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Continental Ins. Co.; Lafaele v.

OTELE LAFAELE, Plaintiff

v.

CONTINENTAL INSURANCE CO.
and CHARLIE TAUTOLO, Defendants

High Court of American Samoa
Trial Division

CA No. 131-85

May 7, 1987

__________

"Preponderance" standard means that if the parties' contradictory versions of the facts have equal evidentiary support and the plaintiff cannot establish superior credibility, the defendant must prevail.

Before KRUSE, Associate Justice, LUALEMAGA, Associate Judge, and OLO, Associate Judge.

Counsel: For the Plaintiff, Albert Mailo
For the Defendants, Roy Hall

If the judicial fact finding process were a purely quantitative exercise, the effect of each party's evidence in this case would be simply to cancel the other party's evidence out. As it happens, our qualitative analysis of the evidence leads us to essentially the same conclusion.

Plaintiff testified that he was operating his vehicle in a non-negligent manner when defendant, who was approaching in his vehicle from the opposite direction, crossed the center line of the highway onto plaintiff's lane and side-swiped plaintiff's vehicle, causing sundry damage to person and property. Plaintiff had a close relative who was riding with him at the time who corroborated plaintiff's testimony to the detail.

Defendant's version was the laterally inverted image of plaintiff's case. Defendant had plaintiff crossing the center line. Like the plaintiff he produced a close relative who had been a passenger in his vehicle and who corroborated his story.

The only agreement between the parties was [4ASR2d132] that the collision occurred: on a straight stretch of the main east-west highway at or around Nu'uli; in the early hours of the morning; in conditions described by defendant to be "perfect" .

Hereafter the testimony parted in similarities. Plaintiff testified. that after the collision defendant continued on without stopping, and so he gave chase. He finally caught up with defendant in Utulei, where defendant had turned into the intersection going towards the Administration Buildings. After taking the license number of the other vehicle, plaintiff proceeded to the Police Station and filed a complaint.

On the other side, defendant testified that when he saw plaintiff's vehicle cross the center line he attempted to swerve to the curb. He was, however, limited in his actions owing to a temporary embankment of excavation dirt built up on the shoulder of his side of the road. The embankment was said to be due to Public Works having been laying pipelines. He testified that after the collision he was the one who stopped his vehicle and plaintiff was the one who drove on. Defendant then walked around his vehicle and found that his side mirror on the left was damaged. He assessed his damage as insufficient to prompt him to attempt to chase after the other vehicle at that hour in the morning. He continued eastward but made another stop off the road -to take another look at his vehicle. When asked, he testified that at this time there was no one else in sight. He resolved to make no more of the incident and continued onward to meet a friend.

Defendant testified further that on his way home he was surprised when stopped by an officer who questioned him about the earlier incident. After giving his version of the collision at the Police Station, he heard no more of the matter until plaintiff filed this suit.

The initial impression gleaned from this testimony, given the hour of darkness at which the collision occurred, could well be that one of the parties was honestly mistaken about the location of his vehicle in relation to the dividing line at that moment. The extraordinary extent to which the two stories diverge, however, makes it necessary for the Court to consider carefully the credibility of each.

In the Court's view, plaintiff's testimony was [4ASR2d133] in many instances both evasive and self serving.

When plaintiff was asked the location of defendant's vehicle at the time the chase was commenced, plaintiff readily ventured a definite location out of his sight and quite some distance away, apparently in the hope of assigning high speed to the defendant. Plaintiff's evidence would also have him undertaking the chase specifically at the posted speed limit. The testimony vascillated, however, between his initial estimate of 35 mph and a revised estimate of 25 mph, once the plaintiff was made aware that the actual posted speed limit was the latter.

When questioned about the presence of construction or excavation at the scene, plaintiff definitely denied such. It became clear to the court, however, that his responses were purposely limited to a denial that physical activity was taking place at the time the accident occurred, which was around one o'clock in the morning. He was not about to address, without some prodding, whether there was an embankment, although the Court finds it difficult to believe that he did not know that this was the question he had been asked.

Further, his testimony regarding the extent of property damage fell woefully short of being persuasive. He testified that he had received two repair damage estimates from separate mechanics. One was for $400 and the other for $500. Neither estimate was produced in court, but plaintiff stated that he opted for the $400 mechanic and allowed that repairs cost him $400.

The testimony later developed that the $400 mechanic was a' friend of plaintiff's son who worked at a certain garage. That labor with repairs was without charge.

When questioned on the elements of the $400 estimate, however, given that no labor charge was involved, plaintiff responded that the $400 was expended on material that the mechanic had told him to purchase. Except for the paint, plaintiff was unable to name what the material comprised, attempting to feign ignorance about technical labels assigned to auto parts.

The authorities are replete with statements that the onus is on plaintiff to establish by evidence of preponderating weight that it was more probable than not that the injury complained of was [4ASR2d134] caused by defendant. So as not to appear to give ritualistic veneration, to, labels such as "preponderance of the evidence" and "balance of probabilities", we quote a leading treatise:

The plaintiff must introduce evidence which affords a reasonable
basis for the conclusion that it is more likely than not that the conduct
of the defendant was a cause in fact of the result. A mere possibility
of such causation is not enough; and when the matter remains one of
pure speculation or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for the
defendant.

Prosser & Keeton on Torts § 41 at 239 (5th. 1984) (citations omitted).

In our view, the evidence presented (by plaintiff on the one hand, and by defendant on the other) in proof of causal connection is equally balanced, in that the facts are as consistent with one theory of causation as with the other. In other words, the facts in this matter lead to the conclusion that the cause of the injury "may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable". Gedra v. Dallmer Co., 91 N.E.2d 256, 260 (Ohio 1950). In order to sustain the plaintiff's claim on the evidence presented, the needed finding of proximate cause would rest solely on possibilities and conjecture. If we believed that plaintiff's credibility was superior to that of the defendant we might still conclude that he had proven his case. For the reasons stated, we do not so conclude. The only reasonable inference that can be drawn in the circumstances is that the proximate cause of plaintiff's damage is unknown and unproved.

In these circumstances the plaintiff, as a matter of law, must fail. Judgment will enter accordingly in favor of the defendants.

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