HILL v. DELCHAMPS FOOD STORES

Citation Codes

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citation codes

Docket Number

SC 793.

Attorney(S)

William H. Saliba, Mobile, for appellant. When someone is injured by a grocery cart while under the control of a store employee the element of breach of duty vel non is established. Grant v. Moseley, 29 Ala. 302. Plaintiff was not under a duty to make a showing of how the Defendant's employee could have avoided the accident or how the Defendant's employee caused the cart to hit her where circumstances attending the injury were shown. Louisville Nashville R. R. Co. v. Church, 155 Ala. 325, 46 So. 457; Jack Cole Co. v. Hays, 281 Ala. 118, 199 So.2d 659; Chamberlain v. Southern Ry. Co., 159 Ala. 171, 48 So. 703. After the Supreme Court has made all proper allowance and indulged all reasonable intendments in favor of the trial Court, it will reverse if it reaches the clear conclusion that the findings are wrong. Headly v. Headly, 277 Ala. 464, 172 So.2d 29; McCully v. Stroud, 286 Ala. 515, 243 So.2d 28. Sydney R. Prince, III, and E. L. McCafferty, III, Mobile, for appellee. Where evidence is heard orally before the trial court, the findings of the court have the effect of a jury's verdict and will not be disturbed on an appeal unless plainly erroneous, whether in law or in equity. Board of Trustees of Emp. Retirement System of City of Montgomery v. Talley, 291 Ala. 307, 280 So.2d 553; Chrisman v. Brooks, 291 Ala. 237, 279 So.2d 500; Lott v. Keith, 286 Ala. 431, 241 So.2d 104; Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764. Where a judgment was based on the decision of a question of fact, and where the witnesses were examined orally before the court, and the judge had the benefit of observing their manner and demeanor and a better opportunity of passing upon the credibility of the testimony than the appellate court, the finding of the trial court has the force of a verdict by a jury. Stevens v. Thompson, 279 Ala. 232, 184 So.2d 140; Bickley v. Murdock, 204 Ala. 192, 85 So. 461. The reviewing court will indulge all favorable presumptions to sustain the trial court's conclusion and will not disturb it unless palpably erroneous and manifestly unjust, nor will the reviewing court substitute its judgment on the effect of evidence dealing with the pivotal question of fact for the trial court. Krieger v. Krieger, 276 Ala. 466, 163 So.2d 623; McPherson v. Everett, 277 Ala. 519, 172 So.2d 784; Brown v. Brown, 277 Ala. 217, 168 So.2d 247; Inland Mutual Ins. Co. v. Hightower, 276 Ala. 291, 161 So.2d 493.

Judges

EMBRY, Justice.[fn1] [fn1] Briefs were carefully considered, as were taped oral arguments, by the author of this opinion.

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Murray G. HILL, Jr., etc. v. DELCHAMPS FOOD STORES, a corporation.

EMBRY, Justice.[fn1] [fn1] Briefs were carefully considered, as were taped oral arguments, by the author of this opinion.

This case is here for the second time. The prior decision (McKleroy v. Delchamps Food Stores, 289 Ala. 127, 266 So.2d 282) reversed and remanded. The trial court had granted a motion to exclude plaintiff's evidence. Such action by the trial court was error for the reasons stated in the opinion in McKleroy, supra. Prior to the second trial, after death of plaintiff Mrs. McKleroy, the action was revived in the name of her administrator, Murray G. Hill. The action was tried to the court, without a jury, on the transcript of evidence of the first trial supplemented by testimony of one additional witness. Testimony of the additional witness added nothing to plaintiff's case. The facts stated in our prior opinion are sufficient and will not be repeated here.

Judgment was rendered in favor of defendant, Delchamps; Hill now appeals.

Under Alabama law, where the record shows that a case is tried by the court, without a jury, and judgment rendered absent special findings of fact, or a request therefor, the conclusion of the trial judge will be affirmed unless clearly erroneous, or manifestly unjust, if fairly supported by credible evidence under any reasonable aspect. This is true whether the action is grounded on substantive principles of law or equity. Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9; Hayes v. Kennedy, 292 Ala. 362, 294 So.2d 739.

The evidence "was conflicting." The trial court's judgment is given the same effect as a jury verdict. Williams v. Romano, 289 Ala. 190, 266 So.2d 750. There was sufficient evidence upon which the judge could conclude as he did.

Affirmed.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.

Murray G. HILL, Jr., etc. v. DELCHAMPS FOOD STORES, a corporation.

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