Finks v. Cox
| Decision Date | 17 April 1895 |
| Citation | 30 S.W. 512 |
| Parties | FINKS et al. v. COX et al. |
| Court | Texas Court of Appeals |
Appeal from district court, McLennan county; L. W. Goodrick, Judge.
Action by J. H. Finks and another against T. B. Cox and another. Judgment for defendants, and plaintiffs appeal. Reversed.
Graham & McCormick, for appellants. Robt. Rogers and Robertson & Davis, for appellees.
The question here involved is practically one of boundary, upon which there is a conflict of evidence. Therefore we do not feel authorized to discuss the effect of the evidence, as we reverse the case upon other grounds. The court below, among other instructions to the jury, gave the following: "Now, if, guided by the instructions herein given you, you find that the land in controversy is covered by the Burrell patent, then you will return a verdict for the defendants; but if the plaintiffs have satisfied you by the evidence that the Burrell patent, where correctly located, does not cover the land sued for, then you will find for the plaintiffs;" and then continues to charge the jury, if they so find for plaintiffs, then they will consider the issue of improvements in good faith suggested by the defendants, the appellees here. It is true in this case, as the appellants, the plaintiffs below, were seeking to establish a vacancy between the Burrell and other surveys, the burden was upon them to show the fact of vacancy; but this did not authorize the court to give a charge instructing the jury that they must be satisfied from the evidence before they would be authorized to find in plaintiffs' favor. The word "satisfied" conveys to the ordinary mind a greater degree of certainty in establishing a right than is exacted by the law in order to permit the one asserting that right to recover, and charges of a similar nature have been repeatedly condemned and disapproved by our supreme court. Baines v. Ullmann, 71 Tex. 537, 9 S. W. 543; Emerson v. Mills, 83 Tex. 388, 18 S. W. 805; Railway Co. v. Bartlett, 81 Tex. 43, 16 S. W. 638; Bluntzer v. Dewees, 79 Tex. 275, 15 S. W. 29. It is possible, in view of the other charges of the court, that the jury were not misled by this charge; but, in view of the conflict in the evidence, we cannot speculate about this matter, and, according to the case of Emerson v. Mills, 83 Tex. 388, 18 S. W. 805, we would not be authorized to hold that this charge was harmless, and for the error in this respect we will have to reverse the judgment of the...
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