount of $803,281.32, plus 7 percent interest, and in favor of Whirlpool in the amount of $55,513.00, plus 7 percent interest. Following the entry of judgments on the verdicts and the denial of his motions for a new trial, Gay filed timely notices of appeal.

Summary Judgment

In his counterclaim, Gay sought recovery of damages to his warehouse and its contents, contending that such damages were proximately caused by the negligence of Coats & Clark. As explained in his deposition, his theory was that one or more of the bales of cotton delivered to his warehouse for Coats & Clark on or before February 18, 1982, possibly contained a latent ember, frequently referred to as a "hot bale", which smoldered until it erupted into flame on May 14.

The affidavits of Duane E. Baker, Oliver Dupree, Herbert Futch and Ed Canipelli were offered in support of the motion for summary judgment as to the counterclaim. In opposition Gay submitted the affidavit of James W. Donnelly, who identified himself as President of the Association of Consultant Engineers, Atlanta, Georgia, and as one with experience in the investigation and determination of the causes and origins of fires. It is that affidavit, and it alone, which Gay contends raises a genuine issue of material fact precluding dismissal of his counterclaim.

It is axiomatic that summary judgment is appropriate only when no genuine issues of fact are in dispute. A.M.R. Enterprises, Inc. v. United Postal Savings Association, 567 F.2d 1277, 1279 (5th Cir.1978). In ruling upon such motions, it must be kept in mind that "[s]ummary judgment ... is not only an instrument of just, speedy and inexpensive resolution, but also a lethal weapon capable of overkill." Nunez v. Superior Oil Co., 572 F.2d 1119, 1123 (5th Cir.1978) (citations omitted). See also Brunswick v. Vineberg, 370 F.2d 605, 612 (5th Cir.1967). Particularly where a jury trial would be pretermitted, the court should proceed with caution in assessing the probative value of the evidence:

If decision is to be reached by the court, and there are no issues of witness credibility, the court may conclude on the basis of the affidavits, depositions, and stipulations before it, that there are no genuine issues of material fact, even though decision may depend on inferences to be drawn from what has been incontrovertibly proved.... A trial on the merits would reveal no additional data.... The judge, as trier of fact, is in a position to and ought to draw his inferences without resort to the expense of trial.... But, where a jury is called for, the litigants are entitled to have the jury draw those inferences or conclusions that are appropriate grist for juries ... Juries must consider not only 'questions of fact in dispute, [but] questions of conflicting inferences from undisputed facts.' Buffalo Insurance Co. v. Spach, 5 Cir.1960, 277 F.2d 529, 531. 'Evidentiary facts, though undisputed, do not always conclusively establish the ultimate fact at issue. When the ultimate fact is to be inferred from evidentiary facts, the choice between permissible inferences is for the trier of facts.' Walker v. U.S. Gypsum Co., 4th Cir.1959, 270 F.2d 857, 862, cert. denied, 1960, 363 U.S. 805 [80 S.Ct. 1240, 4 L.Ed.2d 1148]... Of course, if there is a complete absence of probative facts to support a particular inference, ... or, if the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at but one verdict, ... the court may bypass the jury .... Thus, where as here, the evidentiary facts are not disputed, a court in a non-jury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions. But summary judgment is not appropriate if the same case is to be tried to a jury, and the inferences and conclusions to be drawn are genuinely disputed. To put it in another fashion, whether disputed issues are issues of 'fact' for purposes of Rule 56 depends not only on the state of the evidence and nature of the issue but hinges also on whether the litigants have a right to a jury determination.

Nunez v. Superior Oil Co., 572 F.2d at 1123-24 (emphasis in original).

With these principles as guides, we evaluate the efficacy of the Donnelly affidavit to create a genuine issue of material fact. In support of its motion, Coats & Clark submitted the affidavit of Duane E. Baker, a qualified expert, who stated, "[i]t is my opinion that the fire at the General Bonded Warehouse did not occur as the result of a bale which was on fire...