Hawkins v. Davie
| Decision Date | 12 July 1911 |
| Citation | 136 Ga. 560,71 S.E. 873 |
| Parties | HAWKINS. v. DAVIE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
1. Replevin (§ 70*)—Trial (§ 234*)—Burden of Proof—Instructions.
Where an action was brought to recover possession of personal.property to which the plaintiff claimed title, and the defendant denied that it belonged to the plaintiff, but filed no affirmative plea, on the general case the plaintiff carried the burden of showing that he was entitled to recover; and there was no error in so charging.
(a) In such a case, it was not error that the presiding judge did not take up the particular points of contest made by the testimony, and charge in regard to the shifting of the burden of evidence as to such points. If such a charge on a particular point as to which evidence was introduced would have been appropriate, a request therefor should have been duly made.
[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 280-284; Dec. Dig. § 70;* Trial, Cent. Dig. § 537; Dec. Dig. § 234.*]
2. Appeal and Error (§ 1004*)—Harmless Error—Instructions.
Where one question in a case was whether, if a gift of personalty was made, the donor had sufficient capacity to make it, and the judge charged fully as favorably to the excepting party as such party could have asked, in regard to the measure of capacity necessary in such a case, the fact that he illustrated the subject of mental capacity by reading certain sections of the Civil Code touching testamentary capacity, also informing the jury that no will was involved, and that this portion of his charge was simply illustrative of the general subject, and did not furnish the standard applicable to the case in hand, furnishes no ground for a reversal.
[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1064.*]
3. Gifts (§ 51*)—Gift to Child—Instruction.
There was no error in charging Civ. Code, 1910, § 4150, which declares that "the delivery of personal property by a parent into the exclusive possession of a child living separate from the parent shall create a presumption of a gift to the child."
[Ed. Note.—For other cases, see Gifts, Cent. Dig. § 102; Dec. Dig. § 51.*]
4. Review.
None of the other assignments of error furnish any ground for reversal.
Error from Superior Court, Oglethorpe County; D. W. Meadow, Judge.
Action by T. H. Hawkins against R. W. Davie. Judgment for defendant, and plaintiff brings error. Affirmed.
Sibley & McWhorter, for plaintiff in error.
J. J. Strickland, Paul Brown, and Geo. C. Thomas, for defendant in error.
This was an action to recover possession of a promissory note. The plaintiff was the administrator of the payee of the note. The issue made by the pleadings was under an allegation on the part of the plaintiff that the title to the note was in him, and a denial of such allegation by the defend ant. In the evidence it appeared that the defendant was the son of the payee of the note, and that he claimed that it had been indorsed by his mother and given to him during her lifetime. There was conflicting evidence both as to whether the indorsement appearing on the note was genuine, and as to whether the note had been given to the defendant or whether he had obtained possession of it improperly.
The presiding judge charged, in substance, that the plaintiff brought the case and carried the burden of showing that he was entitled to recover. To this exception was taken on the ground that as it was conceded that the note originally belonged to the mother of the defendant, and so recognized in the charge, the burden was upon him to show a gift. The use of the expression "burden of proof" in a dual sense, sometimes as indicating the burden of establishing the case as a whole, and sometimes as indicating the burden of the evidence during the progress of the trial, or that certain evidence will make out a prima facie case or will serve prima fade to establish a given fact, if not rebutted, has created no little confusion. Generally the burden of proof in the sense first mentioned rests where the pleadings originally placed it. Thus, if the plaintiff alleges a right to recover, and the defendant denies his allegations without more, the plaintiff upon the case as a whole carries the burden of proof; that is, the burden of showing, by a preponderance of the evidence, that he is entitled to recover. If the defendant does not file a denial of the plaintiff's allegations, but admits in his pleadings a prima facie case in favor of the plaintiff, and sets up an affirmative plea, such as a plea of confession and avoidance, he assumes the burden. Civ. Code 1910, § 5740. During the progress of the case, the burden of introducing evidence as to particular facts or issues may be shifted one or more times. One party may introduce evidence touching a particular fact which would be sufficient prima facie to establish such fact, if not rebutted. In this sense the burden may shift from one party to the other in the progress of the trial; and it is this shifting to which reference is made in Civ. Code 1910, § 5747, which declares that "what amount of...
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...case, or to produce evidence sufficient to create a state of equipoise between his proof and that of the adversary. Hawkins v. Davie, 136 Ga. 550, 552, 71 S.E. 873; Hyer v. C. E. Holmes & Co., 12 Ga.App. 837, 846, 79 S.E. 58; Phillips v. Lindsey, 31 Ga.App. 479, 482(2), 484(4), 120 S.E. 923......
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...Hester, 94 Ga.App. 226, 237-238, 94 S.E.2d 124; Dept. of Revenue v. Stewart, 67 Ga.App. 281(4), 20 S.E.2d 40. See also Hawkins v. Davie, 136 Ga. 550, 552, 71 S.E. 873. Here, the state's witness (an investigator) testified that V.T. was advised of his Miranda rights and that the statement, m......
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Central of Georgia Ry. Co. v. Hester
...for the plaintiff call our attention to McKemie v. McKemie, 76 Ga.App. 212, 45 S.E.2d 456, 458, wherein it is said: 'In Hawkins v. Davie, 136 Ga. 550, 551, 71 S.E. 873, it is said: 'The use of the expression 'burden of proof' in a dual sense, sometimes as indicating the burden of establishi......
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Deloach v. Automatic Transmission & Brake Shop, Inc., 39736
...is a shifting of the burden of introducing evidence as to particular facts or issues during the progress of the case. Hawkins v. Devie, 136 Ga. 550(1), 552, 71 S.E. 873. Although the statute uses the term, 'burden of proof,' the meaning in which it is used is rather the shifting of the burd......