Blitt v. Heinrich

• Decision Date: 18 December 1888
• Citation: 33 Mo.App. 243
• Parties: CHARLES BLITT, Respondent, v. JULIUS HEINRICH, Appellant.
• Court: Missouri Court of Appeals

33 Mo.App. 243

CHARLES BLITT, Respondent, v. JULIUS HEINRICH, Appellant.

Court of Appeals of Missouri, St. Louis.

December 18, 1888

Appeal from the St. Louis City Circuit Court. --HON. JAMES A SEDDON, Judge.

AFFIRMED.

A Burgess, for the appellant.

From the evidence it is certain that some witness swore falsely concerning some material fact in the case, as the testimony for plaintiff and defendant are directly opposed to each other. The instructions offered by the defendant and refused by the court were correct and should have been given.

Rassieur & Schnurmacher, for the respondent.

The first instruction was substantially given by the court, of its own motion, in an improved form. Appellant complains because the court, in refusing this instruction, failed to tell the jury that if the evidence was " evenly balanced," they might find for the defendant. The court did more. It told the jury to find for defendant unless the plaintiff's evidence " " outweighed" that of defendant. The defendant's second instruction was properly refused, because it omitted the element of " wilfully" or " knowingly" swearing to what is false. Evans v. Railroad, 16 Mo.App. 522; Fath v. Hake, 16 Mo.App. 537; Smith v. Railroad, 19 Mo.App. 120; Bank v. Murdock, 62 Mo. 70; State v. Brown, 64 Mo. 367. Because nothing occurred during the trial to warrant an instruction of this kind, even had it been properly drawn. Evans v. Railroad, supra; Batterson v. Vogel, 10 Mo.App. 230; Bank v Murdock, supra; White v. Maxey, 64 Mo. 367.

OPINION

THOMPSON J.

This was an action to recover the balance due on an account for goods sold and delivered. The facts necessary to support the verdict which the plaintiff recovered were testified to by the plaintiff himself. There were three witnesses for the defendant, whose testimony tended more or less to contradict that of plaintiff.

The court instructed the jury as follows:

" 1. The court instructs the jury that, if they believe from the evidence that plaintiff sold and delivered to defendant, at his request, the goods, wares and merchandise mentioned in plaintiff's statement, or any part thereof, then they will find a verdict for the plaintiff for the reasonable value of the merchandise so sold and delivered, less such sums as they may believe that defendant has paid thereon.

2. The court instructs the jury that the burden of proof is upon the plaintiff in this case to prove his case by a preponderance of evidence. And by the terms, burden of proof and preponderance of evidence, as used in these instructions, the court does not refer to the number of witnesses sworn on either side, but means that, in point of value and credibility, the evidence to sustain the plaintiff's case must outweigh that for the defendant; and the jury are the sole judges of the credibility of the witnesses and the value to be given to their respective statements and evidence."

The defendant requested the court to instruct the jury as follows, which the court refused to do:

" 1. The court instructs the jury, as a matter of law that the burden of proof is upon the plaintiff, and it is for him to prove his case by a preponderance of evidence. If the jury find that the evidence bearing upon plaintiff's case is evenly balanced, or that it preponderates in favor of the defendant, then the plaintiff cannot recover, and the jury should find for the defendant.

2. The jury are instructed that they are...