Southern Ry. Co. v. Georgia Kraft Co., 44991

• Decision Date: 21 April 1988
• Docket Number: No. 44991,44991
• Citation: 367 S.E.2d 539,258 Ga. 232
• Parties: SOUTHERN RAILWAY CO. v. GEORGIA KRAFT CO.
• Court: Georgia Supreme Court

Page 539

367 S.E.2d 539

258 Ga. 232

SOUTHERN RAILWAY CO. v. GEORGIA KRAFT CO.

No. 44991.

Supreme Court of Georgia.

April 21, 1988.

Reconsideration Denied May 25, 1988.

Burt DeRieux, Eileen Crowley, Keith J. Reisman, Lisa Bodenstein Golan, Greene, Buckley, DeRieux & Jones, Atlanta, L. Hugh Kemp, Kinney, Kemp, Pickett, Sponcler & Joiner, Dalton, for Southern Ry. Co.

W. Wray Eckl, Drew, Eckl & Farnham, Atlanta, for Georgia Kraft Co.

MARSHALL, Chief Justice.

We granted certiorari in Southern Ry. Co. v. Georgia Kraft Co., 183 Ga.App. 884(5), 360 S.E.2d 605 (1987), in order to review the correctness of the jury instructions on circumstantial evidence in this civil action.

The Court of Appeals, in Division 5 of the majority opinion, concluded that the trial court did not err in instructing the jury that circumstantial evidence must be contrary to any other reasonable hypothesis in order for the burden of proof on such issue to be carried.

For the reasons given in Judge Carley's dissenting opinion (183 Ga.App. supra, at p. 887), we agree that under Radcliffe v. Maddox, 45 Ga.App. 676(2), 165 S.E. 841 (1932), and the cases cited therein, this charge was erroneous.

The point is elusive, but can be stated as follows:

Circumstantial evidence can be described as evidence which does not constitute direct proof with regard to the issue of fact or the hypothesis sought to be proven by the evidence; rather, circumstantial evidence constitutes proof of other facts consistent with the hypothesis claimed.

As held in Radcliffe, supra, the question as to the sufficiency of the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, is a question for the jury. The correct statement of law to be given in instructions to the jury is that before "a plaintiff in a civil case" can have "a verdict in his favor" supported solely by circumstantial evidence, such evidence "must be such as to reasonably establish the theory relied upon, and to preponderate to that theory rather than to any other reasonable hypothesis." Radcliffe, supra, 45 Ga.App. at p. 681, 165 S.E. 841.

The standard for reviewing the legal sufficiency of circumstantial evidence, which is sole support for the finding under review, can be stated as follows: " 'While in such cases the sufficiency of the evidence is for the jury, yet before there is, in legal contemplation, any evidence, the circumstances shown must, in some appreciable degree, tend to establish the...