
    Hawes v. The Burlington, Cedar Rapids & Northern R’y Company.
    1. Practice: exceptions to instructions given: degree of par- ' ticularity required. Since the enactment oflhe Code, (§ 2787,) an exception to instructions given, if taken at the time when given, may be made to the whole charge, without specifying the particular instruction or instructions in which the errors relied upon occur. The rule was different under § 8059 of the Revision. See Davenport Qas-Licjht Co. v. City of Davenport, 13 Iowa, 229.
    2. -: CONTRIBUTORY NEGLIGENCE: BURDEN OF PROOF: INSTRUCTION. In an action for damages to the person, based on defendant’s negligence, the plaintiff had the burden of proof to show that he was not guilty of contributory negligence; and the burden was not changed by the fact that the defendant in its answer unnecessarily pleaded the plaintiff’s contributory negligence; and an instruction from which the jury might infer such change of burden was erroneous.
    8. -: RELEASE: BURDEN OF PROOF: CONTRADICTORY INSTRUCTIONS. Whei'e a release was pleaded in defense, and not denied, but matter was pleaded by the plaintiff in avoidance of the release, the burden to establish the release was removed from defendant, and the burden to establish the matter in avoidance devolved upon plaintiff; and in such a case it was erroneous to charge the jury that “as to material affirmative allegations and defenses of the answer the burden of proof devolves upon the defendant;” and the error was not cured in this case by another instruction which correctly placed the burden of proof, — the two instructions, as to that, being contradictory.
    
      
      4. Minors: contracts of: disaffirmance: return of money or property: statute construed. Section 2238 of the Code, which provides that a minor is bound by his contract, unless he disaffirms it, “and restores to the other party all money or property received by him by virtue of bis contract, and remaining within his control]' only requires a return of the identical money or property, and not the payment of other money or property which he may have at, the time of disaffirmance. Jenkins v. Jenkins, 12 Iowa, 195, followed.
    5. Instructions: should present both sides of a case. Where from the evidence the jury might have come to either of two opposite conclusions, it was error to instruct them as to their duty in the event of their reaching one conclusion, without also instructing them as to their duty in the other event.
    
      Appeal f rom Linn District Court.
    
    Wednesday, September 17.
    It is stated in the petition that the plaintiff is a minor, and was in the employ of the defendant as a brakeman on a freight train, and that, without negligence on his part, when endeavoring to couple certain cars, because of defendant’s negligence, his hand was caught and injured. The ground of the negligence stated in the petition is that the cars were violently and forcibly thrown together. Trial by jury, judgment for the plaintiff, and defendant appeals.
    
      J. <& L. AT. Tracy, for appellant.
    
      J. B. Young, for appellee.
   Seevebs, J.

I. The charge of the court, in addition to a statement of the issues, consists of paragraphs numbered -fr’om one to sixteen, inclusive/ and, from an amended abstract, it appears that exception thereto was taken at the time the charge was given, in the following words: “And to the giving of such instructions as given, at the time the defendant duly excepted.” This we understand to mean that each paragraph of the charge -was excepted to, and, as this was done at the time, no stated reasons were required. Code, § 2787. But counsel for the appellee insists that such a general exception presents no question for the consideration of this court, unless the whole charge is erroneous, and this is not claimed. In support of this proposition, Davenport Gas Light Co. v. The City of Davenport, 13 Iowa, 229, is cited. In that case there were fifteen instructions ashed and refused, “ to which the defendant excepted.” This was held to be a sufficient exception. The charge of the court covered ten pages, and at the conclusion thereof it was stated: “ To the giving of which instructions the defendant excepted,” and it was held that this exception was not sufficiently specific. There is not, therefore, any difference between the cited case and this, and, unless there has been a change in the statute, we are bound by the ruling made in that case. It was decided when the Revision was in force, and, while it does not distinctly appear that the charge of the court consisted of paragraphs numbered consecutively, it is fair to so presume, because § 3058 of the Revision provided it should be so numbered; and, as this jrrovision has been incoiqrorated into the Code, it cannot be said that there is any difference in the statute in this respect. Code, § 2788.

Section 3059 of the Revision provided as follows: “Every part or paragraph of the charge shall be deemed approved unless excepted to before the retiring of the jury. If so excepted to, that fact, and by whom excepted to, whether plaintiff or defendant, shall be stated by the court on the margin against such instructions or part of the charge.” The opinion in the.cited case is mainly based on this section. It was thought that the statute recognized a distinction “between instructions ashed and refused and the charge of the court.” The section above quoted has been omitted from the Code, and it is provided therein: “ If the giving or refusal (of instructions) be exeeptéd to, the same may be without any stated reason therefor; and all instructions demanded must be filed, and shall become a part of the record.” Code, § 2787. In so far as exceptions to instructions are concerned, if taken at the time, it will bcobserved that there is not now any difference between those asked and the charge of the court. If each paragraph of the charge is excepted to, it is sufficient. In Mann v. The S. C. & P. R. Co., 46 Iowa, 637, it was held that an exception was sufficient which was expressed in these words: “And to the giving by the court of said instructions, numbers two to fourteen inclusive, and to the giving of each, the defendant excepted.” See also Sherwood v. Snow, Foote & Co., 46 Iowa, 481. The exceptions under our present statute are sufficiently specific.

II. The defendant pleaded, First, A general denial; Second, Contributory negligence of the plaintiff; and, Third, A release of the damages sustained. To the latter the plaintiff replied that the release had been obtained by fraud. In stating the issues, the court said to the jury that the defendant.had so pleaded, and instructed as follows: “You are instructed, as to all the material allegations of the petition, that the burden of proof is on the plaintiff, and, before you are warranted in entering a verdict in his favor in any amount, he must satisfy you by a preponderance of evidence of the truth of such allegations. But, as to material affirmative allegations aud defenses of the answer, the burden of proof devolves upon the defendant, and they must be established by a preponderance of the evidence.” No instruction other than this was given in relation to which party had the burden to establish that there was or was not contributory negligeuce. The defendant unnecessarily pleaded that the plaintiff was guilty of contributory negligence, yet it was pleaded as an affirmative defense, and, under the issues as stated by the court, the jury must have understood, we think, that the burden was on the de- ■ fendant to establish such issue. In this there is error. The rule on this subject, in this state, is so well understood, and has been so repeatedly declared, that it is not deemed necessary to cite the decisions in which it has been so held.

The release was pleaded as an affirmative defense, and the jury were instructed that the burden to establish it was on the defendant, although the execution of the written release had not been denied, and the plaintiff pleaded matter which, if true, avoided it. In this respect, also, the instruction is erroneous. It is true that in another instruction the jury were informed that as to the release they must find for the defendant, unless the plaintiff had established that it had been procured by fraud. We are not prepared to say that this cured the error. The most that can be said is that the instructions are contradictory, and it is impossible to tell which the jury followed, Hoben v. The B. & M. R. R. Co., 20 Iowa, 562; The State v. Hartzell, 58 Id., 520.

III. There w'as evidence tending to show that the plaintiff was a minor, and that he executed the release in consideration of forty dollars paid him by the defendant, , , , , , ,1 . , . and that lie did not have the money so paid m , pjs possession or under liis control. The court, v ’ substance, instructed the jury that the plaintyj could not recover unless he tendered to the defendant such money, if he had it. under his control. This instruction, it is said, does not require the plaintiff to make the tender unless he had under his control the identical money received by him; and we think this is so. It is provided by statute that a minor is bound by his contracts, unless he disaffirms the contract “ and restores to the other party all money or property received by him by virtue of his contract, and remaining within his control at any time after he lias attained his majority.” Code, § 2238.

The contention of the appellant is that the words, “remaining under his control,” should be construed as referring alone to property, the argument being that money is the representative of the value of all property, and that the same amount of money is and must be the equivalent of the money received by the plaintiff, and therefore it is not necessary that the plaintiff should have under his control and tender the particular coin or bill which he had received. The argument concedes that the identical property must be tendered, and in Jenkins v. Jenkins, 12 Iowa, 195, it is said: “It is not shown or pretended that he had remaining under his control at any time after attaining his majority any money or property received by him by virtue of the contract, and it is only such money or property as may thus remain that he is bound to restore.” We are unable to say whether it was money or property which was received in that case. It is assumed that it was one or the other, and it is clearly held that it makes no difference which; and under the statute it is difficult to say that one rule applies when money is received, and a different rule when property is received. No such distinction is made by statute. We therefore cannot make one by construction, when there is not the slightest ambiguity in the statute. Besides this, we are bound by the case above cited.

IY. There was evidence tending to show that after the accident the plaintiff said that he alone was to blame, and the court instructed the jury as follows: “The verbal admissions of parties are to be received with caution; and, if you believe from the evidence that certain verbal admissions alleged to have been made by plaintiff immediately after the accident were made, and that he was at the time of making the same agitated and nervous, and suffering great pain, this rule of law is particularly applicable to the verbal admissions so made. The memory of witnesses may be defective; certain words may be added or omitted, with no wrong intent on the part of witnesses, which admission or omission may give a wholly different meaning from what was contained in the words actually used.”

This instruction is objected to because it contains no direction as to what the rule would be if the admission wras deliberately made and understood at the time. Under the evidence, the jury might have so concluded, and the defendant was entitled to an instruction as to the effect of such a finding. The second instruction is said be erroneous because it assumes that certain facts have been established. In this we do not concur.

Reversed.  