Westinghouse Elec. Corp. v. Rider, 66354

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: CARLEY; DEEN, P.J., and BANKE
• Citation: 168 Ga.App. 136,308 S.E.2d 378
• Parties: WESTINGHOUSE ELECTRIC CORPORATION v. RIDER.
• Docket Number: No. 66354,66354
• Decision Date: 07 September 1983

Page 378

308 S.E.2d 378 168 Ga.App. 136 WESTINGHOUSE ELECTRIC CORPORATION
v.
RIDER. No. 66354. Court of Appeals of Georgia. Sept. 7, 1983.
Rehearing Denied Sept. 23, 1983.
Certiorari Denied Jan. 6, 1984.

Page 379

[168 Ga.App. 139] J. Kirk Quillian, Douglas D. Salyers, Mary Grace Diehl, Atlanta, for appellant.

Thomas J. Browning, Marietta, for appellee.

[168 Ga.App. 136] CARLEY, Judge.

Appellee brought suit, as beneficiary of her deceased husband, to recover under a group occupational travel accident insurance policy provided by appellant Westinghouse to its employees and underwritten by Insurance Company of North America. This case has been considered twice by this court. See Rider v. Westinghouse Elec. Corp., 152 Ga.App. 805, 264 S.E.2d 276 (1979) and Rider v. Westinghouse Elec. Corp., 155 Ga.App. 61, 270 S.E.2d 288 (1980). The facts of the case are fully set forth in our previous opinions and will not be repeated here. In Rider, 155 Ga.App. 61, 270 S.E.2d 288, supra, we reversed the grant of summary judgment to Westinghouse and held that Mrs. Rider's right of recovery hinged upon whether or not her husband had received a certain explanatory booklet which clarified the coverage and delineated the exclusions of the insurance policy provided by Westinghouse. Thereafter, the case was tried before a jury. A verdict was rendered in favor of appellee in the amount of $25,000, plus interest. Following the denial of its motion for a new trial, Westinghouse filed this appeal.

1. Westinghouse first asserts that the trial court erred in denying its motion for a new trial on the general grounds. At trial, Ms. Sikes, an employee of appellant Westinghouse, testified that she had provided appellee's husband with the explanatory insurance handbook. Ms. Sikes explained

Page 380

that she had distributed the booklets to Westinghouse's two repair shop truck drivers, one of whom was appellee's husband, by placing them in separate boxes assigned to the individual employees and labelled with their respective names. Mrs. Sikes testified that she had joked with Rider at the time about his pension, which was explained in the same booklet. Appellant asserts that Ms. Sikes' testimony was positive and unimpeached, and that the jury improperly rejected it in finding that Mr. Rider had not received the handbook.

"Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which [was] given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which [was] not in itself incredible, impossible, or inherently improbable, and which [was] not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a jury or other trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth." Lankford v. Holton, 187 Ga. 94, 102, 200 S.E. 243 (1938). "Circumstantial[168 Ga.App. 137] evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed." Myers v. Phillips, 197 Ga. 536, 542, 29 S.E.2d 700 (1944).

In the instant case, however, there was evidence from which the jury reasonably could have found that Ms. Sikes' testimony should be discredited. Her account of the distribution of the booklets was contradicted by the testimony of Mr. McRae, who had been the only other truck driver at the repair shop at the time. In his testimony, Mr. McRae stated that he had a habit of saving papers and check stubs from Westinghouse and that he kept all of those papers together. He had examined his documents from Westinghouse and...