Tucker v. State Ex Rel. Johnson

McSherry, C. J., dissented, and delivered the following opinion : I agree with every proposition, save one, announced in the very lucid and carefully prepared opinion written by Judge Boyd ; and the proposition from which I am constrained to dissent is that which relates to the burden of proof. It is presented by the instructions numbered one-and-a-half and twelve. The twelfth instruction lays down this doctrine, namely : If the jury find that the defendant “fired his pistol towards Uriah Johnson ***** ancj shot and killed him, then the burden is upon the defendant to satisfy the jury by preponderating proof of any justification or legal excuse for said shooting.’’ Thus, in explicit terms and unequivocally, the burden of proving the character of the act of killing is at the outset of the case put on the defendant to exculpate himself; whilst, as I read the statute and understand the rules of evidence, that specific burden is placed on the plaintiff to inculpate the defendant, or the latter cannot be made liable at all. The question is not whether the plaintiff has furnished or complied with the burden of proof, but whether he is required to furnish it.

If he is, then the Court ought to, have told the jury, as matter of law, that the burden was on the plaintiff It may be true, in point of fact, that the burden was gratified by competent evidence ; but none the less, the defendant was entitled to have the jury rightly instructed on the law as to where the burden rested. What quantum of evidence meets the burden, is one thing; where the burden rests, is quite- another thing. One — the preponderance of fact: — is for the jury; the other — a rule of law — is for the Court to determine. If wrongly determined it is reversible error. ⁴⁸⁹ This is a new cause of action, unknown to the common law. 8 Am. & Eng.

Ency. (2nd ed.), 858, citing Seward v. Vera Cruty, L. R., 10 App. 59 . It is the creation of a statute, Code Pub. Gen.

Laws, Art. 67, sec. I; and the conditions which must exist to warrant a recovery upon it are those, and those only, which the statute prescribes. It arises when negligence, or when a wrongful act has produced death. But, be the act relied on negligent or wrongful, it must be alleged; and more than that, it must be established by evidence.

Whatever the kind of evidence required may be, it must be supplied by the party on whom the affirmative rests. In all cases of negligence, except when otherwise provided by statute, and even in the rare instances where the doctrine of res ipsa loquitur applies, more than the fact of an injury must be shown. Negligence, either active or passive, must be established and established as the efficient cause. Negligence, if the asserted ground of recovery, is never assumed as the cause of the injury; nor is it inferred from the mere fact of injury.

Balto. Elevator Co. v. Neal, 65 Md. 456 . It is as essential as an element in the case of the plaintiff as is the fact of injury; for an injury without negligence is not actionable on the ground of negligence, any more than negligence without injury would be. Proof, then, there must be of negligence when an action is brought under this statute to recover for a death caused by negligence ; and that proof must be furnished by the plaintiff.

Confessedly, the burden of proving that negligence is on the party who seeks to recover because of the negligence. But the twelfth instruction lays down precisely the converse of this rule as to the burden of proof, when the death has been caused, not by negligence, but by a wrongful act. Thus there are two rules of evidence, directly the opposite of each other; each relating to an action on the case, under the same statute, and the one or the other being applied, not as the form or the nature of the action may vary, but as the same injury may happen by one or the other of two different means; though ⁴⁹⁰ both means are coupled together, without distinction as to the mode of proof, in the statute constituting them new causes of action. Accordingly, without legislative direction, the mechanical manner in which the injury was inflicted is made the criterion to determine the rule of evidence as to the burden of proof.

In the case of negligence, which is simply a breach of duty that is owed (and, therefore, in that sense is a wrongful act) the act of causal negligence must be proved; in the other instance, where an act strictly distinguishable from negligence, is the gravamen of the action, the naked, external act, without reference or regard to its surroundings or to the circumstances which define what it is, is held, of itself, to be such evidence of its wrongful character as to require the defendant to show that it was not, in reality, wrongful. Whilst the statute gives a right of action, provided the act causing the death is wrongful, this rule of evidence gives the right of action, unless the defendant shows that the act was rightful. You recover, not because you have shown the act to be wrongful, but because the defendant has failed to show that it was not wrongful. Any act, therefore, which causes death furnishes, if unjustified by the defendant, a valid cause of action, though the statute says only a wrongful act shall constitute a ground of recovery.

I fail to see any satisfactory reason for such a difference as to where the burden of proof should rest. Certainly, the Legislature has not made the difference. Had the Legislature, in giving this new cause of action, intended to cast upon the defendant the burden of proving that the act occasioning the death was not wrongful, instead of requiring the plaintiff to show that it was wrongful, it would have said so, as it did say in Sec. 198, Art. 23, of the Code, when dealing with a kindred subject. The section just alluded to provides that railroad companies shall be liable for in-j uring live stock on their tracks, unless the company shows that the injury was accidental.

But no such rule of evidence has been prescribed with respect to the cause of ⁴⁹¹ action now before us ; and the very fact that the rule of evidence has been changed in the one and not in the other instance is, of itself, sufficient to indicate that the General Assembly did not intend to shift the burden of proof in a case like this, but did intend to leave that burden on the plaintiff. The twelfth instruction puts out of view all question of intent on the part of the defendant, segregates the act of killing from all the attendant and surrounding circumstances, and lays down the legal proposition that the fact of the killing — -no matter why the killing was done — is sufficient evidence, until rebutted or explained'by the defendant, to show that when done it was wrongful. I agree that in a criminal case the intent to commit a homicide may be inferred from J:he very fact of firing a bullet that causes the death of a person ; Allen v. The United States, 164 U. S. 492 ; but it seems to me obvious that the existence of the intent to kill does not, in a civil proceeding, necessarily denote that the killing was ;wrongful. The intent to kill may justly, in a criminal prosecution, be inferred from the means used in killing, so as to exclude, for the good order and safety of society, by a rebuttable presumption, an opposite hypothesis ; but this principle in no way, as I apprehend, reflects upon the question as to whether in such a case as this, the killing was wrongful or right — for the question is, not whether there was an intent to kill, but whether the plaintiff must show that the homicide was wrongful.

A homicide may be wrongful though not intended ; and it may not be wrongful though intended. For example : A person who negligently, without design to injure any one, fires a shot into a ■highway and accidentally kills another, is guilty of homicide — the killing would be wrongful though not intended. Hochheimer, Law of Crimes, &c., sec. 18. In defending one’s