Moyer v. Justis

Pattison, J., delivered the opinion of the Court. This is an appeal brought by the appellee against the ap pellant to recover from him four thousand four hundred' and two dollars and eighty-four cents ($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 raling 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 d'ay of April, 1905, entrusted to the care of the defendant the sum of $4,402184 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 this proposition was stated. ²²² The law upon the question involved in this appeal is now well established in this State. “It is the duty of the Oourt 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 . “A prayer seeking to take the ease 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, page 317, sec. 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 diawn as opposed to the theory of such a prayer. Before such prayer can be granted, the Oourt must assume the 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.” M’Elderry v. Flannagan, 1 H. & G. 308 ; Leopard v. Ches. & Ohio Canal Co., 1 G. 222; Jones v. Jones, 45 Md. 154 ; Mallette v. British Ass.

Co., 91 Md. 481 . • 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 four per cent.; that the defendant, Dr. Moyer, her friend and medical adviser, urged her to send for it, saying that he would ²²³ give her better interest, eight, ten or twelve per cent.; she sent for it and on the 29th day of April, 1905, paid over to him the sum of four thousand four hundred' and two dollars and eighty-four cents, and he gave to her a receipt therefor, which reads as follows: “Baltimore, April 29th, 1905. Received of Mrs. Elizabeth T. Justis Eorty Eour Hundred and Two 84/100 Dollars, for investment. $4402.84/100. Erank G. Moyer.” The defendant thereafter paid the interest to the plaintiff upon the amount so received by him to the first of the year nineteen hundred and seven. The plaintiff several times called upon the defendant for the payment of this money, the last time being in August, 1907, at which time the defendant gave to