Ballard v. Breigh , 262 S.W. 886 ( 1924 )

Appellant relies to sustain the third assignment on the case of St. L. S.W. Ry. Co. v. Preston, 228 S.W. 928, by the Commission of Appeals, and Stooksbury v. Swan, 85 Tex. 563, 22 S.W. 963. In the first case the court said:

"A charge on the burden of proof is not necessary or proper in every case. The propriety of such charge depends on the state of the evidence. * * * In such case, it is the province of the jury to find the facts, and of the court to apply the law to the facts as found. In the submission of a cause upon a general charge, requiring a general verdict, the jury is informed of the facts upon which a plaintiff relies, and which he must establish to entitle him to recover; but this is not true in the submission of a cause upon special issues. To instruct the jury that the burden of proof was on the plaintiff to show, by a preponderance of the evidence, such facts as would entitle him to recover, would necessitate a further instruction, informing the jury as to which of the facts submitted were relied upon and necessary to entitle him to recover."

Of course, a charge, in a cause submitted on special issues that the burden of proof was on the plaintiff to show by a preponderance of the evidence such facts as would entitle him to recover, would be improper. In Stooksbury v. Swan, supra, the court said:

"In cases in which evidence is introduced by the respective parties, tending to prove and to disprove the issues of fact involved in a cause, occasion does not arise for declaration upon whom the burden of proof rests; for the question then becomes merely one of preponderance of evidence, which is for the decision of the jury under all the evidence introduced, whether this be direct or circumstantial. In such cases a charge upon the burden of proof is more likely to mislead than to give a jury a correct view of their duties."

The writer believes that in many cases submitted on special issues it is proper to inform the jury as to which party has the burden of proof to establish any certain issue. In Chittim Par v. Martinez, 94 Tex. 141,58 S.W. 948, the Supreme Court, speaking through Judge Brown, said:

"There might be a state of facts that would render a charge upon the burden of proof misleading and therefore improper to be given, but the mere fact that the evidence upon an issue which is submitted to the jury is conflicting does not make it improper for the court to give a charge informing the jury as to which party has the burden of proving the issue submitted to them. Railway v. Shieder, 88 Tex. 165; Clark v. Hills,67 Tex. 148; Howell v. Hanrick, 88 Tex. 394; Byers v. Wallace, 87 Tex. 503. It was not error for the trial court to give an instruction as to the burden of proof, under the facts stated with the question submitted to us."

The case of Byers v. Wallace, 87 Tex. 503, 28 S.W. 1056, 29 S.W. 760, cited in the quotation from Chittim Par v. Martinez, supra, was a contest involving the title to a piece of land. In order for plaintiffs to recover it was necessary, so held the Supreme Court, for them to prove that William Wallace, under whom they claimed, was the person who fell at the massacre of Goliad, and in whose right the certificate was issued by virtue of which the land was located, and that they were his heirs. Under the facts presented in this case, it must have been shown that the Wallace under whom plaintiffs claim, if he were the deceased soldier, as claimed, left neither wife nor child at the time of his death. Two warrants were issued by the state to the heirs of the said William Wallace, and two headright certificates were also issued to said heirs. The Supreme Court held that the following requested charge should have been given:

"The plaintiffs must recover, if at all, upon the strength of their own title, and must establish their case by a preponderance of the evidence, and should you be unable to decide from the evidence that Wallace was a member of Capt. P. S. Wyatt's company, and perished at Goliad, you will find for the defendants."

In the case of Clark v. Hills, 67 Tex. 141, 2 S.W. 356, supra, the Supreme Court said:

"The same rule holds in reference to defendants, when they set up an independent fact by way of confession and avoidance. Thus they admit the plaintiff's case, and as to such fact assume the onus probandi. As in an action of debt, when the defendant pleads payment, accord and satisfaction, a discharge in bankruptcy, etc. As to these pleas, the onus is upon him, though it still rests upon the plaintiff as to the allegation upon which he seeks a recovery. So in the present case, upon the plea of limitation, the burden rested with the defendants throughout the cause, because they involved an admission of the plaintiff's case, and an assumption of the burden of showing reasons why it should not prevail against the defendants. Whilst the party having the affirmative of an issue holds the burden of proof, as a general rule, it is not necessary that the issue should always be presented in an affirmative form. 1 Greenl. on Ev. § 74. If this were requisite, a mere change in the form of the issue would change the burden of proof, without regard to the substance and effect of the issue. Much less does the fact that a defendant is forced to maintain the affirmative of some fact, in disproving the plaintiff's case, shift upon him the burden of proof. Hence the onus probandi in this case was not affected by the fact that, in showing the land to have been vacant at the date of the plaintiff's location, he had to prove that it was not within the lines of the Ponce grant, and the defendant met the issue by proof that it was embraced within the lines of that grant. That a party does not shift to his adversary the burden of proof by making out a prima facie case is clear from what we have said, and is a well-settled principle. Blanchard v. Young, 11 Cushing, 345, and other authorities cited above."

The burden is upon plaintiff to establish the issues upon which he relies to recover, and is upon the defendant to establish the affirmative defenses relied upon to defeat recovery. Prairie Oil Gas Co. v. Wright (Tex.Civ.App.)238 S.W. 974; Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593; Railway Co. v. Novit (Tex.Civ.App.) 199 S.W. 496. While it is said the burden of proof never shifts, on the case as a whole, but is always upon the plaintiff to establish the grounds of his cause of action, yet the burden is upon defendant to prove by a preponderance of the evidence affirmative defenses upon which he relies to defeat recovery.

Plaintiff alleged in her oral pleading before the justice of the peace, and her only affirmative pleading given in the record, that:

"Said check was given by defendant to plaintiff in payment of a debt that defendant owed plaintiff for money that plaintiff had turned over to defendant on or about the 10th day of June, 1921, that defendant agreed to put in the bank for plaintiff."

Having pleaded that the check was given in payment of a loan by her to defendant, the writer is of the opinion that the burden was on plaintiff to prove such fact, and that reliance could not be had upon the rule invoked by the majority that a written instrument, acknowledged by the defendant as having been executed and delivered by him, imports a consideration. It may be said that it was not necessary for plaintiff to plead the consideration, but, as stated in 16 Cyc. p. 927:

"Where a party erroneously assumes the burden of proof as to a particular allegation or the burden of evidence as to a particular fact, the mistake will not be corrected in the appellate court."

The writer is of the opinion that the assignment should be overruled.

On Motion for Rehearing.