Hitchcock v. Key

• Decision Date: 15 October 1982
• Docket Number: No. 64656,64656
• Citation: 163 Ga.App. 901,296 S.E.2d 625
• Parties: HITCHCOCK, et al. v. KEY.
• Court: Georgia Court of Appeals

Page 625

296 S.E.2d 625

163 Ga.App. 901

HITCHCOCK, et al. v. KEY.

No. 64656.

Court of Appeals of Georgia.

Oct. 15, 1982.

Joel D. Burns, Milledgeville, for appellants.

William W. Hinesley, James E. Carter, Carter & Shepherd, Madison, Jesse Copelan, Jr., Eatonton, for appellee.

DEEN, Presiding Judge.

Appellants bring this appeal of the successful challenge by appellee, plaintiff below, of the statutory presumption of survivorship, Ga.Code Ann. § 56-2426, in the deaths of an insured and her primary and contingent beneficiaries in a common accident. Appellants enumerate four errors: (1) the court erred in denying appellants' motions for a directed verdict, which were based on alleged absence of the statutorily prescribed "sufficient evidence" to support a jury determination; (2) the court incorrectly charged the jury on § 56-2426; and (3, 4) the court erroneously denied appellants' request for two charges having to do, respectively, with plaintiff's burden of proof and the probative value of circumstantial evidence.

Shirley Perrotta Key, her husband, Ennis P. Key, Jr., and her unmarried brother, Russell Perrotta, were all found dead of carbon monoxide poisoning apparently caused by fumes emitted from an unvented gas heater in the three-room house they occupied in a former mill village in Putnam County, Georgia. The insurance policy on Shirley's life named Ennis as primary beneficiary and Russell as contingent beneficiary. Fannie Belle Key, Ennis' mother and Administratrix of his estate, claimed the proceeds and brought an action against the insurer, Independent Life and Accident Ins. Co., and Roy Vining, Administrator of Shirley's estate. Beatrice Perrotta, mother of Shirley and Russell, and three of her surviving children were joined as necessary parties, as was J. Franklin Hitchcock, Administrator of Russell's estate. Independent Life interplead, paid the proceeds into the court registry, and was discharged from the case. The issue at trial was the sequence of the three deaths.

To carry her burden of overcoming the statutory presumption of survivorship of the insured, plaintiff below called as an expert witness a forensic pathologist, the medical doctor who had performed autopsies on the three bodies. He testified that, in view of factors including the three decedents' relative proximity to the heater, the attitudes of their bodies when discovered, such autopsy findings as the condition of internal organs and the carbon monoxide content of the blood, and the decedents' age, sex and physical condition, there existed a reasonable medical certainty that the deaths occurred in this order: Russell, Shirley, Ennis. A toxicologist (a Ph.D. rather than an M.D.) gave a deposition as defendants' expert witness that in the circumstances it was impossible to determine the sequence of the deaths to a reasonable medical certainty.

The court charged the jury, inter alia, as follows: a determination that Ennis had survived Shirley would mandate a verdict for plaintiff; a finding that Ennis had predeceased Shirley and that Russell had survived both would result in a verdict for defendant Hitchcock; a verdict for defendant Vining would be required either if it were determined that Shirley had survived both Ennis and Russell or if it were impossible to determine by a preponderance of the evidence that the deaths were otherwise than simultaneous. Defendants below challenged this last instruction as incomplete and unclear, and the court gave a curative instruction. The jury found for plaintiff below, and defendants have appealed. Held:

1. There was sufficient evidence adduced at trial to justify the trial court's denial of appellants' motions for a directed verdict. Appellants urge that a higher standard of appellate review than the normal "any evidence" rule is appropriate in this case because the phrase "sufficient evidence" appears in the applicable statute, Ga.Code Ann. § 56-2426. Appellant cites no relevant authority for this proposition, and we find none. "The proper standard to be used...in reversing on the general grounds [that the verdict was contrary to the evidence or without supporting evidence] is the 'any evidence' standard." Beck v. State, 149 Ga.App. 571, 574, 254 S.E.2d 891 (1979); Winston Corp. v. Park Electric Co., 130 Ga.App. 508, 203 S.E.2d 753 (1973). Assessment of the weight of the evidence is within the province of the jury; the appellate court addresses only whether there was sufficient evidence to support a jury verdict. Steverson v. Hospital Authority of Ware County, 129 Ga.App. 510, 199 S.E.2d 881 (1973). See Ridley v. State, 236 Ga. 147, 223 S.E.2d 131 (1976). The required quantum is "more than a scintilla." McCarty v. National Life and Accident Ins. Co., 107 Ga.App. 178, 129 S.E.2d 408 (1962). When, as in this case, the trial judge has approved the jury's verdict, the sole question at the appellate level is whether there was any evidence sufficient to support it. Adler v. Adler, 207 Ga. 394, 405, 61 S.E.2d 824 (1950). In the case sub judice the jury heard conflicting testimony from two expert witnesses and must be presumed to have resolved the conflict in accordance with the principles charged by the trial judge. "[A] jury resolution of conflicting theories is...beyond the reach of...[the appellate] court." Lurlee, Inc. v. Pernoshal-39 Co., 135 Ga.App. 724, 728, 218 S.E.2d 701 (1975). See Powers v. Powers, 228 Ga. 598, 187 S.E.2d 291 (1972). Denial of appellants' motions for a directed verdict was therefore not error.

2. The trial court's charge on Ga.Code Ann. § 56-2426 was not confusing, misleading, or impermissibly burden-shifting when viewed in its entirety. The charge on this...