Holliday v. Bradley , 1921 Tex. App. LEXIS 1071 ( 1921 )

At the trial the court instruct ed the jury that —

"In a civil case the preponderance of the evidence is on the plaintiff."

Appellant objected to the instruction, and requested the court, instead of it, to instruct the jury that —

In all civil cases "the burden of proof is on the plaintiff to make out his case by a preponderance of the evidence, and unless he has done so in this case it will be your duty to find for the defendant."

The instruction given was meaningless, and it was error to give it and to refuse to give the correct instruction requested by appellant. And the error was calculated to prejudice appellant's rights, for while there was testimony which warranted the finding involved in the verdict, that the seed were unsound, there was also testimony which would have warranted a finding to the contrary.

In the sixth paragraph of his charge the court instructed the jury to find for appellee the $90 he paid for the seed if they believed appellant guaranteed the seed to be sound, and that appellee relied on the guaranty when he planted them; and in the seventh paragraph the court told the jury to find in appellee's favor for the value of the labor and expenses he bestowed in preparing the land and planting the seed, if they believed appellant represented to him that the seed were sound, and he relied on the truth of such representation. Each of the instructions was erroneous, and materially so, because each of them authorized a recovery by appellee without reference to whether the seed were in fact unsound or not. If they were sound, appellee was not entitled to recover any sum of appellant.

In the eighth paragraph of the charge the court told the jury to find for appellee such amount of damages, not to exceed $540, as they might conclude he sustained "by reason of his crop being destroyed by frosts and boll weevil and other pestilence," if they believed the seed appellant sold to him were in fact not sound, that appellant represented them to be sound, that appellee planted them relying on the truth of the representation, and that because the seed were unsound he had to replant the land with other seed too late in the season for the crop to mature before it was so destroyed, and therefore did not make the crop he otherwise would have made. The instruction was objected to on the ground (1) that there was no evidence authorizing a recovery by appellee of such damages, and (2) because it was "vague, indefinite, and confusing to the jury." We think the objection should have been sustained on the first one of the two grounds. Appellee testified that he gathered about 5 1/2 bales of cotton from the land. There was no testimony showing how much more, nor its value, he reasonably would have grown to maturity had he seasonably planted sound seed, nor the expense of growing and gathering same.

No objection to the charge was made in the court below, nor is any made here, on the ground that it did not sufficiently instruct the jury as to the measure of damages they should apply in determining the amount, if any, appellee was entitled to recover on account of the loss he claimed of a part of his crop. Attention is called to the omission in view of the fact that for the errors noted the cause is to be remanded for a new trial. At that trial the jury should be properly instructed in that respect. Texas Seed Floral Co. v. Watson, 160 S.W. 659; American Warehouse Co. v. Ray, 150 S.W. 763; Jones v. George, 61 Tex. 345, 48 Am.Rep. 280; Water Co. v. Cauble, 19 Tex. Civ. App. 417, 47 S.W. 538.

The judgment is reversed, and the cause is remanded to the court below for a new trial.