that any one of various possible groups of specific operative facts would suffice, so far as the defendant's obligation ex delicto is concerned. It therefore could not be said that any one of such groups had been put in issue by the pleadings. A common fallacy in this connection is to regard the specific operative facts established in a given case as being but "evidence" of the generic (or "ultimate") operative facts alleged in the pleadings.[1]
An evidential fact is one which, on being ascertained, affords some logical basis—not conclusive—for inferring some other fact. The latter may be either a constitutive fact or an intermediate evidential fact. Of all the facts to be ascertained by the tribunal, the operative are, of course, of primary importance; the evidential are subsidiary in their functions.[2] As a rule there is little danger of confusing evidential facts with operative facts. But there is one type of case that not infrequently gives rise to this sort of error. Suppose that in January last a contractual obligation was created by written agreement passing between A and B. In an action now pending between these parties, the physical instrument is offered for inspection by the tribunal. If one were thoughtless, he would be apt to say that this is a case where part of the operative facts creating the original obligation are directly presented to the senses of the tribunal. Yet a moment's reflection will show that such is not the case. The document, in its
- ↑ Compare McCaughey v. Schuette (1897), 117 Cal., 223. While the decision in this case can be supported, the statement that the specific facts pleaded were "evidentiary" seems inaccurate and misleading.There are, of course, genuine instances of the fatally erroneous pleading of strictly evidential facts instead of either generic or specific operative facts. See Rogers v. Milwaukee, 13 Wis., 610; and contrast Illinois Steel Co. v. Ostrowski, supra, note 21.
- ↑ Both operative and evidential facts must, under the law, be ascertained in some one or more of four possible modes: 1. By judicial admissions (what is not disputed); 2. By judicial notice, or knowledge (what is known or easily knowable); 3. By judicial perception (what is ascertained directly through the senses; cf. "real evidence"); 4. By judicial inference (what is ascertained by reasoning from facts already ascertained by one or more of the four methods here outlined).
The rules of pleading determining whether allegations must be generic or specific—and if the latter, to what degree—are, like other rules of law, based on considerations of policy and convenience. Thus the facts constituting fraud are frequently required to be alleged in comparatively specific form; and similarly as regards cruelty in an action for divorce based on that ground. The reasons of policy are obvious in each case.
