Sloan v. Brown County State Bank

174 Wis. 36 | Wis. | 1921

Vinje, J.

When defensive matter only is pleaded by a defendant the trial court should so frame the special verdict that the burden of proof rests upon the plaintiff to establish his claims. Kausch v. Chicago & M. E. R. Co. 173 Wis. 220, 180 N. W. 808. Here plaintiff’s claim as made both by the complaint and evidence was that he pledged the stock. The defendant denied this. The fact'that in its answer it alleged that Hooker pledged it and not plaintiff did not affect the issues in the case nor change the burden of proof. Under a general denial defendant could have shown that Hooker and not plaintiff pledged the stock. The burden of proof was upon plaintiff to establish his case, not, as the court charged,, upon the defendant to disprove it. As the case went to the jury the trial court practically said plaintiff can recover in this case unless defendant can disprove his claims and the burden of proof is upon it to disprove them. This was the main issue in the case and the evidence was sharply in conflict upon it. Under such circumstances the placing of the burden of proof upon the wrong party where the jury finds against it constitutes prejudicial error. Kausch v. Chicago & M. E. R. Co., supra, and cases cited.

The plaintiff’s measure of damage was correctly stated by the trial court as the market value of the shares of stock at the time of conversion.

By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.