H. C. HOWELLS, PLAINTIFF IN ERROR,
v.
T. A. CURRIE, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a judgment for the defendant in a promissory note case, finding that the trial court's jury instruction was erroneous and not harmless.
Yes, the jury instruction was erroneous and not harmless, requiring reversal of the judgment.
“The court below charged the jury, by whom the issues of fact were tried, that “if the evidence of the plaintiff and the defendant are of equal weight in your mind, then you should find for the defendant.””
Identifies the erroneous jury instruction.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff sued on a promissory note, and the defendant filed a plea of set-off. The jury returned a verdict for the defendant. The trial court ins…
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Per Curiam.
The plaintiff in error sued the defendant in error in an action on a promissory note. The defendant in error interposed a plea of set-off to which the plaintiff in error filed a replication. It devolved upon the defendant in error, under the pleadings, to prove the allegation of his plea by a preponderance of the evidence. The verdict and judgment were for defendant in error. The court below charged the jury, by whom the issues of fact were tried, that “if the evidence of the plaintiff and the defendant are of equal weight in your mind, then you should find for the defendant.” This charge was clearly erroneous. Counsel for the defendant in error say in their brief: “The defendant admits that the last word of the foregoing sentence should have been plaintiff instead of defendant, but respectfully insists that the error, if any, is not a reversible error, but a harmless error.” We do not think that on this record the error was harmless.
The judgment is reversed and the cause remanded for a new trial.
Whitfield, P. J., and Strum and Buford, J. J., concur. Terrell, C. J., and Ellis and Brown, J. J., concúr in the opinion and judgment.
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Metro. Dade Cnty. v. Anne ST. Claire and Douglas St. Claire, 445 So. 2d 614 (Fla. 3d DCA 1984)…County to prove that Mundy was not negligent. See Orme v. Burr, 157 Fla. 378, 25 So. 2d 870 (1946). The giving of an instruction which erroneously shifted the burden of proof cannot be considered harmless error on this record. See Howells v. Currie, 97 Fla. 648, 122 So. 2 (1929). Cf. Hollingsworth v. Norris, 77 Fla. 498, 81 So. 782 (1919) (no error if jury instruction correctly states burden of proof, even if jury instruction was unnecessary). Because this case must be remanded for a new trial, we deem it…