Alexander v. Tingle

• Decision Date: 16 March 1943
• Docket Number: 39.
• Citation: 30 A.2d 737,181 Md. 464
• Parties: ALEXANDER, Acting Insurance Commissioner of Pennsylvanla, v. TINGLE.
• Court: Maryland Court of Appeals

30 A.2d 737

181 Md. 464

ALEXANDER, Acting Insurance Commissioner of Pennsylvanla, v. TINGLE.

No. 39.

Court of Appeals of Maryland

March 16, 1943

Appeal from Circuit Court, Wicomico County; James M. Crockett and T Sangston Insley, Judges.

Action by Ralph H. Alexander, as Acting Insurance Commissioner of the Commonwealth of Pennsylvania, Statutory Liquidator of the Keystone Indemnity Exchange, dissolved, against Leamon G Tingle to enforce an assessment against defendant as a subscriber of the exchange. Plaintiff's prayer for instructed verdict was rejected, verdict was for defendant and plaintiff's motion for judgment non obstante veredicto was overruled. From a judgment for defendant plaintiff appeals.

Affirmed.

Wesley E. Thawley, of Denton (Ralph P. Dunn, of Washington, D. C., on the brief), for appellant.

Ernest C. Clark, of Salisbury (Miles, Bailey & Clark, of Salisbury on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, MELVIN, and ADAMS, JJ.

ADAMS Judge.

This is an action at law brought by the appellant (plaintiff below) as Statutory Liquidator of the Keystone Indemnity Exchange, which was a reciprocal insurance exchange of the State of Pennsylvania engaged in the business of writing automobile damage and liability insurance. The defendant, a resident of Wicomico County, Maryland, was alleged to have had issued to him by said Exchange during the period between April 9, 1929, and May 18, 1933, nine policies of insurance, the annual deposit premiums whereof aggregated $410.30.

On May 18, 1933, the Court of Common Pleas of Dauphin County, Pennsylvania, ordered the liquidation of Keystone Indemnity Exchange and on September 12, 1938, decreed that the subscribers to the Exchange to whom policies had been issued between April 9, 1929, and May 18, 1933, should pay an assessment equal to one annual deposit premium on each such policy issued to them. To enforce this decree against defendant, Leamon G. Tingle, this suit was brought.

The declaration contained nine counts, each count being based on a policy alleged to have been issued to the defendant during the period between April 9, 1929, and May 18, 1933. Defendant filed general issue pleas 'never promised as alleged' and 'never was indebted as alleged' and plaintiff joined issue thereon.

A jury trial was had and plaintiff offered evidence tending to prove the issuance to the defendant of the nine policies referred to in the declaration and the amount of annual deposit premium on each of the nine policies. Proof was by the production of underwriting records of the Exchange as to each of the nine policies in question. Defendant did not deny that the nine policies were issued to him, his testimony being that he did not remember about the particular policies, that he could not remember the details, that he had some policies, but when he got a new policy he destroyed the old one.

At the close of the testimony plaintiff offered a prayer for an instructed verdict in his favor, in the following form:

'Plaintiff's 1st Prayer.

'The Plaintiff prays the Court to instruct the jury that the plaintiff has met the burden of proof in this case and has proven his case by a preponderance of evidence, and the jury are further instructed that the defendant has offered no evidence sufficient in law to entitle the defendant to a verdict and that the verdict of the jury must, therefore, be for the plaintiff. (Rejected.)'

This prayer was rejected by the Court and the plaintiff excepted to the ruling of the Court, and the primary and controlling issue of this appeal is whether there was error in this ruling of the Court.

The jury returned a verdict in favor of the defendant, and plaintiff thereupon filed a motion for judgment N.O.V. in favor of the plaintiff, which motion was overruled by the Court, to which action of the Court plaintiff noted an exception.

Trial Rule No. 4 of the General Rules of Practice and Procedure which became effective September 1, 1941, is in part as follows:

'Rule 4. Directed Verdict

'In any proceeding tried by jury any party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues. * * *'

Prior to the adoption of the said General Rules it was well settled in Maryland that the person having the burden of proof was not entitled to have the Court grant an instruction that the burden had been met and the facts in issue established. The Court had not the authority to direct the jury that the evidence established a certain fact even though the evidence was uncontradicted and highly persuasive. The Court could not thus usurp the function of the jury to weigh the credibility of the evidence. While the language of Rule 4 is sufficiently broad to warrant the grammatical construction thereof urged by the appellant, it must be read in the light of the well established practice theretofore prevailing. So read every provision thereof could be given full effect under proper circumstances. An instructed verdict for the plaintiff on the whole case was not unknown in our practice. See

Dickson v. Tweeddale and Fowler, 114 Md. 344, 79 A. 519; (Suit on promissory note; execution and delivery of note admitted; but affirmative defenses relied on, as to which defenses there was failure of proof.)

Pearre v. Grossnickle, 139 Md. 274, 115 A. 49; (Issues from Orphans Court as to one of which defendant carried burden of proof which she failed to meet, hence Court properly instructed jury to find for plaintiff.) Frey & Son, Inc., v. Magness, 161 Md. 375, 157 A. 400; (Suit on written contract which was admitted by the defendant: no legally sufficient evidence offered to establish affirmative defenses, hence proper to instruct verdict for plaintiff on whole case.)

There are numerous authorities to the effect that 'where the burden is upon one to prove a fact, it is not for the court to say whether that burden has been met, and to withdraw a case from the jury, at the instance of him upon whom the burden rests.' Travelers Ins. Co. v. Connolly, 145 Md. 544, 125 A. 900, 905; Spence v. Bethlehem Steel Co., 173 Md. 539, 197 A. 302; Calvert Bank v. Katz & Co., 102 Md. 56, 61 A. 411; McCosker & Malloy v. Banks, 84 Md. 292, 35 A. 935.

Also, where evidence is practically uncontradicted the Court still could not withdraw the case from the jury. There is a well recognized distinction between facts uncontested or admitted and evidence that is uncontradicted. Pennsylvania Railroad Co. v. Stallings, 165 Md. 615, 170 A. 163; Smith v. Whitman, 159 Md. 478, 150 A. 856; Lemp Brewing Co. v. Mantz, 120 Md. 176, 87 A. 814; Boyd v. McCann, 10 Md. 118; Charleston Ins. Co. v. Corner, 2 Gill 410.

Published with the aforesaid General Rules which became effective September 1, 1941, are 'Explanatory Notes' which were prepared by the framers of the rules and while the 'Foreword' says that 'These Explanatory Notes are not in any sense, of course, an official construction or interpretation of the Rules. They are merely intended to inform the Bench and Bar of the purposes,...