French v. Day

• Decision Date: 31 December 1896
• Citation: 89 Me. 441,36 A. 909
• Parties: FRENCH v. DAY et al.
• Court: Maine Supreme Court

36 A. 909

89 Me. 441

FRENCH

v. DAY et al.

Supreme Judicial Court of Maine.

Dec. 31, 1896.

(Official.)

Exceptions from superior court, Kennebec county.

Action by Benjamin F. French against Thaddeus H. Day and others. Judgment for plaintiff on motion and exceptions. Motion overruled, and exceptions sustained.

Jos. Williamson, Jr., and L. A. Burleigh, for plaintiff.

Emery O. & Fred E. Beane, for defendants.

HASKELL, J. Motion and exceptions. Upon the motion the court considers that there is testimony in the case upon which the verdict can stand. Whether this testimony be true was entirely for the jury, who saw the witnesses and could best judge of their credibility. From reading the case, the court cannot say that it is untrue, or that the damages are excessive, although they appear to be large.

There are exceptions to the admission and exclusion of evidence; but what evidence the exceptions do not state, and the court cannot be expected to examine a report of evidence to ascertain. It should have been stated in the exceptions.

This action is trespass d. b. for carrying away two small buildings standing upon land of one of defendants, of which the plaintiff had been tenant, and for sundry chattels therein. As to the chattels, the judge instructed the jury: "As to the other property, the furniture and other articles, the plaintiff claims that they were in his house, and that the house was entered in his absence, and the things taken and carried away without his knowledge or consent. If you believe this, it is incumbent on the defendants to show, by a clear preponderance of the evidence and by convincing proof, their right to do it in order to prevent a verdict against them."

This instruction was error, for two reasons:

1. Unless the property was taken and carried away by defendants, it was not incumbent upon them to prove anything.

2. Assuming that it had been carried away by them, and assuming it incumbent upon them to justify their acts, still they were only required to do so by a preponderance of the evidence, not by a "clear preponderance and by convincing proof." Perhaps the adjectives were intended for emphasis only, but the testimony upon the issues tried was so evenly balanced that the instruction may have misled the jury, and very likely did so. "Preponderance" means to outweigh; to weigh more. A "clear preponderance" may mean that which may be seen, is discernible, and may be appreciated and understood. In this sense, the expression...