addressing marshaling instructions in a civil case
How later courts described this case
- addressing marshaling instructions in a civil case
Written by the judges who cited it.
Distinguished
Distinguished by Manley v. Janssen, 213 N.W.2d 693 (1973)
The attempt to liken this case to Bauman v. City of Waverly, supra, fails because the cases are easily distinguishable.
The opinion
GARFIELD, Chief Justice
(concurring specially).
I concur but would add to Division II of the majority opinion that, as applied to the present case, where as instruction 12 does here, the jury is told in a single instruction that a plaintiff is entitled to recover if he proves the propositions on which he has the burden and there is an affirmative defense on which defendant has the burden, the instruction must also state that plaintiff is not entitled to recover if the defense is proven.
SNELL and STUART, JJ., join in this special concurrence.