127 S.E. 593 | N.C. | 1925
The contest is upon a $2,000 note, executed by defendants to plaintiff on 20 July, 1920, payable "sixty days from date."
The defendants, Eure and Wheeler, admitted the execution of the note, but defended on the ground that it was an accommodation paper.
This case was considered by this Court on a former appeal, and is reported in
It is also held that the recital of value in the note itself makes out a prima facie case when the execution and delivery are shown; and if the defendant then offers evidence tending to establish a failure of consideration, the burden remains with the plaintiff to satisfy the jury by the greater weight of all the evidence that the contract is supported by a valuable consideration. *484
After charging the jury as to the prima facie case made out by plaintiff, the trial court said to the jury: "And the burden of proof, not the burden of the issue, shifts to the defendants. The term `prima facie' means that which suffices for the proof of a particular fact until contradicted or overcome by evidence. If the plaintiff then makes out a prima facie case and the burden of proof shifts to the defendants, then the defendants, in order to defeat a recovery by the plaintiff, must show to the satisfaction of the jury, and not by the greater weight of the evidence, that said note was given as an accommodation to the plaintiff, and was without valuable consideration; and if such facts are shown to the satisfaction of the jury, the plaintiff would not be entitled to recover." This charge is assailed in defendants' exceptions.
The issue submitted was in the usual form in debt.
The terms, "the burden of the issue," and "the burden of proof," and "the duty to go forward with the evidence," have given much perplexity to both the trial and appellate courts. The definition of the office of these terms, and their application to concrete cases, have been "often blurred by careless speech." (Hill v. Smith,
In the former decision this Court said: "The defendant, when sued on a nonnegotiable paper, is not required, under our decisions, to rebut theprima facie proof of value by the greater weight of the evidence." Nonconstat, that he should be required to assume the "burden of proof" to show to the "satisfaction" of the jury, but not by the greater weight of the evidence, that the note was not given "for value," in order to defeat a recovery.
In Board of Education v. Makely,
White v. Hines,
In the instant case, construing the charge contextually and not in detached portions (Cherry v. Hodges,
In Speas v. Bank,
"A prima facie case, or prima facie evidence, does not change the burden of proof. It only stands until its weight is met by evidence to the contrary. The opposing party, however, is not required as a matter of law to offer evidence in reply. He only takes the risk of an adverse verdict if he fail to do so. White v. Hines, supra. The case is carried to the jury on a prima facie showing and it is for them to say whether or not the crucial and necessary facts have been established."
In the light of these clearly reasoned opinions, well fortified by both authorities and experience in every-day affairs, it must be held that the burden of the issue and the burden of proof always rests upon the actor, and never upon the reus. This is true when these terms are used in the sense of the ultimate establishment of the case, or the specific matter affirmatively and necessarily alleged in order to obtain the desired relief.
Inasmuch as there has grown up such a divergent use of the term "burden of proof," which has, in legal parlance, two offices (which ought to be, but are not) entirely distinct, we suggest that, in instructions to juries, trial courts use the term, "burden of proof," only in the sense of the burden of the issue, and, thereby, the "burden of the issue" and the "burden of proof" become interchangeable and coextensive terms. This suggestion is for the purpose of bringing order out of seeming confusion. It is but proper that instructions to juries should be couched in language of which the meaning in legal parlance *487 is the same as the meaning in every-day affairs. All instructions are intended for the guidance and aid of the juries.
Going forward with evidence, or the right to elect to go forward, or not to go forward, and prima facie case, as well as presumptions of fact, which are largely mere inferences with varying degrees of probative force, are largely questions that affect the litigants and counsel in the management of the cause before it is submitted to the jury, and are not matters for the consideration of a jury until submitted to them. Whether, when a prima facie case has been established by the plaintiff, the defendant will go forward with evidence, or offer evidence, or rely upon the weakness of the plaintiff's showing, is, until a verdict is rendered, a matter to be determined by the litigant and his legally constituted advisors. Of course, prior to the adoption of our statute, C. S., 564, these questions were more serious, because the judges then had the right to express an opinion upon the facts under the common law. Now, the jurors are the only and absolute triers of the facts, and these questions have lost much of their ancient use. So far as the court is concerned, if the evidence offered by one party, if found to be true, is sufficient to support the verdict, the judge's duty, as to the weight of the evidence and his opinion in regard thereto, suspends itself until he comes to consider, in his discretion, a motion to set aside the verdict. Much confusion as to proceeding with evidence, when a prima facie showing has been made, is eliminated by a proper application of C. S., 564. Under our system, the trial court, during the production of the evidence, must, necessarily, proceed upon the theory that the jury has a right to find as true, all the evidence submitted by either party.
Much confusion also arises from loose pleading and from the mixing of distinct issues into one issue.
Unless the complaint contains "a plain and concise" statement of the facts constituting a cause of action, without unnecessary repetition (C. S., 506), and the answer contains "a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief," and "a statement of any new matter constituting a defense of counterclaim, in ordinary and concise language," courts will be hampered in determining what are the proper issues, both as to form and to number. The principles of good pleading are retained under our present system. Hartsfield v. Bryan,
In the instant case, the pleadings clearly met this requirement, and, since the burden of the issue is upon the plaintiff, when the execution and delivery of the note sued on the admitted and the only issue in reality is the consideration of the note, the issue submitted is in proper form. In fact, when each element contained in an issue, whether one or more, is such that the burden of proof rests upon the same party as to all of these elements, one issue may contain as many controverted questions of fact as the court may desire to include therein, but when the issue submitted to the jury contains elements upon which the burden of ultimately establishing the same is upon different parties, confusion will most likely occur. This is left to the sound discretion of the trial court, and is, evidently, one of the reasons for vesting such discretion in the trial court.
A desire to remedy this situation, In re Herring's Will,
Wigmore on Ev. (2 ed.) paragraphs 2483-2498, contains an elaborate and learned discussion of the basic principles underlying this doctrine of the burden of the proof in its several relations. The learned author suggests tests by which these questions may be determined in practice. We commend the following statement taken therefrom: "The important practical distinction between these two senses of `burden of proof,' is this: `The risk of nonpersuasion operates when the cases come into the hands of the jury while the duty of producing evidence implies a liability to a ruling of the judge disposing of the issue without leaving the question open to the jury's deliberation.'" The author puts the basis of the burden of proof, or burden of the issue, when used in the same sense, upon the risk of nonpersuasion, which follows the party asserting the affirmative of the issue throughout the case; and we conceive the foregoing statement to be correct when interpreted in the light of the limitation upon the trial courts in this State, in C. S., 564, and *489 with further rule that the trial judge assumes that the jury may find, as they have a right to do, that all the evidence, of either party, is true.
In Page v. Mfg. Co.,
In this State this question has been considered in many phases. In Speasv. Bank,
In that case, the court only stated the rule to be, that he against whom a prima facie case is made, may win if, upon the whole evidence, the scales are balanced in the minds of the jurors, or, to state it concisely, when, upon all the proof, the case is put in equipoise.
A presumption of negligence, when establishing a prima facie case is still only evidence of negligence for the consideration of the jury, and *490
the burden of the issue remains on the plaintiff. McDowell v. R. R.,
In Cook v. Guirkin,
In Massachusetts, this rule seems to have been most clearly applied for many years. In West v. State Street Exchange,
Wilder v. Cowles,
Smith v. Hill,
In Hill v. Smith,
The same rule has been announced in other states. First National Bank v.Ford,
The defendants also contest the requirement in this charge that the defendants should "satisfy" the jury that the prima facie showing made by plaintiff upon the introduction of the note with its recital of "for value received of him." While this contention is not vital, in the light of the rule as to "burden of proof," herein set forth, it is proper that we now consider it. It is clear that the instruction, considered contextually as is the rule, that the defendant was required to show "to the satisfaction of the jury and not by the greater weight of the evidence," when coupled with the premise "in order to defeat a recovery by the plaintiff," is placing the burden of proof on the defendants in the sense of the ultimate establishment of the truth of his allegation of "no consideration" as an affirmative defense. Their defense is only negative; they deny that there is any consideration for the note and assert that it is only an accommodation paper.
In Chaffin v. Mfg. Co.,
As stated in White v. Hines, supra: "Of course it will be understood that the rule herein stated is not intended, in any way, to modify the well-established principles that apply in cases of homicide. What is said in the instant case does not apply to criminal cases. The rule in criminal cases is set forth with much clearness by the present Chief Justice in *492 Speas v. Bank, supra. We perceive, although we do not now decide, that there is no real conflict. When we consider the character of the contest in criminal cases, upon a plea of not guilty, involving only a simple denial of the allegations of the State, and in other instances, when the plea amounts to a dependent defense, and in cases when the plea is in the nature of a confession and avoidance, the apparent conflict materially lessens. S.v. Benson,
It will be seen that, in cases of homicide, it is the law that raises the presumption when the killing with a deadly weapon is admitted or proved. This makes the crime, as a matter of law, murder in the second degree, when the killing and the use of a deadly weapon are established, unless the defendant proves the legal provocation that will extinguish the malice and reduce it to manslaughter, or that will excuse it upon the ground of self-defense, accident or misadventure. S. v. Carland,
In S. v. Willis, supra, Mr. Justice Battle declines to follow the rule that, matters in excuse and in mitigation in such criminal cases, should be proved by the preponderance of the evidence, but allowed and approved the statement that they need only to be proven to the satisfaction of the jury. The Court used such language as to indicate that, although such matters practically amount to an affirmative defense, the law, although it raises the presumption of murder in the second degree from the killing with a deadly weapon, will, for the same reason that it requires the State to prove its case beyond a reasonable doubt, "in the humanity of the law," "for the prisoner's sake," (S. v. Starling,
The plaintiff's learned and able counsel contend that the other parts of the charge ought to be construed as curing this error, if we conceive it to be error. If we pursue this view, we run across the doctrine announced inPatterson v. Nichols,
In these cited cases, the same rule was invoked and the Court said that the jury could not be expected to determine which rule to follow. *493
If we could perceive this error to be harmless we would apply the salutary doctrine, so ably set forth in Brewer v. Ring,
The burden of proof is a material rule in all trials of the same nature and kind as the instant case.
The learned author of Graham Waterman on New Trials, supra, says: "Without loss or the probability of loss, there can be no new trial." The rule as to the burden of proof is material. Often, on its proper application, the case pivots, property and personal rights are, thereby, in many cases, established.
In Hosiery Co. v. Express Co.,
In S. v. Parks,
In McDowell v. R. R., supra, Justice Hoke, afterwards Chief Justice, when speaking to the value and the integrity of trial by jury as the accepted and approved method of determining questions of disputed fact among English-speaking peoples for more than 900 years, says: "And one of the chiefest features of such a trial as contemplated in these instruments (State and National Constitutions) is that evidence shall be received and weighed in accordance with established rules which have been found by time and experience to make for the ascertainment of truth and the maintenance of right, and a clear violation of such rules can never be regarded as of slight importance."
In the light of these holdings of the Supreme Court of the United States, and our own Court, through Chief Justice John Marshall, JusticeGaston, Chief Justice Hoke and Chief Justice Stacy, we must conclude that the importance and materiality of the rule as to the burden of proof is firmly established.
Let there be a
New trial. *494