Tepper v. Marty's, Inc.

139 Ga. App. 140 (1976)

228 S.E.2d 32

TEPPER v. MARTY'S, INC.

52283.

Court of Appeals of Georgia.

Submitted June 8, 1976.

Decided June 23, 1976.

William S. Rhodes, Herbert O. Edwards, for appellant.

Ross & Finch, I. J. Parkerson, for appellee.

PANNELL, Presiding Judge.

Complainant-appellant and defendant-appellee operated adjacent stores in Pinetree Shopping Center in DeKalb County. A fire which started on the premises occupied by the defendant caused some damage by smoke and water to the complainant. The cause of the fire was undetermined by any direct evidence. This action followed seeking recovery of alleged damages in the amount of $30,000 and charging the fire occurred as the result of negligence of the defendant's agent and *141 employee.

Upon the trial, after answer by the defendant denying the material allegations of the complaint, the trial judge directed a verdict for the defendant. Complainant's motion for new trial, complaining of the direction of the verdict and also of a failure to declare a mistrial, was overruled and he appealed. Held:

1. The cause of the fire was undetermined by direct evidence: "When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury's decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions." Ga. R. &c. Co. v. Harris, 1 Ga. App. 714, 717 (57 SE 1076).

The evidence adduced here was insufficient to show any negligence upon the part of the defendant's agent and employee, or that if negligent such negligence was the proximate cause of the fire. Both elements rested upon mere conjecture, speculation and mere possibilities and the basing of an inference upon an inference, where the conclusion of the first inference was too remote. See also Lumbermen's Mut. Cas. Co. v. Bridges, 81 Ga. App. 395, 401 (58 SE2d 849).

2. The above ruling makes any error, if there be any in overruling the motion for mistrial, a harmless error.

Judgment affirmed. Marshall and McMurray, JJ., concur.