Moyer v. Justis

• Decision Date: 14 January 1910
• Parties: MOYER v. JUSTIS.
• Court: Maryland Court of Appeals

76 A. 496

112 Md. 220

MOYER

v. JUSTIS.

Court of Appeals of Maryland.

Jan. 14, 1910.

Appeal from Baltimore City Court; John J. Dobler, Judge.

Action by Elizabeth T. Justis against Frank G. Moyer. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and PEARCE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER, JJ.

J. Cookman Boyd, for appellant.

Harry M. Benzinger, for appellee.

PATTISON, J. This is an appeal brought by the appellee against the appellant to recover from him $4,402.84 that was paid by the plaintiff to the defendant to be invested by him and which she alleges he never invested and which he never returned to her. The case was tried by a jury, and at the conclusion of the plaintiff's testimony the defendant offered a prayer in which he asked the court to instruct the jury that there was no legally sufficient evidence to entitle the plaintiff to recover in this case. The court refused the prayer, and it is from this ruling alone that this appeal is taken. Other prayers were granted both to the plaintiff and defendant, but as the correctness of the rulings upon them is conceded, it is unnecessary, for the purposes of this appeal, to set out in this opinion more than the first prayer of the plaintiff, which was granted by the court. By this prayer of the plaintiff, the court instructed the jury, "If they shall believe from the evidence in this case that the plaintiff on the 29th day of April, 1905, intrusted to the care of the defendant the sum of $1,402.84 for investment, and that the defendant failed to invest said money and has not repaid the same to the plaintiff, then their verdict must be for the plaintiff." The court also granted the defendant a prayer in which the converse of the proposition was stated. The law upon the question involved in this appeal is now well established in this state.

"It is the duty of the court to decide, as a preliminary legal question, whether there be any evidence legally sufficient to be considered by the jury; and the criterion for the determination of that question is whether the evidence is of sufficient probative force to enable an ordinary intelligent mind to draw a rational conclusion therefrom, in support of the proposition sought to be maintained by it." Baltimore Elevator Co. v. Neal, 65 Md. 459, 5 Atl. 315.

"A prayer seeking to take the case away from the jury, on the alleged ground of total failure of evidence to support the plaintiff's case, will not be granted, if there is any evidence, however slight, legally sufficient as tending to prove it—that is to say, competent, pertinent, and coming from a legal source—but the weight and value of such evidence will be left to the jury." Poe's Practice, p. 317, § 295.

A case should not be taken from the jury upon a prayer that there is no sufficient evidence to justify the finding for the adverse party, "if there be any evidence from which a rational conclusion may be drawn as opposed to the theory of such a prayer. Before such prayer can be granted, the court must assume tbe truth of all the evidence before the jury tending to sustain the claim or defense, as the case may be, and of all inferences of fact fairly deducible from it * * *: and this though such evidence be contradicted in every particular by the opposing evidence in the cause." McElderry v. Flannagan, 1 Har. & G. 308; Leopard v. Ches. & Ohio Canal Co., 1 Gill, 222; Jones v. Jones, 45 Md. 144; Mallette v. British Assn. Co., 91 Md. 481, 46 Atl. 1005.

The facts in this case, as disclosed by the testimony of the only witness, Elizabeth T. Justis, the plaintiff, are these: That prior to the 29th day of April, 1905, the plaintiff had money invested in a trust company in Providence, R. I., where she was receiving interest thereon at the rate of 4 per cent.; that the defendant, Dr. Moyer, her friend and medical adviser, urged her to send for it, saying that he would give her better interest, 8, 10, or 12 per cent.; she sent for it, and on the 29th day of April, 1905, paid over to him the sum of $4,402.84, and he gave to her a receipt therefor, which reads as follows: "Baltimore, April 29th, 1905. Received of Mrs. Elizabeth T. Justis forty-four hundred and two 84/100 dollars, for investment. $4,402.84/100. Frank G. Moyer." The defendant thereafter paid the Interest to the plaintiff upon the amount so received by him to the first of the year 1907. The plaintiff several times called upon the defendant for the payment of this money, the last time being in August, 1907, at...