Shahid v. Gulf Power Company, 18177.
Decision Date | 01 February 1962 |
Docket Number | No. 18177.,18177. |
Citation | 298 F.2d 793 |
Parties | Ernest W. SHAHID and Margaret P. Shahid, individually and d/b/a Shoreline Hotel and Cottage Colony, Appellants, v. GULF POWER COMPANY, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Walter B. Fincher, Atlanta, Ga., for appellants.
E. Dixie Beggs, Pensacola, Fla., for appellee.
Before RIVES, CAMERON and BROWN, Circuit Judges.
Some parts of the majority opinion on original hearing, we now think, unduly restrict the office of summary judgment in negligence actions. The test of a genuine issue of fact is not as indicated in our quotation from Demandre v. Liberty Mutual Insurance Company, 5 Cir., 1959, 264 F.2d 70, 72, "whether no evidence could be offered to support the plaintiff's theory," unless that expression is considered along with the duty of the party against whom a summary judgment is moved to produce and serve opposing affidavits. Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. Our quotation from Alabama Great Southern R. Co. v. Louisville & Nashville R. Co., 5 Cir., 1955, 224 F.2d 1, 5, 50 A.L.R.2d 1302, must be taken with the qualification that there are cases where summary judgment may properly be rendered in the determination of issues of negligence. See 6 Moore's Federal Practice, Sec. 56.17 (42), pp. 2231-2233. There is no 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 v. McDougall, 2d Cir., 1952, 201 F.2d 265, 269.
I dissent from the denial of the Petition for Rehearing.
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.... `the moving party is entitled to a judgment as a matter of law'". Shahid v. Gulf Power Co., 291 F.2d 422, 423, rehearing denied, 298 F.2d 793 (5th Cir. 1961). A genuine issue is one which can be maintained by substantial evidence. Firemen's Mut. Ins. Co. v. Aponaug Mfg. Co., 149 F.2d 359,......
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