Clifton v. Sparks

• Decision Date: 11 April 1887
• Citation: 25 Mo.App. 383
• Parties: J. W. CLIFTON ET AL., Appellants, v. THOMAS L. SPARKS, Respondent.
• Court: Kansas Court of Appeals

25 Mo.App. 383

J. W. CLIFTON ET AL., Appellants, v. THOMAS L. SPARKS, Respondent.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

APPEAL from Morgan Circuit Court, HON. E. L. EDWARDS, Judge.

Affirmed.

The case is stated in the opinion.

A. W ANTHONY, COSGROVE & JOHNSTON, for the appellants.

I. The court gave four instructions at the instance of appellants; in the fourth of which the jury were told tat it was the duty of respondent " to keep his scales in a condition to weigh correctly." In fact, the same doctrine was announced in the other three instructions. By these declarations of law the jury were told that the burden of proving that the scales upon which the cattle were weighed, were accurate, and would weigh correctly, was upon the respondent. These declarations of law were correct. " The defendant had no right to keep or use on his premises any scales which did not furnish true avoirdupois weight, according to the established standard." Clifton et al. v. Sparks, 82 Mo 115. If the respondent had no right to keep scales which were not correct, then it would seem to follow that the court below very properly instructed the jury, at the instance of appellants, that the burden of proof was upon defendant below to prove that his scales weighed correctly.

II. The court gave two declarations of law to the jury at the instance of defendant; in the first of which the jury were told that " it devolved upon the plaintiffs to prove, to the satisfaction of the jury, that they paid defendant," etc. And in the second, " It devolves upon the plaintiffs to prove by evidence," etc. Both of these declarations of law are inconsistent with, and in contradiction of, those given to the jury at the instance of the appellants. They were misleading, and could have had no other effect, before the minds of the jurors, than to confuse them. " A contradiction between two instructions, so far from correcting the evils of either, multiplies them in both." The State to use v. Naust et al., 2 Mo.App. 298; Flori v. City of St. Louis, 69 Mo. 341; Ellet v. Railroad, 76 Mo. loc cit., 584. " The fact that it (the instruction) is contradicted by one given on defendant's behalf, tends rather to confuse than to enlighten the jury." Goetz v. Railroad, 50 Mo. 472; Jones v. Talbot, 4 Mo 279; Hickman v. Griffin, 6 Mo. 37; Schuner v. Limp, 17 Mo. 142; Owen v. Owen, 22 Iowa 270; Gilkey v. Ruler, 22 Tex. 663; Lytle v. Boyer, 33 Ohio St. 506; Livingston v. Maryland Ins. Co., 7 Cranch 506, 544; Thompson on Charging Jury, sect. 78.

III. The following facts clearly appear by the evidence: (1) That defendant's scales were in bad condition. (2) That, in the condition the scales were in, they would not weigh correctly, but weigh cattle heavier than their true weight. This is the evidence of the maker of the scales and others. (3) That this particular lot of cattle ought not to have lost exceeding thirty or thirty-five pounds per head. What other cattle lost has nothing to do with this case. These facts seem to be conceded by defendant's second instruction, and a means of escape provided, by requiring proof that the defendant not only received more money than he was entitled to, but that plaintiffs must prove the amount of the over payment.

IV. " Amount" means a definite sum--the exact sum in dollars and cents overpaid, and so the jury understood it. They were also told that, in the absence of such proof, they must find for the defendant. As applied to this evidence it is erroneous; it requires an impossibility. The instruction was misleading and ought not to have been given. Roger v. Fleming, 58 Mo. 438; Clark v. Kitchen, 52 Mo. 346. The other instructions already given fully covered all the facts and the law; and the only effect of this was to mislead. Hastings v. Railroad, 58 Mo. 302; Reid v. Ins. Co., 58 Mo. 421.

DRAFFEN & WILLIAMS, with D. E. WRAY, for the respondent.

I. The first and second points, made by appellants for the reversal of the judgment below, are not well taken. There is no conflict between the instructions given upon the part of plaintiffs and those given for defendant. Upon the part of plaintiffs the jury were properly told that it was the defendant's duty to keep his scales in a condition to give correct weights. There was certainly no conflict between this, and an instruction, that the burden of showing their incorrectness was upon the plaintiffs. Surely there was no presumption of law that defendant's scales were incorrect, which he was required to overcome by evidence. If there was any presumption about it, it would be that he had done his duty.

II. The defendant's instructions, as to the burden of proof were most manifestly correct. The plaintiffs alleged, as their cause of action, that defendant's scales overweighed the cattle, and that, in consequence, they overpaid for the same. " He who alleges a fact, must prove it." The burden was upon the plaintiffs to make out their case. According to appellants' theory, advanced in this court, if no evidence had been introduced in the case at all, the judgment must have been for the plaintiffs, because it was the defendant's duty to keep correct scales, and in the absence of proof as to the correctness of the same, the law presumed the plaintiffs' allegation, that they were incorrect, to be true. This is manifestly untenable.

III. The instructions as a whole presented the case fairly to the jury. The State ex rel. Johnson v. True, 20 Mo.App. 176; Yocum v. Town of Trenton, 20 Mo.App. 489.

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