Lazenby v. Bank

• Decision Date: 03 May 1917
• Docket Number: (No. 8063.)
• Citation: 20 Ga.App. 53,92 S.E. 391
• Parties: LAZENBY. v. CITIZENS' BANK.
• Court: Georgia Court of Appeals

(20 Ga.App. 53)

92 S.E. 391

LAZENBY.

v.CITIZENS' BANK.

(No. 8063.)

Court of Appeals of Georgia,

Division No. 2.

May 3, 1917.

(Syllabus by the Court.)

Error from Superior Court, Warren County; E. T. Shurley, Judge pro hac.

Suit by R. A. Lazenby against the Citizens' Bank. Verdict and judgment for defendant, and plaintiff brings error. Affirmed.

L. D. McGregor, of Warrenton, for plaintiff in error.

E. P. Davis, of Warrenton, for defendant in error.

JENKINS, J. R. A. Lazenby brought suit in the superior court of Warren county against the Citizens' Bank, alleging in substance that by the terms of his purchase from defendant of a certain parcel of land, it was agreed between the parties to the sale that if the tenant of the land so purchased should make as many as ten bales of cotton during that year, the purchaser should receive five bales thereof, as representing the rent for that year. Petitioner alleged that the tenant, Albert Evans, did make and deliver to the defendant, during said year, thirteen bales of cotton, and by reason of that fact became entitled to the value of said five bales of cotton, to wit, $300, less a credit thereon of $44.88, which it was admitted had been paid. The defendant admitted the contract of purchase and sale of the land at the price alleged, to wit, $3,500, and admitted further that under certain conditions of the agreement the plaintiff was to have received the rent from said land for the year 1915, but in its answer it denied that the conditions of the contract were those alleged by the plaintiff in his petition, and set up that the conditions under which plaintiff was to receive the five rent bales were that the said tenant, Alfred Evans, should, during said year, not only make a sufficient amount to pay the indebtedness owing the plaintiff, amounting to $250, furnished him" for the operation of said bargained land, but that the said tenant should also first pay the defendant the further sum of $250, advanced by it to him, for the operation of another and different tract of land, not owned by defendant and not involved in said sale, and also that said tenant was to pay defendant the additional sum of $142, furnished him by it for guano; that all of said sums were to be paid to defendant before said five bales of rent were to go and belong to plaintiff; and that in that event only was the plaintiff to receive the five bales of rent on said bargained premises for the year 1915. On the trial of the case there was positive testimony by the plaintiff, sustaining his contentions as to the terms of the contract; and testimony equally emphatic was givenfor the defendant, sustaining its contentions as to what the terms of the agreement were. The jury found a verdict in favor of the defendant, and the plaintiff now excepts, assigning error upon the refusal of the judge to grant his motion for a new trial, based upon general grounds and upon certain grounds assigning error in the charge of the court.

1. There being evidence to authorize the verdict, this court has no jurisdiction to interfere therewith upon any of the grounds taken in the original motion for new trial. Edge v. Thomas, 9 Ga. App. 559, 71 S. E. 875.

2. The first ground of the amendment to the motion for a new trial assigns error on the failure of the judge to charge the jury that the burden of proof would shift from the plaintiff to the defendant because the defendant had pleaded in its answer an affirmative defense, the burden of proving which was by law placed upon it. We think the charge of the trial judge upon the burden of proof was correct and adequate. The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. Civ. Code 1910, § 5746. Section 5747 of the Civil Code of 1910 provides that:

"What amount of evidence will change the onus or burden of proof, is a question to be decided in each case by the sound discretion of the court."

In the case of Clark v. Cassidy, 64 Ga. 662, it was held that a charge should state what testimony would shift the onus, rather than when it would be changed; for the reason that the latter expression would intimate an opinion as to the sufficiency of the proof. It has been held many times by our courts that in the absence of a timely and appropriate request to charge it will not be held reversible error for the judge to omit to instruct the jury upon the burden of proof. Small v. Williams, 87 Ga. 682, 13 S. E. 589 (6): Southern Ry. Co. v. Wright, 6 Ga. App. 173, 64 'S. E. 703 (7); Central of Ga. Ry. Co. v. Manchester Mfg. Co., 6 Ga. App. 254, 64 S. E. 1128 (2); Hickman v. Bell, 10 Ga. App. 319, 73 S. E. 596 (2); Whittle v. Central of Ga. Ry. Co., 11 Ga, App. 257, 74 S. E. 1100. But it has also been held that if the court does charge the jury upon this subject it must do so correctly. Cox v. McKinley, 10 Ga. App. 492, 73 S. E.751; Brooks v. Griffin, 10 Ga. App. 497, 73 S. E. 752. Ordinarily the burden of proof lies upon the plaintiff, who, alleging certain facts to exist, claims a right to recover against the defendant; but when, in such a case, the defendant comes in and admits the prima facie case as stated by the petition, and sets up matters in avoidance, then the defendant is the party who asserts the truth of the facts so set up, and the burden in such a case is shifted on him to establish the facts so pleaded, failing to do which the plaintiff is, without more, entitled to a verdict. Western & Atlantic R. Co. v. Brown, 102 Ga. 13, 29 S. E. 130; Hunter v. Sanders, 113 Ga. 140, 38 S. E. 406; Brunswick R. Co. v. Wiggins, 113 Ga. 812, 845, 39 S. E. 551, 61 L. R. A. 513; Atlanta Suburban Land Corp. v. Austin, 122 Ga. 374, 50 S. E. 124; Hawkins v. Davie, 136 Ga. 550, 71 S. E. 873; Martin v. Thrower, 3 Ga. App. 784, 60 S. E. 825 (7). It will be observed that in the rule we have just stated, in order for the burden of proof to be shifted, the admission of the defendant must show a prima facie case in favor of the plaintiff. In this case the answer does' not admit the allegations of plaintiff relating to the conditions of the contract by which the defendant would be rendered prima facie liable, and it therefore leaves the burden of proof to establish the case as a whole upon the plaintiff. Generally the burden of proof rests where the pleadings originally placed it. Hawkins v. Davie, 136 Ga. 550, 71 S. E. 873. And where the presiding judge correctly charges the jury in regard to the general burden of proof, he is not required as an essential part of his charge to discuss the shifting of the burden as to particular points of contest made by the evidence during the progress of the case, and it will not be held error that he neglects to do so. And even in a case where a charge on such a subject would be appropriate it should be duly requested. Hawkins v. Davie, 136 Ga. 550, 71 S. E. 873.

3. The second ground in the amendment to the motion for a new trial assigns error upon the ground that one of the contentions of plaintiff was that the defendant had been secured by a waiver of the landlord's lien for the rent for the $250 furnished by it to the tenant to make the crop on the other tract of land of which it was not the owner, and also that the item for guano furnished by the defendant to the tenant was to be paid by the tenant from the proceeds of the cottonseed; and the plaintiff in error says that the judge, in stating the contentions of the parties, failed to state these as made by the plaintiff, and assigns such omission as error, prejudicial to his case before the jury. The contentions referred to in this assignment of...