Gipson v. Davis Realty Co.

• Decision Date: 18 April 1963
• Court: California Court of Appeals Court of Appeals
• Parties: Edward T. GIPSON, individually, and as Guardian ad Iitem of Thomas Wesley Gipson, an infant minor, Plaintiffs and Appellants, v. DAVIS REALTY COMPANY, Defendant and Respondent. Civ. 20032.

Page 253

30 Cal.Rptr. 253

215 Cal.App.2d 190

Edward T. GIPSON, individually, and as Guardian ad Iitem of Thomas Wesley Gipson, an infant minor, Plaintiffs and Appellants, v. DAVIS REALTY COMPANY, Defendant and Respondent.

Civ. 20032.

District Court of Appeal, First District, Division 1, California.

April 18, 1963.

Rehearing Denied May 8, 1963.

Hearing Denied June 12, 1963.

Walkup & Downing, Bruce Walkup, Robert Ransom, San Francisco (William B. Boone, Santa Rosa, of counsel), for appellants.

Hadsell, Murman & Bishop, San Francisco (Herbert Chamberlin, San Francisco, of counsel), for respondent.

MOLINARI, Justice.

This is an appeal from a judgment in favor of the defendant, Davis Realty Company, a corporation, in an action for damages for personal injuries.

Statement of the Case

On April 4, 1957, Mrs. Jane Gipson, who was pregnant with child, was being transported by ambulance to the Stanford Hospital where her child was to be delivered. A collision between the ambulance and an automobile owned and driven by Roland Shugg occurred at the intersection of 26th Avenue and Clement Street in San Francisco. The accident occurred at about 12:20 p. m. The child was born about 40 minutes after the accident. The child showed signs of brain damage immediately after the accident, it being subsequently determined that such damage was permanent and that the child was suffering from a disability diagnosed as cerebral palsy. A personal injury action was thereafter instituted by the child's father, Edward T. Gipson, as guardian ad litem on behalf of the child, by the said father in his individual capacity, and by Mrs. Gipson against the ambulance company and its driver, and against Shugg and Davis Realty Company, a corporation, as the alleged employer of Shugg. The cause proceeded to trial ultimately with the child (by his said guardian) and Edward T. Gipson, individually, as plaintiffs, and Davis Realty Company as the sole defendant. A trial was had before a jury and a verdict was returned against the plaintiffs ¹ and for the defendant. ² No attack is made on this appeal as to the substantiality of the evidence, the appeal being directed to the propriety of certain instructions and rulings made by the trial court. ³

Did the Court Commit Prejudicial Error in the Giving of Instructions Regarding Burden of Proof?

The trial court gave an instruction on its own motion as follows: 'Where the evidence is contradictory, your decision must be in accordance with the preponderance thereof. It is your duty, however, if possible to reconcile such contradiction so as to make the evidence reveal the truth. If you are in doubt as to the preponderance of the whole evidence, then you must resolve that doubt in favor of the party who has not the burden of proof.' ⁴ (Emphasis added.) The appellants assert that this instruction is prejudicially erroneous in that it tells the jury that the appellants were required not only to prove their case by a preponderance of the evidence, but that they were required to convince the jury beyond all doubt as to the sufficiency of their proof.

A reading of the instruction does not indicate that the jury was told that the appellants were required to prove their case beyond all doubt. What the jurors were told, however, was that if they were in doubt as to whether the evidence preponderated in favor of the appellants, they were then to find that the appellants had not met the burden of proof. While we are of the opinion that instructions using the word 'doubt' ought to be avoided in civil cases on the subject of burden of proof and preponderance of the evidence, we do not believe that the instant instruction is erroneous. Although, inartfully drawn, its effect, when coupled with the other instructions given by the court on the subject, ⁵ was to tell the jury that if, after weighing the whole evidence in the case, they were in the subjective state of being uncertain as to whether the evidence tending to prove the appellants' allegations had the greater weight, probability, quality and convincing effect than that presented by the opposing evidence, they were to decide that the appellants had not met the burden of proof. The jurors were not told by this instruction that the things which the appellants were required to prove must not admit of any doubt, but rather, that, if after weighing the whole evidence in support of these things, they were in the frame of mind where they could not say that such evidence preponderated on the side of the appellants, they were to conclude that it did not so preponderate.

The appellants have cited several cases in support of their assertion of error, ⁶ but these are distinguishable from the instruction in the instant case primarily because of the specific language used, and the connotation it conveyed, that the degree of certainty indicated with reference to the particular allegations to be proved must not only be beyond doubt, but must not admit of any doubt at all. In Greenleaf v. Pacific Tel. & Tel. Co., 43 Cal.App. 691, 693, 185 P. 872, the portion of the instruction which resulted in a reversal read as follows: "[A]nd if the preponderance of the evidence fails to satisfy you that the fire was so caused, or leaves in your mind any doubt, confusion, or uncertainty as to the origin of the fire, your verdict should be for the defendant." (P. 693, 185 P. p. 872.) The erroneous instruction given in Colbert v. Borland, 147 Cal.App.2d 704, 712, 306 P.2d 53, 58, stated that: "The burden is upon each plaintiff in these cases to prove the affirmative of his case by a preponderance of the evidence. Therefore, you may not speculate as to whether any conduct on the part of either defendant was a proximate cause of the accident or of any one of plaintiff's injuries or damages, and if the evidence leaves these things a matter of conjecture or doubt, then that plaintiff has not sustained the burden of proof required of him under the law as against that defendant." (Emphasis partly added.) The instruction given in Meschini v. Guy F. Atkinson Co., 160 Cal.App.2d 609, 615, 325 P.2d 213, was almost identical to the one condemned in Colbert. In Banes v. Dunger, 181 Cal.App.2d 276, 282, 5 Cal.Rptr. 278, the court gave an instruction to the effect that the jury was not to speculate as to any injuries claimed by the plaintiffs, and that if the evidence left the existence or cause of any alleged injuries a matter of conjecture or doubt, that then the plaintiffs had not sustained the burden of proof. The Perrett v. Southern Pacific Co., 73 Cal.App.2d 30, 165 P.2d 751, case did not involve the use of the word 'doubt.' There an instruction was given that the defendant could be held liable only "upon proof which satisfies your mind that the plaintiff's injuries were proximately caused by some negligence upon its part." (P. 38, 165 P.2d p. 756; emphasis added.)

In Popejoy v. Hannon, 37 Cal.2d 159, 231 P.2d 484, the court on its own motion instructed that: "The defendants, however, are not required to prove by a preponderance of the evidence that they were free from negligence which proximately caused the lumber to fall. They are bound to produce only sufficient evidence to create in your minds such doubt as to why the lumber fell that you cannot say you are convinced by a preponderance of the evidence that the falling of the lumber was proximately caused by the negligence of the defendants." (Pp. 164-165, 231 P.2d p. 487.) The defendants there complained of the instruction, and while the appellate court had some misgivings as to the instruction (not because of the use of the word 'doubt,' but because it tended to place upon the defendants the requirement to present direct evidence either of their freedom from negligence or the absence of proximate cause), it held that the instruction was not prejudicial under circumstances wherein an instruction was given at the request of the defendants substantially in the form of BAJI No. 21. ⁷ The court there said that there was 'little difference' between the challenged instruction and the one requested by the defendants, and that 'The effect of the instruction complained of was to say that the Hannons [the defendants], in order to defeat Popejoy's [the plaintiff's] claim, had the duty to produce a preponderance of evidence to the contrary.' ⁸ (P. 165, 231 P.2d p. 488.)

It should be here noted that the appellants themselves claim error on the part of the court in failing to give an instruction requested by them containing the following language: 'It is the duty of the jury to decide for the plaintiff if the weight of the evidence preponderates, according to the reasonable probability of truth, in favor of the plaintiff's claims, even though the minds of the jurors are not free from doubt.' (Emphasis added.) The court did not give this instruction but placed thereon the notation: 'Given as Modified.' The court was apparently of the opinion that in essence this instruction was covered by the subject instruction to the extent that the former was modified by the latter. We see little difference between the two instructions. Suffice it to say, the terminology 'greater probabilities of truth,' 'probability of the truth' and the 'greater probability' with reference to the meaning of 'preponderance of evidence' in burden of proof instructions is in common use by the courts and has been approved. (See Popejoy v. Hannon, supra, 37 Cal.2d 159, 231 P.2d 484; and see BAJI No. 21, revised 1962.) ⁹ The word 'probability' by its very definition leaves some room for doubt. In Brown v. Beck, 63 Cal.App. 686, 220 P. 14, we find the following language: "Probability' means the state or character of being probable. Webster's and the Century dictionaries define 'probable' as follows: 'Having more evidence for than against; supported by evidence which inclines the mind to belief but leaves some room for doubt; likely.' This definition is accepted in numerous cases in...