Pollak v. Meyer

242 So. 2d 796, 1971 Fla. App. LEXIS 5505

• Court: District Court of Appeal of Florida
• Decided: January 5, 1971
• Docket: No. 70-428
• Status: Published

Opinion

PER CURIAM.

This is an appeal from a final judgment entered pursuant to a directed verdict at the close of all evidence in favor of defendant-appellee Meyer, an executrix, in a jury trial. Plaintiff filed a complaint alleging a loan by him of $1,000.00 in cash to defendant’s decedent on August 24, 1968, which was still due and owing; defendant answered by a general denial, and did not raise the affirmative defense of payment; see Rule 1.110(d), Florida Rules of Civil Procedure, 30 F.S.A.

A disinterested witness to the transaction testified that defendant’s decedent asked for and received $1,000.00 in cash from the plaintiff, that this was a loan, and that the decedent died four days later. Plaintiff testified that he was present at that time and place, but shortly after the loan he entered the hospital. The plaintiff rested, and the defendant offered no evidence.

The issues on appeal are: Did plaintiff present a prima facie case? Did the court err in deciding that a presumption of payment arose? We hold that the plaintiff did present a prima facie case and that the lower court erred in deciding that a presumption of payment arose. Accordingly, we reverse.

Reversed.