Dissenting Opinion.
Olds, J.I concur in the opinion of the majority of the court in all except the sustaining of the instruction given by the court that the appellant must prove his answer of justification beyond a reasonable doubt, and adhering to the former decisions of this court holding such a rule. I agree with the statement in the opinion “that the'rule grew out of a misconception of principle,” but I can not give my assent to the fact that it is too firmly fixed as the law of this State that it can only be changed by legislation. If this rule had been established and uniformly adhered to by an unbroken line of decisions in this State, being erroneous and contrary to an almost unbroken and unanimous line of decisions of the other States of the Union, it would seem to me that it is the duty of this court to correct the error and adopt the proper rule, since it affect^ only a rule of evidence applicable to cases triable in the future, and affects no property rights ; but I maintain that the decisions of this court holding that, in actions for slander, the defendant is required to prove his answer of justification beyond a reasonable doubt is contrary to the law of this State, as declared by numerous decisions ©f this court, and that the decisions holding such a rule have, in effect, been overruled by other decisions holding the contrary.
*357It is the well-settled law of this State that in all civil actions a preponderance of the evidence is all that is necessary to establish the affirmative of an issue. An action of slander is a civil action, and to hold that an answer of justification in such a case must be proven by evidence beyond a reasonable doubt is in conflict with and contrary to rules of evidence governing in the trial of all other civil actions, and if such a conflict exists then it is the duty of this court to adhere to one general rule of evidence in all civil actions of like character, and to overrule any decisions which may be in conflict with such general rule.
The rule requiring a plea of justification to be proven beyond a reasonable doubt was adopted in England upon the trial of a plea of justification of a charge which imputed a felony, for the reason that if the defendant proved the plea, the plaintiff was subjected to be put upon trial for the felony proved, without the intervention of a grand jury, the verdict in such a case being equivalent to an indictment of the plaintiff.
There never was any reason for the application of the rule in this State or in this country, and under the decisions as they now exist in this State, as asserted in the majority opinion, the rule is adopted in one class of cases only, that of libel and slander, while as to all other classes of civil cases, where the truth of a charge of felony is alleged, the rule is not applied, and the plea is supported by a mere preponderance of evidence, while if the truth of slanderous words spoken is pleaded, the plea must be supported by' proof beyond reasonable doubt.
In the case of Continental Ins. Co. v. Jachnichen, 110 Ind. 59, the appellee brought suit against the appellant upon a policy of insurance for the value of a barn and contents covered by the policy, and which was alleged to have been destroyed by a fire of unknown origin. The company ánswered that the assured had himself purposely búrned the property with the intent to defraud the insurance company, and in that *358case, it was held that such answer was only required to be proven by a preponderance of the evidence.
In the case of Hale v. Matthews, 118 Ind. 527, the complaint averred that on a certain day appellee,- Matthews, was the owner of a large quantity of lumber of the value of $925 ; that appellant, Hale, on said day, did then and there unlawfully, purposely and wilfully set fire to, burn and destroy all of said lumber, to the damage of Matthews in the sum of $925. The court charged the jury that the appellee, Matthews, was entitled to recover if he proved the averments of his complaint by a preponderance of the evidence, and the appellant contended that the appellee was not entitled to recover unless the averments of the complaint were proven beyond a reasonable doubt. The complaint charged a felony, and this court held that it was only necessary to prove its allegation by a preponderance of.the evidence. The rule if applicable in civil cases applies to all pleadings alleging the commission of a felony, but this court has divided the rule, and applies it in one class of cases, to which it was applied in England, and refuses to apply it in another.
If the rule is now applicable in this State in cases of libel and slander, then one may bring suit and charge another with the crime of arson in burning his property, and recover its value if he establish the averments of his complaint by a preponderance of the evidence; and if the defendant sue him for slander for speaking the words charging him with arson, to avoid damages he must aver and prove beyond a reasonable doubt that he committed arson in burning the property for which he has in another suit recovered the value upon a preponderance of the evidence. The decisions are so contradictory, and, in my opinion, enunciate such an anomalous and absurd rule, if they are both to be regarded as the law, that it seems to me, in justice to this court and to litigants, one rule or the other should be abandoned and overruled if such has not already been the effect of our decisions.
In the case of Continental Ins. Co. v. Jachnichen, supra, *359the court said: “ Leaving the subject, so far as it relates to cases of slander and libel, for further examination, when such a case arises, it is only proper to add here, that the current of modern authority tends strongly in the direction indicated by the Supreme Court of Maine, in Ellis v. Buzzell, supra; ” which decision of the Supreme Court of Maine limited the rule requiring proof beyond reasonable doubt to criminal cases, and held that only a preponderance was required in any civil case.
I regard the decision of the court in Continental Ins. Co. v. Jachnichen, supra, as abrogating the rule so far as all civil cases are concerned, except libel and slander, and in effect announcing that it would be abrogated in that class of cases when the question came before it for decision.
In the case of Reynolds v. State, ex rel., 115 Ind. 421, the court, in a prosecution for bastardy wherein a defendant may be imprisoned if he fail to pay or replevy the judgment, held that a preponderance of the evidence is all that is necessary to establish the case against the defendant. And in that case the court says : “ If any other authority were necessary it will be found in the late case of Continental Ins. Co. v. Jachnichen, 110 Ind. 59, where, after a thorough examination of the whole question, and a review of numerous cases and authorities, it was held that in all civil actions, a preponderance of the evidence only is necessary to establish the affirmative of an issue, whatever the nature of that issue may be.” This enunciates the correct rule, which is in accordance with the almost unanimous current of modern authorities, and holds that only a preponderance of the evidence is necessary to establish the affirmative of any issue joined in a civil case. These decisions, the one in 110 Ind. 59, and the other in 115 Ind. 421,are later utterances of this court than any holding the rule adhered to by the majority of the court, and are directly in opposition to the others, and in effect overrule them, and the decisions holding, as in the case of Hale v. Matthews, supra, that the rule is not applicable in cases other than libel *360and slander, are also in direct conflict with those holding that the rule is applicable in cases of libel and slander, for the rule, as a rule, applies to pleadings alleging the truth of a felony. The following authorities, among others, are in harmony with the views I have expressed: Matthews v. Huntley, 9 N. H. 146; Woddrop v. Thacher, 116 Pa. St. 340; Ellis v. Buzzell, 60 Maine, 209; Elliott v. Van Buren, 33 Mich. 49; Blaeser v. Milwaukee, etc., Ins. Co., 37 Wis. 31; Kincade v. Bradshaw, 3 Hawks N. C. 63; Marshall v. Thames, etc., Ins. Co., 43 Mo. 586; Jones v. Greaves, 26 Ohio St. 2; Riley v. Norton, 65 Iowa, 306 (10 Am. Law Rev. 642); Schmidt v. New York Ins. Co., 1 Gray, 529; London v. Parmele, 15 Gray, 416; Rothschilds v. American, etc., Ins. Co., 62 Mo. 356; Washington, etc., Ins. Co. v. Wilson, 7 Wis. 169; Scott v. Home Ins. Co., 1 Dillon, 105; Vaughton v. London, etc., R. W. Co., 9 Ex. 93; note to 2 Greenleaf Ev., section 408; 2 Whar. Ev., section 1246; Edwards v. Knapp, 97 Mo. 432; Davis v. Rome, etc., R. R. Co., 56 Hun, 372; People v. Evening News, 51 Mich. 11; People v. Briggs, 114 N. Y. 66; Bell v. McGinness, 40 Ohio St. 204; Davis v. Rome, etc., R. R. Co., supra.
Filed April 23, 1892.For the reasons givep I am unable to concur in so much of the opinion as holds that an answer in justification must be proven béyond a reasonable doubt to be available as a defence in an action for libel or slander.
McBride, J. — I concur in the dissenting opinion.