Layton v. Knight

198 S.E.2d 915, 129 Ga. App. 113, 1973 Ga. App. LEXIS 904

• Court: Court of Appeals of Georgia
• Decided: May 18, 1973
• Docket: 47859
• Status: Published

Opinions

Hall, Presiding Judge.

Plaintiff in a personal injury action appeals from the granting of a summary judgment to the defendant. (We shall refer to the parties as plaintiff and defendant for clarity because, while their designation below was reversed, this is their actual status in the counterclaim which is the only action being litigated).

1. Plaintiffs basic contention is that the facts, though essentially undisputed, still leave room for inferences favorable to the plaintiff which, especially in a negligence case, should be considered by the jury.

There are three issues which plaintiff contends would fit the above category. The first is that the jury might find that plaintiffs vehicle never left her own lane. The plaintiffs evidence on this point is that she does not know whether, during an admitted fish-tail skid, the rear of her car crossed the center line. Defendant’s evidence was, of course, that it had, and that in an attempt to avoid the collision, he had even partially left the pavement. It is basic that an inference can be drawn only from a fact and that whether a fact will authorize a particular inference is a matter of law.

" It appears that the confusion has arisen because of the failure of courts to distinguish between the question (1) whether the evidence reasonably establishes a given theory and the question (2) whether the evidence preponderates to one or another of the theories which it reasonably establishes. The first question is one for the court to decide. This is essentially an 'any evidence’ question. There must be more than a 'scintilla’ of circumstances to carry the case to the Jury. Georgia R. &c. Co. v. Harris, 1 Ga. App. 714, supra; Green, Georgia Law of Evidence, 86, 87, § 22. More than a 'scintilla’ of circumstances 'means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, 229 (59 SC 206, 83 LE 126). If it is permissible reasonably to draw a given inference from the circumstances proved, such inference is not mere speculation or conjecture. As Mr. Justice Cardozo (prior to his service on the Supreme Court of the United States) explained in People v. Van Aken, 217 N. Y. 532, 542 (112 NE 380), an inference is legitimate deduction whereas conjecture is mere unregulated suspicion. If the evidence reasonably establishes the plaintiffs theory it must be submitted to the jury for deciding the second question — whether the evidence preponderates to that theory or to some other; and in deciding that the evidence preponderates to one permissible conclusion, the jury excludes all other less reasonable hypotheses.” McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178, 182 (129 SE2d 408). At issue here is whether a statement of no knowledge is (1) a fact and (2) if so, would authorize conflicting inferences between which a jury might choose. We do not believe so, especially in the absence of any corroborative, circumstantial evidence. Other jurisdictions have also ruled this way.

"When a witness states that he does not know which of two inconsistent things are true, it cannot be inferred therefrom that either the one or the other is the fact.” Leach v. Board of Dental Examiners, 262 P. 61 (Cal. App.). ". . . [N]o inference of fact may be drawn from a premise which is wholly uncertain.” Pastor v. Cane, 134 A.2d 95, 98 (D. C. Mun. App.).

2. The plaintiffs second contention is that she has alleged and also stated in her deposition that defendant had the last clear chance to avoid the collision and that this issue should go to the jury. The statement in the deposition is merely a conclusion, supported by no facts, and stands on the same footing as the allegation in the petition. However, the undisputed facts indicate that the doctrine is inapplicable. Plaintiff testified that she was traveling about 30 miles per hour when she went into the skid; that she traveled about 10 feet while in the skid; and that defendant was apparently proceeding at 35-45 miles per hour (on a road whose undisputed speed limit is 60 miles per hour). It also is undisputed that it is 152 feet from the point at which the incident occurred which caused the plaintiff to skid and the point of impact. First of all, accepting plaintiffs highest estimate of defendant’s speed at 45 miles per hour (which is approximately 63 feet per second) and assuming he was aware of the above incident and anticipated a problem as far away as 152 feet, defendant had approximately 2.4 seconds to react and then take evasive action. Since his stopping distance would be approximately 217 feet (see table No. 176, AmJur2d Desk Book) his only possible course of action would be to immediately hurl himself off the highway with full right wheel steering — a risky maneuver at best. To say that the doctrine of last clear chance should apply under this set of facts is a patent absurdity.

3. Finally, plaintiff contends that defendant admitted liability on two occasions when he mentioned his insurance coverage. The i testimony, however, shows that the alleged mention of insurance j was not coupled with any admission of fault and would, ; therefore, be inadmissible in any event. Minnick v. Jackson, 64 Ga. App. 554 (13 SE2d 891); Goldstein v. Johnson, 64 Ga. App. 31 (12 SE2d 92).

Argued February 7, 1973 Decided May 18, 1973. Rogers, Magruder & Hoyt, J. Clinton Sumner, Jr., for appellant. Matthews, Walton, Smith, Shaw & Maddox, James D. Maddox, for appellee.

Judgment affirmed.

Eberhardt, P. J., Quillian, Clark andStolz, JJ., concur. Bell, C. J., Pannell, Deen and Evans, JJ., dissent.