Cook v. Michael

• Decision Date: 24 October 1958
• Citation: 214 Or. 513,330 P.2d 1026
• Parties: Louis W. COOK, Respondent, v. Clarence W. MICHAEL, Appellant.
• Court: Oregon Supreme Court

Page 1026

330 P.2d 1026

214 Or. 513

Louis W. COOK, Respondent, v. Clarence W. MICHAEL, Appellant.

Supreme Court of Oregon.

Argued and Submitted Oct. 1, 1958.

Decided Oct. 24, 1958.

Robert H. Hollister, Portland, argued the cause for appellant. With him on the brief was Dan J. Kenney, Portland.

B. B. Kliks, Portland, argued the cause for respondent. With him on the brief was James L. Means, Portland.

Before PERRY, C. J., and WARNER, SLOAN and O'CONNELL, JJ.

O'CONNELL, Justice.

This is an action of assault and battery which resulted in a verdict and judgment in favor of the plaintiff in the amount of $1,000 general damages and $1,000 punitive damages. The defendant presents four assignments of error. Under the first assignment the defendant asserts that the court erred in sustaining the objection to the following question put to the plaintiff on cross-examination: 'Q. You think you should honestly be entitled to $20,000 punitive damages, Mr. Cook?' It is the defendant's theory that the prayer for punitive damages was a matter in issue, that the defendant was prevented from inquiring into this matter and that the court's action in sustaining the objection had the effect of informing the jury that the court felt that an award of punitive damages would be proper. Since the plaintiff had prayed for $20,000 punitive damages in his complaint, the only purpose that the question could serve would be to provide the plaintiff with an opportunity to waive or reduce his claim or to confess that his claim was not honestly made. It is not realistic to assume that the question would elicit those results. This being true, the only effect of the question was to ask for the plaintiff's opinion on the value of his claim. The trial court properly concluded that 'Those are questions for the jury, not for this witness.'

The second and third assignments of error may be treated together. The defendant contends that error was committed by the trial judge in giving certain instructions and in refusing to give requested instructions. The essential parts of the instructions given were as follows:

'You are the judges of the effect and value of the evidence in this case. * * *

'In estimating the value and credibility of evidence, you are not bound to find in conformity with the declarations of any number of witnesses which do not produce conviction in your mind against a lesser number or against a presumption or other evidence satisfying your mind.

'You are to look for quality of evidence as well as the number of witnesses testifying and are not necessarily bound by mere number of witnesses. * * *

'Evidence is to be estimated not only by its own intrinsic weight, but also by the evidence which it is within the power of one side to produce and the other side to contradict; * * *

'* * * the party making the affirmative allegation must prove it by a preponderance of the evidence. It matters not how small that preponderance may be, yet if he produces stronger or more credible proof than is produced by his opponent, the party making the allegation is entitled to prevail upon that issue.

'Preponderance of the evidence means the greater weight of the evidence. On the other hand, if the party making the denial or holding the negative of any issue produces as good and credible proof as the one holding the affirmative or makes the better case of the two, the negative is entitled to prevail.'

The defendant took an exception to the foregoing instruction on the ground that it permitted the jury to find for the plaintiff on the basis of the 'preponderance of the evidence' and that the proper instruction should have required a 'preponderance of the satisfactory evidence' as contained in the defendant's requested instruction. The material part of the requested instruction is as follows:

'* * * It is up to the plaintiff to prove to you by a preponderance of the satisfactory evidence that the defendant did commit an assault and battery. In just a moment I will explain to you what is meant by a preponderance of the evidence and satisfactory evidence. I further instruct you that it is not up to defendant to disprove anything in this case, for the plaintiff always has the burden of proving by a preponderance of the satisfactory evidence. * * *

'* * * If you find that the defendant did assault the plaintiff, then before you may award any punitive damage in any amount whatsoever, you must further find by a preponderance of the satisfactory evidence that the defendant was actuated by malice or that his actions were willful and wanton with an intent to injury the plaintiff.'

The gist of the defendant's argument is that the failure to describe the plaintiff's burden of proof in terms of the preponderance of satisfactory evidence makes it possible for the jury to bring back a verdict for the plaintiff when he produces a greater quantity of evidence which may be made up of evidence less satisfactory than that produced by the defendant. In other words, the defendant contends that under such an instruction the jury is permitted to rest its verdict on the quantity rather than on the quality of evidence submitted to it. Our attention is directed to ORS 41.110 which provides as follows:

'Satisfactory evidence is that which ordinarily produces moral certainty or conviction in an unprejudiced mind. It alone will justify a verdict. Evidence less than this is insufficient evidence.'

It is not clear from the defendant's argument whether the error charged was the trial court's failure to use the phrase 'preponderance of the satisfactory evidence' or its failure to define 'satisfactory evidence', or both. Whichever way the defendant's assignment of error is viewed, it presents the troublesome problem of defining 'preponderance of the evidence.' It is a phrase not only confusing to jurors, but to the courts as well. See Judge W. B. Wanamaker's Report on a questionnaire sent to 2,250 former jurors, 11 U. of Cin.L.Rev. 119 (1937). As pointed out in Morgan, Basic Problems of Evidence (1954) page 21 et seq., an instruction that a party must establish his case by a preponderance of the evidence is susceptible of a number of meanings. It can mean, as the defendant has pointed out, that irrespective of the quality of the evidence, the burden of proof may be satisfied by the greater amount of the evidence. It can also mean that the person who has the burden of proof carries it if he produces evidence of greater convincing power, even though this may amount only to a scintilla of evidence and therefore not a sufficient basis for the jury's finding. The meaning intended to be conveyed by the instruction is that the proposition asserted must be supported by evidence which generates in the mind of the juror a belief in the existence of that proposition. It is probably so understood by most jurors. McCormick, Evidence (1954) at page 678. It has been suggested that this meaning can be described best in terms of probabilities, i. e., that the proponent must prove that the existence of the fact in dispute is more probable than its nonexistence. Morgan, op. cit., supra, page 24.

It is our opinion that the jury is not further enlightened by an instruction cast in the form of a 'preponderance of the satisfactory evidence.' But the defendant insists that our statutes afford us no choice. Our attention is first called to ORS 41.210 which states that 'The party having the affirmative of the issue shall produce the evidence to prove it. * * *' The word 'evidence' in this section, asserts the defendant, means 'satisfactory' evidence. In support of this contention the defendant cites two Oregon cases. One of these is Owens v. Holmes, 1953, 199 Or. 332, 337, 261 P.2d 383, 386, where the court said:

'To recover in this case, it was incumbent upon plaintiff to establish by a preponderance of satisfactory evidence one or more of the specific acts of negligence charged against defendant, * * *.'

The other case relied upon by the defendant is Gwin v. Crawford, 1940, 164 Or. 215, 221, 100 P.2d 1012, 1014, where it was held that the defendant was entitled to the following requested instruction:

"In order for the plaintiff to prevail in this case, it is necessary that you should find by a preponderance of satisfactory evidence that the defendant was negligent and that such negligence was a proximate cause of the injuries to the plaintiff. You are instructed that in determining whether plaintiff has sustained this burden that evidence is deemed satisfactory only if it produces moral certainty or conviction in an unprejudiced mind. Only evidence which produces such moral certainty or conviction is sufficient to justify a verdict, any evidence less than this being insufficient."

It was held that the trial court's refusal to give the requested instruction was error, and together with other errors, was ground for reversal.

In Willoughby v. Driscoll, 168 Or. 187, 120 P.2d 768, 121 P.2d 917, the court in commenting on the Gwin case said that if the only error had been the refusal to give the 'moral certainty' instruction it would be very doubtful that such refusal would in itself be a sufficient basis for reversal. The Gwin case is further weakened by McVay v. Byars, 1943, 171 Or. 449, 138 P.2d 210 where the court held that the failure to give a requested instruction essentially the same as that requested in the Gwin case was not error. The court said:

'* * * The legislature not having commanded that the 'moral certainty' rule be given to juries (assuming, but certainly not deciding that it might lawfully do so), and the requested instruction being cautionary only, no error was committed in refusing to give it. * * *' 171 Or. at page 455, 138 P.2d at page 213.

It will be noted that the instructions requested in the Gwin and McVay cases use the phrase 'preponderance of satisfactory evidence' and also define 'satisfactory evidence', the latter phrase being defined in terms of the statute (now ...