The opinion
McMurray, Presiding Judge,
dissenting.
Plaintiffs filed this fraud action alleging that defendant knew *251 the tires were buried on the property, had not disclosed the presence of the tires, and had made affirmative representations that she had no knowledge of any fact which would materially or adversely affect the value of the property. Defendant denied any knowledge of the buried tires prior to the discovery by plaintiffs and the evidence at trial failed to provide more than speculation and conjecture in support of the scienter element of plaintiffs’ claim.
Decided March 19,1999
Reconsideration denied March 29,1999.
Banks, Stubbs & Neville, Robert S. Stubbs III, for appellant.
Donald L. Mize, for appellees.
It is uncontroverted that the scienter issue turns on whether defendant had actual or constructive knowledge of the existence of the buried tires. In my view, the evidence at trial suggests no more than a possibility that defendant had any knowledge of the buried tires, and this was not sufficient to authorize the plaintiffs’ verdict. In order to authorize a verdict, circumstantial evidence must not only support that conclusion, but also render all inconsistent conclusions less probable. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780-781 ( 257 SE2d 186 ). Inferences must be based on probabilities rather than possibilities. Cohen v. Hartlage, 179 Ga. App. 847, 851 ( 348 SE2d 331 ). I suggest that there is no evidence recited in the majority opinion or appearing on the face of the record which will support a reasoned conclusion that it was more likely than not that the defendant knew of the buried tires prior to their discovery by plaintiffs.
“While fraud may be proved by slight circumstances, it must amount to more than mere speculation.” Clay v. Clay, 269 Ga. 527 ( 501 SE2d 208 ). In my view, the sum total of plaintiffs’ evidence provides no more than a foundation for speculation. There is no reason provided to infer that the presence of tires on the premises would suggest that they were being buried rather than being carried away. And, despite the issue being clearly controverted, plaintiffs provided no proof that the burial site of the tires, on the far side of the tract which sloped downward from the road, was visible from defendant’s residence. There was no evidence of defendant having observed or been told of tires being buried. See also Wilson v. Phillips, 230 Ga. App. 290, 291 ( 495 SE2d 904 ).
In view of the failure of proof of the element of scienter, I respectfully dissent. I would grant defendant’s motion for j.n.o.v.