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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.

Subscription Price, $3.50 Current Single Copies, 90 Cents

BOARD OF EDITORS
BRYANT M. BENNETY, Editor-in-Chief
ALDo P. GumoTnI, Associate Editor
LLOYD A. CAnLsoN MARY VIRGINIA PYNE
Louis C. GmER GAu A. STRADER
Jom H. SwAN
CAmm MARTIEZ, Manager

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

The overwhelming majority of the courts in the United States

require a higher degree of proof in certain types of civil cases than
is required in ordinary civil suits.' This degree of proof is usually
denominated "clear and convincing proof."'
The precise meaning of "clear and convincing proof" does not
lend itself readily to definition. It is, in reality, a question of how
strongly the minds of the trier or triers of fact must be convinced
that the facts are as contended by the proponent. In the ordinary
civil suit, the proponent must persuade the jury (or judge, if there
is no jury) that the facts are more probably true than not true. Where
clear and convincing proof is required, the proponent must convince
the jury or judge, as the case may be, that it is highly probable that
the facts which he asserts are true. He must do more than show that
the facts are probably true. Where the trier of facts finds certain
things to be true, he can only find what probably has happened. If
the probabilities are equal, the litigant with the burden of proof must
fail-even in the ordinary civil suit. If the probabilities are little
higher than those of his opponent, the proponent should win in the
ordinary civil suit, but he should fail where he is required to prove
his case by clear and convincing proof. His evidence, where this rule
appears, should establish that the probabilities are great that the
facts which he asserts exist, do exist.
Some courts, for example, require the litigant bearing the burden
of persuasion to show by clear and convincing proof that a deed
absolute on its face is in reality a mortgage, 5 to establish a construc-
tive or resulting trust,6 to prove the existence and contents of a lost
deed 7 or will' or to prove an oral contract as a basis for specific
3
The rule is so well established that endless citation of cases serves no purpose.
Cases may be found in: 1 JoNEs ON MORTGAGES (8th ed. 1928) § 343; 9 WioGoRE, Evi-
DENCE (3d ed. 1940) § 2498; 20 Am. JuR. 1103; 23 C. J. 24; 32 C. J. S. 1059; Notes,
(1923) 23 A. L. R. 1500; L. R. A. 1916B 18, 192; (1938) 16 N. C. L. REv. 416; (1930)
15 IOWA L. REv. 192.
4
Courts state the requirement of a higher degree of proof in various ways, the
most common of which are: "clear and convincing proof," "clear, satisfactory and con-
vincing evidence," "clear, cogent and convincing proof," "clear, precise and indubitable,"
"explicit and convincing," and similar combinations of these terms. They all are meant
to require a greater degree of proof than a preponderance of the evidence.
5
Chinn v. Llangollen Stable Inc. (C. C. A. 6th, 1940) 109 F. (2d) 66; Couts v.
Winston (1908) 153 Cal. 686, 96 Pac. 357; Hawkins v. Elston (1915) 58 Colo. 400, 146
Pac. 254; Brennan v. Finn (1922) 217 Mich. 584, 187 N. W. 353; Nicolls v. McDonald
(1882) 101 Pa. 514; Smyth v. Reed (1904) 28 Utah 262, 78 Pac. 478.
6
Harris v. Gurley (C. C. A. 5th, 1936) 80 F. (2d) 744; Wehle v. Price (1929) 202
Cal. 394, 397, 260 Pac. 878; Goodfellow v. Goodfellow (1933) 219 Cal. 548, 554, 27 P.
(2d) 898, 901; Nelson v. Wood (1940) 199 Ark. 1019, 137 S. W. (2d) 929; White v.
Mayo (1931) 35 N. M. 430, 299 Pac. 1068; Page v. Page (1922) 132 Va. 63, 110 S. E. 370.
7Posten v. Rassette (1855) 5 Cal. 469; 7 WIGMoRE, op. cit. supra note 3, § 2105.
8
CAL. PROB. CoDE (1941) § 350 " ... no will shall be proved as a lost or destroyed
will ... unless its provisions are clearly and distinctly proved by at least two credible
 CALIFORNIA LAW REVIEW [Vol. 32

performance.9 This measure of persuasion is also required to prove

an agreement to bequeath property by will,' 0 an agreement to adopt,"
and to prove that property acquired after marriage is not community
property,' 2 and so forth. The problem of formulating instructions to
the jury which state the meaning of clear and convincing proof has
proved difficult. 3
The requirement of clear and convincing evidence is based upon
policy considerations. Charges of some types are easily made, but
are difficult to disprove. They may be used by litigants to perpetuate
a fraud. It is to safeguard parties defending against such charges
that the proponent is required to prove them by clear and convincing
proof. The requirement is a meritorious one and should be enforced.
Although some courts state that the proof in such cases as these
must be established beyond a reasonable doubt, this is a minority view
and this phrase is generally not meant in the sense in which it is used
in criminal cases.'
In the ordinary civil suit, the trial court should direct a verdict
against the proponent if he does not produce "substantial evidence"
to support his case.' 5 "Substantial evidence" can only mean that the
facts asserted are probably true, and when a verdict is directed, the
trial court holds that a reasonable jury cannot find that the facts as-
serted are probably true. The California Supreme Court has found
no difficulty in holding that the refusal of the trial court to direct a
verdict is error where there has been no substantial evidence.
Why then should an appellate court balk when a losing litigant
contends that the proponent's case is not established by the necessary
clear and convincing evidence. If we are to give meaning to the
phrase "clear and convincing proof," it must mean that the propo-
witnesses." Many states have similar statutory provisions. See WiomoR, op. dt. supra
note 93, § 2106.
MacQueen v. Anderson (1916) 275 Ill. 409, 114 N. E. 159; Boyers v. Boyers (Mo.
1941) 147 S. W. (2d) 473.
1OBrooks v. Yarborough (C. C. A. 10th, 1930) 37 F. (2d) 527; Notten v.Mensing
(1935) 3 Cal. (2d) 469, 45 P. (2d) 198; Moreen v. Carlson's Estate (1937) 365 In.482,
6 N. E. (2d) 871; Taylor v. Langenbacker (1941) 130 N. J. Eq. 59, 21 A. (2d) 219.
IlEziUf v. Mobley (1925) 160 Ga. 872, 129 S. E. 532; Kramer v. Cooper (1932) 347
I.293, 179 N. E. 862.
12 Estate of Nickson (1921) 187 Cal. 603, 203 Pac. 106.
13
This note is not concerned with the problem of instructing the jury where the
requirement of clear and convincing proof is met, but is confined to the question of the
function of the appellate court in reviewing the evidence to determine whether there
was sufficient proof to send the issue to the jury, or if no jury, whether the decision
of the trial court is supported by clear and convincing proof. For a discussion of the
problem of framing instructions where clear and convincing proof is required, see Mor-
gan Presumptions and Burden of Proof (1933) 47 HARv. L. REV.59, 66.
' 4 See (1923) 23 A. L. R. 1520.
' 5 Estate of Baldwin (1912) 162 Cal. 471, 123 Pac. 267; Estate of Sharon (1918)
179 Cal. 447, 177 Pac. 283; 9 WIomORE, op. cit. supra note 3, § 2494.
19441 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

requirements... the judgment of the trial court is reversed and the

same remanded with instructions to dismiss the complaint and it is
so oidered." 24
In Page v. Pagel the Supreme Court of Virginia, reversing the
judgment of the trial court which established a constructive trust,
queried:
"Has the appellee established the fact that he intended and
directed the conveyance in question to be made to himself alone,
by evidence which is 'unequivocal and explicit' and 'by clear and
convincing testimony?' The question must be answered in the nega-
26
tive."
The court then considered the evidence in detail and said:
"... . the appellee has failed to sustain the case alleged in his bill by
that degree of proof which is required in such cases ... 27
In Utah, the supreme court in Smyth v. Reed 28 reversed the trial
court, and decided that the evidence was insufficient to show that a
deed, absolute on its face, was a mortgage. It stated, "... the evidence
adduced in the case is not sufficient to limit the effect of the terms of
these written instruments." 2 9
In several jurisdictions, the appellate courts have affirmed the
judgments of the trial courts, but in so doing, they have carefully
considered the evidence, and have come to the conclusion that it met
the requirement of a higher degree of proof than that required in
the ordinary civil action!*
It is unfortunate that the Supreme Court of California has not
seen fit to follow the rule of these courts and enforce the requirement
of clear and convincing proof. Only by effective enforcement can
the public policy that lies behind the requirement be carried out.

Bryant M. Bennett.

2A1bid. at 440, 299 Pac. at 1072.

2
5Supranote 6, 110 S. E. 370.
26Ibid. at 70, 110 S. E. at 372.
27Ibid. at 81, 110 S. E. at 376.
26
2
Supra note 5, 78 Pac. 478.
9Ibid. at 268, 78 Pac. at 479. Accord: Cape v. Leach (1940) 283 Ky. 662, 142
S. W. (2d) 971; Sloan v. Becker (1894) 31 Minn. 414; Johnson v. Nat'l Bank of Com-
merce (1911) 65 Wash. 261, 118 Pac. 21 (supreme court reversed trial court; said
evidence insufficient).
OHal v. Hall (1921) 149 Ark. 669, 234 S. W. 173; Walker v. Walker (1938) 369
Ill. 627, 17 N. E. (2d) 567; Klusmise v. Dixon (1939) 150 Kan. 871, 96 P. (2d) 634;
Purvis v. Hardin (1938) 343 Mo. 652, 122 S. W. (2d) 936; Walker v. Walker (1916)
254 Pa. 220, 98 At. 890.