Hardy-Burlingham Mining Co. v. Baker

• Decision Date: 05 February 1926
• Docket Number: No. 4300.,4300.
• Citation: 10 F.2d 277
• Parties: HARDY-BURLINGHAM MINING CO. v. BAKER.
• Court: U.S. Court of Appeals — Sixth Circuit

10 F.2d 277 (1926)

HARDY-BURLINGHAM MINING CO. v. BAKER.

No. 4300.

Circuit Court of Appeals, Sixth Circuit.

February 5, 1926.

Frank V. Benton, of Newport, Ky., and B. R. Jouett, of Winchester, Ky., for plaintiff in error.

O. H. Pollard, of Jackson, Ky. (T. T. Cope, of Jackson, Ky., and C. S. Landrum, of Lexington, Ky., on the brief), for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DENISON, Circuit Judge.

In the court below Baker recovered against the Mining Company a judgment based on a personal injury. At the time of the trial he appeared to be, and, giving due effect to the verdict, it must be assumed that he in truth was in the condition which is concisely indicated by the term "nervous wreck." He charged this result to his experience in the first half hour of the first and only day that he worked in the defendant's coal mine. It is his theory that he then inhaled a "poisonous gas," which defendant was negligently permitting to exist at the place where he was put to work, and that his final condition was the proximate result of this negligence.

The only question for review is whether there was in the evidence the necessary legal basis to support each of the three conclusions: (1) That plaintiff did inhale gas at this time and place; (2) that its presence implied defendant's negligence, and (3) that there was due causal relation between this inhalation and his later serious illness. We pass by, as needing no separate consideration, the fourth question, whether he was at and before the trial really sick, or only malingering.

Appellate courts are constantly deciding whether, in a given case, there was or was not "substantial evidence" to a given effect. Usually it is enough to decide this concrete question, and no more. Occasionally it is worth while for a court to review the fundamental definition, and recall how it has been discussed and fixed by the decisions controlling that court. This seems an appropriate occasion for some consideration of this kind, because the proper application to this record of the "substantial evidence" test depends upon some precision of understanding as to what the test is.

The rule prevailing in some jurisdictions that any evidence having any legal tendency to prove the point is enough to require the court to submit that point to the jury was, 50 years ago, denied by the Supreme Court in Commissioners v. Clark, 94 U. S. 278, 284, 24 L. Ed. 59, where the "scintilla" rule is expressly disapproved. That court has at different times defined the degree of proof involved as: That from which the jury might "justifiably find" a verdict, or "come fairly and reasonably to the conclusion" (Pleasants v. Fant, 22 Wall. 89 U. S. 116, 122, 22 L. Ed. 780); that upon which the jury can "properly proceed" (Commissioners v. Clark, supra); "evidence that would justify" (Carter v. Corusi, 5 S. Ct. 281, 285, 112 U. S. 478, 484 28 L. Ed. 820); that from which the conclusion "can be reasonably and legitimately inferred" (Randall v. B. & O. R. R. Co., 3 S. Ct. 322, 323, 109 U. S. 478, 482 27 L. Ed. 1003); that from which "a reasonable inference can be drawn" (Smith v. U. S., 14 S. Ct. 234, 235, 151 U. S. 50, 55 38 L. Ed. 67); "some evidence, * * * but so meager as not in law to justify a verdict" (Sparf v. U. S., 15 S. Ct. 273, 292, 156 U. S. 51, 100 39 L. Ed. 343); "is of such a conclusive character that the court * * * can be compelled to set aside a verdict to the contrary" (Patton v. T. & P. Ry., 21 S. Ct. 275, 276, 179 U. S. 658, 659 45 L. Ed. 361).

This court has often attempted the definition or explanation. The precise point is best illustrated by the difference between the legal duty not to submit and the discretionary duty to grant a new trial. Though the Supreme Court had several times used language which seemed to ignore any such distinction, Judge Lurton, in Mt. Adams Co. v. Lowery (C. C. A. 6) 74 F. 463, 20 C. C. A. 596, in a thorough opinion, develops the difference. He quotes with approval:

"A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, clearly would not justify the judge in leaving the case to the jury. There must be evidence upon which they might reasonably and properly conclude that there was negligence. * * * Applying the maxim, `De minimis non curat lex,' when we say that there is no evidence to go to the jury we do not mean that there is literally none, but that there is none which ought reasonably to satisfy a jury that the fact to be proved is established."

Many English and federal cases are reviewed, and he concludes:

"If evidence be of so slight a character as to come within a reasonable definition of the scintilla rule, it is the duty of the court to direct a verdict, or, if it has submitted the matter to the jury, to set aside a verdict having no other support than a mere scintilla. In all such cases the evidence is insufficient in law."

There is, further (page 475), recognition of the rule that "evidence may be so insufficient in fact as to be insufficient in law." The further conclusion is that there may be such insufficiency in fact in plaintiff's evidence as to make it clear that the verdict for plaintiff ought to be set aside and yet not such insufficiency in law as to justify refusing to submit. In Felton v. Spiro (C. C. A. 6) 78 F. 576, 24 C. C. A. 321, the same rule is again applied in an opinion by Judge Taft; and again by Justice Harlan for this court in Travelers' Co. v. Randolph, 78 F. 754, 759, 24 C. C. A. 305; he suggests another formula for the power to direct, "when the evidence is so distinctly all one way that a different view of it would shock the judicial mind"; and again the subject was discussed for this court by Judge Severens in Minahan v. Grand Trunk Ry., 138 F. 37, 70 C. C. A. 463. He said:

"Undoubtedly, it is distinctly settled that a mere scintilla, a spark, which arrests attention, and then from mere lack of vitality fades away, is not sufficient to warrant the submission of an issue of fact to a jury, when the scintilla is all that is developed by the party having the burden of proof. Such a showing has no substance, has not the quality of proof, and the judge may lawfully say so to the jury. And it must be admitted that the Supreme Court has gone a step farther than this, and assigned to the province of the court the right to direct the jury in those cases standing between those where there is a mere scintilla and those where there is substantial evidence, standing in a borderland, so to speak, where the evidence is so vague, indefinite, or inconsequential as not to furnish a reasonable foundation on which a verdict could rest. * * *

"In other cases it is said the condition contemplated in which the judge may direct the verdict is when, `in his deliberate opinion, there is no excuse for a verdict save in favor of one party.' * * * And by `evidence' we mean something of substance and relevant consequence, and not vague, uncertain, or irrelevant matter not carrying the quality of `proof' or having fitness to induce conviction."

In Jenkins Co. v. Alpena Co. (C. C. A. 6) 147 F. 641, 77 C. C. A. 625, Judge Cochran, speaking also for Judges Lurton and Severens, varies the form of the rule by saying:

"What constitutes such evidence may be indicated in another way. If the evidence favoring such facts of the plaintiff's case is such that reasonable men may fairly differ as to whether it establishes them, then it is substantial. If, however, it is such that all reasonable men must conclude that it does not establish them, then it is not substantial."

In Virginia Co. v. Hawk, 160 F. 348, 87 C. C. A. 300, this court said, again by Judge Cochran, and in language applicable in large degree to the case at bar:

"But a case should never be left to a jury simply on a question of probabilities, with a direction to find in accordance with the greater probability. Probabilities may help out items of evidence from which an inference can be drawn, but cannot take their place. To allow a jury to dispose of a case simply upon a weighing of probabilities is to turn them loose into the field of conjecture, and to have the rights of the parties determined by guess." Then there is an apparent approval of the Maine holding that a merely "quantitative probability" is not sufficient to support a verdict.

Richards v. Mulford (C. C. A. 6) 236 F. 677, 679, 680, 681, 150 C. C. A. 9, furnishes a fairly pertinent illustration. There was doubtless some evidence tending to show that the infection might have arisen in the way claimed; but, checking that possible inference against the whole situation, not even a quantitative probability remained. See also cases there cited, and Copeland v. Hines (C. C. A. 6) 269 F. 361, in which it...