Shahid v. Gulf Power Company, 18177.

Citation291 F.2d 422
Decision Date19 July 1961
Docket NumberNo. 18177.,18177.
PartiesErnest W. SHAHID and Margaret P. Shahid, individually and d/b/a Shoreline Hotel and Cottage Colony, Appellants, v. GULF POWER COMPANY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Walter B. Fincher and Joe Salem, Atlanta, Ga., for appellants.

E. Dixie Beggs, of Yonge, Beggs & Lane, Pensacola, Fla., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a summary judgment in favor of Gulf Power Company, defendant below, and against Ernest W. and Margaret P. Shahid, plaintiffs below. The plaintiffs sought $500,000 damages from the defendant for its alleged negligence in the destruction by fire of the plaintiffs' Shoreline Hotel on April 16, 1956. The questions presented are whether there was any genuine issue as to any material fact as to the defendant's alleged negligence, and whether the defendant was entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A.

The salient facts were these: Plaintiffs' hotel was situated facing Highway 98 and the Gulf of Mexico about fifteen miles east of Fort Walton Beach, Florida, and a little less than a mile west of a substation maintained by the defendant. At the substation the current which was conducted to plaintiffs' premises from the east was reduced to about 12,000 volts. Plaintiffs' hotel was serviced by wires passing through a transformer situated just off of plaintiffs' premises where the current was further reduced to 208 and 120 volts.

On the morning of the fire, between three and four o'clock, plaintiffs were awakened by loud shouting of a guest accompanied by continuous blowing of his automobile 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 nearby establishment, from which they knew that the trouble was upon their own premises. 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 this room were located the fuse boxes and circuit breakers 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 to a goose-necked mast on top of the hotel where defendant's service wires were connected. Soon after plaintiffs arrived downstairs, bright flashing and arcing were observed 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 been able to size up the situation and before much evidence of actual fire had appeared, plaintiff Ernest Shahid, finding all telephones in the vicinity inoperative, drove to Silver Beach, about seven miles away, and called defendant's emergency serviceman Ratliff in Fort Walton reporting the situation and asking that he come promptly 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, telephoned his co-worker Barfield and the two hastily dressed. Barfield drove defendant's service truck to Ratliff's house and picked him up, and they proceeded to plaintiffs' hotel. When they arrived, the arcing at and around the service mast had ceased and the wires to the hotel had been severed 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 motion for summary judgment, which opinion is reported in 23 F.R.D. at page 245.

Before rendering summary judgment the district court must determine both (1) "that there is no genuine issue as to any material fact" and (2) "that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. Requisite (2) does not automatically follow from requisite (1).

In Palmer v. Chamberlin, 5 Cir., 1951, 191 F.2d 532, 540, 27 A.L.R.2d 416, we said:

"* * * before rendering judgment the Court must be satisfied not only that there is no issue as to any material fact, but also that the moving party is entitled to a judgment as a matter of law. Where, as in this case, the decision of a question of law by the Court depends upon an inquiry into the surrounding facts and circumstances, the Court should refuse to grant a motion for a summary judgment until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law."

In Demandre v. Liberty Mutual Insurance Company, 5 Cir., 1959, 264 F.2d 70, 72, we stated that:

"* * * whether the `facts\' stated in the complaint present a `genuine issue as to any material fact\' as F.R.Civ.P. 56 requires is really to be measured by whether no evidence could be offered to support the plaintiff\'s theory."

In Alabama Great So. R. Co. v. Louisville & Nashville R. Co., 5 Cir., 1955, 224 F.2d 1, 5, 50 A.L.R.2d 1302, we recognized "that as a general proposition the issue of negligence, including the related issue of wanton conduct, is ordinarily not susceptible of summary adjudication."

In Dyer v. MacDougall, 2 Cir., 1952, 201 F.2d 265, 269, Judge Learned Hand pointed out the necessity in some cases of an examination of a witness in open court, "that the immediate presence of a judge in a court-room was likely to make him tell more."

In Subin v. Goldsmith, 2 Cir., 1955, 224 F.2d 753, 758, referred to approvingly by this Circuit in Alabama Great So. R. Co. v. Louisville & Nashville R. Co., supra, Judge Frank stated that:

"Particularly where, as here, the facts are peculiarly in the knowledge of defendants or their witnesses, should the plaintiff have the opportunity to impeach them at a trial; and their demeanor may be the most effective impeachment."

As to whether the first requisite for summary judgment — "that there is no genuine issue as to any material fact" — has been met,

"* * * the court should take that view of the evidence most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. If, when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits."

Ramsouer v. Midland Valley R. Co., 8 Cir., 1943, 135 F.2d 101, 106; see also, 6 Moore's Federal Practice, 2nd ed., p. 2114.

The evidence showed that the defendant furnished the electric power to plaintiffs' hotel. The district court found that:

"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 saw arcing and sparking in this room, and later on the service lines running from the defendant\'s transmitter pole to the service mast on top of the hotel, and that, therefore, there must be an inference at least that the fire might have started from some negligence on the part of the defendant."

Shahid v. Gulf Power Company, N.D. Fla.1959, 23 F.R.D. 245, 246.

Mrs. Shahid testified that after all evidences of power over the main switch of the hotel were gone, "it was evident that we were still being fed current and yet there were no lights on. Q. What was the evidence that you were still being fed current? A. Seeing the electrical are through from their transformer into our building." R. L. Pulley, defendant's vice president and operating manager, testified by affidavit:

"* * * that any short-circuit or failure between the customers main fuses and the transformers would be protected against by the fuses of the power company on the pole with the transformers; that these fuses upon disintegrating ordinarily cause the hinged holder or `jack\' to drop down, giving a visual indication from the ground that the circuit is open, but the dropping of the holder or `jack\' is not essential to the opening of the circuit, the protection being afforded solely by the disintegration of the fuse; that it would be possible for the holder or `jack\' to fail to drop after the `blowing\' of the fuse due to corrosion or other cause but this rarely, if ever, occurs."

Ernest Shahid testified in part:

"Q. In the first count of your complaint you state that there was a dangerous overload of electricity where the defendant\'s lines entered your premises. On what do you base that allegation? A. On the basis of the arcing and sparking I saw before I left to call Gulf Power Company up.
"Q. Do you base it on anything else? A. On the shooting coming through that storage room next to room No. 5.
"Q. Do you base it on anything else? A. Not unless it would be on the trouble I had been having with my light bill and the lights dying down and coming up instantly."

Mr. Dawkins, defendant's District Engineer, testified that, "ordinarily arcing on the secondary lines will blow the transformer fuses."

The defendant's lineman, emergency serviceman, Ratliff testified:

"Q. Is there anything at the pole at the Shoreline Hotel which would cut off the current to the hotel in the event of trouble? A. They have jacks there.
"Q. How do those operate? A. They have a fuse in them and when the fuse blows they drop out.
"Q. What would cause a fuse to blow out? A. Shortage on the low side of the fuse would cause them to blow.
"Q. In other words, if there was a short on the Shoreline Hotel side of the transformers it
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