Opinion
No. 13,623.
Decided March 9, 1936. Rehearing denied April 6, 1936.
Action for damages for fraud and deceit. Judgment for defendant.
Reversed.
1. APPEAL AND ERROR — Fact Issues — Conflicting Evidence. Where issues of fact are involved and the evidence conflicting, it is error for the trial judge to take the case from the jury and render judgment according to his views of the presented facts.
Error to the District Court of the City and County of Denver, Hon. Robert W. Steele, Judge.
Mr. J. W. KELLEY, for plaintiff in error.
Mr. ERNEST MORRIS, Mr. C. E. WAMPLER, for defendant in error.
THE plaintiff Barr in her complaint charges that she held a second trust deed on certain real property. The defendant's attorney came to her home when she was sick and falsely told her that he had a deal by which he was to get the first trust deed paid off and also her second trust deed paid. Believing such statements to be true, the plaintiff says that she signed a release of her second trust deed. At the close of the evidence produced by the plaintiff Barr the trial court denied defendant's motion for a directed verdict in his favor. Presumably this was a ruling that the plaintiff had made a case sufficient to carry it to the jury and was not so defective as to be subject to dismissal for insufficient evidence, as the trial court thereafter ruled. Defendant Aarons thereupon introduced evidence in his own behalf which directly contradicted the evidence of the plaintiff. The trial court, on the evidence thus produced, took the case from the jury and gave judgment for the defendant Aarons. This was done, as the trial judge stated, largely upon the statement of defendant's former attorney as to the facts. The record as a whole sufficiently discloses that the evidence was in direct conflict, hence the trial court was in error in its ruling. The matter should have been submitted to the jury.
The judgment is accordingly reversed and the cause remanded for further proceedings in harmony herewith.