Hunt v. Eure

Citation127 S.E. 593
Decision Date22 April 1925
Docket Number(No. 388.)
CourtUnited States State Supreme Court of North Carolina
PartiesHUNT. v. EURE et al.

127 S.E. 593
(189 N.C. 482)

EURE et al.

(No. 388.)

Supreme Court of North Carolina.

April 22, 1925.

Appeal from Superior Court, Guilford County; McElroy, Judge.

Action by J. Marvin Hunt against N. L. Eure and others. Judgment for plaintiff, and defendants Eure and Wheeler appeal. New trial ordered.

The contest is upon a $2,000 note executed by defendants to plaintiff on July 20, 1920, payable "60 days from date." The defendants, Eure and Wheeler, admitted the execution of the note, but defended on the ground that it was an accommodation paper.

This case was considered by this court on a former appeal, and is reported in 188 N. C. 716, 125 S. E. 484.

[127 S.E. 594]

Bynum, Hobgood & Alderman, of Greensboro, for appellants.

Wilson & Frazier and King, Sapp & King, all of Greensboro, for appellee.

VARSER, J. In the former opinion in this case it was held that the note sued on was nonnegotiable, and therefore under the former rulings in this state (Stronach v. Bledsoe, 85 N. C. 473, 476, Carrington v. Allen, 87 N. 0. 354), "a consideration is not presumed, and must be both averred had proved. In such case the burden of proving a consideration is on the plaintiff."

It is also held that the recital of value in the note itself makes out a prima facie case, when the execution and delivery are shown, and, if the defendant then offers evidence tending to establish a failure of consideration, the burden remains with the plaintiff to satisfy the jury by the greater weight of all the evidence that the contract is supported by a valuable consideration.

After charging the jury as to the prima facie case made out by plaintiff, the trial court said to the jury:

"And the burden of proof, not the burden of the issue, shifts to the defendants. The term 'prima facie' means that which suffices for the proof of a particular fact until contradicted or overcome by evidence. If the plaintiff then makes out a prima facie case and the burden of proof shifts to the defendants, then the defendants, in order to defeat a recovery by the plaintiff, must show to the satisfaction of the jury, and not by the greater weight of the evidence, that said note was given as an accommodation to the plaintiff, and was without valuable consideration, and, if such facts are shown to the satisfaction of the jury, the plaintiff would not be entitled to recover."

This charge is assailed in defendants' exceptions.

The issue submitted was in the usual form in debt.

The terms, "the burden of the issue, " and "the burden of proof, " and the "duty to go forward with the evidence, " have given much perplexity to both the trial and appellate courts. The definition of the office of these terms and their application to concrete cases have been "often blurred by careless speech." Hill v. Smith, 260 U. S. 592, 43 S. Ct. 219, 67 L. Ed. 419.

In the former decision this court said:

"The defendant, when sued on a nonnegotiable paper, is not required, under our decisions, to rebut the prima facie proof of value by the greater weight of the evidence."

Non constat, that he should be required to assume the "burden of proof" to show to the "satisfaction" of the jury, but not by the greater weight of the evidence, that the note was not given for value, " in order to defeat a recovery.

In Board of Education v. Makely, 139 N. C. 31, on page 35, 51 S. E. 784, the court dis cusses the terms, "burden of proof, " "burden of issue, " and "prima facie case, " as follows:

"Plaintiffs are therefore, as we have said, the actors, and they allege the affirmative of the issue to be the truth of the matter."

See McCormick v. Monroe, 46 N. C. 13. The burden of the issue was upon them from the beginning to the close of the case although the burden of proof may have shifted during the trial from one side to the other, and even repeatedly back and forth. The distinction between the burden of the issue and the burden of proof is thus stated by an eminent law-writer:

"The burden of the issue, that is, the burden of proof in the sense of ultimately proving or establishing the issue or case of the party upon whom such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is compelled in turn to go forward or lose his case, and in this sense the burden shifts to him. So the burden of going forward may, as to some particular matter, shift again to the first party in response to the call of a prima facie case or presumption in favor of the second party. But the party who has not the burden of the issue is not bound to disprove the actor's case by a preponderance of the evidence, for the actor must fail if, upon the whole evidence, he does not have a preponderance, no matter whether it is because the weight of evidence is with the other party or because the scales are equally balanced." 1 Elliott on Ev. 139; Fitzgerald v. Goff, 99 Ind. 28.

White v. Hines, 182 N. C. 275, 109 S. E. 31, contains a collection of the authorities, with many conflicts pointed out, in the light of the effect of the doctrine of "res ipsa loquitur, " "prima facie case, " "burden of proof, " and the "burden of the issue." The only solvent for the apparent conflicts in the many decisions on this subject is suggested in this case by Mr. Justice Adams, in holding, in effect, that there is a wide difference in the use of the expression of "burden of proof in the sense of proving or establishing the issue, or case, as distinguished from the use of this term as an expression of the practical necessity of going forward or proceeding with evidence or proof. If we use these terms in this sense, keeping in mind the difference and restricting each to its proper office, it is possible that the true rule may be applied without injury to either party to the controversy. Practical experience, however, teaches us that these shades of meaning are not well suited to controversies in the trial courts, and that often they bring about prejudicial error.

In the instant case, construing the charge contextually and not in detached portions (Cherry v. Hodges, 187 N. C. 368, 121 S.

[127 S.E. 595]

E. 538; In re Will of Hardee, 187 N. O. 381, 121 S. E. 667), we perceive that the trial court, in charging the jury, "if the plaintiff thus makes out. a prima facie case and the burden of proof shifts to the defendants, then the defendants in order to defeat a recovery by the plaintiff must show to the satisfaction of the jury, and not by the greater weight of the evidence, that said note was given as an accommodation to the plaintiff and was without valuable consideration, and if such facts are shown to the satisfaction of the jury, the plaintiff would not be entitled to recover, " improperly placed upon the defendant, as a matter of law, the burden of proof, and that such an instruction was tantamount to placing upon the defendant the burden of proof in the sense of ultimately proving his defense of insufficient consideration as distinguished from the mere election, which arose upon the introduction of the note, with a recital of a valuable consideration therein, either to go forward with evidence rebutting the declaration in the note, or to take the risk of an adverse verdict in the absence of such evidence from the defendant.

In Speas v. Bank, 188 N. C. 524, 125 S. E. 398, the same doctrine is reconsidered with these statements:

"The party alleging a material fact, necessary to be proved and which is denied, must establish it by a preponderance of the evidence, or by the greater weight of the evidence. Having alleged the truth of a matter in issue, he becomes the actor as to such matter, and necessarily has the burden of proving it. The party denying bis allegations cannot have this burden at any time during the trial, for this would be to place the burden of the issue on both parties at the same time. Tobacco Growers' Ass'n v. Moss, 187 N. C. 421; Leonard v. Rosenthal, 123 Wis. 442.

"The burden of the issue and the duty of going forward with evidence are two very different things. The former remains on the party affirming a fact in support of his case, and does not change at any time throughout the trial. * * * The burden of proof continues to rest upon the party who, either as plaintiff or as defendant, affirmatively alleges facts necessary to enable him to prevail in the cause. It is required of him who thus asserts such facts to establish them before he can become entitled to a verdict in his favor; and, as to these matters, he constantly has the burden of the issue, whatever may be the intervening effect of different kinds of evidence or evidence possessing under the law varying degrees of probative force. Smith v. Hill, 232 Mass. 188.

"A prima facie case, or prima facie evidence, does not change the burden of proof. It only stands until its weight is met by evidence to the contrary. The opposing party, however, is not required as a matter of law to offer evidence in reply. He only takes the risk of an adverse verdict, if he fail to do so. White v. Hines ra. The case is carried to the jury on a prima facie showing, and it is for them to say whether or not the crucial and necessary facts have been established."

In the light of these clearly reasoned opinions, well fortified by both authorities and experience in everyday affairs, it must be held that the burden of the issue and the burden of proof always rests upon the actor, and never upon the reus. This is true when these terms are used in the sense of the ultimate establishment of the case, or the specific matter affirmatively and necessarily alleged in order...

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