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A treatise on the law of instructions to juries in civil and ..., Volume 1 online

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alone to determine upon the amount
of evidence required to sustain the
contentions of the party having the
burden of proof, and that the court
should not instruct that the jury are
bound to find according to the pre-
ponderance of the evidence. Mays v.
Williams, 27 Ala. 267. The more re-



cent view prevailing in this Jurisdic-
tion, however, is that, while a charge
that the evidence must preponderate
in plalntiflfs favor, to entitle him to
recover, may be refused, it is not er-
ror to give it. Green v. Southern
States Lumber Co., 50 So. 917, 163
Ala. 511.

« m. lUinois Cent R. Co. v. War-
riner, 82 N. E. 246, 229 111. 91, afflrm-
ing judgment 132 IlL App. 301 ; Kidd
V. White, 138 IlL App. 107; Illinois
Cent. R. Co. v. Becker, 119 HI. App.
221 ; Tedens v. Schumers, 112 HL 263.

Md. Ohlendorf v. Kanne, 66 Md.
495, 8 Atl. 351.

Or. Btagermann v. Chapman Tim-
ber Co., 133 P. 342, 65 Or. 588.

In Mlsfouri it Is not error to re*
fuse to instruct that the party having
the burden of proof must satisfy the
jury "by a preponderance of evi-
dence" ; it being held that such an in-
struction is couched in technical
terms. Anchor Milling Co. v. Walsh,
37 Mo. App. 567.



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INSTRUCTIONS ON DB6BBB OF PROOF



§246



quiring a party to prove his case by a preponderance of the evi-
dence should not be given.* On the other hand, an instruction is
proper which in effect tells the jury that if they find that the
plaintiflf has proved his case, as stated in his declaration, by a pre-
ponderance of the evidence, he is entitled to recover.*^ Where de-
fendant puts in no evidence, an instruction as to the preponder-
ance of the evidence is improper, as the jury in such case consider
the case on the evidence of plaintiff.*

On conflicting evidence, an instruction on the mode of determin-
ing the preponderance of the evidence should be given on re-
quest.' Ordinarily, in the absence of a request, it is not error to
fail to charge on the general doctrine as to the preponderance of
the evidence, or to fail to explain to the jury the meaning of the
phrase "preponderance of the evidence." •

§ 246. Sufficiency of instructions

Where the court undertakes to charge on the preponderance
of the evidence, the jury should be told that, unless the evidence
preponderates in favor of the plaintiff, they should •find for the
defendant; an instruction to make up their verdict from a pre-
ponderance of the evidence not being sufficiently definite.* A



4 Button V. Metcalf, 80 Wis. 193, 49
N. W. 809.

» City of Macon v. Smith, 82 S. B.
162, 14 Ga. App. 703; Ford v. Coal
Belt Ry. Co.. 143 lU. App. 431;
Springfield ConsoL Ry. Co. v. John-
son. 120 IlL App. 100.

« Cohen v. City of Chicago, 197 111.
App. 377.

Wbere there is no oonfliot in
tlie testimony, the failure of the
court to instruct the Jury that plain-
tiff must establish the necessary
facts by a preponderance of testimo-
ny is not error. Schlengener v. Chi-
cago, M. & St. P. Ry. Co., 61 Iowa,
235, 16 N. W. 103.

No oTidence to rebnt statutory
presumption* Where plaintiff had
shown an injury inflicted by defend-
ant's railway train, thus making a
prima facie case of negligence under
the statute which defendant failed to
explain, instruction that plaintiff
must prove by preponderance of tes-
timony that decedent was injured by
defendant's negligence was errone-
ous. Hamel v. Southern Ry. Co. in
Mississippi, 74 So. 276, 113 Miss. 344.



TLouisviUe & N. R. Co. v. Ward
(C. C. A. 111.) 61 F. 927, 10 C. C. A.
166.

« Cal. Hardy v. Schirmer, 124 P.
993. 163 Cal. 272.

0». Tallulah Falls Ry. Co. v. Tay-
lor, 93 S. B. 533, 20 Ga. App. 786;
Jamerson v. Thaxton, 66 S. E. 984. 7
Ga. App. 395; Georgia, F. & A. Ry.
Co. V. Lasseter, 51 S. K. 15, 122 Ga.
679; Gunn v. Harris, 88 Ga. 439, 14
S. E. 693.

Mo. Zackwilc v. Hanover Fire Ins.
Co. (App.) 225 S. W. 135.

Wis. McHatton v. McDonnell's
Eetate, 165 N. W. 468, 166 Wis. 323.

» Southwestern Telegraph & Tele-
phone Co. V. Newman (Tex. Civ. App.)
34 S. W. 661.

ninstrations of instmotions
held proper or snffloient. An in-
struction that the test of preponder-
ance and weight of the testimony is
where the Jury believe truth to be
after hearing all the evidence, was
correct. Johnston v. Delano, 154 N.
W. 1013, 175 Iowa, 498. An instruc-
tion, on the preponderance of evi-
dence, that plaintiff was required to



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§246



INSTRUCTIONS TO JURIES



478



charge with respect to the degree of proof essential to enable a
party to recover is not necessarily erroneous, because it does not
expressly require him to prove his case by a preponderance of the
evidence ; ^® but such an instruction may be properly refused."

It is not error to accompany an instruction on the necessity of
establishing a claim by a preponderance of the evidence by the
statement that a conviction beyond a reasonable doubt is not re-



establish his case by a preponderance
of the evidence, that if the evidence
was evenly balanced, and the jury
were in doubt as to Its preponderance,
or if it favored the defendant, their
verdict should be for the defendant,
sufficiently covered the subject. Han-
dlan V. Mmer, 122 S. W. 751, 143
Mo. App. 101. An Instruction, defin-
ine **preT>onderance of the evidence"
as not the greater number of witness-
es, but that evidence which was more
satisfying and convincing to the
minds of the jury, without adding *'ln
respect to its credibility," was not
erroneous. Zackwik v. Hanover Fire
Ins. Co. (Mo. App.) 225 S. W. 135.
A charge that by ''preponderance
of evidence is meant that superior
weight of evidence on the issues,
which, while it may not convince the
mind beyond a reasonable doubt, is
yet sufficient to incline an impartial
mind to one side of the issue rather
than the other," is a substantial defi-
nition of "preponderance of evi-
dence." Scott V. Brown. 56 S. E. 130,
127 Ga. 88. An instruction that the
preponderance of evidence was not
alone determined by the number of
witnesses, that In determining the
preponderance the jury should take
into consideration the opportunity of
the witnesses for seeing or knowing
the things about which they testified,
their conduct while testifying, their
interest or lack thereof In the result,
and the probability or improbability
of the truth of their grtatements in
view of all the other evidence, was
sufficient upon that point. Hoskovec
v. Omaha St. Ry. Co., 123 N. W. 305,
85 Neb. 295. An instruction that the
preponderance of evidence in a case
is not alone determined by the num-
ber of witnesses testifying to a par-
ticular fact, and that, in determining



upon which side the preponderance of
evidence is, the jury may consider
the opportunities of the several wit-
nesses as to the matters about which
they testify, their conduct while tes-
tifying, their interest in the result,
the probability of the truth of their
several statements, and that from all
such circumstances the jury may de-
termine upon which side is the
weight of the evidence, was not er-
roneous. Hersberger v. Pacific I»am-
ber Co., 88 P. 587, 4 CaL App. 4tiu,
rehearing denied, 88 P. 591, 4 CaL
App. 460.

lOHueni v. FreehiU, 125 IlL App.
345; Kerr v. Quincy, O. & K. C. R.
Co., 87 S. W. 596, 113 Mo. App. 1.

Every initniiction need not tell
the jury that they must find the fticts
from a preponderance of the evi-
dence. It is sufficient if from the en-
tire charge it appears that the jury
were clearly directed to predicate
their findings of fact up<Mi the evi-
dence adduced. Chicago & £. I. R.
Co. V. Pittman, 135 111. App. 481,
judgment affirmed Pittman v. Chica-
go & E. I. R. Co., 83 N. E. 431. 231
111. 581.

Initraotion. setting out facts to
be found from the erideaoe.
Where an Instruction directed that,
if the jury found from the evidence
the facts therein stated, they should
find defendant guilty, and the facta
stated were all the facts necessary
to constitute a cause of action and
require such verdict, the instructi<m
was not objectionable for failure to
require that the fijiding of the facts
must be from a preponderance of the
evidence. Illinois Cent. R. Co. v.
Warriner, 82 N. B. 246, 229 IlL 9t
affirming judgment 132 111. App. 301.

11 Richardson v. Dybedahl, 98 N.
W. 164, 17 S. D. 629.



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479 INSTRUCTIONS ON DEGEBB OP PROOF § 247

quired ; " but the trial court, having laid down the proper rule as
to the amount of evidence required to prove certain facts in is-
sue, has discretion to refuse to make such additional statement.^*
An instruction which enumerates various elements to be con-
sidered in determining the preponderance of the evidence, but
which does not leave the jury free to consider all the facts and
circumstances in evidence in deciding where such preponderance
lies is erroneous, and is properly refused.^* The court should not
single out a part of the evidence, and require the jury to determine
the weight of the evidence from such part,^ and an instruction
which prevents a party from relying on the proof of his adversary
in making out a preponderance of the evidence is error.^* The re-
quirements of the rule as to the preponderance of the evidence
shduld be limited to those issues essential to the maintenance of
the action,*'' and should not be extended to material allegations of
the complaint which are admitted." An instruction that the plain-
tiff must make out his case, so far as he has the affirmative, by a
preponderance of testimony, without telling the jury in what re-
spect he has the affirmative, is improper/* as is an instruction
that the defendant has the burden of proving a counterclaim by
the preponderance of all the evidence in the cause, he being only
required to prove it by a preponderance of the evidence relevant to
that particular issue.^®

§ 247. Instructions requiring too high a degree of proof

In civil actions the party upon whom the burden of proof rests
is not required to prove his case or his defense by more than a
preponderance of the evidence, and instructions which exact more,

la Kuenster v. Woodhouse, 77 N. W. to the effect that "every item and

165, 101 Wis. 216. element of damage claimed' by the

18 Wunderlich v. Palatine Ins. Co., plaintiff must by shown by a prepon-

92 N. W. 264, 115 Wis. 509. derance of the evidence in the case."

1* Parker v. Chicago Rys. Co., 200 Richardson v. Chicago City Ry. Co.,
m. App. 9 ; Larsen v. Ward Corby 170 111. App. 336.
Co., 198 III. App. 109; Smith v. James, An instmotion to deolde all tlie
163 111. App. 501; Eddy v. Lowry issues by a preponderance of the
(Tex. Civ. App.) 24 S. W. 1076. evidence is not, however, objection-
is Brisch v. Chicago City Ry. Co., able as indefinite and misleading.
176 111. App. 341. where the issues submitted embraced

le Philadelphia, B. & W. R. Co. v, the material allegations of plaintiff's

Hand, 61 A. 285, 101 Md. 233. petition. Texas & P. Ry. Co. v.

17 Nelson v. Chicago City Ry. Co., Whiteley, 96 S. W. 109, 43 Tex. Civ.

163 111. App. 98; Freeman Wire & App. 346.

Iron Co. V. Colling, 53 111. App. 29; laO'Donnell v. Chicago, R. I. & P.

CoUhis V. Clark, 72 S. W. 97, 30 Tex. R. Co.. 01 N. W. 566. 65 Neb. 612.

Civ. App. 341. i» Gilbert v. Bone. 79 IlL 341.

Proof of elements of damage. 20 Cohen v. Reichman, 102 N. E.

An instruction is too broad which is 284, 55 Ind. App. 164.



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§247



INSTRUCTIONS TO JURIB8



480



or which tend to lead the jury to think that more is demanded, are
erroneous, and should be refused.'* Under this rule, instructions
which require the jury to have no doubt, or not to entertain any
uncertainty, in order to find for the party having the burden of



21 Ala. Monte v. Narramore, 77
So. 726, 201 Ala. 200; United States
Fidelity & Guaranty Co. v. Gharles,
31 So. 558, 131 Ala. 658, 57 L. R. A.
212; Phoenix Ins. Ck>. v. Moog, 81
Ala. 336, 1 So. 108.

Cal. Ellis V. Central California
Traction Co., 174 P. 407, 37 Cal. App.
390.

Conn. Beach v. Clark, 61 Conn.
200.

HI. Brady v. Mangle, 109 111. App.
172.

Ind. Hartman & Fehrenbacli
Brewing Co. v. Clark, 61 A. 291, 94
Md. 520.

Mich. Van Slyke v. Rooks, 147
N. W. 579, 181 Mich. 88.

Miss. Mardls v. Yazoo & M. V.
R. Co., 76 So. 640. 115 Miss. 734; Gen-
try V. Gulf & S. I. R. Co., 67 So. 849.
109 Miss. 66.

Mo. State ex reL Detroit Fire &
Marine Ins. Co. v. EUison. 187 S. W.
23, 268 Mo. 239, quashing record
(App.) Rice V. Detroit Fire & Marine
Ins. Co. of Detroit, Mich., 176 S. W.
1113.

N. Y. Kennealy v. Westchester
Electric Ry. Co., 83 N. Y. S. 823, 86
App. Div. 293. affirmed 74 N. B. 1119,
181 N. Y. 582.

Tex. Gilmore v. Brown, 150 S. W.
964.

Instmotions improrper nvitliin
mle. An instruction that, if upon
any hypothesis a fact can be account-
ed for on any other theory than a
dishonest one, the jury should so
find. Nebraska Mercantile Mut. Ins.
Co. V. Myers, 107 N. W. 747, 76 Neb.
460. An instruction that plaintiffs
must establish their case "to the full
satisfaction of the jury, by dear and
convincing proof." Gage v. Louis-
ville. N. O. & T. R. Co., 88 Tenn. 724,
14 S. W. 73. A charge that, if the
jury cannot say who has told the
truth, they must find the facts, so
far as there is conflict, not proven.
Kansas City, M. & B. R. Co. v. Crock-



er, 96 Ala. 412, 11 So. 262. An In-
struction that. If the evidence show-
ed "conclusively" that defendant vio-
lated the contract as charged, plain-
tiff would be entitled to recover a
sufficient amount to cover his loss.
Works V. HiU, 107 S. W. 681, 48 Tex.
Civ. App. 631. An instru(^on that
a party alleging fraud must ptodnoe
stronger proof than would be suffi-
cient to establish a mere deb^ and
that the burden is on a party alleging
fraud to overcome the presumptton of
honesty. D. S. Giles & Son v. Hom-
er, 149 N. W. 333, 97 Neb. 162. An
instruction, in an action against a
railroad for damages to plaintiff's
pasture by fire, that, if the Jury was
In doubt as to the origin of the fire,
and could not say of a certainty
which fire caused the damage, they
should find for defendant Stevenson
V. Yazoo & M. V. R. Co., 74 So. 132,
112 Miss. 899. In an action of dalm
and delivery, an instruction defining
preponderance of the evidence, and
adding that if, after a comparison and
consideration of all the evidence, the
evidence for and against any material
allegations of the complaint Is ev«ily
balanced, the plaintiff has failed to
prove her case, and verdict should be
for the defendant, was properly refus-
ed as stating that, if plaintiff failed
to prove any allegation, the entire
cause of action would fall. Webster
V. Sherman, 84 P. 878, 83 Mont. 448.

Proof to justify equitable relief.
The rule that in a particular case the
evidence must be clear and convincing
to Justify equitable relief by reforma-
tion of an instrument should not be
given in the charge to the Jury. West-
em Assur. Co. V. Hillver-Deutsch-
Jarratt Co. (Tex. Civ. App.) 167 S,
W. 816.

Proof that absolute deed was in^
tended as mortsage. Though, to
authorize a finding that an absolute
deed was intended as a mortgage,
such intention must be shown by the



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INSTRUCTIONS ON DSaRBB OF PROOF



§247



proof, are erroneous.** So an instruction that requires the jury to
find against the party having the burden of proof, if there is an
element of uncertainty in the evidence which they cannot solve,
is erroneous.*'

So instructions are erroneous which require that, before the
jury can find the existence of certain facts, the evidence must be
clear and strong, and leave no doubt in the minds of the jury,**
or which require that such facts be established with certainty, or
clearness and certainty,** or which require them to be proved
with reasonable certainty,** or to a reasonable and moral cer-



evidence with (dearness and certain-
ty, It Is improper to so instruct the
Jnry. Palm v. Chemowsky. 67 S. W.
165, 28 Tex. Civ. App. 405.

S2 Ala. Brown v. Master, 104 Ala.
451, 16 So. 443; Alabama G. S. R.
Co. V. HIU, 93 Ala. 514, 9 So. 722, 30
Am. St. Rep. 17; Harris v. RusseU,
93 Ala. 59, 9 So. 541 ; Rowe v. Baber.
93 Ala. 422. 8 So. 865.

Ark. A. li. Clark liumber Co. v.
Bolin, 133 S. W. 1116, 97 Ark. 343;
MiUer V. Hammock, 124 S. W. 769,
93 Ark. 312.

m. Reynolds v. Wray, 135 111.
App. 527.

Miss. Brown v. Walker, 11 So.
724.

W. C, Willis V. Atlantic & D. R,
Co., 29 S. B. 941, 122 N. C. 905.

R. I. Hobin v. Hobin, 80 A. 595,
83 R. I. 249.

TejE. Lewter v. Lindley, 121 S. W.
178.

Instntotloii improper within
nle. A charge in an action on a
note, which there was testimony to
show was iriven to be returned, or
for the true amount to be fixed in
the future, that if the returning,
standing by itself, was proved to
their entire satisfaction, plaintiff
could not use the note against de-
fendant, but that defendant must sat-
isfy them by the weight of evidence,
by testimony In which they had im-
plicit confidence. Ott v. Oyer's Ex'x,
106 Pa. 6.

2« Louisville & N. R. Co. v. Bouch-
ard, 67 So. 265, 190 Ala. 157; Louis-
ville & N. R. Co. V. Mason, 64 So.
154, 10 Ala. App. 263; Birmingham
Ry., Light & Power Co. v. Jackson,
63 So. 782. 9 Ala. App. 588; Mon-
Inst.to Jtjbies— 81



arch Livery Co. v. Luck, 63 So. 656,
184 Ala. 518; Louisville & N. R. Co.
V. Penick, 62 So. 965, 8 Ala. App. 558 ;
Alabama Great Southern R. Co. v.
Robinson, 62 So. 813. 183 Ala. 265;
Jesse French Piano & Organ Co. v.
Forbes, 32 So. 678, 134 Ala. 302, .92
Am. St Rep. 31.

Minds of jury in confusion. A
charge that If, after fair considera-
tiwi of all the evidence, the minds of
the Jury were in confusion whether
plaintiff should recover, they should
find for defendant, may properly be
refused. O'Brien v. Birmingham Ry.,
Light & Power Co., 72 So. 343, 197
Ala. 97.

ai Long v. Martin, 54 S. W. 473, 152
Mo. 668.

2 8 First Nat Bank v. Myer, 56 S.
W. 213, 23 Tex. Civ. App. 302 ; Mixon
V. Farris, 48 S. W. 741, 20 Tex. Civ.
App. 253; Howard v. Zimpelman, 14
S. W. 59.

Reasonable degree of certainty.
A phrase in a charge that "the minds
of the jury should be satisfied to a
reasonable degree of certainty" does
not present reversible error. Liver-
pool & London & Globe Ins. Co. v.
Fa ms worth Lumber Co., 72 Miss. 555,
17 So. 445.

2 « American Lumber & EJxport Co.
V. Love, 84 So. 559, 17 Ala. App. 251 ;
Smiley v. Hooper, 41 So. 660, 147 Ala.
646; Anniston Mfg. Co. v. Southern
Ry. Co., 40 So. 965, 145 Ala. 351;
Leggett V. Illinois Cent R. Co., 72
lU. App. 577.

In eiTil oases reasonable satisfac-
tion, not satisfaction beyond a rea-
sonable doubt, is all that Is required.
Lowery v. Rowland, 104 Ala. 420, 16
So. 88.



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INSTRUCTIONS TO JURIES



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tainty,*'' or which require them to be conclusively proved,** or to
be absolutely shown,** or to be proven beyond a rational doubt,**
or which require that no other rational conclusion can be drawn,**
or which require such facts to be proven beyond a reasonable
doubt.**

So instructions are erroneous, as demanding too high a degree
of proof, which require that the jury be reasonably persuaded of
the existence of essential facts,** or which require that the proof
of such facts be sufficient to convince the minds of the jury,**
or which require the consciences of the jury to be satisfied,** or
that necessary facts must be established to the minds and con-



27 Galloway v. United Railroads of
San Francisco (Cal. App.) 197 P. 663 ;
Whatley v. Long, 93 S. E. 887, 147
Ga. 323.

28 Greathouse v. Moore (Tex. Civ.
App.) 23 S. W. 226.

29 Bolen-DamaU Coal Co. v. Wil-
Uams (C. C. A. Ind. T.) 164 F. 665, 90
C. C. A. 481, reversing judgment 104
S. W. 867, 7 Ind. T. 648; Mann v.
Darden, 60 So. 454, 6 Ala. App. 555.

8 Neal V. Fesperman, 46 N. C. 446.
. Contra. Yarbrongh v. Arnold, 20
Ark. 592.

«i Pelky V. Palmer, 109 Mich. 561,
67 N. W. 561.

s2A1a. Decatur Car Wheel &
Mfg. Co. V. Mehaflfey, 29 So. 646. 128
Ala. 242.

G». Seymour v. Bailey, 76 Ga. 338.

Kan. Stille v. McDowell, 2 Kan.
374, 85 Am. Dec. 590.

Ky. ^tna Ins. Co. v. Johnson, (11
Bush) 587, 21 Am. Rep. 223.

Md. Shoop V. Fidelity & Deposit
Co. of Maryland, 91 A. 753, 124 Md.
130. Ann. Cas. 1916D, 954.

Mo. Brooks v. Roberts, 220 S. W.
11. 281 Mo. 551.

N. Y. Yablonka v. Knickerbocker
Ice Co. (Sup.) 101 N. Y. S. 257 : Bel-
zer V. Daub Storage Warehouse & Van
Co. (Sup.) 130 N. Y. S. 153.

Pa. Catasauqua Mfg. Co. v. Hop-
kins. 141 Pa. 30, 21 A. 638, 28 Wkly.
Notes Cas. 146.

W. Va. Jones v. Riverside Bridge
Co., 73 S. E. 942, 70 W. Va. 374.

Instmctioiui improper wltMn
rule. Where the court properly in-
structed that the burden was on the



party alleging fraud to establish it
by clear and satisfactory evidence, a
further statement that it **might be
established by proving circumstances
from the existence of which fraud Is
the natural and irresistible infer-
ence," and that, "if the case made out
is consistent with fair dealing and
honesty, the charge of fraud fails,"
was erroneous; since the Jury might
infer that fraud must be established
beyond a reasonable doubt. F. Doh-
men Co. v. Niagara Fire Ins. Co. of
City of New York, 71 N. W. 69, 96
Wis. 38.

IXHiere it is doubtful wlietlier
under an instruction in a civil ac-
tion, the Jury are to find according
to preponderance of evidence, or
must be satisfied beyond a reasonable
doubt, it should be refused. Hocum
V. Weitherick, 22 Minn. 152.

Proper form of imstrvetiom
An instruction that "the plaintiff i«
not bound to prove his case beyond a
reasonable doubt, but is merely bound
to prove it by a preponderance of th6
evidence** is correct. Crouse v. Bar-
ber Asphalt Paving Co., 162 111. App.
271; Rlordan v. Chicago City Ry.
Co.. 178 111. App. 323.

«8 White V. Farris, 27 So. 259, 124
Ala. 461.

«4 Southern Ry. Co. v. Hobbs, 43
So. 844, 151 Ala. 335; Newman v.
Newman. 208 111. App. 97 ; Merchants*
Loan & Trust Co. v. Lamgon, 90 IlL
App. 18.

8 5 Birmingham Ry. Light & Power
Co. V. MarUn, 42 So. 618, 148 Ala. 8:
Birmingham Ry., Light & Power Ca
V. Hinton, 37 So. 635, 141 Ala. 606.



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483



INSTRUCTIONS ON DEGREB OP PROOF



^48



sciences of the jury by a preponderance of the evidence,^* or
which call for clear and positive proof,*' or for satisfactory affirma-
tive proof,** or which demand that facts be clearly, or clearly and
fairly, proven,** or which require abundant proof,** or an abiding
conviction,** or that the jury be clearly convinced,** or that the
evidence shall be clear and unequivocal,** or that it be clear,
cogent and convincing,** or that it must be clear, convincing, and
conclusive,** or that essential facts be clearly and distinctly prov-
en,** or requiring such proof as clearly outweighs the evidence of
the other side.*'

An instruction requiring a party to establish his case or cer-
tain necessary facts has been held to require too high a degree
of proof ; ** but there are decisions the other way.**

§ 248. Correctness of use of words "satisfy/' "to the satisfac-
faction," etc.

Taking the view that the burden of proof on a party is sustained
by evidence sufficient reasonably to satisfy the jury, it is held in
some jurisdictions that a charge that the* jury must be satisfied



88 McKay v. Seattle Electric Co.,
136 P. 134, 76 Wash. 257.

"Simpson Bank v. Smith, 114 S.
W. 445, 52 Tex. Civ. App. 349.

88 Frick V. Kabaker, 90 N. W. 498,
116 Iowa, 494.

soMcLeod v. Sharp, 53 111. App.
406; Hall v. Wolff, 61 Iowa, 559, 16
N. W. 710, following West v. Druff,
55 Iowa. 335, 7 N. W. 636.

*o Swlnney v. Booth, 28 Tex. 113.

*i Battles V. Tallman, 96 Ala. 403.
11 So. 247.

*2 WUkinson v. Searcy, 76 Ala. 176 ;
Wilcox V. Henderson, 64 Ala. 535;
Sllverstone v. London Assnr. Corpora-
tion, 142 N. W. 776, 176 Mich. 525.

In an equity suit, in which the
findings of the Jury are merely ad-
visory, such an instruction is prop-
er. Sweetser v. Dobbing (Cal.) 3 P.
116.

*8 McCord-Brady Co. v. Money han,
81 N. W. 608. 59 Neb. 593.

**Dovich V. Chief Consolidated
Mining Co., 174 P. 627, 53 Utah, 522.

<5Roberge v. Bonner, 77 N. E.
1023, 185 N. Y. 265, affirming judg-
ment 88 N. Y. S. 91, 94 App. Div. 34:^.

*«Gehlert v. Quinn, 90 P. 168, 35
Mont. 451, 119 Am. St. Rep, 864.

*T Calllson V. Smith, 20 Kan. 28.



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