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Evidence Clear and Convincing Proof
Evidence Clear and Convincing Proof
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California Law Review
Published Quarterly throughout the Year by Students of the
School of Jurisprudence of the University of California, Berke-
ley, California. Indexed in Index to Legal Periodicals, Public
Affairs Information Service and Current Legal Thought.
Comment
EVIDENCE: CLEAR AND CONVINCING PROOF:
APPELLATE REVIEW
While "the keystone of our system of administering justice is the
trial judge,"' the foundation of the system is adherence to precedent
established by appellate courts. If trial judges should be free to pro-
pound their own rules and standards, the decisions reached in law-
suits, in many cases, would depend upon the views of the judge who
happened to be sitting upon the bench at the time of the trial2
Although the authority of precedent is firmly established in the
law, there are some situations where the trial judge is the final arbiter.
In many cases this is as it should be, for he is in a better position to
decide the question than the appellate court. However, in other situ-
ations, appellate courts have left matters to the discretion of the trial
judge that should be decided by them. Rules of law should be en-
forced, or be altered or be abandoned. To permit a trial judge to
apply a rule of law in any manner he sees fit destroys the force of the
rule. Appellate courts may pay lip-service to a rule and it may be set
forth in profound language in the reports and restatements, but if
trial courts may disregard it without reversal, the rule is without
effect.
1
MORGAN, Foreword to the MODEL CODE OF EVIDENCE (Am. L. Inst. 1942) 7.
2
"For it is an established rule to abide by former precedents, where the same
points come again in litigation: . . . to keep the scale of justice even and steady, and not
liable to waver with every new judge's opinion ... ' 1 JoNEs' BrAcxsToNE (1915) 117.
1944] COMMENT
nent must show that the facts which he asserts are more than merely
probably true; that the probabilities are great that they are true.
The appellate court should follow the rule employed in the ordinary
civil suit. The problems are essentially the same. There is no more
reason for leaving the solution of one to the trial court exclusively
than there is for the other.
Where the burden upon the proponent is to prove by "clear and
convincing proof" that certain facts are true, many appellate courts
in the United States state that whether the proponent has sustained
the burden is a question for the trial judge and that his ruling will
not be disturbed upon appeal if there is substantial evidence to sup-
port it."'
The California Supreme Court recently faced this question of
the function of trial and appellate courts in determining the suffi-
ciency of the evidence upon which to base a judgment where the re-
quired measure of persuasion was "clear, satisfactory and convincing
evidence." In Stromerson v. Averill,'7 an action to quiet plaintiff's
title to land, defendant, in his answer, offered evidence tending to
prove that plaintiff was acting as defendant's agent in the purchase
of the land in question. The case was tried without a jury and the
trial court found that the plaintiff was acting as the defendant's
agent when he purchased the land in his own name, and rendered
judgment in favor of the defendant. Plaintiff sought a reversal of
the judgment on the ground that the evidence establishing the agency
and constructive trust in defendant's favor did not meet the require-
ment of clear and convincing proof. The supreme court rejected this
argument, saying:
"The sufficiency of evidence to establish a given fact, where the
law requires proof of the fact to be clear and convincing, is primarily
a questibn for the trial court to determine, and if there is substantial
evidence to support its conclusion, the determination is not open to
review on appeal." 18
It is submitted that the standard here announced is the same as the
test for the ordinary civil case-the preponderance of the evidence-
but that it is useless to talk in terms of clear and convincing proof
16Chinn v. Llangollen Stable; Couts v. Winston, both supra note 5; Steiner v. Am-
sel (1941) 18 Cal. (2d) 48, 112 P. (2d) 635; Davis v. Pursel (1913) 55 Colo. 287, 134
Pac. 107; Walker v. Jackson (1929) 48 Idaho 18, 279 Pac. 293.
17(1943) 22 A. C. 864, 141 P. (2d) 732.
18
1bid. at p. 871. Justice Traynor registered a dissent, stating that the evidence
before the trial court was not sufficient to justify a finding that a constructive trust
should be declared in defendant's favor. He declared that the evidence offered to prove
the constructive trust was not clear and convincing and that the appellate courts should
effectively enforce the requirement of a higher degree of proof.
CALIFORNIA LAW REVIEW [Vol. 32
and at the same time say that the question is whether there is sub-
stantial evidence to support the conclusion reached. Although many
trial courts will follow the rule requiring clear and convincing proof,
some may ignore the rule. Others may err in defining the degree of
proof required and in weighing the evidence. The rule is not ren-
dered entirely valueless, but its effect is greatly diminished under
the holding of the Stromerson case. Since the requirement of a greater
degree of proof is based upon sound public policy, it should be en-
forced effectively by appellate courts.
Although the Supreme Court of California followed what may
be the majority view in the United States, several highly respected
courts have come to the opposite conclusion and have exerted con-
trol over the trial courts in their jurisdictions, by reversing the trial
courts where it appeared to them that the requisite degree of proof
was lacking.
Thus, the Supreme Court of Colorado, in Hawkins v. Elston,9 in
considering the evidence introduced to prove that a deed absolute
on its face was a mortgage, stated:
"If upon consideration of all the evidence in the record, the
reviewing tribunal can say, within its judicial discretion, that the
specific character and quality of evidence essential to transform a
deed, absolute on its face, into a mortgage, is lacking, the presump-
tion in favor of the correctness of the decree of the trial court is
overthrown, and the presumption that the deed and °writings express
the true contract between the parties is restored."2
In Nicolls v. McDonald a the Supreme Court of Pennsylvania
reversed the judgment of the trial court, stating:
"When a party sets up title against a deed absolute in its terms
and seeks to convert it into a mortgage the proof of the alleged agree-
ment necessary to change its character must be clear, explicit and
unequivocal.... It is not sufficient that the jury may be convinced
on the evidence given; but the question is, ought they to have been
convinced?"2'
The Supreme Court of New Mexico, in White v. Mayo, 23 also
reversed the trial court and stated:
"Parol evidence to establish an implied trust should be clear
and unequivocal and such as goes distinctly to prove the facts neces-
sary to create a trust .... Appellees' evidence fails to meet these
19 Supra note 5, 146 Pac. 254.
20
lbid. at 416, 146 Pac. at 260.
2'Supra note 5.
22Ibid. at 519.
23
Supra note 6, 299 Pac. 1068.
1944] COMMENT
Bryant M. Bennett.