The opinion
Felton, Chief Judge,
concurring specially. I concur in the judgment of reversal but not for the reason given by the majority opinion. What happens to the summary judgment in this case is of little importance if the law is stated correctly. My concern is over what the majority opinion does to the law of this State. My opinion is that it plays havoc with the law of Georgia as it applies to the control by our appellate courts over jury or trial court findings based solely on uncontradicted circumstantial evidence.
If I am correct in my views, on a trial of the case before a jury, with the evidence the same, a directed verdict against the plaintiff will be demanded.
If the majority views are correct, on a trial of the case with the evidence the same, a jury verdict for either party will necessarily have to be affirmed by this court. If the jury found for the plaintiff on the first trial and the judgment was reversed on a special ground only and affirmed on the general grounds, if the jury on a second trial found for the defendant on the same evidence this court would have to affirm the judgment on the general grounds if the majority is correct. To my mind such a situation is unthinkably illogical and against all of the principles of justice under law and defies the basic philosophy of search for truth based on reason and causes justice to abdicate in favor of pure conjecture and guess, a result which I think our courts have emphatically declared against through the years.
At the outset I think it well- to call attention to a fact which may cause a misinterpretation of some of our appellate decisions. Under the old law it was never error to refuse to direct a verdict. Under that law judges most often let cases go to juries when the evidence demanded a verdict one way or the other and it was held not to be error to do so. So in many such cases the issue we have in this case never directly came to focus except on an attack on a jury verdict. Under the present law we *187 can get the issue out in the open on summary judgment or motion for a judgment n.o.v. Under the evidence in this case the theory that the fall came first is as reasonable as the theory that the regurgitation came first.
My contention is that when a case is sought to be proved by circumstantial evidence and there is no conflict in the evidence to make the solution one exclusively for the jury, the question for decision is one of law and only one result is justified under the law, with possible exceptions where the ultimate legal finding is a question for a jury as for example in negligence cases. In Georgia Cas. Co. v. Martin, 157 Ga. 909, 910 ( 122 SE 881 ) the court stated: “The evidence in the case is not contradictory, and leaves the whole question one of law.” “To establish a theory by circumstantial evidence, the known facts relied upon as a basis for the theory must be of such nature and so related to each other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established.” 20 Am. Jur. 1041 , 1043, Evidence, § 1189, citing 7 cases plus 2 in the supplement. “Where the evidence on an issue of fact is in equipoise, or there is any doubt or perplexity as to the side on which the evidence preponderates, the party having the burden of proof fails on that issue.” 32 CJS 1047, Evidence, § 1019 (b), citing 33 cases plus 28 in the supplement. “. . . [Circumstantial evidence is not sufficient to establish a conclusion where the circumstances are merely consistent with such conclusion, or where the circumstances give equal support to inconsistent conclusions, or are equally consistent with contradictory hypotheses.” 32 CJS 1099, 1101, Evidence, § 1039, citing 63 cases plus 33 in the supplement. Of these cases, 18 are cited in the text and 4 in the supplement for the proposition that “where proved facts give equal support to each of two inconsistent inferences, judgment as matter of law must go against party having burden of proof.” If the majority view is correct the overturning of jury verdicts in many of the cases cited under the statement of the principle cannot be explained. If it is a jury’s function to finally decide which of two reasonable theories is the most probable where the evidence contains no conflict, or whether two theories are equal, I submit that there would be no *188 occasion for a reviewing court to overturn the jury verdict by holding that the theories were equally reasonable and declare that in such an event the party having the burden of proof could not prevail. This rule has been declared in civil cases by this court and the Supreme Court. Pullman Co. v. Strang, 35 Ga. App. 59, 79 ( 132 SE 399 ); Overstreet v. Metropolitan Life Ins. Co., 69 Ga. App. 459, 460 , supra; Collins v. Phillips, 99 Ga. App. 13 ( 107 SE2d 275 ); Camp v. Emory University, 95 Ga. App. 442 ( 98 SE2d 66 ); Woodruff v. American Mut. &c. Ins. Co., 67 Ga. App. 554 ( 21 SE2d 298 ); Weathers Bros. Transfer Co. v. Jarrell, 72 Ga. App. 317 ( 33 SE2d 805 ); Chevrolet Atlanta Division, General Motors Corp. v. Nash, 81 Ga. App. 671 ( 59 SE2d 681 ); Martin v. Medlin, 83 Ga. App. 589 ( 64 SE2d 73 ). The Supreme Court indorsed the rule in Ladson Motor Co. v. Croft, 212 Ga. 275, 277 , supra, by overruling the fact-finding body and did not merely hold, as the majority states, that the circumstances “authorized a reasonable inference to the contrary.” The dissenting opinion in the Croft case is not contraiy to the rule but is a contention under the rule that a finding was demanded for the widow of the- employee. My dissents in Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573 ( 190 SE 879 ), and in New York Life Ins. Co. v. Ittner, 64 Ga. App. 806 ( 14 SE2d 203 ) may be interesting to consider in this connection.
The basis of my special concurrence is that since the burden of proof of piercing the pleadings and showing a case of no liability is on the defendant it failed for the same reason the plaintiff cannot recover on a trial under the same evidence. No case of non-liability is shown by the defendant because the hypotheses it submits are equally probable in view of the lack of proof of whether there was a concussion or not. A statement by counsel on oral argument that on a trial the evidence would be as shown here is irrelevant to the issue here, creates no estoppel, and is not binding. We are not passing on the result of a trial.
I think that, the main error in the majority view is their contention that a party is entitled to go to a jury, on uncontradicted circumstantial evidence, by proving facts which reasonably establish the theory relied■ on. I disagree with that proposition. *189 They state only the first half of the requirement. The hiatus in their position is that a party must not only prove facts which reasonably establish the theory relied on by circumstantial evidence but must by his evidence exclude all other reasonable hypotheses. In taking such a position it is my opinion that the majority have in mind a situation where a plaintiff could conceivably make out a prima facie case for recovery if no other evidence was introduced. The burden of proceeding with the evidence would then be on the defendant. Then, as I contend, if the defendant by uncontradicted evidence presented one or more other equally reasonable theories the plaintiff could not prevail. In this case the movant for summary judgment on direct examination of the pathologist proved enough to prevail, but on cross-examination another equally reasonable theory was shown, so it failed in its effort to pierce the pleadings and show a non-accidental death produced by an external cause. Under the majority’s view mere proof of a reasonable theory is enough even if the defendant’s evidence shows a dozen equally reasonable hypotheses. If another reasonable theory appears in the case from the plaintiff’s side or the defendant’s the plaintiff’s case falls on the trial before a jury because the plaintiff has the overall burden of proof and he fails to carry it where uneontradicted circumstantial evidence shows that there are one or more other hypotheses as reasonable as plaintiff’s and calling for a different finding. In such a case preponderance of evidence is not really involved, because a jury should not be concerned with the case, and most matters bearing on preponderance refer to matters for the peculiar consideration of the jury in determining facts upon which the conclusion should be based. In such a case as this it seems to me to be muddying the water to say that the rule I contend for is inapplicable because the determination of preponderance is for a jury. The rule applies in criminal cases in spite of the fact that reasonable doubt in other cases is a jury question. That means reasonable doubt about proof of disputed facts and not whether uncontradicted circumstances exclude reasonable doubt. Many a jury verdict based on uncontradicted circumstantial evidence has been reversed in criminal cases and so have they in civil cases as *190 shown above. The majority go outside the issue here by citing cases involving conflicts in evidence. I won’t list them all but examples are: Whitaker v. Paden, 78 Ga. App. 145, supra; Northwestern University v. Crisp, 211 Ga. 636 , supra; Tennant v. Peoria & Pekin Union R. Co., 321 U. S. 29 , supra; Travelers Ins. Co. v. Miller, 104 Ga. App. 554 , supra. Georgia R. &c. Co. v. Harris, 1 Ga. App. 714 , supra, holds exactly what I contend is the law. I know that to establish a case by circumstantial evidence one does not have to show the claimed hypothesis to be inconsistent with all other reasonable theories to the point of logical demonstration. My position is not contrary to the ruling in Radcliffe v. Maddox, 45 Ga. App. 676 , supra. The court there was considering a charge. In addition, in that case the evidence was in conflict, which takes it out of the rule I contend for. There are some cases where the results are contrary to my views. They are not older cases which establish law contrary to my views. In Overstreet v. Metropolitan Life Ins. Co., 69 Ga. App. 459 , supra, the plaintiff failed to make out a case simply because the plaintiff did not exclude 'the theory that sickness might have contributed to the death. Two judges do not have the authority to overrule a three-judge case in this court or a decision of the Supreme Court.
If this decision stands, if the evidence on the trial of the case is the same, and if the jury finds in favor of the plaintiff, it cannot be reversed on the general grounds or a failure to grant a judgment n.o.v. Likewise, if a verdict is directed for the defendant, this court will have to reverse it. All these consequences will result from the law of this case as made by the majority ruling.