
    Philip Ball, Appellant, v. R. W. Marquis, Appellee.
    Criminal Conversation: instructions: preponderance op evi-1 denoe. In an action for criminal conversation an instruction that the burden is upon plaintiff to prove his case by a preponderance of the evidence, and that by preponderance is meant that greater .weight which ‘ ‘ reasonably satisfies your minds, ’ ’ is not erroneous as casting too great a burden on plaintiff.
    Instructions: presumption in support op. Where- the evidence 2 upon which an instruction is based is not set out in the record, a presumption of its correctness obtains, and it would be improper for the appellate court to declare it erroneous.
    
      Appeal from Warren District Court. — HoN. J. D. Gaiíble, Judge.
    Tuesday, February 9, 1904.
    ActioN for criminal conversation. Trial 'to jury, and verdict and judgment for defendant. Plaintiff appeals. — ■
    
      —Affirmed.
    
    
      Bowen & Brockett, Miller, Wallingford & De Graff and T7. F. Powell for appellant.
    
      W. C. Marquis for appellee.
   Bishop, J.

Complaint is made of two instructions — - tbe fifth and eleventh. The fifth related to - .. • the term preponderance of the evidence, and reads as follows:

“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 number 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-suit was to “reasonably satisfy” the minds of the jury that the greater weight thereof was'with'the plaintiff. In the particular respect now under consideration, the question differs from that which arose in Bryan v. Railway, supra. In that case the jury was told that “by the term ‘preponderance of evidence’ is meant testimony of such superior weight and convincing force - as satisfies the mind of its truth.” It was properly held that such definition was erroneous, and for the all-sufficient reason that thereunder the jury might not put the evidence into scales, and by the balancing thereof determine upon the verdict to be rendered; but, on the contrary, the instruction made the requirement that a verdict for plaintiff could only be justified by a finding that in very truth the matters alleged by him existed as facts in the case. The instruction condemned in the case of Hammer v. Railway, 70 Iowa, 623, cited and relied upon by appellant, was in substance identical with the one given in the Bryan Case. The case of Rosenbaum v. Levitt, 109 Iowa, 295, is also clearly distinguishable from the case at bar. In that case the instruction condemned had reference to the proof necessary to establish a particular fact pointed out; that is, the jury was told that the existence of an implied contract alleged should not be found unless the jury was satisfied from all the facts and circumstances shown that the contract was intended to be entered into. In the connection as thus used, this was thought to be equivalent to saying that no affirmative finding as to the existence of such contract would be warranted unless the jury was satisfied as to the truth of the matter alleged. No reference to the subject of preponderance of evidence was made in terms, and the subject was not involved, otherwise than as above indicated.

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 communication. 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 us, for the evidence is not set out in the ab- . stract. Without it, it would be improper for us to say that the instruction is erroneous. Every presumption is in favor of the action' of the trial court, and it will be presumed, in aid of the instruction, that the statement was such as to call for this paragraph of the charge. There is nothing fundamentally wrong in the instruction; that is, we may easily assume a state of facts which would call for the announcement of the rule of law therein set forth. Moreover, these statements and the relations of the parties, husband and wife, were not, as counsel contend, wholly withdrawn from the consideration of the jury.

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.  