122 Iowa 665 | Iowa | 1904
Complaint is made of two instructions — -
“The burden of the proof is upon the plaintiff to establish each and every particular fact necessary to prove his cause of action by a preponderance of evidence. By the term ‘preponderance of the evidence’ is meant that greater and superior weight of the testimony as reasonably satisfies your minds. Preponderance is not alone determined by the num*666 ber of witnesses testifying to a "particular fact or state of facts. It may occur that the statement, or the superior knowledge of the subject-matter testified to, of one or a few witnesses, may be of more importance, and be relied upon with a greater degree of assurance, than that of a greater number, and the testimony of the witnesses is oftentimes strengthened or weakened by other facts and circumstances disclosed uy the evidence.”
The instruction is said to be erroneous because of the use of the words “reasonably satisfies.” It is conceded, of course, that plaintiff was not required to prove his case beyond a reasonable doubt, and that all that was required of him was the production of the greater weight or preponderance of the evidence. Such is undoubtedly the law of fi-cis state. Coit v. Churchill, 61 Iowa, 296; Bryan v. Railway, 63 Iowa, 464; Callen v. Hanson, 86 Iowa, 420; Rosenbaum v. Levitt, 109 Iowa, 295. The contention of appellant is that the instruction given in this case, in view of the. language used, required of plaintiff not merely that he establish the facts of his case by a preponderance of the evidence, but that the evidence on his behalf must be such as to fairly set at rest the truth of every material fact necessary to a recovery. This contention centers upon the expression “reasonably satisfies,” and it is the argument of counsel that such expression, fairly considered, could convey to the jury bo other meaning than that the verdict must be for defendant, even though the weight of the evidence was with plaintiff, if the jurors were not reasonably satisfied of the inherent truth of the matters alleged. We have made the question thus raised the subject of full and mature consideration, and we reach the conclusion that, while the use of the expression is not to be commended, the jury could not fairly or in reason have been misled by the instruction as given. It will be observed that the expression criticised is used in defining the term “preponderance of the evidence,” and we think it must have been understood by the jury that a preponderance was established if, upon consideration of the evidence, the re-
II.. Instruction No. 11 is as follows:
“Evidence has been admitted tending to show that the wife of the plaintiff made statements to him respecting her relation with the defendant, and showing the relations between the plaintiff and his wife since the time of such com*668 munication. You are instructed that you cannot consider the statements of the plaintiff’s wife to him, nor their conduct or relation since that time, in determining the question whether or not defendant has had sexual intercourse with said wife; but, if you find from the other evidence in the case that defendant did have such sexual intercourse, you may consider the relations existing between the plaintiff and his wife since the time it is claimed she made statements to plaintiff, as above suggested, in determining the damage that plaintiff has sustained, if any, by reason of such acts of the defendant, but such damage cannot be increased because of any unreasonable ‘conduct, if any, of the plaintiff.”
The complaint made of it is that it instructs the jury not to consider the statements of the plaintiff’s wife for any purpose. We do not have the statements referred to before
We- reach the conclusion that no prejudicial error appears, and it follows that the judgment of the court below must be, and it is, aKKIRmud.