Ball v. Marquis

• Decision Date: 19 December 1902
• Citation: 92 N.W. 691
• Parties: BALL v. MARQUIS.
• Court: Iowa Supreme Court

92 N.W. 691

BALL

v.MARQUIS.

Supreme Court of Iowa.

Dec. 19, 1902.

Appeal from district court, Warren county; James D. Gamble, Judge.

Action for criminal conversation. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals. Reversed.Bowen & Brockett, Howe & Miller, and W. F. Powell, for appellant.

Henderson & Henderson, W. C. Marquis, and J. C. Hume, for appellee.

DEEMER, J.

Complaint is made of two instructions,--the fifth and the eleventh. The fifth related to the term “preponderance of the evidence,” and reads as follows: “The burden of the proof is upon the plaintiff to establish each and every particular fact necessary to prove his cause of action by a preponderance of evidence. By the term ‘preponderance of the evidence’ is meant that greater and superior weight of the testimony as reasonably satisfies your minds. Preponderance is not alone determined by the number of witnesses testifying to a particular fact or state of facts. It may occur that the statement, or the superior knowledge of the subject-matter testified to, of one or a few witnesses may be of more importance, and be relied upon with a greater degree of assurance, than that of a greater number; and the testimony of the witnesses are oftentimes strengthened or weakened by other facts and circumstances disclosed by the evidence.” The instruction is said to be erroneous because of the use of the words “reasonably satisfies.” Had the word “satisfies” been used without the qualification, there would be no doubt of the incorrectness of the instruction. Bryan v. Railroad Co., 63 Iowa, 464, 19 N. W. 295;Rosenbaum v. Levitt, 109 Iowa, 295, 80 N. W. 393. Paraphrasing the instruction given in this case so as to get its exact meaning and import, we read it thus: “The burden of proof is upon the plaintiff to establish each and every material fact necessary to prove his cause of action by that greater and superior weight of the testimony as reasonably satisfies your minds.” To “satisfy” is to free from doubt and uncertainty; to set at rest. The qualifying word means “to a reasonable extent or degree; fairly or moderately.” In other words, the instruction required plaintiff to fairly set at rest the truth of every material fact necessary to prove his cause for action. As thus construed, is the instruction erroneous? It is conceded, of course, that plaintiff was not required to prove his case beyond a reasonable doubt, and that all that was required of him was the production of the greater weight or preponderance of the evidence. The word “preponderance” means superiority in weight, influence, or force. The evidence may preponderate, and yet leave the mind in doubt as to the very truth. In such cases the...