Chesapeake & Ohio Railway Co. v. Catlett , 122 Va. 232 ( 1918 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The instant case turns upon the* question,—

1. Is there any probative evidence in the case tending to establish the fact that the breeding place of the mosquitoes which were the cause of the malaria complained of was the old canal bed aforesaid?

The question must be answered in the negative.

A fact cannot be established, whether by direct (testimonial) or circumstantial evidence unless there is some evidence which has some logical probative value to establish the fact. 1 Wigmore on Ev., secs. 20, 31, et seq.

It is very true that in civil cases the reasoning to establish a fact is not required to measure up to the exclusion of every other hypothesis consistent with the evidence; and it is required only that the fact considered as established be the more probable hypothesis from the evidence with reference to other possible hypothesis predicated upon the evidence—that .is to say, in civil cases, a fact may be established by a preponderance only of the evidence. Woods’ Adm’x v. Southern Ry. Co., 104 Va. 650, 52 S. E. 371, and almost innumerable other cases which might be cited. But the preponderance of the evidence rule does not dispense with the requirement that there must be some evidence which has some logical probative value to establish a fact, before that fact can be even considered as a possible hypothesis predicated upon the evidence—a fortiori, before it can be considered. as the more probable hypothesis from the evidence. In other words, the preponderance of the evidence rule can operate only upon hypotheses to establish which there is some evidence in the case of some logical probative value. No other hypothesis can be for a moment considered under this rule. The instant it is discovered that there is no evidence of any logical probative value to establish a given or suggested hypothesis, that instant such hypothesis must be discarded from consideration as a fact. So, in the instant case, as to 'the hypothesis that the breeding place of the mosquitoes which were the cause of the malaria complained of was the old canal bed aforesaid.^ As appears from the above statement of facts and summary of facts, the evidence in the instant case has no logical probative value to establish the fact that the breeding place of the offending mosquitoes was the old canal bed. At most, the evidence cannot go beyond establishing that the mosquitoes which caused the malaria complained of were probably bred, either in the water Of the old canal bed (for which the defendant was responsible), or in the water of other places near by (for which the defendant was not responsible). Now, as bearing on the question whether it is more probable that the mosquitoes bred in the water of the old canal caused the malaria, or those bred in the other near-by places, we have only the isolated datum, or the sole fact that more mosquitoes were bred in the former place. If the number of the mosquitoes bred were a determining factor on this question, we would, of course, conclude that the mosquitoes bred in the former place were the more probable cause of the malaria. But we have the direct evidence in the instant case, above mentioned, that the number of the mosquitoes bred is not a determining factor on such question. We have, moreover, the obvious fact that evidence of mere numbers of mosquitoes bred in a given place can have no probative value whatsoever to identify the breeding place of the offending mosquitoes, when there were other places, equally probable as places of origin, where mosquitoes as shown by the evidence were probably bred in sufficient numbers to have caused the malaria. And it inheres in the very nature of the 'case that this is so. It is necessarily so because the identity of the breeding place of the insects in question is lost in the obscurity of their own utter lack of known or ascertainable marks or characteristics (if any such exist) by which those bred in one place may by any possibility be distinguished from those bred in another place, when we have the data aforesaid furnished by the evidence of different places from which it was equally as possible and probable that they came in sufficient numbers to have caused the malaria. There is, therefore, no evidence in the instant case to show that the one breeding place was more probable than the other of the mosquitoes which caused the malaria complained of. ’

In other words, in the instant case, the verdict of the jury in finding the fact in question was necessarily based upon “conjecture, guess or random judgment upon mere supposition.” Chesapeake and Ohio Railway Co. v. Heath, 103 Va. 64, 66, 48 S. E. 508. The inference that the mosquitoes which caused the malaria complained of were, bred in the bed of the old canal was not proved as a fact in the case, and in the very nature of the subject under the circumstances of the instant case could not by any possibility have been so proved. In such case, the rule that “an inference cannot be drawn from a presumption, but must be founded upon some fact legally established,” applies. (See Chesapeake and Ohio Railway Company v. Ware, post 246; 95 S. E. 183, in which the opinion of this court is handed down at the present term.)

What has been said above is crystalized and stated in another way in the following rule referred to by Buchanan, J., in delivering the opinion of this court in Norfolk and Western Railway Company v. Poole, 100 Va. 148, at pp. 153-4, 40 S. E. 627, at p. 629: “When damages are claimed for injuries which may have resulted from one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause. And he must also fail if it is just as probable that the damages were caused by the one as by the other, since the plaintiff is bound to make out his case by the preponderance of the evidence.”

Counsel for the plaintiff make use of the arguments known in logic as the “method of agreement” and “method of difference,” and urge with much force and ability that in 1913 when the canal bed was kept well drained, there were no mosquitoes and no malaria; that in 1914, contemporaneously with stagnant water in the canal bed, “millions of mosquitoes appeared and this continued throughout the remainder of the year 1914 and the year 1915, until this stagnant water was removed by appellant by. drainage, and as soon as the stagnant water in the canal was removed, the mosquitoes disappeared,” and that appellee and his family “as soon as the stagnant water was drained from the canal bed and the mosquitoes disappeared * * * recovered from their malaria and have had none since.” But the infirmity of these methods of argument, as justly observed and in substance expressed by Mr. Wig-more in his learned and valuable work on Evidence, lies in this, that the failure of the phenomenon to occur in any single instance, when the data relied on to produce it are present, or its occurrence in a single instance, when the data relied on to produce it are absent, is fatal to the argument. In 1913, it is true, the mosquitoes and the stagnant water in the canal were not present, and the phenomenon of the malaria in plaintiff’s family did not occur; but in 1914 this data, to the extent of producing “millions of mosquitoes,” were present, and the phenomenon of the malaria did not occur. Again, in 1915, the data of the stagnant water in the canal and the “millions of mosquitoes” were present and the phenomenon in question did occur; but this single instance is off set by the -experience afore'said of 1914, when with the same data aforesaid then present, such phenomenon did not occur. And as to the disappearance of the mosquitoes and the malaria when and since the canal was well drained, the position of counsel for plaintiff is not precisely accurate. The plaintiff and his son were not taken sick with malaria until after the canal was well drained in August or September, 1915, and at such a length of time after that time that it would seem to be indicated by a preponderance of the evidence that they were not infected by mosquitoes from the canal bed but from mosquitoes bred at some other place. Certainly this must have been so if all the mosquitoes from the canal bed disappeared as soon as it was drained, which was in August or September, 1915. Here again in the absence of the data relied on by plaintiff to produce the phenomenon, we find that the phenomenon occurs. And as to the non-recurrence of the sickness from malaria since the recovery of plaintiff and his family, this was brought out in evidence on the trial in June, 1916. The malarial illness complained of in 1915 did not begin until the latter part of July or first of August. No logical argument, therefore, could be based on its non-recurrence when only the period of June in 1916 had been reached.

Moreover, the argument of counsel for plaintiff ignores the further data furnished by the evidence, that there was unusually wet weather in 1915 when the malaria in question occurred, which probably introduces the presence or absence of unusually wet weather conditions into the problem of ascertaining the more probable cause of the malaria. However, the evidence is meagre on this subject, as it is upon the subject of other data necessarily entering into the problem, and is plainly insufficient to warrant any reliable conclusion based upon .evidence of facts.

As the physician who testified as an expert witness for the plaintiff, in effect, frankly said, concerning the instant case as disclosed by all the evidence for plaintiff, it was impossible for the witness or anyone else to say whether the mosquitoes, which bit Mr. Catlett and his family, and caused the malaria complained of, were bred in the old canal bed or elsewhere; so we are compelled to say' from this evidence.

It is urged in behalf of the plaintiff that the result of such a holding in the instant case will be to set at naught the requirement of the statute above mentioned that the defendant shall so drain the old canal bed “as not to leave stagnant water by which the health of the citizens along the line of the canal might be injuriously affected.” We do not so regard the case. The discharge of the duty in question can be fully enforced, if need be, by the appropriate remedy of mandamus.

For the reasons stated above, the verdict and judgment complained, of must be set aside and Annulled and a new trial granted in accordance with the prayer of the defendant, to be had, if the plaintiff is so advised, not in conflict with the views expressed in this opinion.

Reversed.