Hill v. Delchamps Food Stores

310 So. 2d 871 (1975)

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

SC 793.

Supreme Court of Alabama.

April 3, 1975.

William H. Saliba, Mobile, for appellant.

Sydney R. Prince, III, and E. L. McCafferty, III, Mobile, for appellee.

EMBRY, Justice.[1]

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, *872 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.

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