Chittim & Parr v. Rosendo Martinez, 94 Tex. 141

BROWN, Associate Justice. The Court of Civil Appeals for the Fourth. District has certified to this court the following statement and question: “A material issue in the case was whether or not a certain verbal contract alleged by the defendants had been -entered into. The plaintiff and the defendant were the only witnesses on this issue, each testifying directly contrary to the other.

The court, in submitting the issue, charged the jury that the burden of proof was on the defendants to show such contract by the preponderance of the evidence. “Was it error to instruct the jury as to the burden' of proof being on one of the parties ? We ask this question in view of what is announced in Railway v. Nesbitt, 11 Texas Civil Appeals, 610.” In the case of Stooksbury v. Swan, 85 Texas, 567, the defendants offered in evidence an ancient deed which purported to have been executed by the plaintiffs and to which the plaintiffs entered a plea of forgery.

The court below instructed the jury that the burden of proof was upon the plaintiffs to establish the fact that the deed was forged. This court said: “The more obvious and fatal objection to so much of the charge, however, is that it declared that the age and admission of the instrument must be given a prima facie effect whereby the burden of proving the instrument not to be genuine was cast upon the plaintiffs.” There is no intimation in" the opinion that a conflict of evidence upon the issue of the genuineness of the deed rendered it improper for the court to give the charge upon the burden of proof.

In Railway v. Taylor, 79 Texas, 114, the question under discussion was the refusal of the trial court to give a charge upon the burden of proof. The court held that- the plaintiff had fully proved his case and that there was no necessity for the charge, but said: “It would have been improper to charge that the burden of proof was upon the plaintiff to establish negligence.” That question was not before the court, and the remark, perhaps; was not intended by the learned judge who wrote the opinion to embrace the proposition here contended for. In the case of Railway v.

Nesbitt, 11 Texas Civil Appeals, 610, referred to in the question, that court seems to have been of opinion that the burden of proof was not upon the defendant, as the trial court charged. In the opinion, it is said: “As this case rested upon conflicting evidence, the court should not have given the charge as to the burden of proof.” We think it was not intended to assert the proposition that a charge upon the burden of proof should not be given in any case where the testimony is conflicting. In the case of Railway v.

Syfan, 43 Southwestern Reporter, 554, Judge Williams states the rule in these words: “.The court is not always required to charge on the burden of proof. The propriety of doing so depends on the state of the evidence.” There might be a state of facts that would render a charge upon the burden of proof misleading and therefore improper to be given, but the mere fact that the evidence upon an issue which is submitted to the jury is conflicting does not make it improper for the court to give a charge informing the jury as to which party has the burden of proving the issue submitted to them. Railway v.

Shieder, 88 Texas, 165; Clark v. Hills, 67 Texas, 148; Howell v. Hanrick, 88 Texas, 394; Byers v. Wallace, 87 Texas, 503. It was not error for the trial court to give an instruction as to the burden of proof, under the facts stated with the question submitted to us.