*1 building at the front setback line. 100.feet

Paragraph single three allows one

family dwelling residential plot. dictionary

'Recourse definitions courts, generally,

decisions of other serves when, purpose reading useful restrictions, apparent it is what was in-

tended. find no

We error the trial court’s allowed a subdivision of

Lot 22.

Affirmed. HEFLIN, J., and MERRILL, C. JONES SHORES, JJ., concur.

309 So.2d 818

Mary B. FOLMAR INC., FAIR COMPANY,

MONTGOMERY corporation, Gayfer’s Montgomery corporation. Company, Fair

SC 737.

Supreme Court of Alabama.

Feb. 1975.

Rehearing Denied March *2 Lawson, Montgomery, Jr.,

Thomas S. appellant.

for Jr., and Milling, M. I. William John II,

Hill, Montgomery, appellees. $85,000. in the amount of A demurrer was complaint, hereupon sustained to the complaint. amended her store then moved for judgment. moving papers plead- consisted of the ings, employee, an of one affidavit store *3 deposition and the of Mrs. Folmar herself. plaintiff opposed by the motion sub- mitting deposition from the same store employee, Folmar, an affidavit from Mrs. daughter, one from her who had ac- companied her to the store on the day Montgomery the incident. Fair’s motion granted was nonetheless and the suit was appeal dismissed. This followed. only pertinent appeal issue on correctly whether the judge trial acted granting the defendant’s motion for sum- judgment. The store’s principal con- mary throughout tention has been since there is no evidence as to the exact cause of the fall, plaintiff’s there can be no basis for a finding kind. words, other there was insufficient evi- dence to create a question as cause fall. Most of the doubt stems from the statements made being deposed: Mrs. while “Q. hap- All Tell how me pened you fell in the Mont- there gomery Fair store.

“A. walked the store and stopped register Fran And silver. up through I walked on the China De- partment, joined and Fran came on and you me. And she said come let me show pattern picked the china that I out. And past tables, I walked these round there up were some shelves at the the round tables with some dishes on ON REHEARING couple, lady them. And a man and a came, they stopped look at those FAULKNER, Justice. my going dishes. And it blocked plaintiff, Mary Folmar, through, and waited a while for them “tripped” walking display while they to move on let through me department tables the china didn’t. I turned So around and walked Montgomery department Fair go She between the store. tables to to Fran. And allegedly sustained a hip broken and shoul- as I walking between the tables der from the ensuing fall and sued the just at an store for negligence, demanding judgment angle. you specific is as on, “Q. And Mrs. Fol- you

“Q. What can be? mar?

“A. don’t know. “A. Yes.

[*] ^[*] ^[*] ^[*] “Q. You don’t know what it was or basically you are happened, how you fell were “Q. the time uninjured you went saying small going between some injured? came high up quite were stacked sale? that was on surely Yes, I did.

“A. Yes. charge reason “Q. And for that negligence? you say you turned them with when And you refer- between those go *4 “A. Yes.” that had china ring small tables to some top ? up there sale stacked the question, with this af- In consonance oppo- in Mrs. Folmar fidavit submitted

“A. Yes. summary judgment sition to the motion Now, your foot “Q. All reads follows: it be fair to anything, would tripped on “ am ‘My Mary Folmar. I name is B. aisle something in the it was state that Plaintiff in Civil Action No. the tables ? between those gave my deposition on At the time I so. “A. I would think 23, 1972], had not September I [sic, 1973 Montgomery Fair since returned to the in anything the Now, you did see “Q. gone then I have the accident. Since tables? those aisle between ap- and seen the tables which have back passing I be the pear to me to ones No. “A. tripped. These at the between time I your any portion long table you of were covered with Did tables any of those the body did not notice come into contact at that time and I cloth noticed you walked between of have since legs the tables. themselves tables legs have them? some these tables of round of the angle the bottom which out from Something made “A. have. legs the extend to floor so that table the fall. me beyond edge the table. If nothing be- there was else on the floor what you don’t know “Q. But long the the table tween tables under was? passed to me when “A. ^[*] No. ^[*] ^[*] ^[*] ^[*] ^[*] them.—and could pictures have which been the trip on I have initialled the table. [sic] —it the tables and are attached this show Folmar, Now, Mrs. “Q. Yes, ma’am. the aisle and how the stick out into the you against filed your lawsuit that in ” top beyond the of the tables.’ charged you have Montgomery Fair you to be causing negligently them with Appended to this affidavit as exhibits say they did that injured. What do photographs were some of round tables lo- injured? pictures cated store. Some these legs protruding be- flared show tables with fell —I say that I yond the the table. something and fell. 690 appeal summary judg

On plausible explana- are two or more ment, appellate causation, court looks at same tions and the does factors court below considered point logically one more than ruling & Wright motion. 10 logi- other. Where evidence does Miller, Procedure, cally -point Federal Practice in one an- § direction more than 2716, p. other, It (1973), is also axiomatic reasonably 430 then a infer that all reasonable inferences from the things way. occurred This favorably facts be viewed most the non- generally comports plaintiff’s with the Diebold, party. moving United States v. urged reading Ry. cases of Southern Inc., Dickson, U.S. S.Ct. L.Ed.2d Ala. 100 So. reviewing af (1924) After all Harper, Lumber Griffin v.Co. fidavits, depositions, pleadings exhibits All So.2d we are agreed store, unable to conclude that there was that Mrs. Folmar floor, remaining for nothing no material issue trial. there was else on the pictures currently in Folmar’s show tables that she fell between in the china tables department. department, pro- time of accident, among the tables she walked were truding legs, that no furniture draped with long cloths she did been or deleted added since the accident. superintendent, legs. notice store Add staunch conten- Peavy, the area “something” Roland checked immediate tion that she over ly foreign after her object fall and found it is possible finding -hard to see how dispute or matter is no conjecture. there. There her favor can be The store about *5 “ states, this fact. Mrs. . trip has never contended that she did not stated, nothing If there was the floor be only but else that she did not know long However, tween the under exactly tables or what she over. trip passed certainty to me when I them— her later affidavit exudes more “ , only and I did says, could of a . kind. She . it could —it leg have been the Mr. table.” only been the table.” Peavy deposition stated that ta no new plethora A say of federal cases purchased bles or chairs have been for that party moving for summary judg accident, department since clearly ment must establish other that basically furnishings there are that party “any could not recover dis under day. they light same that were cernible circumstances.” this, Rotermund v. jury readily we infer that a could feel Corp., United 474 1139 States Steel F.23 pro one of Mrs. Folmar over Cir., Nyhus (8th 1973); v. Man Travel truding legs. no The has offered store agement 269, Corp., U.S.App.D.C. 151 alternative; 466 possible in the explanation F.2d (1972); 440 Phoenix course, Savings required is granted, of not to do Loan, Inc. v. Aetna Casualty Surety But so to succeed the fact that an here. Co., Cir., 381 245 (4th F.2d The 1967). jury in the fa verdict ultimate moving papers of the simply defendant do speculation or con might vor involve some There certainly possibili that. is a do jecture as to what caused fall is not ty of a plaintiff for the as the verdict dispositive nothing There is of this case. record stands now. wrong a case built around sufficient with evidence, provided the circumstantial cir negate “(T)he proba- record must proved merely pre and not cumstances are bility contrary calling for a 120, Eaves, sumed. Richards v. might developed result be trial. Any (1961). judgment 135 384 So.2d pleadings, affidavits, If the deposi- necessarily such must involve tions when available the motion sum- speculation by or inference amount mary judgment must be fail ruled on to conjecture jury. only There is any issue, resolve summary relevant Meleski, undisputed.” v. Beech Unit- Gauck F.2d v. premature.” is 433, (5th Cir., 1965). America, (5th F.2d 872 ed States Cir., 1965). See also to Rule Committee Comments possi precluded has not Procedure; defendant Alabama Rules of Civil plaintiff law, that Miller, as a matter bility, Wright & Federal Practice fact prove her case. Procedure, pp. 559-582 § is at trial unlikely prevail perhaps quarrel is general she We have no this applied. to be not a standard proposition, apply it does not feel Jobson Cir., Na 1966) ; Henne, (2d 355 F.2d particular be case. We woúld not so Ex Corp. v. Poster summary tional Screen Service say judg- as to doctrinaire Cir., 1962). Inc., (5th 305 F.2d 647 change, ment is proper never such a situation. opposing judge need not believe However, reading of the cases footnoted deny order to party’s evidence in Wright & text indicates that Miller that a must Nor he judgment. summary judgment those cases in which Ar necessarily it. Sartor believe granted had some other element not 620, 64 Corp., 321 U.S. Natural Gas Miller, kansas present (10 Wright supra, & here The mov L.Ed. 967 S.Ct. 76-80), perhaps nn. i.e. the has is that there trying show ing party is prove failed agency an essential rela- re party could the other way whatsoever tionship, pro- or that is within a class he summary judgment can Thus cover. on, a statute he tected he relies or the truth what it is clear proper “where wrong party, sued the or has soméhow Sys Broadcasting is.” Poller v. Columbia recovery, right waived and so on. 486, L. Inc., 82 S.Ct. tem, 368 U.S. any The instant case not fit of these does anoth obviously (1962). This Ed.2d Why categories analogous to them. not be that there must way saying er exception then it be to the rule ? should an It is any material fact. genuine issue as yet it is not in this case fairly obvious all When the evidence consid Did Fol- is.” “what the truth clear *6 plain light ered in the a most favorable to display ta legs of protruding mar over tiff, necessary and her are as inferences not? or did she bles true, sumed is that obvious reasonable might men as reach different conclusions gen- a have followed courts The federal to the cause of Folmar’s fall and sub granting upon the eral which frowns rule so, is sequent injury. If this the cas then cases. negligence summary judgments in of summary es that can not judgment indicate superior com- supposed the This is due to granted. be United America States of of applying a standard a in petence of Cir., Perry, (9th 1970); 431 F.2d 1020 facts. set a of to certain reasonableness Co., Cole Chevron Chemical 427 F.2d that the fact Experience has borne Cir., (5th 1970). jurisdiction In this always present almost negligence actions must also the we consider effects fact. of questions unresolved some summary judgment. scintilla rule on a If produced na- a plaintiff scintilla of ev peculiarly elusive “Because neg ne- idence the defendant’s and the issue of ‘negligence’ term ture upon ligence, summary judgment pass then will not facts cessity the trier of that fully all lie. in order to in We understand that of the conduct reasonableness plaintiff, a jury wheth- find for the would first determining in the circumstances rare to of the table it is the infer that one negligence, er it constitutes fall, dis- her to and from determine injury be that personal proba negligence that judgment, even some existed. summary posed concededly bility might might that nor occur are this facts the historical important purposes negligence This is a of this re- action and I realize that, plaintiff escape summary as a general proposition, view. The issues of judgment ordinarily negligence susceptible still suffer via and defeat direct- to However, summary at adjudication. ed a Committee be See verdict. presentation Comments, subsequent ARCP, Nevertheless, time to the all Rule 56. summary a point judgment may the trial motion for evidence. Also at granted, action, judge feelings permitted about even in when pleadings, depositions, inter- whether the will believe answers to rogatories, file, together order would think that and admissions on evidence. We grant summary affidavits, any, judgment, with the trial show two standard, things: (1) genuine judge, using that there is directed verdict issue regardless fact, must (2) feel that of what evidence material and trial, might present moving party is opposing party judgment entitled to as a he would a ver- matter of nonetheless have to direct law. Rule Rules 56(c) Alabama Procedure; That grave Birmingham dict. is a make Televi- decision to Civil prospectively, Corp. Works, and of such de- sion our v. Water review equally stringent. cision should be So.2d 636 light said, we what has been conclude presented ? What evidence judge the trial his erred in conclusion. submitted on the motion for

Application for rehearing granted; orig- presented and the op- position withdrawn; opinion inal it shows that reversed re- manded. not know what caused her fall de- testified, deposi-

fendant’s store. She tion, as follows: BLOODWORTH, JONES, ALMON SHORES, JJ., concur. hap- All Tell me how it

pened Mont- gomery Fair store. HEFLIN, J., MERRILL, C. MAD- EMBRY, DOX JJ., dissent. I walked in the store and stopped register

Fran And silver. up through walked on the China De- HEFLIN, Chief (dissenting): Justice partment, joined and Fran came I agree, basically, opinion with the me. And she said come let me show Maddox in cause, but feel that Justice pattern picked that I out. And the circumstantial evidence was sufficient past walked these round *7 to make a jury question as to what Mrs. there were some shelves up at the tripped However, Folmar over. I do not the round tables with some dishes on believe that is scintilla them. And a couple, a lady man and a negligence. to- pertaining The facts of this came, they stopped and to look at those not qualify do pur- to- come within the dishes. my And it going blocked view of First National Bank of Mobile v. through, and I waited a while for them Ambrose, 119 So.2d 18 on through to move to let me they and didn’t. So I turned around walked

between go the tables to to Fran. And as I was walking between the tables I MADDOX, (dissenting). Justice tripped something on just at an fell Although can I admit that this is a close angle. case, I believe the trial court was correct in granting summary judgment “Q. in this par- on, you What did Mrs. Fol- ticular case. mar? you “Q. But don’t know what know. I don’t

“A. was? you anything see ? “Q. Did No, “A.

“A. No. [Emphasis added.] on the fell? “Q. Did floor, you either see anything before or after any time you “Q. your Yes, lawsuit He ma’am. ^[*] you Now, ^[*] filed Mrs. ^[*] against Folmar, ^[*] charged you Montgomery Fair just The minute I fell I “A. you to be causing negligently them with shoulder, my excruciating pain, it broke say they did that injured. you What do my hip. you injured? to be you touch “Q. anything Did — Well, say that “A. fell portion your body, your foot or either tripped something on fell. your any portion your or knee or your body you the ta- as walked between specific you “Q. And bles? be? my it was anything if “A. foot. “A. Yes. [Emphasis added.]

sjc ^[*] ^[*] ^[*] H< ‡ how “Q. You don’t happened, know what it was basically you are you were “Q. you saying you uninjured the time in there went tables that going injured? between some small came with china up quite high were stacked Yes, surely did. “A. sale? that was on charge you And for that reason “Q. “A. Yes. negligence ? them with you say you turned to “Q. And when “A. Yes.” go those refer- between [Emphasis added.] that had china some small tables

ring to up top there ? stacked sale favorably to Viewing most the evidence Folmar, required as this Court Mrs. Yes. “A. presented: do, facts are find Now, your foot “Q. All something 1. anything, it be fair to store. department fell in in the aisle it was state that pass be- attempting to fell while 2. She those tables? with table were covered tween tables which I would think so. china. and ladened with Now, anything did see her to know what caused She those ? aisle between trip. "A. No. she fell contained 4. The aisle *8 objects substances. foreign portion your of “Q. Did supplementary affi- filed any of those body into contact come 7, 1973, read as davit, September which on you walked between themselves as tables follows: them? “ I am Mary B. ‘My Folmar. name made Something have. I No. Action in Civil plaintiff the

be fall. 694 tripped my deposition cigarette disposal tiff over a gave the time I on metal 23, legs. stand

September [sic, 1972], had not which had flared 1973 trip. Montgomery since there knew what caused her to returned to the Fair denied, Ambrose, gone trial in the then I have court the defend- accident. Since request ap- charge, the ant’s for an affirmative and have seen tables which back and a pear passing ones I was verdict was for the to me be the rendered plaintiff. tripped. This the These ta- affirmed trial between at the time I Court long refusing court’s bles table cloth the affirma- were covered with case, legs charge tive facts time the that but the that did notice presented in since noticed that circumstances that case the tables. materially legs different, especially tables have the evidence round which out the of the causation. angle from bottom legs table floor so the extend to the Summary judgment in a negligence ac beyond out of the table. If edge the appropriate. tion is sometimes See Her .nothing on the floor be- was else bert Regency Apartments, v. 292 Ala. 417 long table tween the or under Previously, 295 404 (1974). So.2d trip passed when I me Court, rule, applying the scintilla evidence trip something on them —and —it also found that a action can only table. could have been be taken jury, from verdict initialled pictures I have which upon could only pure speculation be based are attached to this show the [sic] and conjecture. Acci Colonial Life and legs stick into tables and how the Collins, 373, dent Insurance Ala. Co. v. 280 ” beyond aisle the tables.’ 194 (1967); 532 So.2d McDowell and McDowell, Barnett, 302, Inc. v. 277 Ala. photographs Mrs. Folmar also filed three Ry. 169 324 (1964); So.2d Southern v. photo- as exhibits to her affidavit. The Mills, 494, Woodstock 230 Ala. 161 So. 519 tables, graphs were of some of round Paul, (1935); Casualty Continental v. Co. beyond legs which had flared that extended 166, 95 (1923); So. St. Louis edge ta- table itself. The other Dorman, 609, & S.F. RR. v. 205 Ala. straight had legs. bles So. 70 It is axiomatic happening mere of an accident raises no Plaintiff Folmar contends that the evi- presumption of negligence. something dence shows that she on walking which made her fall she was In Harper, Lumber Co. Griffin tables; between the fair Ala. 25 So.2d (1946), this Court something state it be- aisle refusing reversed the trial court tables; type tween the that in give view of charge requested by affirmative involved, of table and in view of the store the defendants in that case. In Griffin employee’s nothing Lumber, statement that else was this Court rule followed the floor, logically on and reasona- laid down in the Ry. case of Southern bly be inferred that Dickson, she ta- 211 Ala. So. leg. ble argues Plaintiff’s counsel (1924), as follows: since she did when she “ goes ‘Proof which no further than to passed between the and if there was injury show an could have occurred nothing long else on the floor or under the way, an alleged does warrant trip her, cloth to “then it table could occur, conclusion that it did so have been the the table proof injury the same can with tripped.” disagree. she equal probability be attributed to some Plaintiff Folmar relies First National other cause.’ Ambrose, Bank Mobile v. “But a nice discrimination must be ex- Ambrose, plain- So.2d application ercised princi- of this *9 brose, (1960), a Ala. 119 So.2d causation, conjec- a theory of pie. As a heavily by plaintiff. relied on case consistent explanation simply an ture conditions, or with known facts disagree on majority do not in- as a reasonable them deducible rarely summary judgment is the rule more may be two or There ference. I thor- in a case. appropriate an to how explanations as plausible principle of general oughly agree with that it; produced what happened or event Ray opinion in my original law. See is without selective yet, if the Park, Ala. v. Midfield Plough them, they re- any application to one my special concur- (1974), So.2d 686 only. other conjectures On main Co., Bridge v. Dawson rence in Watwood points hand, there is evidence 307 So.2d causation, indicat- theory one inappro- judgment was thought ef- of cause sequence ing logical a cases because mov- priate in both those judicial basis for fect, is a then there every had not eliminated ant in both cases notwithstanding determination, a such fact. do genuine issue of a material plausible theories other existence of appropriate summary judgment was think in the evidence.” support or with without here, however, attempted to show. as I have my mind out in that stands fact shown, by direct Plaintiff has this. evidence, her caused what

circumstantial

trip. cannot show what If she finding?

fall, a make such a how can says that it Plaintiff think can. do not cov- were tables that there

she has shown which hid 309 So.2d table cloths ered with straight had of the tables Some from view. STATE MUTUAL AUTOMOBILE FARM pictures legs. The flared legs. had Some INSURANCE COMPANY not show do with the affidavit submitted They tables. that these are unusual appear to me. to be standard tables BRADLEY. Gerald E. SC 958. myself bring conclusion

I cannot theory plaintiffs points proof that the Supreme Court Alabama. sequence causation, logical indicating March proof here re and effect. cause “something” quires inference an leg table

causing plaintiff to plaintiff says was cov

(since was, fact,

ered, infer it have to we also ta infer that was a leg).

a table If we ta flared leg, have to infer was

ble we specula type leg. requires

ble That conjecture Court said

tion and which this upon in Mc cannot based verdict McGlinton, 542, So.

Clinton

2d 594 negli- see how it could be also fail to ta-

gent display of merchandise items pictures

bles like those we distinguish-

case. The facts of this Am- Bank v. from First National

able