Pinkerton’s National Detective Agency vs National Pencil Company: Charge of Court

Gentlemen of the Jury:

This is a suit brought by Pinkerton's National Detective Agency, originally in the papers alleged to be a corporation, but by way of amendment to the original petition now charged to be a partnership, against the National Pencil Company, charged to be and admitted to be a corporation.

The plaintiff's petition alleges that about the 28th day of April, 1913, this detective agency was employed by the National Pencil Company in the matter of procuring evidence to convict the murderer of Mary Phagan, who was alleged to have been slain on the premises of the National Pencil Company in the City of Atlanta, on or about the 26th of April, 1913.

The plaintiff charges that, in pursuance of such employment, they rendered services as a detective agency for the National Pencil Company from the 28th day of April 1913 to the 18th day of August of that year. They charge in their petition that the National Pencil Company agreed to pay eight dollars a day for each person used by the agency in said services, and in addition thereto agreed to pay the expenses of the persons employed by the agency in those services, while so employed, and also to pay proper incidental expenses incurred by this detective agency.

The plaintiff charges that, on account of the services rendered in pursuance of the above mentioned contract, the National Pencil Company is indebted to the plaintiff in the sum of $1286.09 besides interest from the 1st day of January, 1914, at the rate of seven percent per annum.

The plaintiff charges that it has attached to its petition an itemized statement of the services rendered and the expenses charged for. And attached to that petition is this alleged itemized statement, showing the amount of work sued for and expenses claimed.

This petition with the exhibit thereto constitutes the plaintiff's statement of its case, and you will have it out with you, and can read it for yourselves, and see with more particularity than the Court has given you, exactly what the plaintiff claims, and this itemized statement, being a part of the petition, will be out with you, and you can examine that--will examine that.

The defendant in the case, Gentlemen, has filed an answer, in which it admits the allegation of paragraph 1, and admits the allegation of paragraph 3, which was an admission that it employed the plaintiff; it denies paragraph 3, which is an allegation that the petitioner rendered services as a detective agency from the 28th of April through the 18th of August, 1913. It admits the allegations of paragraph 4 of plaintiff's allegations, to-wit, paragraph 4 was the allegation that it agreed to pay eight dollars a day for each person used by the petitioner, and to pay the expenses of the persons employed, but denies the addition to that paragraph which says they were to pay proper incidental expenses incurred by the petitioner in this behalf.

The defendant denies the allegations of paragraph 4, following the paragraph numbered 4 and marked 4.

Defendant denies the allegations of paragraph 5, and denies that it is indebted to the petitioner in the amount stated, or in any other sum, and denies that petitioner is entitled to any judgment against the defendant.

That is the answer, Gentlemen, and you will have that out with you, and you can read it for yourselves, and see with more particularity than the Court has given you, exactly what the answer admits, and what it denies. The substance of this answer Gentlemen of the Jury, is that the defendant admits that it made a contract with this plaintiff, and it admits the terms of this contract, except as stated, about those incidental expenses, but the defendant denies that the plaintiff rendered the services that they contracted to render, and that the plaintiff's agents fulfilled the contract that they made, and that therefore they are not entitled to any verdict or judgment. In fact, this answer denies the right of the plaintiff to any verdict in its favor in this case.

Gentlemen of the Jury, the obligation of a juror is to render a true verdict according to the opinion you entertain of the evidence produced to you, to the best of your skill and knowledge without favor or affection to either party, and according to the law as given you in charge by the Court. Now, it is presumed that a jury will do its duty, and I call your attention to this obligation of yours merely to emphasize to you the fact that it is just as necessary for the jury to listen to the charge of the Court, as it is for the jury to listen to the witnesses. You want to listen to the charge of the Court, to understand as far as you are able the law applicable to the case, and you want to listen to the witnesses in order to discover the truth. Verdict means truth.

Now, I want to say to you that the finding of the facts of the case, the truth of the case, from the evidence, is peculiarly the duty of the jury. You are responsible for finding the truth from the facts in the case, according to the law as given you in charge. In any rulings the judge or the Court has made on the admissibility of testimony, or on any other proposition that has arisen in the course of the case, the Judge has expressed no opinion on the question of facts, and the Judge does not intend to express any opinion or to intimate any opinion about what has or what has not been proven. The responsibility of the court is to impartially, uprightly and intelligently express to you the law of the case, according to his best skill and ability, and the entire responsibility of finding the truth from the evidence in the case is on you.

Upon the filing of this answer, Gentlemen, the law casts the burden of proof on the plaintiff, to establish to your reasonable satisfaction by a preponderance of the evidence its right to recover. As I illustrate in a practical way to the jury, the law holds the scales perfectly balanced between the plaintiff and the defendant at the beginning of the trial, you have seen the old time scales that are balanced, on either side, there is a receptacle, and the most weight will carry down the scales on one side or the other, according to where this superior weight is placed. Now, the preponderance of the evidence means the greater weight of the evidence, it means that superior weight of the evidence which, though not necessarily strong enough to exude a reasonable doubt, must be strong enough to incline an impartial mind to one side of the issue, rather than the other. For the plaintiff's to recover the scales must go down on their side with the superior weight of the evidence, the preponderance of it. If the scales stand perfectly balanced at the end of the trial, there could be no recovery, because there would be no preponderance of the evidence. If the scales go down on the side of the defendant, the plaintiff could not recover, because the preponderance of the evidence would then be with the defendant. In order for the plaintiff to recover, as I have stated, they must go down on its side of their side, by a preponderance of the evidence.

Now, in a civil case, reasonable and moral certainty is all that is required in determining an issue; in other words, in a civil case, a preponderance of the evidence would control; the law does not require mathematical certainty.

This question of preponderance or evidence means that you must weigh the evidence, and the law prescribes certain rules for you to go by in weighing evidence. Documentary evidence has been introduced in this case, and you will consider that, and give it just such weight as you think it entitled to receive. When you come to consider the oral evidence in this case, you have the right to look to the manner and deportment of the witnesses, as they have been examined on the stand in your presence, you have the right to consider whether a witness is a party or not a party to the case, whether he is interested or not interested in this case, whether he is related or not related to the parties in the case, and this relationship would mean relationship by blood or relationship in business. The law permits a jury to go to the extent of considering the opportunities of witnesses for knowing the truth of the facts to which they have testified, and even to allow you to judge of the probability or improbability of the truth of the evidence given by witnesses. You are permitted to judge of the personal credibility of witnesses, in so far as it may legitimately appear from the trial, and you may consider the number of witnesses, though the law says that the preponderance of the evidence is not necessarily with the greater number of witnesses; that is a matter for the jury.

Where there is conflicting evidence in a case, if there is conflicting evidence, the law makes it the duty of the jury to so reconcile it, if it can be reconciled, as to make all the witnesses speak the truth, and perjury be imputed to none of them. Now, in making up your verdict, in finding where the preponderance of the evidence is, you must look to all the evidence in the case, and determine the issues by the preponderance of it on the issues that you are considering; consider the oral testimony, consider the documentary evidence, take all the evidence and weigh it carefully and well, and then find a verdict according to the preponderance of the evidence on the issues involved.

Under this contract which is set up in this case, and not denied, except as to the qualification mentioned, in order to recover, the plaintiff must establish by a preponderance of the evidence to your reasonable satisfaction that it performed the services, or that they, it is a partnership, that they performed the services they agreed to render.

If you believe under the evidence in the case, that the plaintiffs rendered the services for which they were employed, to the extent of the amounts charged in the petition, you would be authorized to find, and it would be your duty to find for the plaintiff, the principal, and seven percent per annum interest thereon, from the time that amount, whatever it was, was due to the plaintiffs. If you find that the plaintiffs rendered a part of this service, or at least that they rendered work in so many days for so many men, at the price named, and that was less than the amount charged for, you might rendered a verdict for the amount which your consciences approved as being correct, and the interest on that. If you believe that some expense was incurred for which the plaintiffs were entitled to be reimbursed under the contract, and that there was not such expenses as the plaintiff claimed, you would be authorized to add that to any other sum that you might find for the time of the employment.

If you find that the plaintiffs did not render any services under the contract, why, of course, you would find for the defendant.

If you should find that this contract existed, and to the extent that it existed, that the plaintiffs entered into this work, then the plaintiffs were bound to exercise reasonable diligence in the performance of the work.

Some reference has been made, almost unavoidably in the trial of this case, to the criminal trial of Leo Frank. The Court would admonish you that that trial is not an issue here; the thing you are to determine is this contract about the employment of this agency, you are not concerned with the results of the investigation, what you are concerned about is, was the Agency employed and did it perform its contract of employment, and if not entirely to what extent, if any?

If you find for the plaintiffs in this case, the form of your verdict will be: "We, the Jury, find for the plaintiff, so many dollars, and cents, if any, for principal, and so many dollars for interest, if you find interest."

If you find for the defendant, the form of your verdict will be;

"We, the Jury, find for the defendant".

Whatever verdict you find ought to be written on the original petition, and it ought to be dated and signed by your foreman.

Retire, Gentlemen, and make up your verdict.

The above and foregoing charge is hereby approved as correct, and is ordered filed as a part of the record in the above stated case.

This the 27th day of December, 1915.

W. D. Ellis,
Judge Presiding.

Filed in office this the 27th day of Dec., 1915.
T. C. Miller, D. Clk.