Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Civil Code 1910, § 5747, former Code 1933, § 38-104, and former O.C.G.A. § 24-4-2 are included in the annotations for this Code section.

In general.

- Term, "burden of proof," is used in two senses: one, the burden of proof thrust upon the party by the pleadings which remains upon the party throughout the trial and, two, the burden of the evidence which may and does shift during the progress of the trial as to facts or issues from one party to the other. Hawkins v. Davie, 136 Ga. 550, 71 S.E. 873 (1911) (decided under former Civil Code 1910, § 5747); Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301 (1951); Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga. App. 797, 128 S.E.2d 512 (1962) (decided under former Code 1933, § 38-104);.

Burden of proof.

- Former statute had no application to the burden of proof placed by the pleadings; the former statute applied only to the burden of evidence which may, as to any particular fact or issue, shift from one party to the other. Department of Revenue v. Stewart, 67 Ga. App. 281, 20 S.E.2d 40 (1942) (decided under former Code 1933, § 38-104); Davison Chem. Corp. v. Hart, 68 Ga. App. 413, 23 S.E.2d 107 (1942); Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301 (1951) (decided under former Code 1933, § 38-104); Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga. App. 797, 128 S.E.2d 512 (1962); Richards v. Wilkinson Shaving Co., 198 Ga. App. 45, 400 S.E.2d 344 (1990) (decided under former Code 1933, § 38-104);(decided under former Code 1933, § 38-104);(decided under former O.C.G.A. § 24-4-2).

Discretion of judge.

- As to the burden of proof placed by the pleadings, the trial judge has no discretion - it is a matter of law; but as to the shifting of the burden of the evidence, the judge has discretion to determine whether the evidence produced, together with any applicable rules of presumption and procedure, in the particular case has shifted the burden. Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga. App. 797, 128 S.E.2d 512 (1962).

Application not always discretionary.

- Former statute did not intend to lay down the rule that whether under an affirmation and denial in pleadings upon the case one party or the other carried the burden of establishing that party's allegation was a matter of discretion in every case. Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301 (1951) (decided under former Code 1933, § 38-104).

Exercise of discretion.

- As to the discretion which the law invests in the trial judge, the judge may call to the judges's assistance in reaching a correct decision other well-recognized and fundamental principles of procedure and practice which are so well recognized that they take the form of substantive evidence. The judge may consider the question of peculiar knowledge. Department of Revenue v. Stewart, 67 Ga. App. 281, 20 S.E.2d 40 (1942).

Burden shifted to defendant.

- When the plaintiff makes out a prima facie case, the burden is shifted to the defendant. Equitable Life Assurance Soc'y v. Florence, 47 Ga. App. 711, 171 S.E. 317 (1933).

Effect of failure to carry burden.

- If the burden of proof has shifted and the party to whom the burden has shifted has not successfully carried this burden of evidence, the trial judge has authority to withdraw the case from the jury by directing a verdict. Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga. App. 797, 128 S.E.2d 512 (1962).

Instructions.

- Charge of the court should state what testimony would shift the onus, rather than when the onus would be changed, because the latter expression would intimate an opinion as to the sufficiency of the proof. Clark v. Cassidy, 64 Ga. 662 (1880) (decided under former Code 1873, § 3759); Lazenby v. Citizens Bank, 20 Ga. App. 53, 92 S.E. 391 (1917);.

When state filed for condemnation of a DC-3 airplane, a truck, a trailer, and the contents of the vehicles which had been used previously to transport contraband drugs, the trial court did not err in charging the jury that the defendant had to prove that the defendant had no knowledge that the vehicles were used in violation of controlled substances laws after the state had made out a prima facie case that the vehicles had been used to transport drugs. Morgan v. State, 172 Ga. App. 375, 323 S.E.2d 620 (1984).

Proving a negative.

- If a negation or negative affirmation is essential to prove a party's case, the burden of proof of such negative lies on the party so affirming it. Supreme Kingdom, Inc. v. Fourth Nat'l Bank, 174 Ga. 779, 164 S.E. 204 (1932).

Proving 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).

Mitigation.

- When the lessor under an exclusive rights contract brought an action for damages against the lessee for a breach of the contract, and alleged that the lessor's damages were the total of the fixed amounts to be paid under the contract for the pictures and proved upon the trial the execution of the contract and a breach thereof by the lessee, a prima facie case in favor of the plaintiff for the full amount sued for was made out, and the burden was then upon the defendant to prove that the plaintiff could have lessened plaintiff's damages, and such proof should have included sufficient data to allow the jury to reasonably estimate how much the damages could have been mitigated. Branon v. Ellbee Pictures Corp., 42 Ga. App. 293, 155 S.E. 923 (1930).

Partnership accounting.

- When the pleadings and the evidence in a partnership accounting showed that the defendant partner was in possession of the farm, that the defendant kept the books and records, and that the defendant admitted the receipt of the gross amount of money charged to the defendant by the plaintiff, from the sale of the farm and the equipment and cattle thereon, it was not error to charge that the burden was on the defendant of proving a proper disposition of the assets that came into the defendant's hands as a member of the partnership in charge of the partnership's business and assets. Brosnan v. Long, 75 Ga. 837, 44 S.E.2d 809 (1947).

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, §§ 172, 183.

ALR.

- 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 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.

Admissibility of inculpatory statements made in presence of accused and not denied or contradicted by him, 115 A.L.R. 1510.

Exception to principle of pari delicto where refusal of relief would involve harmful effect on persons for whose protection the law made the transaction illegal, 120 A.L.R. 1461.

Use of the word "satisfaction" or a derivative in instructions in civil case relating to degree or amount or proof, 147 A.L.R. 380.

Sufficiency of evidence, in absence of survivors or of eyewitness 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.

Effect of presumption as evidence or upon burden of proof, where controverting evidence is introduced, 5 A.L.R.3d 19.

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.

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 limitating answering party's proof at state trial, 86 A.L.R.3d 1089.