12 S.E.2d 141 | Ga. Ct. App. | 1940
Lead Opinion
The court did not err in granting a nonsuit.
2. "When a plaintiff's right to recover depended upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from which the existence of such fact might be inferred, but which did not demand a finding to that effect, a recovery by the plaintiff was not lawful, when, by the 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." Frazier v. GeorgiaRailroad Banking Co.,
3. "A fact can not be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist." Neill v. Hill,
4. In this case, the plaintiff supports his case by circumstantial evidence alone, and every circumstance (fact) relied upon by the plaintiff to support his action is by inference alone, and is not inconsistent with the direct, reasonable, and unimpeached testimony of a witness who testified positively and affirmatively that no such facts existed. Penn Mutual Life Insurance Co. v. Blount,
Judgment affirmed. Broyles, C. J., concurs.
Concurrence Opinion
I concur in the judgment upon the principle announced in division 1 of the opinion, but I can not see that the facts of this case apply to the principles announced in divisions 2, 3, and 4 of the opinion. To me the record fails to reveal any positive and uncontradicted testimony other than circumstantial evidence; but I do not think that the circumstantial evidence as applied to the theory relied on by the plaintiff for a recovery preponderates sufficiently to exclude every other reasonable hypothesis as to the proximate cause of the injury. *68