Nagle v. Bosworth

WiNBORNE, C. J.

Among the assignments of error defendant, appellant, stresses for error several portions of the charge, particularly with respect to the burden of proof, — all of which it would seem arise out of the difficulty in submitting the case on the first issue as it relates to both allegations of the complaint, and as affirmative defenses of defendant, upon the first issue, that is, upon one issue rather than two or more. For instance, the court stated: “Now, ladies and gentlemen of the jury, the court will mention burden of proof to you. The burden of proof on the first issue, on the first fart of it, is on the plaintiff * * * (emphasis inserted).” Just what is meant by the phrase emphasized, is not clear, for the issue is not divided into parts.

And, again, defendant points to these instructions: “Now, if the plaintiff has satisfied you from the evidence, and by its greater weight, that the defendant did execute this note and deliver it to the plaintiff, in the amount of $3,324.00, as described in the complaint, then the plaintiff makes out what we call a prima facie case in his favor and shifts the burden of proof then over to the defendant. The defendant must then go forward to satisfy you from the evidence, and by its greater weight, that he insists and contends here the note was altered, materially altered, a material alteration in. this note, and the court charges you that where a negotiable instrument is materially altered without the assent of ail parties liable thereon it is avoided, except, as against the party who has himself made, authorized or assented to the alterations, and subsequent endorsers.” And again, “So if the defendant has satisfied you from the evidence and by its greater weight that there was a material alteration in this note, as the defendant insists and contends, then it would be your duty to answer that issue No.”

Considering these portions of the charge it is problematical as to whether an average citizen would be able to differentiate the dual burden of proof, thus set forth, upon the single issue. Therefore, this Court is of opinion and holds that the exceptions so pointed out are meritorious, and that a new trial is in order. In so ordering, it is suggested that separate issues as to affirmative pleas set up in defendant’s answer, and supported by evidence, be submitted.

For reasons stated, let there be a

New Trial.

Bobbitt, J. concurs in result.