(dissenting).
I am unable to agree with my Brethren who have decided that the summary judgment entered by the court below should be reversed and this case sent back for a hearing on the merits. I think that a directed verdict will inevitably ensue and that, under the circumstances appearing in this record, the long and tedious hearing upon such a procedure ought to be avoided.
The case is a close one, but I think that is is as important to see that the salutary summary judgment procedures are utilized in proper cases as it is to protect litigants from their employment in cases where the record shows that the party appealing is entitled to such a hearing.
It should be understood that the testimony of every single person who knew anything about the fire was taken by deposition and full right of cross examination offered, except for the affidavit of appellee’s vice president, Pulley, which was not controverted or challenged by the appellants even though they had employed experts with the view of using them if their statements had been favorable. The court below, therefore, had before it everything which would be developed in a trial upon the merits, and it found that no negligence had been shown by appellants. This being true, I think we should affirm the conclusions reached by it.
It is helpful to consider at this point exactly what the lower court did say about the failure of the appellants to sustain the burden resting upon them in the presentation to it.1 It will be found *430helpful, too, to set forth the summary of the argument advanced before us in the brief of appellants.2
It is well to recall also that the case was heard by the court below on the second motion for summary judgment in which the appellee relied upon the pleadings, the depositions of the appellants, the affidavit of R. L. Pulley, appellee’s vice president, and a list of witnesses furnished by the appellants pursuant to pretrial order, including the statement that they did not intend to produce as a witness any electrical engineer or other expert; and upon the written opposition of appellants to this motion in which it was stated that appellants would rely upon the pleadings, the depositions of the two appellants, and the depositions of four of appellee’s employees, including the two servicemen Ratliff and Barfield who were called to the fire.
It is undisputed in the record that the servicemen arrived well in advance of the fire fighting equipment, that the west end of the hotel was generally in flames, that the arcing at and around the service mast had ceased, and that the wires to the hotel had been severed and were lying on the ground. The testimony of appellants that the servicemen came onto the scene slowly and stood around doing nothing is lacking in probative value for the reason that the severance of the wires they had been called upon to effect had already been accomplished.
Soon after the two servicemen had arrived the desire was expressed that the hotel water pump be reconnected so that the water from it could be used on the raging fire. One of the servicemen mounted the pole upon which the transformer was situated and, finding that all of the fuses had disintegrated, re-fused one of the lines and connected it up with the pump, which immediately began discharging water in a normal way.
I deal, first, with appellants’ contention that the servicemen did not proceed with reasonable speed in cutting off the electrical current after being advised of the emergency. I think that the court below was correct in holding that there *431was no issue of fact on this point. I pass over the settled principle that estimates, especially under circumstances of stress such as were present here, are not highly probative, Illinois Central Railroad Co. v. Underwood, 5 Cir., 1956, 235 F.2d 868, 873, and cases cited. Disregarding the estimate of time given by the two servicemen and accepting that ■of appellants, and relating it to the other testimony given by the two appellants, I do not think that there was any substantial evidence that the servicemen were guilty of any unreasonable delay which contributed in any way to the starting of the fire or its spread.
By appellants’ own proof, the current serving the lighting system of the hotel, both inside and out, had been cut off by the operation of safety devices before appellants were awakened. Assuming that the testimony of appellants that they discovered arcing and flashing at and near the entrance mast after they had gone into the yard of the hotel tended to prove that current was still being delivered to that point, appellant Shahid testified that, after he had driven to Silver Beach and ’phoned serviceman Ratliff and had immediately returned at high speed to the hotel, the arcing at the entrance mast had ceased. There was no evidence, therefore, that the current had not then been cut off entirely, which was considerably before the servicemen could have arrived;- since the appellant Shahid did not have to stop to dress after he telephoned Ratliff, and his return journey was less than half that which the servicemen had to take. This, coupled with the undisputed proof that the wires had separated and fallen to the ground by the time the servicemen arrived, and that when, shortly thereafter, one of them mounted the pole to the transformer, he found that all of the fuses had disintegrated, eliminated the time it took the servicemen to arrive at the scene of the fire after notice, as a significant element in the proof.
Much is made by appellants over statements the appellants claimed to have elicited from Ratliff and Barfield sometime after their arrival to the effect that “had the ‘jacks’ worked on the night of the fire, the hotel would not have burned.” This statement, attributed to Ratliff and Barfield by one or both of the plaintiffs, was described in appellants’ brief as “by far the most damaging evidence against appellee.”
In describing these jacks, Pulley, who had been chief engineer for appellee for more than thirty years, used these words in his affidavit: “* * * these fuses upon disintegrating ordinarily caused 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 * * * ”
These statements attributed to the servicemen were not, therefore, of any probative value in the court’s consideration of the case because, by introducing the depositions of Ratliff and Barfield unconditionally, the appellants made them their witnesses;3 and, moreover, the servicemen were not asked about these alleged statements when appellants’ attorney was examining them, so that the predicate was not laid to impeach these witnesses. This is so even if, contrary to the Federal Rule, appellants would have had the right to impeach their own witnesses. 4 Moore’s Federal Practice, 2d Ed., pp. 1204-1205, and 5 ib., pp. 1348-1349. Finally, opinions given by the servicemen outside the scope of their agency (which involved only emergency work on the appellee’s equipment) would not, if entitled to any consideration at all, have any effect towards establishing as fact the truth of the matter dealt with in the opinions. Cf. 31 C.J.S. Evidence § 343, pp. 1113, et seq.
Appellee filed the affidavit of its operating manager, a graduate electrical engineer duly registered in the State of *432Florida. Substantially five months elapsed between the filing of this affidavit and the hearing of the motion for summary judgment, and appellants failed to avail themselves of the right to cross examine this witness, and failed to offer any evidence contravening what Pulley stated. They admitted that they had consulted and had reports from one or more experts, but they did not offer their testimony. Pulley was acquainted with appellee’s equipment at and near the hotel and the installations on its premises. He swore that the transformers, fuses, lightning arrestors and other items of equipment serving appellants’ property were all standard equipment which was designed to protect, and did actually protect, appellants from overloading, short circuits and like occurrences which might endanger the electrical system maintained by appellants and their property upon which it was situated. Having heard the testimony of all of the witnesses whose depositions were offered by the parties and being acquainted with the room from which the sparks were said to have emanated, as well as all of the equipment in and around the premises, electrical and otherwise, he gave as his expert opinion that the sparks in the storage room were produced by the gas hot water heater and gas lines within that room; that' the arcing and flashing at and near the service mast were the aftermath, and not the cause, of the fire, being the product of fire damage to the insulation of the service wires sufficient to cause short circuits, which in turn blew the fuses on the transformer pole. What he said was not disputed, but on the other hand the testimony of appellants tended to corroborate him.
They had, since the original wiring was installed in the hotel premises, added a walk-in freezer unit and air conditioning equipment, which latter gave them so much trouble that they had installed three additional towers to make the equipment work more efficiently. The trouble they experienced with bulbs burning out and fuses blowing on the hotel premises was, without dispute, attributable to their own overloading of the electrical wiring in the hotel. Without question, the trouble began within the hotel premises; and its own protective devices had operated to shut off all of the lighting within them; and the fire had been in progress some time before there was any arcing or flashing near or upon the wires of appellee.
From the whole record it is clear that appellants failed to introduce substantial evidence of negligence to make a case concerning which reasonable minds might reach different conclusions. They have produced no proof which tends to establish that any negligence on the part of the appellee caused the fire or contributed to its spread. In a long line of cases this Court has held that “speculation cannot supply the place of proof.” Theriot v. Mercer, 1959, 262 F.2d 754, 759; Smith v. General Motors Corp., 1955, 227 F.2d 210; McNamara v. American Motors Corp., 1957, 247 F.2d 445; E. I. duPont De Nemours & Co. v. Kissinger, 1958, 259 F.2d 411, certiorari denied 359 U.S. 950, 79 S.Ct. 736, 3 L.Ed.2d 683; and Nashville Bridge Co. v. Bitch, 1960, 276 F.2d 171.
In this case no such proof was made and no circumstance points to the probability that further proof will be turned up. Substantially a year elapsed between the time of the fire and the beginning of this action, and two years between the time the action was begun and the time of its submission. The parties have developed their respective contentions by taking the depositions of both appellants- and of all of the employees of appellee who had any knowledge of or dealings with appellants’ and appellee’s electrical' installations at and near the damaged premises or of the facts attending the fire. Under these circumstances I think that the court below was justified in disposing of the case under summary judgment procedures in the manner and for the reasons set forth in Footnote 1 supra. Cf. Chambers & Co. v. Equitable Life Assurance Society of the United States, 5 Cir. 1955, 224 F.2d 338, 339; *433Whitaker v. Coleman, 5 Cir., 1940, 115 F.2d 305; King v. California Co., 5 Cir., 1955, 224 F.2d 193; Inglett & Co. v. Everglades Fertilizer Co., 5 Cir., 1958, 255 F.2d 342; and Dyal v. Union Bag-Camp Paper Corp., 5 Cir., 1959, 263 F.2d 387.
I am not unfamiliar with the fact that there is a disposition on the part of some courts to rule summary judgment out as a remedy in negligence cases. I do not see any justification for such an attitude. Indeed, a large proportion of the cases coming before us involve negligence. If, from the depositions and affidavits placed before a court, it is clear that those claiming negligence have not proven it according to legal standards, I think that summary judgment ought to be entered in a negligence case to the same extent that it is in any other case.
Nor do I adhere to the concept sometimes found in court opinions that summary judgment ought to be denied because from the whole record it looks as if the party opposing it might be able to find some evidence to raise an issue of fact. On the other hand, I think it is clear from all of the authorities that the duty rests upon one against whom summary judgment is sought to bring forward competent proof developing an issue with the facts which have been adduced, under legal standards, by the person seeking summary judgment. The Rules themselves, in my opinion, make such an attitude mandatory.4
In this case both parties have “milked the cow dry.” The case has been pending a long time. There is, in my opinion, no indication that the appellants can ever improve upon the testimony they placed before the court. In my opinion, the testimony justifies the granting of a summary judgment, and the opinion of the majority tends to emasculate the summary judgment rule as a mechanism for shortening the tedious proceedings by which justice is meted out. I therefore respectfully dissent.
. “ * * * Plaintiffs’ complaint consists of three counts. * * *
“The material allegations of the First Count are that defendant Power Company negligently failed to cut off the current after it was notified of fire at plaintiffs’ premises, resulting in the destruction of plaintiffs’ property by fire.
‘‘The plaintiffs do not charge the defendant with any responsibility for the origin of the fire in this Count.
“The depositions and affidavits relied upon by defendant in support of its motion in this regard are in no way disputed by any of the documents relied upon by plaintiffs. It affirmatively appears in regard to this issue as to whether or not the defendant negligently failed to cut off power promptly after notification by the plaintiffs that the facts are not in dispute. The plaintiffs in their depositions aver that the defendant’s servicemen were slow in arriving at the scene, but it is not disputed that the power was already off, and there is no showing that the defendant could, or should, have cut off the power sooner than was accomplished prior thereto by safety mechanisms. This being so, there is not even the possibility of inference that the exertion of more diligence by defendant would have prevented or mitigated the damage. * * #
“Even placing upon the defendant, as the law does, the duty of extraordinary care in the operation of its business and considering the matter here on motion for summary judgment most stringently against the movant, the court concludes nevertheless that there is not even the modicum of evidence necessary to submit a material question of fact to the jury and that defendant’s motion for summary judgment should be granted.
“In reaching this conclusion, the court has considered most carefully the case of' *430Yelverton v. Adams, decided by the United States Court of Appeals for the Fifth Circuit and reported in 202 F.2d 146. [Here the court below quoted from the decision in the Yelverton case.]
“In the case before this court, we do not have merely strained evidence in support of plaintiffs’ contention, we do not have merely weak evidence in its probative force, we simply do not have any substantial evidence of any nature which could give rise even to an inference, from substantial evidence, conjecture or otherwise, that the fire here was duo to the negligence of the defendant. In Yelverton there was at least some proof of a jumper wire or other specific condition that the power company in that situation was charged with having failed to detect upon inspection, or having failed to remedy after complaint. Here plaintiffs and their witnesses merely describe certain electrical phenomena from which they wish the jury to be permitted to infer that some unidentifiable dangerous condition existed, further infer that the defendant was responsible for the condition, and still further infer that this condition caused the fire.
“The entire burden of all the evidence before the court in this case compels the court to the view that there is a very obvious distinction between the two cases. To hold otherwise would be to submit to a jury conjecture, inference, speculation without even a jumping off place to reach some kind of a verdict. The mere fact that premises are burned to which electrical current is supplied, standing alone, cannot be the basis for an action in negligence against the supplier of the current thereto. * * * ” [Emphasis added.]
. “The appellants are unable to pinpoint the exact cause of the fire, except that it can be reasonably inferred from their testimony that there were some defects in Gulf Power Company’s equipment which caused dangerous amounts of electrical current to come into the hotel, starting the fire and preventing the appellants from extinguishing the said fire. There is also evidence that the Gulf Power Company delayed unreasonably in cutting the current off, and closely connected with that theory of recovery is the proposition that the power company was negligent in failing to provide the consumer an adequate protective devise which would operate to cut off the current in event trouble such as this developed.”
. Rule 26(f) F.R.C.P.
. E. g., Rule 56(c) providing in part:
“ * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Rule 56(e) provides:
“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * *»
And Rule 56(f) provides:
“Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits tor be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”