# Lewis v. Clyde Steamship Co.

> Supreme Court of North Carolina · June 10, 1903 · 132 N.C. 904

URL: https://www.frixlaw.com/law-library/cases/9811436

## Case

- **Full name:** Lewis v. Clyde Steamship Company.
- **Court:** Supreme Court of North Carolina
- **Decided:** June 10, 1903
- **Citations:** 132 N.C. 904; 44 S.E. 666; 1903 N.C. LEXIS 370
- **Precedential status:** Published
- **Opinion:** Dissent by Douglas
- **Judges:** Connor, Douglas, Clark
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9811436

## Opinion text

Douglas, J.,
dissenting. Taking the opinion of the court in its regular order, my first objection is to the vague and indefinite manner in which a well established doctrine is therein stated. The possibility of bi-lateral construction is always a dangerous defect in the definition of a principle. In any event it tends to weaken the principle and may become the entering wedge in its eventual destruction. During the recent floods in the Mississippi River, I was much impressed at the published statement that five hundred men were at work on the Waterloo levee attempting to stop up what was originally only a crawfish bole. We may well learn a lesson from the laws of nature and henee I sometimes dissent more on account of what the opinion may lead to, than from what it actually decides.
The opinion says: “The only question thus presented for our consideration is whether there was any sufficient testimony to be submitted to the jury to sustain the plaintiff’s allegation,” etc. I have italicized the word “sufficient” as also some other words quoted in this opinion in order to emphasize my objective point. The proposition would have been complete without this word, as a mere scintilla is not considered as evidence. Even as it stands, the word has been so often defined as meaning anything more than a scintilla that it might not be objectionable were it not for other expressions in the opinion that tend to misconstruction.
Further on the opinion says: “In this condition of the testimony we think it impossible, from a legal standpoint, for a jury reasonably to conclude that the plaintiff bad shown *918 a contract between the defendant company and himself.’' This can only mean that in the opinion of this court the preponderance or greater weight of the evidence was against the plaintiff. What have we to do with deciding where lay the greater weight of the evidence? That matter is exclusively within the province of the jury. This is clearly set forth in Wittkowsky v. Wasson, 71 N. C., 451, the leading case upon the subject and the one on which the court now principally relies. The court in that opinion says in express words: “Where there is any evidence to support a plaintiff’s claim, it is the duty of the judge to submit the question to the jury, who are the exclusive judges of its weight.” And again, “Whether there be any evidence is a question for the judge. Whether sufficient evidence is for the jury.” It is true the court then proceeds to use expressions which are capable of a different construction, so much so that it felt it necessary to expressly disclaim any intention to “extend or alter any rule of practice or evidence heretofore recognized in this State.” Judge Reade assented to the decision “upon the explanation therein, that it was not to be interpreted as an innovation upon the established rule that the jury are the sole judges of the weight of evidence without any intimation of opinion on the part of the judge.” Judge Bynum, while concurring in the opinion of the court that there was no evidence to go to the jury, dissented from the opinion as introducing a new and dangerous proposition.
It is remarkable that in this celebrated case the difficulty with the court lay, not in determining the merits of the controversy, but in arriving at the true meaning and tendency of the opinion. Time has more than justified the dissent of the great jurist whose opinion stands as a monument to one who seems to have joined the instinct of the seer to the wisdom of the sage.
In Cobb v. Fogalman, 23 N. C., 440 , cited by the court, *919 Judge Gaston clearly draws the distinction between a defect of evidence and evidence confessedly slight, and properly decides the case on the ground that there was no evidence of a fraudulent intent. This appears from the evidence and is distinctly stated in the concluding paragraph, which is as follows: “We feel ourselves constrained to hold that there was error in leaving it to the jury to infer from the testimony a fraudulent intent in the defendant, when no evidence had been given from which such an intent could be inferred.” There is no intimation in that opinion that this court can pass upon the sufficiency of the testimony.
I am aware that the term “sufficient evidence” has been frequently used by this court, but I respectfully submit that taken in connection with the context of those opinions, or at least with contemporaneous opinions by the same judges, it clearly appears that the term means simply that the evidence must amount to something more than a mere scintilla. A few examples will suffice: In State v. Allen, 48 N. C., 258 , in an able opinion delivered by Judge Pearson, the court says: “An error may have crept into our practice by reason of the judges not having attached due importance to the distinction between the condition of things in England, whence we are in the habit of taking our notions of law, and the condition of things here, where the trial by jury is protected both by the Constitution and by legislative enactment. A judge is not at liberty to express an opinion as to the sufficiency of the evidence. When there is a defect, or entire absence of evidence, it is his duty so to instruct the jury, but if there be any competent evidence, relevant and tending to prove the matter in issue, it is ‘the true office and province of the jury’ to pass upon it, although the evidence may be so slight that any one will exclaim ‘certainly no jury will find the fact upon such insufficient evidencestill the judge has no right to put his opinion in the way of the free action of the jury, even should *920 be deem it necessary to do so, in order to prevent them from being misled by the arguments of counsel or their own want of apprehension.” This opinion will well repay a careful perusal, and will clearly show that the great chief justice would never have concurred in Wittkowsky v. Wasson but for the positive assurance that it did not change or modify the existing rule that the jury were the sole judges of the weight of the evidence.
In State v. Cardwell, 44 N. C., 245 , the court, by Battle, J., says: “Hence it is settled that if there be no testimony sufficient to- establish a fact, it is the duty of the judge to say so; but if there be any testimony tending to prove the fact, he must leave its weight to be determined by the jury.” The italics were by the court.
In the case at bar the opinion of the court quotes the language of Chief Justice Faircloth in Young v. Railroad, 116 N. C., 932 , but in the same case immediately after the words quoted by the court on page 937, come the following: “There is, or may be, in every case a preliminary question for the judge, not whether there is absolutely no- evidence, but whether there is more than a scintilla of evidence upon which the jury can properly proceed to find a verdict for the party introducing it, upon whom the burden of proof is imposed.” The court also cites the oft-cited case of Spruill v. Ins. Co., 120 N. C., 141 . It would seem that the opinion taken in its entirety is free from ambiguity, but in Cox v. Railroad, 123 N. C., 604 , decided by the same court and written by the same judge, appears the following unequivocal enunciation of the principle: “It is well settled that if there is more than a mere scintilla of evidence tending to prove the plaintiff’s contention, it must be submitted to- the jury, who alone can pass upon the weight of the evidence.” See also Moore v. St. Ry., 128 N. C., 455 ; Cogdell v. Railroad, 129 N. C, 398; Dorsett v. M’f'g Co., 131 N. C., at p. 263, where *921 Cox’s case is cited with approval by Chief Justice Furches, speaking for a unanimous court. Further on, the opinion of the court says: “If, however, tested by the rules laid down by this court, it (the testimony) is of that character which the law denominates evidence, and not merely speculative or conjectural, which is declared to be a mere scintilla, it was the duty of the judge to submit it to the jury and their peculiar and sole province to pass upon it.” With great respect for the learned judge that wrote the opinion I am compelled to say that this sentence conveys no definite meaning to my mind. ' The word “scintilla” has a fixed and definite meaning, both in law and in English. Webster says that it is “a spark; an iota; tittle.” Black says that scintilla of evidence is “the doctrine that where there is any evidence, however slight, tending to support a material issue, the case must go to the jury, since they are the exclusive judges of the weight of the evidence.” The italics are those of the learned author. This definition is supported hy the uniform current of authorities in this State, unless changed hy the opinion in the case at bar. Does the court mean to say that it intends changing the meaning of the rule by changing the definition of a word ? Surely not; hut why the constant reiteration of the phrase ? My own views will he frankly stated. I adhere to the principle as stated in Cox v. Railroad, 123 N. C., 604 , as the settled rule in this court. If the court intends to decide) directly or indirectly, in terms or by judicial intimation, that where there is any evidence, more than a scintilla, tending to prove a material issue, the court can withdraw the case from the jury and direct a non-suit on the ground that, in the ^opinion of the court, the evidence is not sufficient to justify a verdict; then I most respectfully but earnestly dissent from a proposition so new and dangerous, which in my opinion is without just foundation in authority, and in violation of the Constitution and laws of the State. Large numbers of cases *922 might be cited in support of my views. Those in this State are too well known to need citation, and I will cite but one case from the Supreme Court of the United States, where the rule is less strict than in this State. In Railroad v. Egeland, 163 U. S., 93, 98 , the court holds that before the question can be withdrawn from the jury, the ^inference from the fact must be “so plain as to be a legal conclusion."
The former court affirming the court below held that there was evidence to go to the jury. The present court thinks otherwise, and bases its opinion upon the “uncertainty which surrounds the testimony.” This very uncertainty seems to me a conclusive reason why it should have been left to the jury. In Printing Co. v. Raleigh, 126 N. C., 516 , Chief Justice Eaircloth, speaking for the court, says: “The defendant’s motion to dismiss the action was equivalent to a demurrer to the evidence, and the plaintiff’s evidence will be taken as true, and taken in the most favorable light for him. An appellate court reviewing a judgment of non-suit will assume every fact proved, necessary to be proved, when the evidence tends to prove it.” See also Coley v. Railroad, 129 N. C., 407 ; 57 L. R. A., 817, and cases therein cited. In Railroad v. Lowell, 151 U. S., 209, 217 , the court says: “In determining whether the plaintiff was so guilty of contributory negligence as to entitle the defendant to a verdict, we are bound to put upon the testimony the construction most favorable to him.” Can there be any doubt that under such a rule the case should have gone to the jury ? The opinion of the court also seems to lay great stress upon the absence of “contractual words.” Such words are not required to make a contract binding and are rarely used in the ordinary, affairs of life. If a person says to a merchant, “send me up a bag of hour” or “give me a pound of sugar,” can there be any doubt that he is bound for the price ? If a corporation through its general manager says to a professional salvor, *923 “We want you to go down there and get the ship off,” why is is not equally liable? The evidence referred to in the former opinion of the court relating to the ship wearing the Clyde colors, flying the Clyde flag, and using furniture marked C. S. C., was cited as tending to show that while the defendant may not have had the legal title to the ship; it may have had in it at least what is equivalent to an insurable interest. For some reason in writing the former opinion of the court, I omitted to cite authorities in support of the proposition that the plea of ultra vires is a defense in the nature of confession and avoidance, with the burden of allegation and proof resting upon the party seeking its protection. 5 Thomp. Corp., Sec. 5967; 1 Clark & M. Corp., Sec. 174; 5 Pl. & Pr., 96; Elliott Pr. Corp., 57; 2 Spelling, Sec. 780, 848, 867. I deeply regret being compelled to dissent so often and at such length, as I am aware that the time thus spent might well be given to the preparation of the opinions of the court, but when great principles are at stake that have exercised a dominating sway over my judicial life, I feel compelled to give them what support I can, trusting to a generous profession for the appreciation of my motives and to time for the vindication of my convictions.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9811436. Public record. Not legal advice.