McCarty v. National Life & Accident Insurance

129 S.E.2d 408, 107 Ga. App. 178, 1962 Ga. App. LEXIS 601

• Court: Court of Appeals of Georgia
• Decided: December 3, 1962
• Docket: 39629
• Status: Published

Opinions

Hall, Judge.

The trial court’s function in ruling on a motion for summary judgment is analogous to the function he performs when ruling on a motion for directed verdict. 6 Moore’s Federal Practice 2101, '§ 56.15; 2020, § 56.02 [10]. “The essence of both motions is that there is no genuine issue of material fact to be resolved by the trier of the facts, and that the movant is entitled to judgment on the law applicable to the established facts.” 6 Moore’s Federal Practice 2032, § 56.04 [2]. The burden of demonstrating this lack of a substantial issue is upon the moving party in a motion for directed verdict (Code § 110-104) or a motion for summary judgment. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442). The party opposing the motion must be given the benefit of all reasonable doubts on motion for directed verdict (Sellers v. Wolverine Soap Co., 19 Ga. App. 295 (1), 91 SE 489) or motion for summary judgment. Holland v. Sanfax Corp., supra, p. 5. The evidence must be construed most favorably to the party opposing the motion for directed verdict (Curry v. Durden, 103 Ga. App. 371 (1), 118 SE2d 871) or motion for summary judgment. Walling v. Fairmont Creamery Co., 139 F2d 318 (6), 322. The party opposing the motion must be given the benefit of all favorable inferences on motion for directed verdict (Northwestern University v. Crisp, 211 Ga. 636, 647, 88 SE2d 26) or motion for summary judgment. Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736, 739 (123 SE2d 179); Holland v. Sanfax Corp., supra, p. 5. In other words, where more than one inference can be drawn from the evidence, the duty of solving the mystery should be placed upon the jury and not the trial judge. Northwestern University v. Crisp, supra; Marshall v. Woodbury Banking Co., 8 Ga. App. 221 (68 SE 957). This is true with respect to circumstantial evidence as well as direct evidence; Whitaker v. Paden, 78 Ga. App. 145, 148 (50 SE2d 774).

The plaintiff in this case made no effort to call upon the exercise of the trial court’s discretion under Code Ann. § 110-1206.¹ On the contrary, during oral argument before this court, counsel for the plaintiff conceded that if this case had gone to trial there would not have been any other evidence than that submitted on this motion for summary judgment. ' For this reason and the other reasons stated above, it is axiomatic that the question before us here on motion for summary judgment is identical to the question that would be raised on a motion for directed verdict.

The defendant’s motion for summary judgment was supported by a deposition of a pathologist, the medical examiner for Fulton County, an affidavit of a witness, and a copy of the insured’s death certificate. This evidence showed that the insured fell on the pavement at school and was picked up and carried to the doctor’s office while apparently still alive, but was pronounced dead upon examination by the doctor; and that an autopsy of the insured’s body was performed revealing certain facts reflecting on the cause of death. There was no direct evidence on the question whether the death resulted through “external, violent, and accidental means.” The testimony of the pathologist who performed the autopsy was in part as follows: The immediate cause of death was asphyxia due to regurgitation and aspiration of gastric contents. There was a freshly broken tooth, red and exposed, a faint area of abrasion near the center of the forehead, lacerations of the lower jaw, and of the inner surface of the lower lip adjacent to the broken tooth, none of which in his opinion contributed to the death. In his opinion the insured’s death was not contributed to by a fall. This opinion was based on the physical appearance of the insured’s external injuries, indicating to him that the insured did not survive over five to twenty minutes after the fall. The fall was of sufficient force to cause a brain concussion, which is a shaking up or jolting associated with unconsciousness; and it was possible the insured had one. There was no evidence that would lead him to believe, and he was unable to express an opinion, either that there was a concussion or that there was not a concussion. If there was a concussion this would be the most likely cause of aspiration of gastric contents and it would change his opinion as to the cause of death. It would be more likely for an unconscious person or semi-conscious person to regurgitate and aspirate into the air passages than for a conscious person. There was pathological evidence of infection. Regurgitation can be caused by infection, among other things.

The evidence as to the insured’s external injuries, and the evidence that the insured’s fall was of such force that it could have caused a concussion, and that a semi-conscious or unconscious person is more likely than a conscious person to regurgitate and aspirate gastric contents, could lead to a reasonable hypothesis that the insured fell and had a concussion and became unconscious, followed by regurgitation. On the other hand, the physical appearance of the insured’s external injuries indicating, in the pathologist’s opinion, that the insured did not survive over five to twenty minutes after the fall, and the evidence that infection was present, and that regurgitation can be caused by infection and other conditions, could lead to the reasonable hypothesis that regurgitation and aspiration of gastric contents causing asphyxia occurred first, and then the fall. From the facts and the medical opinion evidence more than one reasonable hypothesis as to the cause of death could be reached. Accordingly, we are of the opinion that the question whether the defendant has carried the burden of proof by showing that the second hypothesis stated above is more probable than the first must be left to the jury. .

The law concerning when circumstantial evidence alone will create an issue of fact for submission to the jury has not been applied consistently. In 32 CJS 1102, § 1039, it is stated: “It is asserted by a number of authorities that a conclusion is not supported by circumstantial evidence unless the facts relied on are of such a nature, and so related to each other, that no other conclusion can fairly or reasonably be drawn from them; but there is also authority for the view that it is sufficient for the party having the burden of proof to make out the more probable hypothesis, and that the evidence need not rise to that degree of certainty which will exclude every other reasonable conclusion.” (Emphasis supplied). In the 1962 Cumulative Annual Pocket Part to CJS there are Georgia cases cited for each of the views mentioned in the above quotation. It is our opinion that the right and controlling rule is that established in Georgia R. &c. Co. v. Harris, 1 Ga. App. 714, 717 (57 SE 1076), and Radcliffe v. Maddox, 45 Ga. App. 676, 682, 683 (165 SE 841), which holds: “In neither criminal nor civil cases is it required that the proved circumstances shall show consistency with the hypothesis claimed and inconsistency with all other reasonable theories to the point of logical demonstration. In civil cases all other reasonable theories are excluded when proved circumstances of real and actual probative value cause the jury to find that the preponderance of the evidence is in favor of the hypothesis claimed, as against all other reasonable but less probable theories.” (Emphasis supplied).

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 plaintiff’s 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. Radcliffe v. Maddox, 45 Ga. App. 676, supra; Travelers Ins. Co. v. Miller, 104 Ga. App. 554, 561 (122 SE2d 268).

This view is consistent with the general principle of our law which leaves it to the jury to resolve all questions of weighing the evidence. Tennant v. Peoria & Pekin Union R. Co., 321 U. S. 29, 35 (64 SC 409, 88 LE 520), was a case based on circumstantial evidence and it was there held that courts should not take a “case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” “The situation is best summed up by the language of Justice Bleckley, speaking for the court, in Brown v. Matthews, 79 Ga. 1 (4 SE 13): ‘Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.’ ” Christian Const. Co. v. Wood, 104 Ga. App. 751, 757 (123 SE2d 151).

In considering whether or not a party has carried its burden of proof by circumstantial evidence the juiy is to decide upon the preponderance between the hypotheses the evidence might reasonably establish. Thus, it would be proper for the court to charge the jury, as stated in Overstreet v. Metropolitan Life Ins. Co., 69 Ga. App. 459 (26 SE2d 115), that “where circumstantial evidence equally supports two theories it proves neither.” The court, of course, could properly decide that the evidence reasonably established either of two opposing theories. But such a decision imports a conflict in the evidence. A conflict in the evidence makes necessary its submission to the jury for decision upon the preponderance of the evidence or other burden of proof the party may have to carry. 20 Am. Jur. 1043, § 1190. If the jury should find that neither theory preponderates, but that they are supported equally, it would follow that the party had not carried his burden of proof. This the court overlooked in the Overstreet case when it affirmed the directed verdict after itself passing on the preponderance of the evidence and deciding (1) that it supported two opposing theories equally (see opinion at page 460); and (2) that one of the hypotheses was not reasonably excluded (see headnote). Moreover, the court there overlooked the rule that in passing on a motion for directed verdict it should consider the inference most favorable to the party opposing the motion. When circumstantial evidence as seen by the court is “equal,” or when it is “in conflict,” the court cannot decide where the preponderance lies or exclude hypotheses that seem to it to be the less reasonable; and it is error to direct a verdict. Whitaker v. Paden, 78 Ga. App. 145, 150, supra; Halligan v. Underwriters at Lloyd’s, London, 102 Ga. App. 905, 909 (118 SE2d 107); accord, Dodd v. Callaway, 76 Ga. App. 629, 636 (46 SE2d 740). The Overstreet case would deprive the jury of the function to decide whether the theories established by the circumstantial evidence are supported equally or unequally, or that one is less probable than the other and therefore excluded. We are of the opinion therefore that the Overstreet case is inconsistent with Georgia R. &c. Co. v. Harris, 1 Ga. App. 714, supra, and Radcliffe v. Maddox, 45 Ga. App. 676, supra, and is not controlling, and that the other cases cited in Judge Felton’s concurring opinion, insofar as they are inconsistent with the Harris and Badcliffe cases as explained herein, are not controlling. Ladson Motor Co. v. Croft, 212 Ga. 275 (92 SE2d 103), was a workmen’s compensation case in which it was decided that the evidence was insufficient to show that the deceased employee’s death was by reason of an accident arising out of his employment. In the majority opinion (in which four Justices concurred, with two Justices dissenting) there is the language (p. 277), “where the evidence tends equally to sustain two inconsistent propositions, neither can be said to have been established by. legitimate proof.” What the case actually held, however, was that there was not a “scintilla” of circumstances authorizing an inference that the employee’s death arose out of his employment, but the circumstances did authorize a reasonable inference to the contrary. Hence, that case is not in conflict with the present opinion.

It should be remembered that there remains with the trial judge, even after he has denied a motion for summary judgment and a motion for directed verdict, the discretionary authority to grant a motion for new trial on the general grounds if after hearing the case he believes the verdict is contrary to the evidence, the law, and the principles of justice and equity. However, “A judge cannot properly direct a verdict because he may think that the strength or weight of the evidence is on one side, or because he might grant a new trial if a verdict should be returned against what he thinks is the preponderance of the evidence. Under the Code [Code Ann. § 110-104], this can be done only where there is no conflict in the material evidence, and where that introduced with all reasonable deductions or inferences therefrom demands a particular verdict.” Blackburn v. Lee, 137 Ga. 265 (73 SE 1); Northwestern University v. Crisp, 211 Ga. 636, 647, supra. Our law has always provided this safeguard—the discretion of the trial judge to grant a new trial after the verdict—against abuses by juries of their fact-finding prerogative. We need not fear wholesale perversion of justice as long as this power rests in the hands of our trial judges who see the disputes tried with living people..

The defendant argues that the plaintiff has presented no genuine issue of fact because her case rests on a pyramiding of inferences, in that from the fact that the insured was on the ground the inference that he fell is drawn, and other inferences are based on the inference that he fell. Since the affidavit submitted by the defendant with its motion for summary judgment contains evidence that the insured had fallen and been hurt, and is an admission on the part of the defendant, we need not discuss this contention.

There remains a genuine issue of material fact as to whether the death of the insured resulted through external, violent and accidental means; therefore, the court below erred in granting the defendant’s motion for summary judgment.

Judgment reversed.

Bell, J., concurs. Felton, C. J., concurs specially.

1 “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 to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”