Chittim v. Martinez

• Decision Date: 05 November 1900
• Citation: 58 S.W. 948
• Parties: CHITTIM et al. v. MARTINEZ.
• Court: Texas Supreme Court

58 S.W. 948

CHITTIM et al. v. MARTINEZ.

Supreme Court of Texas.

November 5, 1900.

Certified question from court of civil appeals, Fourth supreme judicial district.

Action by Rosendo Martinez against Chittim & Parr. From a judgment for plaintiff, defendants appealed to the court of civil appeals for the Fourth district, which certifies a question to the supreme court. Question answered.

Ogden & Terrell, for appellants. J. O. Nicholsen and Hicks & Hicks, for appellee.

BROWN, J.

The court of civil appeals for the Fourth district has certified to this court the following statement and question: "A material issue in the case was whether or not a certain verbal contract alleged by the defendants had been entered into. The plaintiff and the defendant were the only witnesses on this issue, each testifying directly contrary to the other. The court, in submitting the issue, charged the jury that the burden of proof was on the defendants to show such contract by the preponderance of the evidence. Was it error to instruct the jury as to the burden of proof being on one of the parties? We ask this question in view of what is announced in Railway Co. v. Nesbitt, 11 Tex. Civ. App. 610, 33 S. W. 280." In the case of Stooksbury v. Swan, 85 Tex. 567, 22 S. W. 963, the defendants offered in evidence an ancient deed, which purported to have been executed by the plaintiffs, and to which the plaintiffs entered a plea of forgery. The court below instructed the jury that the burden of proof was upon the plaintiffs to establish the fact that the deed was forged. This court said: "The more obvious and fatal objection to so much of the charge, however, is that it declared that the age and admission of the instrument must be given a prima facie effect, whereby the burden of proving the instrument not to be genuine was cast upon the plaintiffs." There is no intimation in the opinion that a conflict of evidence upon the issue of the genuineness of the deed rendered it improper for the court to give the charge upon the burden of proof. In Railway Co. v. Taylor, 79 Tex. 114, 14 S. W. 918, the question under discussion was the refusal of the trial court to give a charge upon the burden of proof. The court held that the plaintiff had fully proved his case, and that there was no necessity for the charge, but said: "It would have been improper to charge that the burden of proof was upon the plaintiff to establish negligence." That question was not before the court, and the...