
    Jones, Stranathan & Co. v. William Greaves.
    -On the trial of a civil action wherein the claim or defense is based on an alleged fraud, the issue may be determined in accordance with the preponderance or weight of evidence, whether the facts constituting the alleged fraud do, or do not, amount to an indictable offense.
    Motion for leave to file a petition in error to the District Court of Muskingum county.
    The original action was brought by William Greaves against Jones, Stranathan & Co., to recover a balance .alleged to be due to the plaintiff for labor and materials in tin-roofing a store-fiouse of defendants under a special contract. The contract, as the plaintiff' claimed, designated the material to be used as “ tbe best quality of roofing-tin ;” but tbe defendants claimed tbat tbe contract required “ ix charcoal tin ” to be used. Tbe latter is tbe better quality of tin, and worth four dollars per box more than tbe former. Tbe contract was entered into in this way : Tbe defendants proposed for bids in writing, specifying the quality of tbe material to be furnished for tbe roof by tbe bidder; tbe plaintiff’s bid was $1,100, which bid the defendants accepted and promised to pay. Afterward, tbe plaintiff purchased tin of tbe quality known as “ the best quality of roofing-tin; ’’whereupon tbe defendants objected to tbe use of this quality of tin, unless tbe plaintiff -would agree to abate from the contract price four dollars per box of tin. Tbe plaintiff agreed to tbe reduction and used the material so purchased in making the roof. ■ Afterward, tbe plaintiff' refused to accept in payment less than the original contract price, on tbe ground tbat bis agreement to abate tbe four dollars per box was obtained by the fraudulent acts and representations of tbe defendants. Tbe fraud practiced by tbe defendants, as claimed by the plaintiffj was thus: Tbat after tbe making of tbe original contract, the defendants fraudulently altered tbe written proposal for bids, by inserting therein tbe words “ ix charcoal tin',” and afterward induced tbe plaintiff to believe tbat the specification of materials, at tbe time plaintiff’s bid was made, required tbe furnishing of tbe better and higher priced quality of tin.
    This question of fraud was put in issue by the pleadings, and testimony was offered, on tbe trial, tending to prove tbe issue on both sides.
    Tbe Court of Common Pleas was requested by tbe defendants to charge tbe jury tbat before they could find tbe defendants guilty of tbe fraud alleged, they must be satisfied from tbe evidence, beyond a reasonable doubt, tbat tbe fraud bad been committed. This request the court refused to give, but did charge tbat a preponderance of evidence ■would be sufficient to prove tbe same. Exceptions were taken. Verdict and judgment were rendered for the plaintiff. On error, the District Court affirmed the judgment below; and the only matters assigned for error here, relate-to the refusal of the Common Pleas to charge as requested and to the charge as given.
    
      Evans § Beard, for the motion.
    
      M. M. Granger, with whom was B. B. Gary, contra.
   McIlvaine, C. J.

There is no doctrine of the law settled' more firmly than the rule which authoi-izes issues of fact in civil cases to be determined in accordance with the preponderance or weight of the evidence. The reason of the rule no doubt is, that as between man and man, where a loss must fall upon one or the other, it is right that the law should cast it upon him who is shown to have been the-cause of the loss, by proof establishing the reasonable probability of the fact.

But in criminal cases, where compensation for the injury done is not an element, the rule may well be, and is, different. In these eases, where the sole object of the prosecution is punishment, a humane principle is introduced, which requires that the guilt of the accused should be proved beyond a reasonable doubt. This principle is often expressed in the maxim, “ It is better that ninety and nine guilty persons should go acquit, than that one innocent person should be punished.”

It is claimed, however, by the plaintiffs in error (defendants below), that civil actions, wherein fraud amounting to a criminal offense is directly in issue, are excepted from the-rule above stated; and that in such cases the rule of the criminal law applies. And they further claim, that the facts in issue in the case below, constituting the fraud alleged against them, amounted to the crime of forgery. Whether forgery could have been committed by altering the paper referred to in the pleadings, or whether the alteration alleged to have been made by the defendants below amounted to the crime of forgery, are questions we need not -stop to answer, as we are satisfied, in any event, that the issue of fraud, as made in this case, did not take it out of the operation of the general rule applicable to the trial of ■civil issues. If there be any exception to the rule, of the kind claimed, it is limited to cases where it is necessary, in ■order to maintain the issue made, to prove that a crime was in fact committed; as, for instance, in justification of a slander imputing a crime.

We have no occasion now to question the existence of su ch limited exception, but I may be permitted to say that .all argument and all authority are not in its favor. It was ■denied, with great reason, in Munson v. Atwood, 80 Conn. 102—an action, under a statute, to recover treble damages for property feloniously taken and carried away.

We are aware that an exception to the rule, broader than we have stated it above, has been recognized in a few insurance cases. 16 Ohio, 324; 2 Greenl. Ev., see. 408. It has been held, however, to the contrary, in other well-considered ■cases. 1 Gray, 529; 1 La. Ann. 216.

What the rule may be in insurance cases we need not now determine, further than to say that if there be no ground of distinction between them and other civil cases, it is extremely doubtful whether, as to them, there is any exception to the general rule; as it is quite certain that an insurer ■ may successfully defend, in an action on his policy, on the ground of gross or willful misconduct on the part of the insured, which does not amount to criminal conduct.

We think it is going to the verge of the law, to hold that ,an issue of fact, in a civil case, must be proved beyond a reasonable doubt, even where a charge of crime is directly made, and where, also, it is necessary that it be made in order to sustain the claim or the. defense; as it is difficult to see how a person, who wrongs another without criminal intent, and is liable in damages on a mere preponderance of the evidence, can shelter himself from liability, behind a .reasonable doubt, by merely adding to the wrongful act a criminal purpose. Of course, we are not now speaking of ■those enormous crimes, where all personal injury is merged in the public wrong; nor do we intimate that in all civil actions the issues should be determined by a mere preponderance of the testimony offered on the trial, however slight. "Where the facts charged involve moral turpitude, there is a presumption of innocence which stands as evidence in favor of the party charged; and the more heinous the offense, the stronger the presumption. It is only where the testimony, when considered in connection with the presumptions of law arising in the case, preponderates in favor of the charge that its truth should be found; but when so considered, by discreet and reasonable triers, the issue should be determined in accordance with the preponderance, although it may not be said that the proof has removed all reasonable doubts.

The conclusion, therefore, to which we have come, is this:, that whatever may be the rule in civil cases, where the claim or defense can be established only by averment and proof that a crime has in fact been committed, in all other civil eases the issue should be determined by the weight or preponderance of the evidence, whether it be or be not suffU cient to remove all reasonable doubts.

How then stands this ease ? It was not necessary, in order to maintain the issue on his part, that the plaintiff below should have proved, nor was it necessary for him to aver in his pleadings, that the alteration in the written proposal for bids, was a forgery within the meaning of the crimes act. Indeed, the consequences of the alteration were the same to him, and to his case, whether there was or was not such a crime as forgery known to the criminal law. It was only material for him to show that the altered paper was fraudulently used by the defendants as a means-to obtain from him a change in the contract. "Whether the alteration had been innocently or feloniously made, was of no direct importance. The material question in issue was this : Did the defendants fraudulently obtain from the plaintiff the modification of the contract as subsequently agreed to by him ?

This case comes within the principle decided in the case-of Strader v. Mulvane et al., 17 Ohio St. 624. There was no error in the refusal to charge, or the charge as given by the Court of Common Pleas.

Motion overruled.

Welch, White, Rex, and Gilmore, JJ., concurred.  