Kelley v. Joslin

McBBIDE, J. The theory of appellant is, that the fire, which destroyed the property, resulted from *256 the acts of the defendants, or their servants and employees while trespassing upon plaintiff’s property, that the canse of the fire was a matter that should have been left to the jury to be decided by them according to the preponderance of the evidence, and that the court committed error by qualifying the word “preponderance” by adding thereto expressions which appellant claims instructed the jury that more than a preponderance of the evidence was required to justify a verdict in favor of plaintiff for damages resulting from the fire. The court, in instructing the jury, among other matters, gave the following instructions: “8. “I instruct you, gentlemen of the jury, that this is an action for general damages resulting from trespass and special damages resulting from a fire, and that before you can find the defendants liable for the special damages, even though you find they trespassed upon the property of the plaintiff, the plaintiff must prove to your satisfaction by a preponderance of the evidence, that the damage was caused by the defendants, for even though the defendants did trespass upon the property of the plaintiff, this does not make them liable for damages, which they did not cause, and unless the plaintiff has established to your satisfaction by a preponderance of the evidence that the special damages for which he seeks to recover were caused by the defendants, their agents, servants or employees, and no one else, your finding must be for the defendants upon the special damages. “9. “I instruct you, gentlemen of the jury, that plaintiff bases his right of recovery in this case upon three separate causes of action, as set up in his complaint herein; namely, for general damages for trespass, by reason of defendant’s going upon plaintiff’s enclosed lands without lawful authority; secondly, for special *257 damages by reason of defendants, while trespassing npon plaintiff’s lands, starting, or causing to be started, a fire upon said premises, which destroyed certain buildings on plaintiff’s premises; and, thirdly, by defendants, while trespassing upon plaintiff’s lands starting or causing to be started said fire, which also destroyed certain personal property of plaintiff which was situated, at the time, upon plaintiff’s said real propérty. “I further instruct you that plaintiff may recover nominal damages upon the first cause of action for general damages for trespass, and not recover upon the second and third causes of action for the special damages alleged to be caused by the fire destroyed plaintiff’s buildings and property; or the plaintiff may recover upon each and all of the three causes of action, if the evidence in this case, under the instruction which I give you, is sufficient to satisfy your minds by a clear preponderance thereof, that plaintiff should recover from defendants for the value of the property destroyed by fire. “I further instruct you that before plaintiff can recover upon either the second or third causes of action, alleged in the complaint, the plaintiff must satisfy your minds by a preponderance of the evidence, that the defendants, and no one else, and no independent cause started or caused to be started the fire which destroyed said property, unless the preponderance of the evidence does so satisfy your minds, you cannot find for the plaintiff upon either the second or third causes of action, and you must find for defendants upon said causes of action, and this is true even though you find for plaintiff upon his first cause of action for trespass.” To the giving of the last two instructions, the plaintiff saved an exception. The alleged vice in the instruction is, that the court used the expression that the evidence should be ‘ ‘ suf *258 ficient to satisfy your minds by a clear preponderance thereof”: In point one of plaintiff’s brief his whole contention on this subject is embraced in the following language: “The trial court erred in giving special instructions numbered 8 and 9, whereby the jury were told in effect that the burden was upon plaintiff ‘to establish to your satisfaction by a preponderance of the evidence,’ ‘sufficient to satisfy your mind by a clear preponderance thereof,’ ‘plaintiff must satisfy your minds by a preponderance of the evidence,’ ‘and unless the preponderance of the evidence does so satisfy your minds, you cannot find for the plaintiff upon either the second or third causes of action, and you must find for the defendants,’ and similar expressions, — for the reason, that:— “In this state in civil cases it is the duty of the court on all proper occasions to instruct the jury that when the evidence is contradictory, the findings shall be according to the preponderance of the evidence.” And, in plaintiff calling attention to subdivision 5, Section 868, Or. L. The authorities on this subject seem to differ, some holding that the addition of the word “clear” or “fair” constitutes reversible error; others, holding the contrary doctrine. But in our judgment, subdivision 5, Section 868, Or. L., is conclusive on this subject, and any instruction which goes beyond this by the addition of such words as “clear” or “fair” has a tendency to mislead the jury, and is, therefore, erroneous. The other language objected to, that the jury should be satisfied by the preponderance of the evidence, or that their minds should be satisfied, we think unobjectionable; but this is an exceedingly close case upon the testimony and we think that the *259 qualification made by the instruction may have had a tendency to 'mislead the jury as to the quality of preponderance required in order to justify them in finding a verdict for the plaintiff. As to the requested instructions, we think that the first requested instruction was not proper and was properly refused, and that the second requested instruction was sufficiently covered in the general charge, and that the other requested instruction required the court to single out certain items of testimony and give them undue prominence which would tend to usurp the province of the jury, and that they were properly refused. We are of the opinion that plaintiff should have been entitled to costs in this case. The judgment is reversed and the cause remanded for a new trial. Reversed and Remanded. Bean, J., did not participate in this opinion.