114 Ga. App. 452 | Ga. Ct. App. | 1966
1. It is fundamental that the burden of proof rests upon the plaintiff to establish a right to recover by proving all of the essential facts constituting a cause of action. Atlantic C. L. R. Co. v. Thomas, 83 Ga. App. 477 (1) (64 SE2d 301). It is equally fundamental that the jury may not base its verdict on mere guess or speculation, and that where proof of the plaintiff’s case is dependent upon circumstantial evidence, the circumstances must in some reasonable degree tend to preponderate in favor of inferences which establish the result claimed. Bentley v. Southern R. Co., 52 Ga. App. 188,190 (2) (182 SE 815). Such proved circumstances “must tend in some proximate and reasonable degree to establish the conclusion claimed, and render less probable all inconsistent conclusions.” Ladson Motor Co. v. Croft, 212 Ga. 275, 277 (92 SE2d 103).
2. Upon application of the foregoing principles it has been held that testimony of an expert witness to the effect that the occurrence in question “could have” contributed to and precipitated a coronary accident which was shown to have been the ultimate cause of the death of the deceased was insufficient to support a finding in favor of one seeking to recover under the Workmen’s Compensation Act for his death. Hardware Mut. Cas. Co. v. King, 104 Ga. App. 252, 254 (1, 3) (121 SE2d 336). So, it has been held too, in a workmen’s compensation case where the issue depended upon the testimony of an expert witness as to the cause of death, that the refusal of the claimant’s physician to express an opinion that the exertion shown to have been undertaken by the deceased could have contributed to his diseased condition, and where the other evidence introduced did not raise a natural inference from human experience that it did so contribute, a
3. The foregoing principles, while enunciated principally in workmen’s compensation cases, are clearly applicable to the peculiar facts of this case. In this wrongful death action the plaintiff’s evidence tended to show that her deceased husband, who was normally a jovial, happy-go-lucky, talkative individual, on the day he died, left home early in the morning for the express purpose of going fishing; that he returned to the city of Augusta late in the afternoon or early evening, and was involved in a collision with a bus of the defendant, Augusta Coach Company, resulting in minor damage to his automobile when it was struck from behind by such bus while his automobile was standing at an intersection waiting for a traffic light; that shortly thereafter the deceased was observed by a police officer, who investigated the collision, to be apparently in a dazed, frightened and confused state of mind; that thereafter the deceased visited a friend for the purpose of delivering to him some fish, which friend also noted that the deceased was not his normal self and was in a dazed, frightened and confused state of mind; that thereafter the deceased returned to his grocery store where his wife, the plaintiff, observed similar changes in his personality; that he thereafter departed from his usual routine of activities both at the grocery store and at home; and that somewhere around midnight he was observed by members of his family gasping for breath, and though they administered first aid, called one of his friends in, and took him to the hospital, he was pronounced dead on arrival. The sole medical witness, a pathologist, testified that the deceased’s death was caused by a massive pontine hemorrhage, which is a hemorrhage at the base of the brain; that the deceased’s general physical condition with respect to his vascular system was poor; that he found evidence that the deceased had suffered a similar
Judgment reversed.