#### E. Y. DENNY and WILLIE WILLARD v. O. E. SNOW, Guardian of LEE HILL, and LEE HILL and O. E. SNOW, Administrator of the Estate of LEE HILL.

(Filed 26 November, 1930.)

Evidence N b — Where evidence raises merely conjecture or suspicion it is insufficient to be submitted to the jury.

In order to recover damages of defendant for tbe wilful burning of plaintiff’s barn and contents, it is required tbat tbe evidence raise more than a conjecture or surmise, and that it be more substantial than a mere scintilla.

Appeal by defendant from *Johnscm, Special Judge,*and a jury, at March Term, 1930, of Sukry.

Reversed.

Tbis is a civil action brought by plaintiffs against defendant, O. E. Snow, guardian of Lee Hill, who it appears has died and O. E. Snow was duly appointed administrator of bis estate. Tbe complaint alleges: “Tbat on or about 10 September, 1929, tbe defendant, Lee Hill, did maliciously and/or wilfully and/or negligently set fire to and cause to burn and permit to burn said dwelling-house then occupied by the plaintiff, and did, maliciously and/or wilfully and/or negligently thereby wholly destroy tbe personal property of tbe plaintiff, consisting of bouse1 bold and kitchen furniture and all personal property and tobacco then and there stored and packed away in said dwelling-house.”

Tbe bouse burned was tbe property of tbe plaintiff, E. T. Denny, and tbe personal property burned was tbat of bis tenant, Willie Willard. O. E. Snow was duly appointed guardian of Lee Hill, who was duly declared insane. It appears tbat be is dead and tbat O. E. Snow was duly appointed bis administrator. By consent of tbe parties, tbe cases were consolidated. Defendant denied tbe allegations of tbe complaint.

The issues submitted to tbe jury and their answers thereto were as follows:

“1. Did tbe defendant, Lee Hill, set fire to and thereby destroy tbe property of tbe plaintiff, as alleged in tbe complaint? Answer: Yes.

2. If so, what amount is tbe plaintiff, E. Y. Denny, entitled to recover as damages on account thereof ? Answer: $387.50.

*7743. If so, wbat amount is tbe plaintiff, Willie Willard, entitled to recover as damages on account thereof? Answer: $262.50.”

*E. 0. Woltz and, JR. A. Freeman, for plaintiff.*

*Folger & Folger for defendant.*

Per Curiam.

At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence, tbe defendant made motions in tbe court below for judgment as in case of nonsuit. O. S., 567. We think the motions should have been granted.

From a careful review of tbe evidence, we do not think it is of sufficient probative force to have been submitted to tbe jury. It raised a suspicion, a conjecture, a guess, a surmise, a speculation, but there must be more than this, more than a scintilla of evidence, to take a case to tbe jury, and we do not find it on this record.

“A verdict or finding must rest upon facts proved, or at least upon facts of which there is substantial evidence, and cannot rest upon mere surmise, speculation, conjecture, or suspicion. There must be legal evidence of every material fact necessary to support the verdict or finding, and such verdict or finding must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.” 23 C. J., pp. 51-52. *S. v. Johnson, ante,*429.

We see no reason to set forth the evidence. It was fully discussed and the case ably argued on the hearing. We have gone into the record fully and thoroughly, mindful of the fact that a jury has passed on the evidence, but with the responsibility resting on us we cannot say the evidence, which was wholly circumstantial, was sufficient for the court below to have submitted it to the jury. The judgment below is

Reversed.