Schmidt v. New York Union Mutual Fire Insurance , 67 Mass. 529 ( 1854 )

Dewey, J.

There seems to have been in practice a distinction taken between civil and criminal cases, as to the effect to be given to the mere preponderance of evidence. In the former, the duty of the jury is to decide according to the weight of the evidence. In the latter, all reasonable doubts are to be removed. Thus it is stated in 1 Greenl. Ev. § 537, “ the jury in the civil action must decide upon the mere preponderance of evidence, whereas, in order to a criminal conviction, they must be satisfied of the party’s guilt, beyond any reasonable doubt.” 3 Greenl. Ev. § 29, is to the like effect. In 2 Russ. on Crimes, (7th Amer. ed.) 737, it is said, “ where civil rights are to be ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in criminal cases, which affect life and liberty.” McNally on Ev. 578, will be found to contain the same doctrine. The phrase, “ reasonable doubts,” seems to have been held peculiarly applicable to criminal trials, and has not been supposed to be equally applicable to civil cases.

If there be any class of civil cases, in which the instruction usually given in criminal cases might be required, it would be those where the defendant has, in a special plea in justification, fully and directly charged upon the plaintiff a crime, and where the same evidence must be adduced to support the plea, as would be required upon an indictment for the like offence In such a case, Mr. Greenleaf says, “ it is conceived, that he would be entitled to the benefit of any reasonable doubts of his guilt, in the minds of the jury, in the samé manner as in a criminal trial.” 2 Greenl. Ev. § 426. The cases in the mind of the writer were doubtless actions of slander, where the justification could only be sustained upon a special plea, directly charging the crime, and alleging all the material facts necessary to constitute it. However that may be, the principle does not, as we think, apply to an action of assumpsit, or contract, as it is termed in the new practice act. In cases like the present, no special plea would have been required under the system of special pleading, but the defence might properly have been raised under the general issue.

In the present case, it may be further stated that there seems really to be but the slightest difference between the instructions actually given and those asked for by the plaintiff, understanding the terms “beyond a reasonable doubt” in their proper sense, and under the limitations stated in the case of Commonwealth v. Webster, 5 Cush. 320. The jury were instructed “ that the burden of proof was on the defendants, and that the jury must be satisfied, as reasonable men, of the truth of the allegations made by the defendants, before they could find in their favor; if the jury, as reasonable men, were fully satisfied of the truth of these allegations, that would be sufficient.” In the view we take of this point, there is no ground foi objection to the verdict for any error in this instruction.

2. The instruction to the jury, that the character of the plaintiff was not necessarily involved in the issue, must, in the present case, be taken in connection with the illustrations stated by the court, and with the concluding remark that it would be sufficient to maintain this defence, “ that the plaintiff had himself purposely and wantonly set fire to and burnt the property; if he had thus set fire to it and burnt it, be could not recover for the loss of the insurers.”

But when it is said that the character of the plaintiff was not involved in the issue, we must understand the presiding judge to refer to what might be a proper subject of inquiry by the jury. In this sense, it was entirely proper to say that the character of the plaintiff was not in issue. The nature of the action excludes all such inquiry or evidence in relation thereto. Fowler v. Ætna Fire Ins. Co. 6 Cow. 673. Humphrey v. Humphrey, 7 Conn. 116. Attorney General v. Bowman, 2 Bos. & Pul. 532, note.

3. It was undoubtedly the ancient doctrine that jurors were to render their verdict as well upon facts within their personal knowledge, as upon those derived from the testimony of the witnesses duly sworn and testifying in the case. 3 Bl. Com. 374. The practice of taking jurors from the vicinage seems to have been adopted under the notion that they might thus be the better qualified from their personal acquaintance with the facts, the parties and their witnesses, to decide the cases that might be brought before them. But at the present day it is thought a greater object, and more likely to secure the due administration of justice, to submit cases to impartial and unbiassed jurors; and that those are less likely to be so who have come from the immediate neighborhood of the parties, and have been either eye witnesses to the facts, or have had their minds imbued with the popular feeling as to the merits of the controversy.

With this change as to the proper qualifications of a juror, it has very naturally come to be well settled that a juror cannot give a verdict founded on facts in his own private knowledge, if the juror knows any particular fact material to the propel decision of the case, he ought to be sworn as a witness in open court, and be publicly examined, so that his evidence, like that of other witnesses, may first be scrutinized as to its competency and bearing upon the issue, and for the further reason that the court and the parties may know upon what evidence the verdict was rendered. 1 Stark. Ev. 449, is direct to this point. The views of this court, in the cases of Parks v. Boston, 15 Pick. 209, 210, Patterson v. Boston, 20 Pick. 166, and Murdock v. Sumner, 22 Pick. 156, in all which the subject was somewhat considered, fully accord with the principle above stated. A distinction was taken in those cases as to the juror’s applying his own general knowledge and experience to the examination of the case, in estimating the weight of the evidence, and in assessing damages. While to this extent the juror may properly call to his aid his personal knowledge, learning and experience, as was properly held in those cases, yet no sanction was given to his acting upon his knowledge of a particular fact, known only to himself, and not a matter of common observation or general knowledge.

The court therefore perceive no sufficient ground for sustaining either of the exceptions taken to the rulings.

Exceptions overruled.