O.C.G.A. § 24-14-1 (2019)

Annotations

Law reviews. For comment on Moore v. Allen, 80 Ga. App. 784, 57 S.E.2d 511 (1950), see 12 Ga. B.J. 481 (1950). For article, the right to open and conclude the argument in tort cases, see 22 Ga. B.J. 297 (1960).

For comment on Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969) and the rejection of charge that defendant must prove alibi to the satisfaction of the jury, see 21 Mercer L. Rev. 511 (1970). For article, “Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence,” see 63 Mercer L. Rev. 1 (2011).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATIONS SPECIFIC ACTIONS JURY INSTRUCTIONS General Considerations Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 3758, former Code 1882, § 3758, former Civil Code 1895, § 5160, former Penal Code 1895, § 994, former Civil Code 1910, § 5746, former Penal Code 1910, § 1020, former Code 1933, §§ 38-103 and 38-105, and former O.C.G.A. § 24-4-1 are included in the annotations for this Code section. In general. - Burden of proof as applied to the facts of a given case under its facts has a dual meaning; one of those meanings applies to the ultimate burden of proof which rests with the plaintiff from the beginning throughout the trial of the case, and the other meaning applies when the burden of procedure or burden of introducing evidence shifts from one party to the other. Central of Ga. Ry. v. Hester, 94 Ga. App. 226, 94 S.E.2d 124, 1956 Ga. App. LEXIS 513 (1956) (decided under former Code 1933, § 38-103); Evans v. DeKalb County Hosp. Auth., 154 Ga. App. 17, 267 S.E.2d 319, 1980 Ga. App. LEXIS 2031 (1980) (decided under former Code 1933, § 38-103). Burden determined by pleadings. - Generally, the burden of proof rests where the pleadings originally placed the burden. Lazenby v. Citizens Bank, 20 Ga. App. 53, 92 S.E. 391, 1917 Ga. App. LEXIS 709 (1917) (decided under former Civil Code 1910, § 5746); Richter Bros. v. Atlantic Co., 59 Ga. App. 137, 200 S.E. 462, 1938 Ga. App. LEXIS 458 (1938); Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301, 1951 Ga. App. LEXIS 890 (1951) (decided under former Code 1933, § 38-103); Whitley v. Wilson, 90 Ga. App. 16, 81 S.E.2d 877, 1954 Ga. App. LEXIS 614 (1954) (decided under former Code 1933, § 38-103); Lovett v. American Family Life Ins. Co., 107 Ga. App. 603, 131 S.E.2d 70, 1963 Ga. App. LEXIS 922

(1963) (decided under former Code 1933, § 38-103). Effect of defendant’s admission of prima facie case. - If the plaintiff alleges a right to recover, and the defendant denies the allegations without more, the plaintiff, upon the case as a whole carries the burden of proof; that is, the burden of showing, by a preponderance of the evidence, that the plaintiff is entitled to recover. If the defendant does not file a denial of the plaintiff’s allegations, but admits in defendant’s pleadings a prima facie case in favor of the plaintiff, and sets up an affirmative plea, the defendant then assumes the burden. Williamson-Inman & Co. v. Thompson, 53 Ga. App. 821, 187 S.E. 194, 1936 Ga. App. LEXIS 405 (1936) (decided under former Code 1933, § 38103); Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301, 1951 Ga. App. LEXIS 890 (1951) (decided under former Code 1933, § 38-103). Plaintiff carries burden of proving plaintiff’s right to recover by a preponderance of the evidence. Courson v. Pearson, 132 Ga. 698, 64 S.E. 997, 1909 Ga. LEXIS 390 (1909) (decided under former Civil Code 1895, § 5160); Thigpen v. Aldred, 175 Ga. 120, 165 S.E. 27, 1932 Ga. LEXIS 202 (1932) (decided under former Civil Code 1910, § 5746); Grimsley v. Morgan, 178 Ga. 40, 172 S.E. 49, 1933 Ga. LEXIS 11 (1933) (decided under former Code 1933, § 38-103); Abernathy v. Putnam, 85 Ga. App. 644, 69 S.E.2d 896, 1952 Ga. App. LEXIS 802 (1952) (decided under former Code 1933, § 38-103); Maloy v. Dixon, 127 Ga. App. 151, 193 S.E.2d 19, 1972 Ga. App. LEXIS 821 (1972) (decided under former Code 1933, § 38-103); Carr v. Jacuzzi Bros., 133 Ga. App. 70, 210 S.E.2d 16, 1974 Ga. App. LEXIS 973 (1974) (decided under former Code 1933, § 38-103); Anderson v. Poythress, 246 Ga. 435, 271 S.E.2d 834, 1980 Ga. LEXIS 1153 (1980) (decided under former Code 1933, § 38-103).

When the plaintiff failed to present any evidence which raised a question of fact as to whether the defendant was negligent, plaintiff’s contentions regarding what might have happened disappeared in light of the uncontradicted witness testimony as to what did happen, and the trial court correctly granted summary judgment to the defendant. Etheredge v. Kersey, 236 Ga. App. 243, 510 S.E.2d 544 (decided under former O.C.G.A. § 24-4-1). The burden of proof is determined by the pleadings, and a defendant’s denial of the plaintiff’s allegations is notice to the plaintiff that the plaintiff has the burden to prove the allegations. Carver v. Jones, 166 Ga. App. 197, 303 S.E.2d 529, 1983 Ga. App. LEXIS 2101 (1983) (decided under former O.C.G.A. § 24-4-1). Standing. - Trial court did not err in dismissing state agency’s petition for downward modification of father’s child support obligation as the agency did not prove the agency’s assertion that the agency had standing to bring such an action, since the agency did not show the legislature intended to give the state agency the power to seek modification of support to the same extent a parent could do so; accordingly, the state agency could only prove the agency had standing if the agency showed there was a prior court order which established or enforced a child support obligation and which the state agency participated in obtaining, and the agency was unable to make that showing. Dep’t of Human Res. v. Allison, 276 Ga. 175, 575 S.E.2d 876, 2003 Ga. LEXIS 3 (2003) (decided under former O.C.G.A. § 24-4-1). Burden on state in criminal case. - In all criminal trials the burden is upon the state to prove every allegation which is material to an essential element of the offense. Conyers v. State, 50 Ga. 103, 1873 Ga. LEXIS 214 (1873) (lack of parental consent) (decided under former Code 1873, § 3758); Bell v. State, 91 Ga. 15, 16 S.E. 207, 1892 Ga. LEXIS 485 (1892) (capacity of infant to commit crime) (decided under former Code 1882, § 3758); Neil v. State, 117 Ga. 14, 43 S.E. 435, 1903 Ga. LEXIS 133 (1903) (marital status of alleged fornicator) (decided under former Penal Code 1895, § 994); Sikes v. State,

120 Ga. 494, 48 S.E. 153, 1904 Ga. LEXIS 611 (1904); Harris v. State, 14 Ga. App. 574, 81 S.E. 815, 1914 Ga. App. LEXIS 384 (1914) (decided under former Penal Code 1910, § 1020); McLemore v. State, 181 Ga. 462, 182 S.E. 618, 1935 Ga. LEXIS 126 (1935) (voluntariness of confession) (decided under former Code 1933, § 38-103); Butts v. State, 153 Ga. App. 464, 265 S.E.2d 370, 1980 Ga. App. LEXIS 1852 (1980). Effect of denial by defendant of the plaintiff’s allegations is to put the plaintiff on notice that the burden is on the plaintiff to prove those allegations. Whitley v. Wilson, 90 Ga. App. 16, 81 S.E.2d 877, 1954 Ga. App. LEXIS 614 (1954) (decided under former Code 1933, § 38-103). Defendant has burden of proof as to all matters purely of defense. Life & Cas. Ins. Co. v. Cartrell, 74 Ga. App. 204, 39 S.E.2d 437, 1946 Ga. App. LEXIS 486 (1946) (decided under former Code 1933, § 38-103). When a third-party defendant was unable to demonstrate any specific evidence that a claim was paid wrongfully by the third-party plaintiff, a surety, and that any consideration of the surety’s late affidavit led to an unjust result, the trial court’s grant of summary judgment was not error. Horton v. U.S. Fid. & Guar. Co., 194 Ga. App. 881, 392 S.E.2d 25, 1990 Ga. App. LEXIS 379 (1990) (decided under former O.C.G.A. § 24-4-1). Affirmative defenses generally. - When the defendant admits the essential facts of the petition and sets up other facts in justification or avoidance, plaintiff has the burden of proving such affirmative defense. Hunter v. Sanders, Swan & Co., 113 Ga. 140, 38 S.E. 406, 1901 Ga. LEXIS 185 (1901) (decided under former Civil Code 1895, § 5160); Brunswick & W.R.R. v. Wiggins, 113 Ga. 842, 39 S.E. 551, 1901 Ga. LEXIS 396 (1901) (decided under former Civil Code 1895, § 5160); Milledgeville Cotton Co. v. Bacon, 138 Ga. 470, 75 S.E. 604, 1912 Ga. LEXIS 584 (1912) (decided under former Civil Code 1910, § 5746); Lazenby v. Citizens Bank, 20 Ga. App. 53, 92 S.E. 391, 1917 Ga. App. LEXIS 709 (1917) (decided under former Civil Code 1910, § 5746); Branch v. American Agric. Chem. Co., 22 Ga. App. 52, 95 S.E.

General Considerations (Cont’d) 476, 1918 Ga. App. LEXIS 136 (1918) (decided under former Civil Code 1910, § 5746); Alston v. Mobley, 42 Ga. App. 98, 155 S.E. 81, 1930 Ga. App. LEXIS 247 (1930) (decided under former Civil Code 1910, § 5746); Hill v. City of Calhoun, 47 Ga. App. 753, 171 S.E. 459, 1933 Ga. App. LEXIS 644 (1933) (decided under former Code 1933, § 38-103); Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427, 1936 Ga. App. LEXIS 215 (1936) (decided under former Code 1933, § 38103); Whitley v. Wilson, 90 Ga. App. 16, 81 S.E.2d 877, 1954 Ga. App. LEXIS 614 (1954) (decided under former Code 1933, § 38-103); Purcell v. Hill, 111 Ga. App. 256, 141 S.E.2d 153, 1965 Ga. App. LEXIS 938 (1965) (decided under former Code 1933, § 38-103); Willis v. Kemp, 130 Ga. App. 758, 204 S.E.2d 486, 1974 Ga. App. LEXIS 1251 (1974) (decided under former Code 1933, § 38-103); Metropolitan Publishers Representatives, Inc. v. Arnsdorff, 153 Ga. App. 877, 267 S.E.2d 260, 1980 Ga. App. LEXIS 2017 (1980) (decided under former Code 1933, § 38-103). When the defendant asserts affirmative defenses, it is not improper to argue that the burden of establishing those defenses lies on the one asserting the defenses. Pembrook Mgt., Inc. v. Cossaboon, 157 Ga. App. 675, 278 S.E.2d 100, 1981 Ga. App. LEXIS 1963 (1981) (decided under former O.C.G.A. § 24-4-1). Justification and avoidance are affirmative defenses. - When a defendant admits the essential facts of a plaintiff’s petition but sets up other facts in justification or avoidance, an affirmative defense is presented and the defendant ordinarily has the burden of proving the defense. Carver v. Jones, 166 Ga. App. 197, 303 S.E.2d 529, 1983 Ga. App. LEXIS 2101 (1983) (decided under former O.C.G.A. § 24-4-1). Failure to consider student’s affirmative defense of self-defense by local board. - Judgment upholding the decision of a local board of education (local board) expelling a student for fighting was reversed because the record fully supported that the student properly raised the issue of self-defense before the local

board and that the board failed to apply the proper law and make the board’s own findings of fact on the issue. Henry County Bd. of Educ. v. S. G., 301 Ga. 794, 804 S.E.2d 427, 2017 Ga. LEXIS 689 (2017). Effect of entry of appearance. - When the defendant filed no written plea, but simply entered an appearance as required by the rules of the municipal court in cases of the character of this case, this amounted to a plea of general denial; it was not a plea in the nature of one in confession and avoidance, and therefore, being one merely generally denying the allegations of the plaintiff, the burden which may have rested upon the plaintiff, if any, was the burden only of going on with the evidence, and this burden the plaintiff was not required to carry by a preponderance of the evidence. Boss v. Ed. & Al. Matthews, Inc., 51 Ga. App. 889, 181 S.E. 688, 1935 Ga. App. LEXIS 492 (1935) (on motion for rehearing) (decided under former Code 1933, § 38-103). Effect of proving prima facie case. - Fact that the plaintiff introduced sufficient evidence to make out a prima facie case, and that in so doing plaintiff was relieved by statute of the burden of introducing evidence on an issue, the affirmative of which was essential to a recovery, in no way relieved the plaintiff of ultimately establishing the essential facts of plaintiff’s case by a preponderance of the evidence. Richter Bros. v. Atlantic Co., 59 Ga. App. 137, 200 S.E. 462, 1938 Ga. App. LEXIS 458 (1938) (decided under former Code 1933, § 38-103). Effect of failure to prove prima facie case. - Rule that the burden is on the defendant to establish defendant’s defense of contributory negligence on the part of the plaintiff, such as would bar a recovery, would not impose upon defendant such a duty in a case when the plaintiff personally had failed to make out a prima facie case, by failing to show negligence on the part of the defendant as alleged or by personally showing defendant’s own contributory negligence. McCrackin v. McKinney, 52 Ga. App. 519, 183 S.E. 831, 1936 Ga. App. LEXIS 168 (1936) (decided under former Code 1933, § 38103). Right to open and conclude argument. - Party having the burden of proof

is entitled to open and conclude the argument before the jury. Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559, 89 S.E. 486, 1916 Ga. LEXIS 397 (1916) (decided under former Civil Code 1910, § 5746); Simmons v. Brannen, 155 Ga. 494, 117 S.E. 318, 1923 Ga. LEXIS 106 (1923) (decided under former Civil Code 1910, § 5746); Seagraves v. Couch & Jackson, 168 Ga. 38, 147 S.E. 61, 1929 Ga. LEXIS 66 (1929) (decided under former Civil Code 1910, § 5746); Morgan-Hill Paving Co. v. Shanks, 45 Ga. App. 274, 164 S.E. 221, 1932 Ga. App. LEXIS 283 (1932) (decided under former Civil Code 1910, § 5746). Defendant in defendant’s plea may admit a prima facie case for the plaintiff, and if the defendant does so before the plaintiff introduces evidence, the burden of proving defendant’s defense is on the defendant, and the defendant is entitled to open and conclude. United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30, 1942 U.S. Dist. LEXIS 2220 (D. Ga. 1942) (decided under former Code 1933, § 38-103). Proving a negative. - When one party has the burden of proving a negative, but all the proof on the subject is within the control of the other party, the burden is shifted to the party having the power to produce the proof. Mayo v. Owen, 208 Ga. 483, 67 S.E.2d 709, 1951 Ga. LEXIS 421 (1951) (decided under former Code 1933, § 38-103). Propounder who offered a will for probate assumed the non-shifting burden of persuasion as to the validity of that document, including the requirement of showing by a preponderance of the evidence that the signature was that of decedent. Heard v. Lovett, 273 Ga. 111, 538 S.E.2d 434, 2000 Ga. LEXIS 850 (2000) (decided under former O.C.G.A. § 24-4-1). Prima facie case on life insurance contract. - Plaintiff’s right to recover a life insurance contract is established prima facie, without proof of payment of the required premiums, on proof of possession of the policy by the plaintiff and its introduction in evidence, and proof of all other essentials to a recovery under the policy. Masonic Relief Ass’n v. Hicks, 47

Ga. App. 499, 171 S.E. 215, 1933 Ga. App. LEXIS 531 (1933) (decided under former Code 1933, § 38-103). Second marriages. - For a brief discussion of the presumption of validity or invalidity of second marriage, see Scott v. Jefferson, 174 Ga. App. 651, 331 S.E.2d 1, 1985 Ga. App. LEXIS 1917 (1985) (decided under former O.C.G.A. § 24-4-1). Specific Actions Contributory negligence. - When the evidence is sufficient to raise an issue for the jury, and such issue is in fact submitted to the jury upon the question of the defendant’s negligence, then, in order for the defendant to avail oneself of the affirmative defense of contributory negligence, it is incumbent upon defendant to prove the defense, and this is true even though defendant does not in defendant’s own pleadings confess defendant’s negligence as charged. McCrackin v. McKinney, 52 Ga. App. 519, 183 S.E. 831, 1936 Ga. App. LEXIS 168 (1936) (decided under former Code 1933, § 38-103). Comparative negligence. - While comparative negligence is available as an affirmative defense in Georgia, the burden of proving the defense remains with the party relying upon the defense and not upon the party making the original negligence claim to disprove the defense. Glenridge Unit Owners Ass’n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418, 1987 Ga. App. LEXIS 2104 (1987) (decided under former O.C.G.A. § 24-4-1). Defense of alternative proximate causation. - Trial court did not err when the court declined to give the customer and spouse’s jury instruction directing that the pharmacy and pharmacist had the burden of proving their defense of alternative proximate causation in the customer and spouse’s pharmaceutical malpractice action against them as the trial court’s given instruction covered the same principle as that contained in the customer and spouse’s requested charge and the charge given was a correct statement of the law. Moresi v. Evans, 257 Ga. App. 670, 572 S.E.2d 327, 2002 Ga. App. LEXIS 1255 (2002), cert. denied, No.

Specific Actions (Cont’d) S03C0251, 2003 Ga. LEXIS 32 (Ga. Jan. 13, 2003) (decided under former O.C.G.A. § 24-4-1). Denial of contract not affirmative defense. - When a plaintiff is suing on an alleged express contract by which plaintiff claims defendant agreed to pay a sum certain as rent, and defendant denies there is any such express contract, defendant’s answer is not an affirmative defense as to which defendant is required to carry the burden of proof. Willis v. Kemp, 130 Ga. App. 758, 204 S.E.2d 486, 1974 Ga. App. LEXIS 1251 (1974) (decided under former Code 1933, § 38-103). Legitimacy. - Existence of the presumption of legitimacy arising from the birth of a child requires the production of contrary evidence from the husband, but it does not relieve the wife of her burden of proof to establish legitimacy in the first place. Miller v. Miller, 258 Ga. 168, 366 S.E.2d 682, 1988 Ga. LEXIS 117 (1988) (decided under former O.C.G.A. § 24-4-1). Medical malpractice. - Defense counsel’s claim that the conduct of the patient and the midwife was an intervening cause of the fetal death, and that the patient had the burden of proof under former O.C.G.A. § 24-4-1 to show that there was no such intervening cause, was error which the trial court should have corrected. Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga. App. 622, 610 S.E.2d 546, 2005 Ga. App. LEXIS 51 (2005), cert. denied, No. S05C1009, 2005 Ga. LEXIS 486 (Ga. June 30, 2005), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147, 2009 Ga. LEXIS 395 (2009) (decided under former O.C.G.A. § 24-4-1). Party asserting an accord and satisfaction bears the burden of proof on that issue. Carpet Transp., Inc. v. TMS Ins. Agency, Inc., 165 Ga. App. 734, 302 S.E.2d 421, 1983 Ga. App. LEXIS 2001 (1983) (decided under former O.C.G.A. § 24-4-1). Status as hospital charity patient. - When a nonpaying patient, who in the end was the recipient of a hospital’s charity, claims the patient was able to pay and was not a charity patient so that the

hospital would be subject to a negligence claim, the trial court abused the court’s discretion in refusing to put the burden of proof on the patient or the patient’s personal representative. Fulton-DeKalb Hosp. Auth. v. Fanning, 196 Ga. App. 556, 396 S.E.2d 534, 1990 Ga. App. LEXIS 975 (1990), cert. denied, No. S90C1515, 1990 Ga. LEXIS 593 (Ga. Sept. 4, 1990) (decided under former O.C.G.A. § 24-4-1). Specific issues. - For burden of proof on specific civil issues, see the following cases: Lanier v. Hughley, 91 Ga. 719, 18 S.E. 39 (1893) (payment) (decided under former Code 1882, § 3758); Pyron & Son v. Ruohs, 120 Ga. 1060, 48 S.E. 434, 1904 Ga. LEXIS 797 (1904) (jurisdiction) (decided under former Civil Code 1895, § 5160); Gaskins v. Touchton, 151 Ga. 458, 107 S.E. 38, 1921 Ga. LEXIS 291 (1921) (payment) (decided under former Civil Code 1910, § 5746); Bankers Trust & Audit Co. v. Hanover Nat’l Bank, 35 Ga. App. 619, 134 S.E. 195, 1926 Ga. App. LEXIS 1034 (1926) (lack of consideration) (decided under former Civil Code 1910, § 5746); Paulk v. Roberts, 42 Ga. App. 79, 155 S.E. 55, 1930 Ga. App. LEXIS 238 (1930) (legality of administrator’s investments) (decided under former Civil Code 1910, § 5746); Branon v. Ellbee Pictures Corp., 42 Ga. App. 293, 155 S.E. 923, 1930 Ga. App. LEXIS 366 (1930) (mitigation of damages) (decided under former Civil Code 1910, § 5746); Supreme Kingdom, Inc. v. Fourth Nat’l Bank, 174 Ga. 779, 164 S.E. 204, 1932 Ga. LEXIS 140 (1932) (forgery) (decided under former Civil Code 1910, § 5746); State Hwy. Bd. v. Lewis, 46 Ga. App. 162, 167 S.E. 219, 1932 Ga. App. LEXIS 89 (1932) (invalidity of marriage) (decided under former Civil Code 1910, § 5746); Masonic Relief Ass’n v. Hicks, 47 Ga. App. 499, 171 S.E. 215, 1933 Ga. App. LEXIS 531 (1933) (invalidity of insurance contract) (decided under former Code 1933, § 38-103); Hill v. City of Calhoun, 47 Ga. App. 753, 171 S.E. 459, 1933 Ga. App. LEXIS 644 (1933) (affidavit of illegality) (decided under former Code 1933, § 38-103); Bell v. City of Valdosta, 47 Ga. App. 808, 171 S.E. 572, 1933 Ga. App. LEXIS 674 (1933) (invalidity of municipal ordinance) (decided under former Code 1933, § 38-103); Thomas v. Southern Ry.,

92 F.2d 445, 1937 U.S. App. LEXIS 4607 (5th Cir. 1937) (contributory negligence) (decided under former Code 1933, § 38103); Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570, 1939 Ga. LEXIS 592 (1939) (payment in suit to foreclose security deed) (decided under former Code 1933, § 38-103); Marion County v. First Nat’l Bank, 193 Ga. 263, 18 S.E.2d 475, 1942 Ga. LEXIS 375 (1942) (unconstitutional county debt) (decided under former Code 1933, § 38-103); Hamilton v. North Ga. Elec. Membership Corp., 201 Ga. 689, 40 S.E.2d 750, 1946 Ga. LEXIS 290 (1946) (invalidity of municipal ordinance) (decided under former Code 1933, § 38-103); Palatine Ins. Co. v. Gilleland, 79 Ga. App. 18, 52 S.E.2d 537, 1949 Ga. App. LEXIS 578 (1949) (lack of notice of application by insured for appointment of umpire) (decided under former Code 1933, § 38-103); Estridge v. Janko, 96 Ga. App. 246, 99 S.E.2d 682, 1957 Ga. App. LEXIS 551 (1957) (set off and counterclaim) (decided under former Code 1933, § 38-103); Polk v. Fulton County, 96 Ga. App. 733, 101 S.E.2d 736, 1957 Ga. App. LEXIS 677 (1957) (value of condemned property) (decided under former Code 1933, § 38-103); Cobb v. Dutton, 222 Ga. 11, 148 S.E.2d 399, 1966 Ga. LEXIS 384 (1966) (lack of counsel) (decided under former Code 1933, § 38-103); Smith v. Morgan, 113 Ga. App. 865, 150 S.E.2d 164, 1966 Ga. App. LEXIS 1237 (1966) (title to land) (decided under former Code 1933, § 38-103); First Pentecostal Church v. City of Atlanta, 144 Ga. App. 718, 242 S.E.2d 357, 1978 Ga. App. LEXIS 1764 (1978) (unreasonableness of tax) (decided under former Code 1933, § 38-103); Forehand v. Pace, 146 Ga. App. 682, 247 S.E.2d 192, 1978 Ga. App. LEXIS 2505 (1978) (negligence) (decided under former Code 1933, § 38-103); Brown v. Minter, 243 Ga. 397, 254 S.E.2d 326, 1979 Ga. LEXIS 911, cert. denied, 444 U.S. 844, 100 S. Ct. 88, 62 L. Ed. 2d 57, 1979 U.S. LEXIS 2765 (1979) (access to public records) (decided under former Code 1933, § 38-103); A & N Inv., Inc. v. Cronic, 151 Ga. App. 738, 261 S.E.2d 469, 1979 Ga. App. LEXIS 2776 (1979) (signing of note) (decided under former Code 1933, § 38103); Anderson v. Poythress, 246 Ga. 435, 271 S.E.2d 834, 1980 Ga. LEXIS 1153

(1980) (action of public official) (decided under former Code 1933, § 38-103); Carter v. Kim, 157 Ga. App. 418, 277 S.E.2d 776, 1981 Ga. App. LEXIS 1851 (1981) (existence of contract and agency) (decided under former O.C.G.A. § 24-4-1); Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653, 1981 Ga. App. LEXIS 2011 (1981) (hypersensitivity to x-rays) (decided under former O.C.G.A. § 24-4-1). Workers’ compensation proceeding. - When claimant proved that claimant’s injury arose out of and in the scope of claimant’s employment, the burden shifted to the employer to prove that either claimant’s injuries were intentionally self-inflicted or the injuries were caused by an attack for reasons personal to claimant. Hulbert v. Domino’s Pizza, Inc., 239 Ga. App. 370, 521 S.E.2d 43 (decided under former O.C.G.A. § 24-4-1). Burden of persuasion on propounders in “will contest”. - Trial court did not err in finding that a codicil to a testator’s will was invalid because it properly charged the jury that the caveators had no burden to prove the grounds of their caveats to the propounders’ petition to probate codicils; because testamentary capacity and voluntary execution were necessary elements of the propounders’ case, the burden of persuasion remained on the propounders to prove their assertions by a preponderance of the evidence, and in the absence of an asserted affirmative defense, the caveators had no duty to affirmatively prove anything but were required only to come forward with evidence to rebut the propounders’ prima facie case as to essential elements. Parker v. Melican, 286 Ga. 185, 684 S.E.2d 654, 2009 Ga. LEXIS 646 (2009) (decided under former O.C.G.A. § 24-4-1). Jury Instructions Instructions generally. - In the absence of a timely and appropriate request to charge, it is not reversible error for the judge to omit to instruct the jury upon the burden of proof. Lazenby v. Citizens Bank, 20 Ga. App. 53, 92 S.E. 391, 1917 Ga. App. LEXIS 709 (1917) (decided under former Penal Code 1910, § 1012). Instruction must be correct if the judge does charge the jury upon the bur-

Jury Instructions (Cont’d) den of proof. Lazenby v. Citizens Bank, 20 Ga. App. 53, 92 S.E. 391, 1917 Ga. App. LEXIS 709 (1917) (decided under former Penal Code 1910, § 1012). Instruction on shifting burden. - When the judge correctly charges in regard to the general burden of proof, the judge is not required, as an essential part of the judge’s charge (in the absence of a proper request), to discuss the shifting of the burden as to the particular points of contest made by the evidence. Lazenby v. Citizens Bank, 20 Ga. App. 53, 92 S.E. 391, 1917 Ga. App. LEXIS 709 (1917) (decided under former Penal Code 1910, § 1012); Haugabrooks v. Metropolitan Life Ins. Co., 63 Ga. App. 829, 12 S.E.2d 163, 1940 Ga. App. LEXIS 564 (1940) (decided under former Code 1933, § 38103). In action by bank to collect on promissory note, when prima facie case had been admitted by defendant, it was misleading and confusing to jury to instruct the jury that burden still remained upon plaintiff to prove plaintiff’s case to the jury’s satisfaction by a preponderance of the evidence; the court should have instructed the jury that in view of defendant’s admission as to prima facie right of plaintiff to recover, burden was upon defendant to meet this prima facie right by establishing defendant’s affirmative defense of partial accord and satisfaction by a preponderance of the evidence. Citizens Bank v. Ansley, 164 Ga. App. 437, 296 S.E.2d 370, 1982 Ga. App. LEXIS 2826 (1982) (decided under former O.C.G.A. § 24-4-1). Request for instructions. - If a party is not satisfied with the general

charge on the subject of the burden of proof, it is incumbent upon the party to make timely written request to charge on the shifting of the burden if the party desires such charge. Hyde v. Chappell, 194 Ga. 536, 22 S.E.2d 313, 1942 Ga. LEXIS 635 (1942) (decided under former Code 1933, § 38-103). Charge as to apportionment. - In a personal injury case, the defendant’s apportionment claim was an affirmative defense, thus, the defendant had the burden of showing by a preponderance of the evidence that the nonparty tractor-trailer driver was negligent and that the driver’s negligence proximately caused all or some portion of damages to the plaintiff, thus, the trial court committed no error in charging the jury to that effect. Brown v. Tucker, 337 Ga. App. 704, 788 S.E.2d 810, 2016 Ga. App. LEXIS 399 (2016). Instruction in murder case. - On trial of one charged with murder, it is not error to charge the jury: “The law puts upon the defendant, where he admits the killing, the burden to satisfy the jury that he was justified under some rule of law, unless the admissions, together with the evidence in the case against him, or the statement of the defendant, shows justification or mitigation.” Gay v. State, 173 Ga. 793, 161 S.E. 603, 1931 Ga. LEXIS 406 (1931) (decided under former Penal Code 1910, § 1020). Condemnation suit instruction in language of former statute was a correct abstract principle of law and was not confusing or misleading to the jury. Georgia Power Co. v. Smith, 94 Ga. App. 166, 94 S.E.2d 48, 1956 Ga. App. LEXIS 495 (1956) (decided under former Code 1933, § 38-105).

RESEARCH REFERENCES Am. Jur. 2d. 29 Am. Jur. 2d, Evidence, §§ 1, 171. Am. Jur. Pleading and Practice Forms. 9A Am. Jur. Pleading and Practice Forms, Evidence, § 94. C.J.S. 31A C.J.S., Evidence, § 165 et seq.

ALR. Burden of proof as regards discharge in bankruptcy, 2 A.L.R. 1672. Duty to charge as to reasonable doubt as between different degrees of crime or included offenses, 20 A.L.R. 1258. Presumption and burden of proof as to loss from failure of pledgee to sell or

collect choses in action pledged, 53 A.L.R. 1075. Effect of fraud in the inception of a bill or note to throw upon the subsequent holder the burden of proving that he is a holder in due course, 57 A.L.R. 1083. Res ipsa loquitur in its relation to burden of proof and burden of evidence, 59 A.L.R. 486; 92 A.L.R. 653. Burden of proof as to consideration for bill or note, when plaintiff not protected as a holder in due course, 65 A.L.R. 904; 127 A.L.R. 1003. Burden and degree of proof as to alibi, 67 A.L.R. 138; 124 A.L.R. 471. Prima facie case for proponent in will contest as shifting burden of proof, 76 A.L.R. 373. Governing law as regards presumption and burden of proof, 78 A.L.R. 883; 168 A.L.R. 191. Pleading want of contributory negligence as waiver of right to presumption of freedom from negligence, 96 A.L.R. 1116. Presumption and burden of proof of settlement in action by one town or poor district against another for support of pauper, 99 A.L.R. 457. Burden of proof as to outlawry by limitation or otherwise of criminal prosecution when relied upon to defeat claim of privilege against self-incrimination, 101 A.L.R. 389. Admissibility of inculpatory statements made in presence of accused and not denied or contradicted by him, 115 A.L.R. 1510. Necessity and sufficiency of proof, in prosecution for perjury during trial, that oath was administered, 132 A.L.R. 1311. Presumption and burden of proof regarding mitigation of damages, 134 A.L.R. 242. Statute which places burden of proof as to contributory negligence on defendant or creates a presumption against contributory negligence as applicable to actions by one person for consequential damages resulting from injury to another, 147 A.L.R. 726. Distinction between burden of proof and burden of evidence as related to statutory provisions regarding presumption and burden of proof in respect of commercial paper, 152 A.L.R. 1331.

Burden of proof as to doctrine of last clear chance, 159 A.L.R. 724. Burden of proof in partition suit as regards alleged prior voluntary partition of property, 1 A.L.R.2d 473. Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case, 1 A.L.R.2d 1291. Burden of proving value of relief from performing contract in suit based on defendant’s breach preventing or excusing full performance, 17 A.L.R.2d 968. Presumption and burden of proof of accuracy of scientific and mechanical instruments for measuring speed, temperature, time, and the like, 21 A.L.R.2d 1200. Burden of proof in actions under general declaratory judgment acts, 23 A.L.R.2d 1243. Reference by counsel for prosecution in opening statement to matters which he does not later attempt to prove as ground for new trial, reversal, or modification, 28 A.L.R.2d 972. Sufficiency of evidence, in absence of survivors or of eyewitnesses competent to testify, as to place or point of impact of motor vehicles going in opposite directions and involved in collision, 77 A.L.R.2d 580. Conviction of criminal offense without evidence as denial of due process of law, 80 A.L.R.2d 1362. Res ipsa loquitur with respect to personal injuries or death on or about ship, 1 A.L.R.3d 642. Effect of presumption as evidence or upon burden of proof, where controverting evidence is introduced, 5 A.L.R.3d 19. Zoning as a factor in determination of damages in eminent domain, 9 A.L.R.3d 291. Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146. Conflict of laws as to presumptions and burden of proof concerning facts of civil case, 35 A.L.R.3d 289. Burden of proof of defendant’s age, in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526. Necessity and sufficiency of expert evidence to establish existence and extent of physician’s duty to inform patient of risks of proposed treatment, 52 A.L.R.3d 1084.

Setting aside arbitration award on ground of interest or bias of arbitrators, 56 A.L.R.3d 697. Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936. Burden of proof as to lack of license in criminal prosecution for carrying or possession of weapon without license, 69 A.L.R.3d 1054. Answers to interrogatories as limiting answering party’s proof at state trial, 86 A.L.R.3d 1089.

Prosecutor’s reference in opening statement to matters not provable or which he does not attempt to prove as ground for relief, 16 A.L.R.4th 810. Burden of proof as to entrapment defense - state cases, 52 A.L.R.4th 775. Setting aside arbitration award on ground of interest or bias of arbitrators - commercial, business, or real estate transactions, 67 A.L.R.5th 179.