Bengston v. Estes

The appeal rests on various errors said to have been committed by the trial court. The most serious is that the court erred in instructing that the plaintiff had the burden of proving “by a clear preponderance of the evidence and to a reasonable certainty” the elements of defendant’s negligence and the causal effect. Plaintiff con*598tends that this is the quantum of proof required in cases where fraud or criminal acts are the basis of civil actions and exceeds the quantum sufficient in matters of simple negligence. The authorities support plaintiff’s contention. In Bursack v. Davis (1929), 199…