Callahan v. Fleischman Co.

• Decision Date: 29 February 1928
• Citation: 262 Mass. 437,160 N.E. 249
• Parties: CALLAHAN v. FLEISCHMAN CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 437

160 N.E. 249

CALLAHAN

v.FLEISCHMAN CO.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 29, 1928.

Exceptions from Superior Court, Essex County; F. H. Greenhalge, Judge.

Action by John J. Callahan, executor, against the Fleischman Company. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.J. F. Carens, Jr. of Newburyport, for plaintiff.

Joseph Wentworth, of Boston, for defendant.

WAIT, J.

No extended citation of authorities is needed for the well-established rule of law that in civil proceedings the burden of proof is sustained by a fair preponderance of the evidence, and that proof beyond reasonable doubt is not essential. Grella v. Lewis Wharf Co., 211 Mass. 54, 58, 97 N. E. 745, Ann. Cas. 1913A, 1136. An instruction to jurors in civil cases that all reasonable doubt must be removed before they can properly reach a verdict is erroneous. Yet it may be proper to instruct them with regard to doubt. The preponderance which determines the verdict must be a preponderance of credible testimony, not a ‘balance of probabilities' (Haskins v. Haskins, 9 Gray, 390), and evidence which is open to serious doubt may not be credible. In a criminal case the juror must be left with no reasonable doubt that his finding is correct. In a civil case he should be satisfied if, after fairly weighing the conflicting evidence, he feels sure that his finding is supported by a greater weight of trustworthy evidence than is opposed to it. A juryman well may need assistance in attributing the proper relative values to evidence which has differing degrees of credibility.

The plaintiff contends that these principles were disregarded to his prejudice in the charge to which exception is taken. The exception saved is ‘to so much of the charge as refers to the word ‘doubt’ in reference to the burden of proof, the degree of proof.' No request for instructions was made.

Such an exception is not good in the circumstances here disclosed. It fails to designate any specific statement in the charge so that the judge may consider its propriety and, if satisfied that modification is needed, proceed to instruct further. It is, in substance, like an exception to an entire charge, which long has been held improper. Commonwealth v. Meserve, 154 Mass. 64, 75, 27 N. E. 997;Commonwealth v. Taschetta, 252 Mass. 158, 160, 147 N. E. 553. Counsel should have pointed out what he thought to be erroneous, and have asked for the instruction which he claimed to be correct. See Gray v. Currier, 252 Mass. 78, 83, 147 N. E. 567. He cannot seek to secure a chance for a retrial if the jury decides against him under the instruction given, rather than to make sure that it is correctly instructed before it passed upon the evidence. It is the latter and not the former to which he is entitled. Such an exception cannot be...