dissenting.
I must respectfully dissent to the majority’s determination that the trial court did not err in its charge on circumstantial evidence. In Division 5 of its opinion, the majority frames the issue by pointing out that plaintiff argues “that the trial court instructed the jury that circumstantial evidence was not sufficient unless it excluded every other reasonable hypothesis. If that were so, we would be inclined to agree that the charge was erroneous. Our review of the record, however, reveals that the trial court merely explained to the jury that the circumstantial evidence must be contrary to any other reasonable hypothesis. That instruction is in accord with the principles stated in Radcliffe v. Maddox, 45 Ga. App. 676 (2) (165 SE 841) (1932).” (Emphasis in majority opinion.) While I agree that the key to the resolution of this issue is found in Radcliffe and the cases cited therein, I do not agree that the validity or invalidity of the charge rests only upon *888the portion summarized by the majority as informing the jury that the circumstantial evidence must be contrary to any other reasonable hypothesis. It is when this summarized language is read in conjunction with other portions of the charge on circumstantial evidence, that the misleading and incorrect nature of the same becomes apparent.
In charging on the rule of circumstantial evidence, the trial court correctly and accurately stated that that rule “simply says where you rely on circumstantial evidence, all of the circumstances must tend to establish the theory relied upon and preponderate to that theory rather than to any other reasonable hypothesis.” However, immediately following this correct statement of the rule, the trial court stated as follows: “In other words, if there is another reasonable explanation of it, then the burden would not be carried. If there are two reasonable explanations of circumstantial evidence, reasonable explanations according to what you find to be reasonable, then, of course, the burden would not be carried. This is what this particular rule means. It does not take any greater degree of evidence, any greater weight of the evidence to prove a fact by circumstantial evidence. [It] simply says that all the circumstances must tend to prove that and must be contrary to any other reasonable hypothesis.” (Emphasis supplied.) In my opinion, this charge on circumstantial evidence is confusing and misleading with regard to the relationship of the carrying of the burden of proof to the rule on circumstantial evidence.
Initially, it is to be noted that, earlier in the charge, the trial court charged as to the burden of proof and the necessity of the plaintiff to carry the same by the preponderance of evidence. Further, the court correctly instructed the jury that “[i]f you find the evidence is evenly balanced on any issue in this case, then, in such event, it would be your duty to resolve that issue against the party having the burden of proof on that issue. In other words, since the plaintiff has the burden of proof on [its] claims in this case, that means [it has] to show [its] evidence has the greater weight to some extent. ... So if the evidence is evenly balanced on both sides, [the plaintiff] would not have carried that burden, and you will resolve that in favor of the party who did not have the burden of proof on that particular issue.” Thus, the jury had already been instructed that the plaintiff had to carry the burden of proof by a preponderance of evidence, and that if the jury found the evidence to be evenly balanced, the plaintiff would not have carried the burden. However, the challenged charge on circumstantial evidence specifically and unequivocally tells the jury that if there is another reasonable explanation of the circumstantial evidence than that postulated by the plaintiff, the plaintiff would not have carried the burden. This is inconsistent with the earlier correct *889statement that the circumstantial evidence must preponderate to the theory of the party having the burden of proof rather than to any other reasonable hypothesis. Instead of correctly telling the jury that the burden would not be carried if there was another equally reasonable explanation of the circumstantial evidence, the court in effect charged the jury that the evidence could never preponderate to the plaintiff’s theory if there was any other reasonable explanation, even if plaintiffs theory was more probable.
I disagree with the majority that Radcliffe v. Maddox, supra, authorizes the charge given by the trial court in this case. In Radcliffe, the defendant argued that the circumstantial evidence charge was erroneous “on the ground that the judge not only should have charged that the circumstances shown must tend in some appreciable degree to establish the conclusion claimed, and preponderate to that conclusion as against all other reasonable hypotheses, but should have charged also that they must exclude every other reasonable hypothesis.” Radcliffe v. Maddox, supra, 682. In holding that the trial court did not err in failing to charge as the defendant contended, this Court placed in proper perspective a circumstantial evidence charge as given to a trial jury by referring to and discussing the appellate review standard in a case based upon circumstantial evidence. This discussion, though lengthy, is very instructive to our analysis of the charge at issue here. The Radcliffe court held: “The excerpt from the charge is taken from Georgia Ry. & El. Co. v. Harris, 1 Ga. App. 714 (57 SE 1076), in which the court was dealing with what amount of circumstantial evidence would authorize this court to uphold the finding of a jury based thereon. In determining this question, that is, whether or not there is any evidence to support the verdict where the plaintiff in a civil action relies solely upon circumstantial evidence to establish his cause of action, the appellate court will look to the testimony; and before the verdict can be allowed to stand, it must appear that the circumstances shown tend in some appreciable degree to establish the conclusion claimed. It is for the jury to say whether or not they preponderate to that theory as against all other reasonable, but less probable, hypotheses. As stated in the Harris case, ‘the established fundamental rules applicable to circumstantial evidence are the same in civil cases as in criminal trials. In both cases it is required that the circumstances relied upon be not only consistent with the conclusion sought to be established, but also inconsistent with every other reasonable hypothesis. In civil cases this consistency with the one and inconsistency with the other is required to be established by a mere preponderance; in criminal cases to the exclusion of reasonable doubt.’ Where the circumstances shown do, as a matter of law, in some appreciable degree tend to establish the hypothesis claimed, and in the minds of the jury preponderate to that hypothesis rather than *890to any other reasonable hypothesis, this is the equivalent of excluding all such other less probable hypotheses. In other words, the jury could not find that circumstantial evidence of real probative value preponderated in favor of one theory as against all other reasonable but less probable theories, without excluding the theories thus rejected. In neither criminal nor civil cases is it required that the proved circumstances shall show consistency with the hypothesis claimed and inconsistency with all other reasonable theories to the point of logical demonstration. In civil cases all other reasonable theories are excluded when proved circumstances of real and actual probative value cause the jury to find that the preponderance of the evidence is in favor of the hypothesis claimed, as against all other reasonable but less probable theories. Where a decision is required between two or more antagonistic theories, an authorized finding that the evidence preponderates to one theory as against all the others necessarily carries with it a finding that the rejected theories are excluded.” (Emphasis supplied.) Radcliffe v. Maddox, supra, 682, 683.
Decided July 14, 1987 Rehearing denied July 31, 1987 Burt Derieux, Eileen M. Crowley, Keith J. Reisman, L. Hugh Kemp, for appellant. W, Wray Eckl, Julia Anderson, for appellee.I submit that, by its charge in this case, the trial court invaded the province of the jury to find that the preponderance of the evidence was in favor of one hypothesis as against all other “reasonable but less probable theories” by instructing the jury that if there was any other reasonable explanation save that of the plaintiff, the plaintiffs burden would not have been carried. I believe that the correct rule is that if there is more than one reasonable explanation of the circumstantial evidence, the jury can find that the plaintiff carried its burden of proof if it finds that the circumstantial evidence preponderates toward plaintiffs explanation rather than any other reasonable but less probable explanation. See also McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178 (2) (129 SE2d 408) (1962); Southeastern &c. Ins. Co. v. Stevens, 142 Ga. App. 562 (2) (236 SE2d 550) (1977).
Accordingly, I believe that the trial court’s charge on circumstantial evidence was error requiring the grant of a new trial. Therefore, I respectfully dissent.
I am authorized to state that Presiding Judge McMurray, Presiding Judge Banke and Judge Pope join in this dissent.