Banks v. Maude Owens Banks

PARKER, J.

When first charging the jury upon the fourth issue, the court properly placed the burden of proof on the defendant. Later in the charge the court instructed the jury:

“Now, ladies and gentlemen of the jury, if you should find that the conduct of the husband was such as would cause his wife to leave, if she was treated with such indignities or abusement that would make it justifiable then, of course, you would answer this issue yes, but if you find that, from the evidence and the greater weight thereof, that the husband, in this instance Mr. Banks, did no act or mistreated his wife to the extent that she was justified in leaving, then you woidd answer that issue no.” (Emphasis added.)

The effect of the last quoted portion of the charge was to place the burden of proof as to the fourth issue upon the plaintiff. In so doing the court committed error. Litigants have a substantial right in having the burden of proof properly placed, for upon it many cases are made to turn. Williams v. Insurance Co., 212 N.C. 516, 193 S.E. 728. Erroneous or conflicting instructions thereon must be held for prejudicial error. Barber v. Heeden, 265 N.C. 682, 144 S.E. 2d 886.

Appellant noted exceptions and assigned errors to other portions of the charge. Some of these assignments appear to have merit. We also note that the meaning of the fifth issue as submitted to the jury is obscure. In addition, although the matter is not discussed in appellant’s brief and for that reason we do not pass upon it, on the record before us it is questionable if defendant’s evidence was sufficient to warrant submission of the fourth and fifth issues to the jury. However, we refrain from discussing other errors in the trial since in any event, for the error noted above, there must be a

New trial.

Campbell and YaughN, JJ., concur.