Corner v. Pendleton , 8 Md. 337 ( 1855 )

Tuck, J.,

delivered the opinion of this court.

We are of opinion that the point made by the first exception, as to the admissiblencss of the collection book offered by the plaintiffs, was properly ruled against them. The failure on the part of their clerk to enter collections in the book was wholly irrelevant to the issue in the cause, which was whether Rogers had lost the plaintiffs’ money at play with the defendant. The offer concedes the necessity of proving that he had collected money of the plaintiffs’ before the book could be used. Of what avail then the omission to enter the sums collected could be after its receipt by the clerk had been proved, we are at a loss to conjecture. But suppose it had appeared by the book that these sums were entered, would that have affected the plaintiffs’ case? Certainly not. He might still have recovered if he had traced the money to the defendant’s possession. In either aspect, the effect of producing the book would be the same, and not tending to prove the issue it was well rejected.

The second exception embraces four prayers offered by the plaintiffs, all of which were rejected. The reason assigned here for the refusal of the first of these prayers is, that there was no evidence legally sufficient to warrant the jury in finding, that Rogers lost the plaintiffs’ money with the defendant. If this proposition be maintained, the defendant’s first prayer in the third exception was properly granted.

In many cases it is very difficult to define the line which separates the province of the jury, in deciding facts, from the power of the court to withdraw the case from their consideration altogether, on the assumption, that the evidence, if believed by the jury, is not legally sufficient to prove the issue sought to be established. If the right to recover depends on several distinct propositions of fact and the party fails in either, it is a case of total failure, in the language of the law; and this may occur, not only where there is no evidence whatever as to one or more of the propositions, but where it is so slight and inconclusive that no rational, well constructed mind, can infer from it the fact which it is offered to establish, (Cole vs. Hebb, 7 G. & J., 20,) and the jury would be left to draw deductions from wild speculation and conjccture. Ibid., 95, Farmers Bank vs. Duvall. Considering that juries are designed for the trial of issues of fact, it would perhaps have been safer if courts had contented themselves with interfering only in those cases where there was an absolute want of evidence as to all or any one of the propositions necessary to be proved, leaving to the jurors the right to decide in all cases where any evidence was offered tending to prove the matters in dispute. The court’s control over verdicts by the power to grant new trials, would, we think, be. a sufficient security against abuse of authority by the jurors. But as we find this to be the established law in this State and elsewhere, substituting in such instances the judgment of the court for that of the jury, it is our duty to apply it in the present case, unless the record shows that the evidence offered leads to the conclusion, as matter of fact, that the money collected by Rogers passed to the possession of Pendleton, at his gaming-table.

That Rogers collected money for the plaintiffs during the time that he was in the habit of visiting the defendant’s rooms there can be no doubt, but that this money was lost there is not apparant. If it had been proved that during this period of time Rogers had no other money from any source, the inference would be reasonable, that this money only could have been gambled by him. But the evidence does not go to that extent. It shows that ((he possessed no means whatever and that he had not one cent,” without defining the time to which this statement of his condition was intended to apply. The inference is not reasonable that the witness was speaking of the whole lifetime of this young man. He was employed in the commercial house of these plaintiffs, discharging, among others, the responsible duty of collecting large sums of money. We cannot presume that he was doing this for nothing, or that he had no credit by which he could obtain money. The case goes upon the ground that the clerk embezzled from his employers; and a verdict for the plaintiffs could have been rendered on no other hypothesis. This it was sought to establish by inferring, that contrary to his duty, the sums collected had not been accounted for, and superadded to this, by another inference, that because he had, during these periods, played at faro with the defendant, therefore he lost this money and none other. The identity of the money lost with the funds collected was the fact to be proved. Depending upon circumstantial evidence, and involving moral delinquency, not to say criminal offence, by the clerk, we think the inference should be so strong as to exclude the presumption that he obtained the money elsewhere. “ Slight presumptions, although sufficient to excite suspicion or produce an impression in favor of the truth of the facts they indicate, do not, when taken singly, either amount to proof, or shift the burden of proof.” Best on Presumptions, 41. 47 Law Lib., 45. And where a number concur, they should be so strong as to satisfy the jury of the existence of the fact they are offered to establish. 5 G. & J., 304. They must furnish more than a probability of the fact. .Moreover, this is a case of conflicting presumptions, where the inference claimed by the plaintifls, that the money lost by Rogers belonged to them, is met by the principle, that innocence is presumed until guilt is proved. In Rex vs. Inhabitants of Twyning, 2 Barn. & Ald., 386, a point of legitimacy arose, depending on the question, whether the mother, whose first husband had left the county twelve months before, was a widow when she married the father of the children, and it was held that the second marriage should be presumed to be valid. The court said, u this is a case of conflicting presumptions, and the question is, which is to prevail? The law presumes the continuance of life for seven years; but it also presumes against the commission of crime, and that even in civil eases, until the contrary be proved. If the female had been indicted for bigamy, the evidence would clearly not bo sufficient.” Best on Presumptions, 59. 47 Law Lib.,54. We suppose that if Rogers had been tried for embezzling these funds, no conviction could have been had on these inferences, when set up against the presumption that he had paid over the money collected, as it was his duty to have done.

Cases of this kind sometimes depend on the authority of decisions on similar facts. And in this view, we think the ruling of the court is sustained by the case of Jones vs. Mechanics Bank, 8 Gill, 123, where the circumstances were very strong to show that Perry had improperly obtained the plaintiff’s money and deposited that very money in the bank. But, the court held that there was a failure of evidence on this point. In some respects the inference was sustained by facts, about which there could be no dispute, stronger than those presented by the record before us, but the identity of the bank notes drawn by Jones with those deposited by Perry, was not made out by testimony legally sufficient for that purpose.

The case of Mechanics Bank vs. Cook, referred to in the argument of the appellants’ counsel, if in conflict with Jones vs. The Mechanics Bank, 8 Gill, 123, must yield to its authority, as the judgment of the court of last resort.

As this view of the case shows the plaintiffs had no standing in court, the other prayers, based upon the matters offered in defence, need not be considered and passed upon by us.

Judgment affirmed.