The opinion
Lovins, Judge,
dissenting:
I disagree with the conclusions reached by the majority. I do not believe it can be gainsaid that the evidence on behalf of the plaintiff is sufficient to sustain the verdict of the jury. The reversal of the judgment was predicated upon the giving of plaintiff’s instruction No. 2, requested by the defendant in error. It clearly appears that such instruction was addressed to the issue of whether the money was delivered to L. E. Campbell as a bailment or as a gift, and counsel for the defendant below so regarded it, as appears from the objection thereto made by them. The instruction is an understatement of the law with reference to the burden imposed upon the plaintiff in error. This Court in
Harner
v. Harner, 115 W. Va. 457 , 177 S. E. 286 , laid down the rule that:
“The burden is on a son who claims the bulk of . the personal estate of his father as a gift
inter
vivos, to establish the gift by clear, unequivocal and convincing proof.”
An instruction similar to the one here, which was not binding although it embodied the same principle, was approved in the case of
Burke
v. Nutter, 79 W. Va. 743 , 91 S. E. 812 . Reference in instruction No. 2 to “the money
*23
involved” and “the money in question” does not, in my opinion, call for its rejection as error. Those terms, in my opinion, refer to the money which actually passed from A. H. Campbell to L. E. Campbell, whatever the amount may have been. It was admitted by the plaintiff in error that he received $5,000.00 from his father, and the jury under the instruction as given could have found for the plaintiff in that amount. The defendant in error had the burden of establishing the amount given by him to his son. That this burden was recognized by counsel for the father appears from the objection made to the giving of instruction No. 3, offered by the defendant, wherein counsel for defendant in error says, “Counsel for plaintiff objects to defendant’s instruction No. 3 * * *. In this case the burden of proof is on the plaintiff to establish the amount of the money and the burden of proof is on the defendant to establish that there was a gift.” The defendant in error sustained the burden establishing the amount given by him to his son, who, in turn, had the burden of showing by clear and convincing proof that the money delivered to him was a gift. The son did not clearly and convincingly prove to the satisfaction of the jury that it was a gift. The respective objections made by counsel, mentioned herein, clearly show that the case was tried on the correct theory as to the respective burdens of proof imposed by law on the litigants. Had the plaintiff in error so desired, he could have requested an instruction defining the burden of proof resting on the defendant in error as to the amount he claimed. It was not the duty of the trial court to give such instruction of its own motion.
State
v.
Alie,
82 W. Va. 601 , 96 S. E. 1011 .
In my opinion there is no error and instruction No. 2, offered on behalf of the plaintiff, states a correct principle of law. This record presents a jury question which was fairly tried and submitted to the jury under proper instructions. In my opinion, the verdict of the jury and the judgment of the court should not be disturbed and I would therefore affirm the judgment.
I am authorized to say that Judge Fox joins me in this dissent.