dissenting.
I am of the opinion that the district court correctly instructed the jury on Disner’s burden of proof under Michigan law. I also conclude that, to the degree the question is doubtful, our standard of review in cases of this type requires that we affirm the district court. Accordingly, I must respectfully dissent.
I.
The majority cites four Michigan cases for the proposition that “clear and convincing evidence” is needed to establish fraud. One of these four cases, Youngs v. Tuttle Hill Corp., 373 Mich. 145, 128 N.W.2d 472 (1964), is readily distinguishable. Youngs was an action on the equity side of the bench and Michigan courts have long held that clear and convincing evidence is needed to establish fraud in equity cases. See, e.g., Harvey v. Lewis, 357 Mich. 305, 311, 98 N.W.2d 599 (1959) (“When relied on as the bases for equitable relief they [fraud and conspiracy] must be established by clear and satisfactory proof.”); Margolis v. Benton, 343 Mich. 34, 38, 72 N.W.2d 213 (1955) (“one seeking relief in chancery court on the ground of fraud must establish it by clear and convincing proof”); see also A & M Land Development Co. v. Miller, 354 Mich. 681, 686, 94 N.W.2d 197 (1959) (applying a “clear and satisfactory” standard in an equity case).
The other three cases, Hi-Way Motor Co. v. International Harvester Co., 398 Mich. 330, 247 N.W.2d 813 (1976); Gorman v. So-ble, 120 Mich.App. 831, 328 N.W.2d 119 (1982); and Higgins v. Lawrence, PC, 107 Mich.App. 178, 309 N.W.2d 194 (1981), did involve actions at law and not at equity. On their face, these cases might seem to resolve the matter before us, but since they were tried before a judge and not a jury they are not wholly dispositive. The same burden of proof would, of course, apply in both jury and bench trials, but the question we must ask is how much weight a Michigan court sitting in this case would attach to Hi-Way, Gorman, and Higgins. For the reasons stated below, I conclude that a Michigan court would not follow these cases.
Two Michigan cases involving a closely analogous question support the conclusion that Hi-Way should not be woodenly applied. Michigan cases have long held that *1113when a statute of frauds defense is raised against an action brought upon an oral contract and the plaintiff interposes the doctrine of equitable estoppel, the plaintiff must prove the oral contract by “clear and convincing evidence.” See, e.g., Pattyn v. Frezza, 412 Mich. 861, 312 N.W.2d 86, (1981) ; Guzorek v. Williams, 300 Mich. 633, 639, 2 N.W .2d 796 (1942). No case had ever embodied this language, however, in a jury instruction. As in the case at bar, the defendants in Beachum v. Bay Valley Associates, 120 Mich.App. 412, 328 N.W.2d 54 (1982) and in White v. Production Credit Association, 76 Mich.App. 191, 256 N.W.2d 436 (1977), seized upon this language to argue for a jury instruction containing a statement that the contract must be proved by “clear and convincing” evidence. Despite the earlier statements in Pattyn and Guzorek, the court of appeals in these two cases rejected the proposed instruction. Although Beachum and White did not address jury instructions on the precise issue presented here, they illustrate a proposition crucial to resolving this case: Statements in nonjury cases concerning the burden of proof cannot be automatically applied to jury instructions. In light of this fact, Hi-Way, Gorman, and Higgins do not end our inquiry.
The issue is, in light of Beachum and White, whether a Michigan court would find Hi-Way and other nonjury cases dis-positive on the question of jury instructions.
II.
Statements that fraud must be proved by clear and convincing evidence admittedly appear throughout Michigan case law. Perhaps the first such statement occurred in Buck v. Sherman, 2 Doug. 176, 182 (1845):
We cannot presume that fraud actually exists upon slight circumstances. The proof should be so clear and conclusive as to leave no rational doubt upon the mind as to its existence. (Emphasis in original).
As will be demonstrated below, however, this rule obtained only in courts of equity and not in courts of law. If Hi-Way and its progeny apply this standard to actions at law, they are overruling a considerable body of case law.
The very argument raised by Westinghouse in this case was rejected long ago in Watkins v. Wallace, 19 Mich. 57 (1869). In that case, Wallace brought an action at law claiming a right to property under an assignment for the benefit of creditors. See id. at 73. Watkins defended on the ground that the assignment was a fraud upon other creditors. See id. at 75. The jury was instructed that “fraud will not be presumed from slight circumstances; the proof must be clear and conclusive.” Id. at 76 (emphasis in original). Despite the fact that the instruction followed almost verbatim the statement in Buck, the court in Watkins held that the “language used had a tendency to mislead the jury into a belief that more stringent proof was necessary than the law requires.” Id. The court reasoned:
It is not to be denied that such language has been frequently used by Courts, and when used by them it expresses an idea which means no more than that the proof must be such as to create belief and not merely suspicion. But juries cannot be expected to be familiar with the technical and stock phrases of the bench and bar.
Id. See also Hinchman v. Weeks, 85 Mich. 535, 545-46, 48 N.W. 790 (1891) (instruction to jury that fraud must be proven by “fair preponderance of evidence” held to be correct); Sweeney v. Devens, 72 Mich, 301, 303-04, 40 N.W. 454 (1888) (“clear and conclusive” instruction held erroneous).
Cases from the first quarter of the twentieth century continued to apply the Watkins rule. See, e.g., Campbell v. Great Lakes Insurance Co., 228 Mich. 636, 640-41, 200 N.W. 457 (1924) (action brought on fire insurance policy against the insurer in which the defendant alleged fraud on the part of the insured; the court held that “the instruction in question required properly but a preponderance of the evidence”); Silverstone v. London Assurance Co., 176 Mich. 525, 532-33,142 N.W. 776 (1913) (in a fire insurance case similar to Campbell, the *1114jury instruction required “proof that clearly convinces you” of the insured’s fraud; the court held that “the court was in error in requiring a greater weight of proof than the ordinary preponderance of evidence”); Walsh v. Taitt, 142 Mich. 127,132,105 N.W. 544 (1905) (instruction that fraud “must be proved by clear and satisfactory evidence” held erroneous); McNaughton v. Smith, 136 Mich. 368, 377, 99 N.W. 382 (1904) (instruction requiring only a preponderance of the evidence to establish fraud upheld). Thus, the rule laid out in Watkins cannot be regarded as an isolated and outdated precedent. Rather, it has been firmly established in Michigan law.
That no more recent cases address the proper content of jury instructions on the burden of proof to establish fraud is due, no doubt, to the fact that the law became so well settled by the cases cited above. A number of modern cases, however, indicate indirectly that the rule laid out in Watkins has continuing vitality. See Columbus Pipe & Equipment Co. v. Sefansky, 352 Mich. 539, 540, 90 N.W.2d 492 (1958) (in action at law the question on appeal was whether “actionable fraud had been proven by the plaintiff by a preponderance of the evidence”); Essenburg v. Russell, 346 Mich. 319, 325, 78 N.W.2d 136 (1956) (in rejecting a challenge to the sufficiency of the evidence in an action at law for fraud the court stated that the factual findings were not “contrary to the clear preponderance of the proofs”); Kirk v. Vaccaro, 344 Mich. 226, 231, 73 N.W.2d 871 (1955) (in an action at law fraud “must be established by a preponderance of the evidence”); Hayes Construction Co. v. Silverthom, 343 Mich. 421, 428, 72 N.W.2d 190 (1955) (in an action at law court reviewed sufficiency of the evidence for fraud under the preponderance of the evidence standard); Paquin v. Van Houtum, 343. Mich. 111, 122, 72 N.W.2d 169 (1955) (in an action at law for fraud the court approved an instruction, challenged on other grounds, that required fraud to be “established by a preponderance of the evidence”); Howard v. Reaume, 310 Mich. 119, 125, 16 N.W.2d 686 (1944) (in an action at law court stated that “it is elementary that fraud will not be presumed but must be established by a preponderance of the evidence”).
The above authorities bear out two facts which cannot be overemphasized in examining this case. First, no Michigan court has ever sanctioned the use of a “clear and convincing” instruction in an action for fraud. Second, every court considering such an instruction has rejected it. I conclude that Hi-Way and its progeny, which did not even address the proper form of jury instructions, is scant support for concluding that Michigan has overruled this considerable body of case law.
Furthermore, I seriously doubt that the Michigan Supreme Court would overrule such a longstanding line of authority without even noting that it was doing so. In considering how much weight to attach to Hi-Way’s statement on the burden of proof, it is worth noting that Michigan courts have been somewhat less than circumspect in their use of the phrase “clear and convincing” evidence. A number of cases contain conflicting statements on the burden of proof. See, e.g., Modern Displays, Inc., v. Hennecke, 350 Mich. 67, 73, 85 N.W.2d 80 (1957) (quoting both standards with apparent approval). Similarly, although many equity cases state that fraud must be proved by clear and convincing evidence, a significant number of equity cases apply instead the preponderance standard. See Franko v. Olszewski, 316 Mich. 485, 491, 25 N.W.2d 593 (1947); Goodrich v. Waller, 314 Mich. 456, 461, 22 N.W.2d 862 (1946); Collins v. Norris, 314 Mich. 145,148, 22 N.W.2d 249 (1946); Fahey v. Pell, 310 Mich. 280, 281, 17 N.W.2d 183 (1945); Steele v. Shaffer, 241 Mich. 632, 633, 217 N.W. 777 (1928). Since Michigan courts have not been entirely consistent in their use of the terms in question, it is not unreasonable to give Hi-Way, Gorman, and Higgins a less than strictly literal reading.
One other factor influences my assessment of Michigan law. Gorman cites only Hi-Way as support for its statement of the proper burden of proof. Hi-Way and Higgins, to establish this new element of Michi*1115gan law, cite only Youngs v. Tuttle Hill Corp., 373 Mich. 145,128 N.W.2d 472 (1964). Youngs, as noted above, was not an action at law but an equity case. Youngs, in turn, cites another equity case, A & M Land Development Co. v. Miller, 354 Mich. 681,94 N.W.2d 197 (1959). A & M cites three cases, Candler v. Heigho, 208 Mich. 115,175 N.W. 141 (1919); Marshall v. Ullmann, 335 Mich. 66, 55 N.W.2d 731 (1952); and Columbus Pipe & Equipment Co. v. Sefansky, 352 Mich. 539, 90 N.W.2d 492 (1958). None of the latter three cases states that “clear and convincing” evidence is required to prove fraud. Rather, Marshall and Columbus Pipe quote with approval the statement in Candler that fraud must be proved to a “reasonable degree of certainty.” Columbus Pipe, it should be remembered, also phrased the question presented to it as whether “actionable fraud had been proven by the plaintiff by a preponderance of the evidence.” Id. at 540, 90 N.W.2d 492 (emphasis added).
By drawing into question the pedigree of Hi-Way, I do not mean to imply that a diversity court may inquire into whether a state court has correctly decided that state’s law. The point of the foregoing is merely to demonstrate that if Hi-Way meant to overrule the line of cases following Watkins, it would surely have rested on more substantial authority. I conclude that the statements concerning the burden of proof in Hi-Way, Gorman, and Higgins were casually made and, given the Michigan courts’ occasional lack of precision in articulating the burden of proof, they should not be relied upon to overrule a century’s worth of precedent. The district court, therefore, correctly instructed the jury on the burden of proof.
III.
Although I rest my conclusion on the preceding analysis of the law in Michigan, I would note in passing an alternative basis for affirmance.
This court has repeatedly stated that when a question of state law is doubtful, the interpretation of the district court should be given “considerable weight.” See Bagwell v. Canal Insurance Co., 663 F.2d 710, 712 (6th Cir.1981) (per curiam); Randolph v. New England Mutual Life Insurance Co., 526 F.2d 1383, 1385 (6th Cir.1975). Thus, if the district court reaches a permissible conclusion, we do not reverse merely because we might reach a different conclusion upon de novo consideration. See Transamerica Insurance Group v. Beem, 652 F.2d 663, 668 (6th Cir.1981) (Engel, Circuit Judge, dissenting); Insurance Co. of North America v. Federated Mutual Insurance Co., 518 F.2d 101, 106 & n. 3 (6th Cir.1975).
Were I to view this case differently and give Hi-Way and its progeny a relatively broad reading, the most that could be said of them is that they make Michigan law uncertain. Since no Michigan court has adopted the jury instruction proposed by Westinghouse and every Michigan court considering a similar jury instruction has rejected it, the question is, at best, doubtful and the district court should be affirmed for reaching a permissible construction of state law.
Resolving this case by resorting to the proper standard of review, in addition to being consistent with our precedents, would serve an important policy implicit in the Erie doctrine: such a result would be less intrusive upon the development of Michigan law. This concern is, I am certain, shared by the majority.
Any decision we might make in this case runs the risk of unintentionally influencing Michigan law. Since this precise issue has not been recently addressed, any opinion we might render is likely to be cited by future state court litigants. It is, however, precisely because this area has not been recently addressed that whatever result we might produce will be questionable. Were I to give Hi-Way a broader reading than it deserves, I would hold that, although Michigan law on this point is unclear, we have not been convinced by the appellant that the district court committed reversible error. The task for. the district court was to determine Michigan law; ours is to deter*1116mine whether the district court committed reversible error in executing this task.
By so holding, we would avoid a direct pronouncement on Michigan law. We would not be holding, strictly speaking, that Michigan law requires only a preponderance of the evidence to establish fraud, but rather, that given the arguably murky judicial record we were not convinced that the district court had erred.1
These policy considerations would not, of course, be of sufficient weight to require affirmance if the district court were clearly wrong. In such a case, the substantive rights of the litigants currently before us would overcome any hesitancy on our part to deliver a holding directly on the content of Michigan law. In this case, however, the district court was not clearly wrong. When the authorities are in equipoise, we are as likely to alter the substantive rights of the litigants by reversing as by affirming. In such a situation, affirming under our standard of review is proper both as a general matter of appellate practice and out of a concern for allowing Michigan law to develop without unnecessary federal advice.
I cannot conclude that Hi-Way and its progeny meant to overrule prior Michigan practice. I also cannot conclude that the district court committed reversible error. For these reasons, I dissent.
. The majority admits that no Michigan case defines the precise content of the “clear and convincing” standard. By reversing the trial court, the majority thus has to pass upon two points, rather than one point, of Michigan law. That is, it must, without any guidance from the Michigan courts, define the precise content of the “clear and convincing” standard in addition to determining its general applicability.