Horner v. Flynn

• Decision Date: 06 March 1975
• Citation: 334 A.2d 194
• Parties: Peter L. HORNER v. Patrick H. FLYNN and Motorcycle Training Corp.
• Court: Maine Supreme Court

Page 194

334 A.2d 194

Peter L. HORNER v. Patrick H. FLYNN and Motorcycle Training Corp.

Supreme Judicial Court of Maine.

March 6, 1975.

Lipman, Parks & Livingston, P. A., by Sumner H. Lipman, John M. Parks, Augusta, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, ARCHIBALD and DELAHANTY, JJ.

POMEROY, Justice.

Of the many interesting issues raised by this defendant's appeal from a judgment entered on a jury verdict in favor of the plaintiff, one issue stands out as requiring extensive analysis and discussion.

The complaint alleged fraud.

The defendant requested the presiding Justice to instruct the jurors they could return a verdict for the plaintiff only if the evidence of fraud was 'clear and convincing.'

This the presiding Justice refused to do.

Instead he instructed the jury it was the responsibility of the plaintiff to persuade the jurors 'by a fair preponderance of the evidence' in order to be entitled to a verdict against the defendant.

Stated succinctly, this issue raised by defendant's appeal is, is it error to fail to instruct a jury that evidence of fraud must be 'clear and convincing' before fraud is 'proved' ¹ in a civil action.

In criminal cases there has been a demand for a high standard of persuasion expressed from ancient times. Thayer, Preliminary Treatise on Evidence, 558, 559 (1898).

The formula 'beyond a reasonable doubt' is said by May in his Treatise, Reasonable Doubt in Civil and Criminal Cases, 10 Am.L.Rev. 642, 656 (1876), to have first appeared in the high treason cases tried in Dublin in 1789.

In Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), the United States Supreme Court speaking through Mr. Justice Brennan said:

'There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value-as a criminal defendant his liberty-this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.'

See also In Re Winship, 397 U.S. 358, 360, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the concurring opinion by Mr. Justice Harlan.

In most civil actions the Courts, including our own, describe the burden of persuasion to be 'by a preponderance of the evidence' or more often by a 'fair preponderance of the evidence.' Cf. Wiggin v. Sanborn, 161 Me. 175, 181, 210 A.2d 38 (1965).

In certain classes of cases properly denominated 'civil' as opposed to 'criminal' arising in equity, the Chancellor in determining questions of fact set standards for himself different in both kind and degree from that required in civil actions at law.

Thus in Peterson v. Grover, 20 Me. 363 (1841) the complainant in equity sought to correct an alleged mistake in a deed. The Court said relief could be had in equity only if the mistake 'be clearly proved or admitted.'

Later in Baker v. Vining, 30 Me. 121 (1849) a resulting trust was sought to be imposed. The Court discussing use of parol evidence contradicting the terms of the written instrument said at page 126:

'The same view was taken by Sir William Grant, Master of the Rolls, in Linch v. Linch, 10 Vesey, 511, and by Chancellor Kent, in Boyd v. McLean, 1 Johns. 582 where he says, the cases uniformly show that the courts have been deeply impressed with the danger of this kind of proof as tending to perjury and the insecurity of paper title, and they have required the payment by the cestui que trust to be clearly proved. This Court have manifested a regret that long practice had established the doctrine, and have felt the necessity of requiring full and convincing proof of payment, as the basis of a resulting trust, in favor of the one making it against the person having the legal title. Buck v. Pike, 2 Fairf. 9. And so cautious have courts been in the reception of such evidence, although the proofs have been allowed to be read; yet if there was any secret in the cause not understood, the relief sought has been denied.'

Still later in Tucker v. Madden, 44 Me. 206, 215 (1857), the Court said:

'Those who undertake to rectify an instrument in writing, by showing a mistake, undertake a task of great difficulty.'

The opinion quotes with approval the language 'proof ought to be strongest possible' and that the proof 'must be of the highest nature' and again that it must be 'irrefragable evidence.' Again in the same opinion it is said there is requirement 'the evidence of the mistake was plenary, and left no doubt in the mind of its existence.'

In Parlin v. Small, 68 Me. 289, 290 (1878), an action in law based on claimed fraud tried before a jury, the Court said:

'They undertake to establish the alleged fraud entirely by their own testimony.

'Under these circumstances, what weight shall the oral testimony of parties to a suit have, to relieve themselves from the presumption of correctness that ordinarily attaches to a written instrument of such solemn and important nature as a deed? No doubt, oral evidence from parties alone may be sufficient to establish a fraud that will upset a deed. But what shall the quantum and quality of it be?

'In Wharton's Ev. § 932, it is said: 'The evidence of fraud, in order to vacate a solemnly executed instrument, must be, it need scarcely be added, clear and strong; and this rule is the more important since the passage of the statute enabling parties to testify in their own cases.' In a note to the section cited, the author quotes from a Pennsylvania case as follows: 'Sharswood, J., said: 'It has more than once been decided that it is error to submit a question of fraud upon slight parol evidence to overturn a written instrument. The evidence of fraud must be clear, precise and indubitable, otherwise it should be withdrawn from the jury. Since parties are allowed to testify in their own behalf, it has become still more necessary that this important rule should be adhered to and enforced. " The same views are expressed in as forcible terms by other authors and authorities.

'We concur in the doctrine thus strongly stated. Not that it is new. Our own decisions, in equity cases, have been to the same effect. Baker v. Vining, 30 Maine, 121. Peterson v. Grover, 20 Maine, 363. But, in view of the fact that questions of this kind are being more frequently agitated than they were before parties to the record were allowed to be witnesses, we think it well that the policy of the law upon the subject should be again emphatically affirmed. A deed seen and read as this was is a wall of evidence against oral assaults, to begin with. It should not be battered down for alleged deceits or misunderstandings, unless the proof of them is clearly and abundantly established. The plaintiff must prevail, not only upon a preponderance of evidence, but such preponderance must be based upon testimony that is clear and strong, satisfactory and convincing. Burleigh v. White, 64 Maine, 23, 27.'

In Connor v. Pushor, 86 Me. 300, 302, 29 A. 1083, 1084 (1894), this language was used:

'The defendants urge that the jury were misdirected with regard to the amount of evidence necessary to establish the existence and contents of a lost and unrecorded deed. We think not. True, they were instructed that the evidence should be clear, convincing and satisfactory. But we think this instruction was correct. The plaintiffs had an unbroken record title extending back for over half a century; and the presumption in favor of record titles is so strong that it requires strong, clear and convincing proof to overcome it. This requirement does not militate against the rule that in civil suits a preponderance of evidence is all that is necessary. When an attempt is made to batter down recorded deeds by oral evidence of non-existing and unrecorded deeds, the oral evidence must be clear and strong, satisfactory and convincing, or it will not preponderate. It must be 'plenary."

In Liberty v. Haines, 103 Me. 182, 192, 68 A. 738, 742 (1907), it is said:

'It would appear from these citations that in this class of cases, the rule which obtains in the ordinary case is so modified in every common law jurisdiction, at least, that although all the while it only requires a preponderance of the evidence, yet to establish a preponderance, the proof must become 'clear, convincing and satisfactory."

And in Strout v. Lewis, 104 Me. 65, 68, 71 A. 137, 138 (1968), this language appears:

'In effect the proceeding here, involved the reforming of a written contract on the ground of fraud, and the law is well settled that to enabled a court in equity to exercise this power, proof of the fraud must be full, clear and decisive, and relief will not be granted where the evidence is loose, equivocal or contradictory or in its taxture is open to doubt or opposing presumptions.'

And finally in Wiggin v. Sanborn, supra, this Court said:

'Issues in civil cases need only be proved by the preponderance or greater weight of the evidence. Yet as to certain issues the quality of evidence essential to the proof must be of high degree, else it will not preponderate.'

It is not surprising that confusion results when it is said that the law only requires a preponderance of the evidence, i. e., a tipping of the scales in civil cases, yet in certain classes of civil cases to bring about a tipping proof must become clear, convincing and satisfactory. ²

Much of the confusion doubtless results from the use of adjectives describing the quality of the evidence rather than the required state of mind of the factfinder as to the strength of belief induced by the evidence.

It could well be argued as it was suggested in Baker v. Vining,supra, that certain kinds of evidence, for example oral evidence, ought not be useable to contradict the terms of a written instrument or...