There was evidence in this case tending strongly to show that the appellee was the mere nominal owner of the goods, when in fact the real owner was one Aaron Bamberger, his brother-in-law, who came from Chicago to Peoria in July, 1881, having first shipped the goods to appellee in May previous, and assumed the almost entire control and management of the store then being carried on in appellee’s name, and continued in the store, managing and controlling it, till the goods were destroyed by fire; that when Bamberger commenced to ship these goods to Peoria he was in failing circumstances.
The evidence also tends strongly to show that Bamberger was the person who set fire to the store that consumed the goods. Some of the circumstances going to show such fact were those testified to by night policeman Jacob Lanman, who swore to seeing Bamberger coming from the stairs leading from the street to the second story of the building where these goods were stored, except what were in the first story of the building, at about 1:45 o’clock a. m. on January 31, 1884. That in the third story was stored a large quantity of oils, varnish and other inflammable materials. That the policeman passed on to the station and that in about fifteen minutes, or about 2:05 a. m., the fire alarm was turned on. That the flames had made such headway that the fire could not be extinguished by the fire department when the engine arrived at the store.
The attempted proof of alibi showed that Bamberger was out that night playing cards with friends at Standard Hall till about 1:30 a. m., when he left and no one saw him afterward till the policeman at the building, except C. M. Saltzenstien, who left him just before the fire at Gabb’s residence on Sanford street, some five and a half blocks from the fire. Some other evidence was given, in connection with all the circumstances, tending to show as we think, fairly, that appellee had no real interest in the goods and was allowing Bamberger to control them as he pleased.
Under this state of the evidence, the court gave for the appellee and against the objection of the appellant the 8th and 9th instructions for appellee. The 8th instruction is as follows:
“Ton are further instructed by the court as a matter of law, that fraud when alleged must be clearly proved. It should never be assumed upon mere suspicion, nor should juries find verdicts assuming that fraud exists on mere suspicion of fact. From the very nature of fraud it can rarely be proven, and parties on whom it devolves to establish fraud must do so, usually, by circumstantial evidence. Tet when circumstantial evidence is relied upon to establish feuch fraud, the circumstances when combined together, must be so clear and convincing as to fully satisfy the minds of the jury of the fraudulent intent and the fraudulent purpose of the acts charged.”
The 9th instruction, after calling the attention of the jury to the issues of fraud and conspiracy as charged in the pleas, ends as follows: “ And while the law is, that such facts may be shown by facts and circumstantial evidence, yet all the facts and circumstances when combined together, must be so clear and convincing as to fully satisfy your mind of the truth of such fraudulent acts, or agreements, connivances and conspiracy, before you are authorized to find that they are established by the evidence in the case.”
Thus the instructions virtually told the jury that the appellant must establish its case beyond a reasonable doubt. This is not the law in this State. A preponderance of the evidence is all that is required in civil actions except in cases where a penalty is sought to be recovered and then a clear preponderance is required. In some special .cases in equity where real estate is involved, clear evidence must be produced, and that seems to be the nature of cases cited by appellee’s counsel. Yoakum v. Yoakum, 77 Ill. 85; Fleischmann v. Moore, 79 Ill. 539, and Shinn v. Shinn, 91 Ill. 486, and there may be other exceptions. Fraud may be proved like any other fact. A preponderance of the evidence is sufficient. Carter v. Gannels, 67 Ill. 270; Reed v. Morton, 48 Ill. 323; Bryant v. Simonean, 51 Ill. 326, and cases cited; Graves v. Colwell, 90 Ill. 612. In the following authorities the question was fully considered and it was'fully decided that a preponderance of the evidence in cases where fraud is in issue is only required. Bullard v. Creditors, 56 Cal. 600; Bump on Frauds, 2d Ed. 484, quoted in the above case; Blaeser v. The Milwaukee & M. M. Ins. Co., 37 Wis. 31; Kane v. H. I. Co., 39 N. J. L. 697; Roberge v. Burnham. 124 Mass. 277.
In the above California case, quoting from Bump on Frauds, it is said: “ Issues of fact in civil cases are determined by a preponderance of the testimony, and the rule applies as well where fraud is imputed as any other. If the evidence produces a rational belief it can not be discarded, though some doubt remains. If the evidence is of sufficient force to produce a preponderance of assent in favor of fraud, it is sufficient.” * * * “It is the rule in all civil cases that fraud may be established by a preponderance of the evidence.”
In the Massachusetts case above cited, it was held that “in a civil case for selling liquor to a minor, it only requires the proof to be made by a preponderance.”
In the case of Blaeser v. M. & M. M. Ins. Co., 37 Wis. 31, in a case similar to this, where the defense on an insurance policy was being made, and the charge was that the fire by which the insured property was destroyed originated through the wilful procurement of the plaintiff, it was held, “ that the case might be established by a preponderance of the evidence.” It was said by the court in that case that “ a few authorities hold that the rule applicable in criminal cases are the same in civil cases where a crime is imputed, but the reason and weight of authority is the other way.”
In Kane v. H. I. Co., 39 N. J. L. 697, the question and discussion was the same as in the last case cited above, and the court says: “ The contrary rule, where it prevails, is evoked in libel and slander where justification implies crime, but these are exceptions.”
This was once the rule in this State where justification in libel and slander was pleaded, but the Legislature disapproving of it, abolished it by enactment.
We think it is well established that the rule announced in the instructions was not the law, and that the court erred in giving them. Besides, the court in the 8th instruction told the jury, that “by the very nature of fraud it could rarely be proven * * * and that it must usually be done by circumstantial evidence.” This was calculated to seriously discount appellant’s efforts to establish it, and besides, was not correct, as fraud is frequently established.
The 12th instruction should have been as broad as the conditions in the policy, and the jury should not have been required to pass on the question whether or not the interrogatories propounded to appellee were “impertinent, immaterial or unauthorized.” That was a question of law the court should, have passed upon and not the jury. The jury might pass on the appellee’s motives, but not whether the question tended to throw light on the points in the policy on which appellant had a right under the policy to interrogate the appellee.
We have examined the statements made by appellee’s counsel to the jury complained of, and find that to some extent they were statements of supposed facts outside the evidence, and also had a tendency to unjustly prejudice the jury, and to this extent the court should have suppressed them. Whether this error alone would be sufficient cause for reversal we express no opinion.
For the above errors the judgment is reversed and cause remanded.
Judgment reversed and cause remanded.
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