Shook v. Newsome , 228 S.W. 1118 ( 1921 )

This action was brought by Newsome against Shook for the value of a mule. For cause of action plaintiff alleged that he loaned the mule to defendant and through the negligence of the latter it was killed. From a judgment for $200 for plaintiff, defendant has appealed.

The only question presented is: Did the trial court's charge sufficiently place the burden of proof upon plaintiff? The general charge contains the following special issues:

(1) Did the defendant borrow the mule from plaintiff?

(2) Was the death of the mule caused by the negligence of defendant, his agents or employees?

And the following:

"The burden of proof is upon the plaintiff to establish the affirmative of the foregoing questions by a preponderance of the evidence."

At the request of the defendant the court submitted the following special question:

"Did the mule in controversy in this case die as the direct or proximate result of any act of negligence on the part of the defendant or his agents or employees?"

The assignment and proposition is that it was error to confine the charge on the burden of proof to the first two special issues only, and not to specifically extend it to special issue No. 3. There was no error, because question No. 3 submits the same issue as question. No. 2, viz. the negligence of defendant. The questions were different in form, but submitted the same question of fact, the answer to which, pro or con, determined the issue.