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 * * * * * and 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 thecharacter 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. *Page 489
This is a new cause of action, unknown to the common law. 8Am. Eng. Ency. (2nd ed.), 858, citing Seward v. VeraCruty, L.R., 10 App. 59. It is the creation of a statute, CodePub. Gen. Laws, Art. 67, § 1; 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 he 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 *Page 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 thedefendant 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 injuring 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 *Page 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 ofintent 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 theintent to commit a homicide may be inferred from the 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 ofCrimes, c., sec. 18. In defending one's self against an atrocious crime it is lawful to take the life of the assailant, and the intention to kill the aggressor would not make the killing wrongful. The presumption of the intent to kill applied in a criminal case and arising from *Page 492 the method of killing, cannot in a proceeding under this statute, supply proof of the character of the killing — that is, cannot indicate that the killing was wrongful — unless precisely the same presumptions with their consequences are alike available in both criminal and civil procedures. It is not every act causing death which gives under the statute, a right of action. It must be a wrongful act. The act, because it occasions death, cannot be said to be a wrongful act, unless every act that does occasion death, is, per se, wrongful. But every act causing death is not per se wrongful. Something more, then, than the naked, external fact of death and the means employed to produce it, must exist and must be shown before it can be said that the taking of life was, in a given civil case, wrongful. And as the right to recover depends, not on the bare act itself, but on thecharacter of the act, that is, upon its being wrongful, it, of course, follows that the duty to show that the act was wrongful rests upon the party seeking a recovery on the specific ground that it was wrongful. The argument which concludes that the fact of killing demonstrates, in a civil case, the quality of the act of killing — that is marks, of itself, its wrongfulness — obviously fails to distinguish between rightful and wrongful killing, and consequently erroneously assumes thatall killing is, in every form of proceeding, prima facie wrongful. However salutary that doctrine may be in criminal prosecutions, I see no reason for adopting it in such a case as this, particularly when, confessedly, if the cause of death had been an asserted negligent act, the fact of death would have been no evidence that the act which produced the death was negligent.
If you say that every taking of human life is unlawful unless justified or excused, I agree, certainly, as respects criminal proceedings; but I retort, as respects civil proceedings, three things: First, that what you say is nothing more than a statement that all unlawful taking of human life is wrongful; second, that the very statement you make concedes that there may be a taking of life which is not wrongful; *Page 493 and third, that as your right of action depends, not upon the mere taking of life, but upon the wrongful taking of it, you must show the wrongfulness by excluding the justification. You do not show the wrongfulness by simply showing the fact without excluding the justification, because the concession that a justification would relieve the act of being wrongful, compels you, when you rely on the act as being wrongful to exclude that which would prevent it from being wrongful; otherwise you leave it in a position where it may or may not be wrongful. If it may or may not be wrongful, and therefore is perfectly neutral as you leave it to the jury by your instructions, how can you recover, when your right to recover depends, not upon an uncertainty as to the character of the act, but upon your proving that the actwas wrongful?
I distinguish between the presumptions which, in the first instance, supply the place of proof in criminal procedure, and thus cast upon the accused the duty to explain; and presumptions permitted in a private civil action for damages. An indictment for murder includes a trespass with force and arms, where the State steps in to vindicate the outraged law. Punitive justice is applied to injurious actions proceeding from malignity of purpose, or from criminal recklessness implying such purpose, and not to physical actions merely. "The presumptions which belong to criminal cases are those natural and popular presumptions which are only observations turned into maxims, like adages and apophthegms, and are admitted in the place of proof, where better is wanting, but are always to be overturned by counter-proof." 2Burke's Works, 623. Presumptions which appertain to civil cases are essentially of artificial contrivance. In dealing with questions of evidence in such cases, the Legislature may always ordain certain methods, by which alone it will suffer facts to be known and established; because their very essence, for the greater part, depends on the arbitrary conventions of men. Men "make fictions of law and presumptions of law, according to their *Page 494 ideas of utility, and against those fictions and against presumptions so created, they do and may reject all evidence." 2Burke's Works, 623; 3 Mascardus, De Probationibus Con., MCCXXV. 111, as cited, Wills Cir. Ev., 21. I might elaborate by illustrations these fundamental differences, but one will suffice. As all men, indeed, as the great majority of men, are not guilty of crime, it is a natural presumption that every man should be considered innocent until proved guilty beyond a reasonable doubt, not by a preponderance of evidence but to a moral certainty, but there is no such presumption, in fact, no presumption at all adopted in favor of a defendant in a civil action, and no such measure of proof required to fix a liability on him, since a mere pre ponderance of evidence is all that is needed. With as much propriety could this presumption of innocence, and this measure of proof, to a moral certainty, be imported from the criminal law into the law governing a civil procedure, as can the presumption of wrongful intent, arising from the use of a deadly weapon, be borrowed from the same source and be arbitrarily applied, by judicial adoption, in a suit under this particular statute. The two classes of cases — criminal and civil — are essentially different; the presumptions allowed in each have different origins; and the fallacy of the twelfth and the one-and-a-half instructions seems to me to lie both in the failure to recognize the dissimilarity of the grounds upon which presumptions are founded in these two classes of cases; and in the assumption that a presumption available in one, is because available there, necessarily available also in the other.
The vice of the twelfth and the one-and-a-half instructions is not cured, in my judgment, by any other instruction given by the trial Court. As I understand the opinion of the majority, it concedes that the twelfth instruction standing alone would be wrong, but it holds that the error is corrected by the other instructions. If thus corrected or cured it must be because the latter — the other instructions — present an opposite proposition, that is, a correct *Page 495 proposition, on the burden of proof, the only subject with which the twelfth instruction deals. If the other instructions do not present an opposite proposition or do not relate to the burden of proof at all, then, obviously they do not cure the vice of the twelfth. If they do present an opposite proposition, and thus relate to the burden of proof, then there is an inconsistency and conflict between those instructions which are right, and the twelfth which is wrong; and this, of itself, would require a reversal. But the twelfth and the one-and-a-half are the only ones which relate to the burden of proof. The other instructions all deal with entirely different subjects. How, then, can these latter, when they have no reference to the burden of proof at all, cure a defective statement of law as to the burden of proof in the only instructions which do relate to the burden of proof? The silence of all the other instructions on that subject — and they are absolutely silent — does not remedy a palpable error on that precise subject in totally different instructions pertaining solely and exclusively to that subject. The correct instructions cannot cure the incorrect ones, when the latter have no relation to the former, and are wholly independent of them.
(Filed June 22d 1899).