Marrett v. Herrington

• Decision Date: 21 February 1912
• Citation: 145 S.W. 254
• Parties: MARRETT v. HERRINGTON.
• Court: Texas Court of Appeals

145 S.W. 254

MARRETT v. HERRINGTON.

Court of Civil Appeals of Texas. El Paso.

February 21, 1912.

Appeal from District Court, Mitchell County.

Action by A. J. Herrington against Mrs. C. H. Marrett to determine right of property. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Crockett & Brewer, for appellant. L. W. Sandusky, for appellee.

McKENZIE, J.

This is a suit for trial of right of property. The issues were made between the parties as required by article 5297 of the Revised Civil Statutes. The appellee, who was plaintiff below, caused execution to be levied upon an automobile as the property of one Roy Neblett. Appellant, who was defendant below, made affidavit and bond, as required by statute, and recovered possession of the property. The automobile was taken by the sheriff, who levied the execution, from the possession of the appellant. The appellant is a feme sole.

The first paragraph of the charge of the court placed the burden of proof upon the defendant. This was error. Article 5302 of the Revised Civil Statutes provides that "in all cases arising under this title, if the property was taken from the possession of the claimant, the burden of proof shall be upon the plaintiff." The court, in a subsequent paragraph, charged that the burden of proof was upon the plaintiff to show by a preponderance of the evidence that the property was Roy Neblett's, "and if the plaintiff has failed to do so you will find for Mrs. C. H. Marrett." We do not think that this subsequent charge, placing the burden of proof upon the plaintiff, cures the error. The latter instruction is in conflict with the former, in that in the first paragraph the jury is told that the burden is upon the defendant, and in the subsequent paragraph they are told that the burden is upon the plaintiff. The subsequent paragraph does not refer to the first; nor does it seek to correct the error. The general rule which is applicable in construing instructions given by a trial court to the jury is that the charge of the court should be taken and construed as a whole; one part of the charge may be looked to for the purpose of correcting, qualifying, or explaining some other part. But we do not think that this rule applies where the instruction was so contradictory as to be wholly irreconcilable. The charge in the instant case was calculated to confuse the jury, and to leave them to follow either of the contradictory instructions as their personal wishes or private feelings may dictate. Baker v. Ashe, 80 Tex. 356, 16 S. W. 36; Gonzales et al. v. Adoue & Lobit, 94 Tex. 120, 58 S. W. 951. We therefore sustain appellant's first assignment of error.

Appellant's second assignment of error complains of the court's action in permitting plaintiff to testify in his own behalf, as follows: "I asked Neblett if he wanted us to pull his machine over to the garage, and he said he did. I asked him if it was his machine, and he said it was." These statements were made when the defendant was not present. The evidence was objected to, first, because it was hearsay testimony; and, second, because the statements as made by Neblett as to his ownership of the automobile could not bind the defendant when she was not present. We think it is clear that under the decisions the testimony was hearsay, and was not binding upon the appellant. There was no evidence that Mrs Marrett authorized the statements attributed to Neblett; nor that she had any knowledge of said statements. She claimed ownership of the automobile by purchase made prior to the levy, and at the time of the levy she was in possession and control of said machine. We hold that it was error for the court to admit the evidence. Hinson v. Walker & Co., 65 Tex. 103; McClure v. Heirs of G. W. Sheek, 68 Tex. 426, 4 S. W. 552; Rankin et al. v. Bell, 85 Tex. 28, 19 S. W. 874; Slocum v. Putnam, 25 S. W. 52; Smith v. M. & P. National Bank, 40 S. W. 1038; Tucker v. Hamlin, 60 Tex. 171; Fox v. Willis, 60...