McCarty v. National Life & Acc. Ins. Co., 39629

• Decision Date: 03 December 1962
• Docket Number: No. 39629,No. 1,39629,1
• Parties: Mrs. Frances G. McCARTY v. The NATIONAL LIFE & ACCIDENT INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 408

129 S.E.2d 408

107 Ga.App. 178

Mrs. Frances G. McCARTY v. The NATIONAL LIFE & ACCIDENT INSURANCE COMPANY.

No. 39629.

Court of Appeals of Georgia, Division No. 1.

Dec. 3, 1962.

Rehearing Denied Dec. 19, 1962.

Syllabus by the Court

1. 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. The essence of both motions is that there is no genuine issue of material fact to be resolved by the trior of the facts, and that the movant is entitled to judgment on the law applicable to the established facts.

2. Where a plaintiff in a civil case supports his case solely by circumstantial evidence, before he is authorized to have a verdict in his favor the testimony must be such as to reasonably establish the theory relied on. There must be more than a 'scintilla' of circumstances to carry the case to the jury. It is for the court to say whether the circumstances reasonably establish the hypothesis relied on by the plaintiff. If the evidence meets this test, it is then for the jury to say, either that the plaintiff has not carried his burden of proof because the evidence equally supports his hypothesis and some other reasonable hypothesis, or that the plaintiff has carried his burden of proof in that the evidence preponderates to his hypothesis as against all other reasonable but less probable hypotheses.

The plaintiff (plaintiff in error) sued the defendant (defendant in error) for the accidental death benefit under a policy of insurance providing for payment of an additional $2,500 upon proof 'that the death of the insured resulted, directly and independently of all other causes, from bodily injury affected solely through external, violent and accidental means.' The defendant filed an answer, denying that the insured's death was accidental, and a motion for summary judgment supported by evidentiary documents discussed in the opinion. The trial court granted summary judgment in favor of the defendant, and the plaintiff assigns error on this judgment.

Turner, Brock & Tisdale, Edward T. Brock, Atlanta, for plaintiff in error.

Buchanan, Edenfield & Sizemore, Newell Edenfield and William H. Major, Atlanta, for defendant in error.

HALL, Judge.

1. 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 . '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 . 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 S.E.2d 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 S.E. 489 or motion for summary judgment. Holland v. Sanfax Corp., supra, 106 Ga.App. p. 5, 126 S.E. 445. 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 S.E.2d 871) or motion for summary judgment. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 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 S.E.2d 26) or motion for summary judgment. Bagley v. Firestone Tire & Rubber Co., 104 Ga.App. 736, 739, 123 S.E.2d 179; Holland v. Sanfax Corp., supra, 106 Ga.App. p. 5, 126 S.E.2d 445. 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 S.E. 957. This is true with respect to circumstantial evidence as well as direct evidence. Whitaker v. Paden, 78 Ga.App. 145, 148, 50 S.E.2d 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 pliantiff 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.

2. 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 C.J.S. Evidence § 1039, p. 1102, 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 C.J.S. 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 Railway & Electric Co. v. Harris, 1 Ga.App. 714, 717, 57 S.E. 1076, and Radcliffe v. Maddox, 45 Ga.App. 676, 682, 683, 165 S.E. 841, 844, 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...