75 Wash. 635 | Wash. | 1913
Lead Opinion
This is an action for damages, alleged by the plaintiff to have resulted to it from a breach of a contract on the part of the defendant. A trial before the court and a jury resulted in verdict and judgment in favor of the plaintiff. The defendant moved for a new trial. Prom the order granting the same, the plaintiff has appealed.
“That, in addition to the sum of Fifty cents (50c) per cubic yard, which defendant, by the terms of said contract, stipulated to pay plaintiff for the removal of said rock which by oral understanding and agreement between the parties was to become, when excavated, the property of this plaintiff, plaintiff would have been able to sell and dispose of said Thirteen Thousand (13,000) yards of rock in a manner and at a price which would have enabled plaintiff to realize in connection with the amount agreed to be paid to plaintiff by defendant, the net sum of Ninety-four (94c) Cents per cubic yard for the removal of said rock over and above all expenses incurred in connection with the removal thereof, and plaintiff alleges that it was at all times willing, able and desirous of removing said rock and completing said contract according to the terms thereof and that had it been permitted to do so, it would have derived a net profit of Ninety-four cents (94c) per cubic yard on each and every cubic yard of rock remaining on said premises, making a total of Twelve Thousand Two Hundred and Twenty ($12,220) Dollars.”
In ordering a new trial, the court stated its reasons therefor, which are preserved in the statement of facts. One of the reasons so stated by the court was error in its instructions to the jury touching the burden of proof. The particular instruction which the trial court, upon reflection, concluded it had erroneously given to the jury, reads as follows:
“You are further instructed that the burden of proof is upon the defendant to prove his affirmative defense by a fair preponderance of the evidence. That is to say, the burden of proof in this case is upon the defendant to prove to you by a fair preponderance of the evidence that the plaintiff was not proceeding to perform its contract with reasonable diligence, and was not attempting to complete said contract within a reasonable time; and if, after a full and fair consideration of all the evidence in this case, you do believe that the plaintiff was not prosecuting its work with reasonable diligence and was not attempting to complete said contract within a reasonable time from the date of entering into the same, then I instruct you that the plaintiff cannot recover in this case upon the second cause of action.”
Some contention is made rested upon the alleged shifting of the burden of proof. It is said that the admission of the making of the contract on the part of respondent, in effect, constituted the making of a prima facie case against him; upon which counsel seem to argue that this resulted in shifting the burden of proof. We do not understand that the establishing of a prima facie case sufficient to go to the jury has the result of shifting the burden of proof. The jury are not necessarily bound to find for the plaintiff upon the making of a prima facie case. Prima facie case means only that the case has proceeded upon sufficient proof to that stage where it must be submitted to the jury, and not decided against the plaintiff as a matter of law. A prima facie case does not necessarily mean that judgment goes in favor of the plaintiff as a matter of law. The jury are still the judges of
Other remarks of the judge made upon disposition of the motion for a new trial indicate that he also rested his ruling upon other grounds. We are not entirely clear as to what these exact grounds were, though one of them seemed to be that the facts stated as a second cause of action did not constitute a cause of action. We cannot agree with the learned trial judge in this view, however. It seems to us a reading of the allegations of the second cause above quoted shows, if true, that plaintiff’s rights were invaded, to its damage.
We are of the opinion that there was no error in the granting of a new trial. The order appealed from is affirmed.
Crow, C. J., Gose, and Mount, JJ., concur.
Dissenting Opinion
(dissenting) — The statement of the majority that the allegation quoted in the opinion, if true, constitutes a cause of action, is misleading. Standing alone, it does not state a cause of action. It is only when coupled with the presumption that the parties had in mind that the rock should be removed within a reasonable time, that the dignity of a cause of action can be given to the charge. All that can be made out of the record, when considered in its entirety, is that respondent employed appellant to remove rock from his land. The contract was entered into on the 29th day of July, 1909. Respondent gave notice to the appellant in March, 1911. An unreasonable time had elapsed. Appellant admits that the rock might have been removed in a very much shorter time, but it seeks to maintain an action for damages against respondent by asserting that there was a contemporaneous agreement or understanding that he would sell the rock at a profit. It. is not denied by respondent that appellant could do as it pleased with the rock, but it does not follow that respondent took upon himself the uncertainties and vicissitudes
To this extent, I dissent from the holding of the majority.