Nanty-Glo Boro. v. American Surety Co.

Opinion by

Mr. Justice Drew,

Benjamin A. Estep was tax collector for plaintiff, the Borough of Nanty-Glo, Cambria County, for the year 1922, and defendant American Surety Company of New York was surety on his official bond. The report of the borough auditors, completed June 21, 1923, disclosed that he was short in his accounts to the extent of $4,-743.09. Before suit was brought, he reduced this shortage to $3,327.73, for which amount this action in assumpsit was entered against the surety company. Estep was later joined as a party defendant. At the conclusion of the testimony the learned trial judge granted plaintiff’s motion for binding instructions and directed a verdict for plaintiff; from the entry of judgment on the verdict, the surety company appealed.

At the trial, plaintiff produced testimony which, if believed, was sufficient to establish that the loss suffered was of the sort insured against, namely, dishonesty on the part of the tax collector, and that notice of the loss was sent to appellant within ten days after its discovery, as required by the bond. Estep testified

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lie bad used for bis own purposes tbe money wbicb be bad collected but failed to turn over. Carlisle, clerk of tbe borough council and one of tbe auditors, testified that tbe shortage in Estep’s accounts was first called to tbe attention of tbe council at its first meeting after tbe completion of tbe audit, and that be bad, at tbe direction of tbe council, sent a copy of tbe audit to appellant four days thereafter, together with a letter calling attention to tbe loss. Appellant offered no' evidence tending to contradict tbe testimony of these two witnesses. However, appellant contends that tbe court below erred in refusing its motion for a new trial, inasmuch as tbe trial judge, in directing a verdict for plaintiff, took from tbe jury tbe opportunity of passing upon tbe truth of this oral testimony setting forth matters essential to plaintiff’s recovery.

We are of opinion that appellant is clearly right in its contention, and that a new trial must be bad. In granting plaintiff’s motion for binding instructions, tbe trial judge assumed tbe testimony of Carlisle and Estep to be true. This be bad no right to do, even though it was uncontradicted. In tbe words of Justice Shabswood, “However clear and indisputable may be tbe proof when it depends on oral testimony, it is nevertheless tbe province of tbe jury to decide, under instructions from, tbe court, as to tbe law applicable to tbe facts, and subject to tbe salutary power of tbe court to award a new trial if they should deem tbe verdict contrary to tbe weight of tbe evidence”: Reel v. Elder, 62 Pa. 308 . This rule is firmly established: Second National Bank v. Hoffman, 229 Pa. 429 ; Newman v. Romanelli, 244 Pa. 147 ; McGlinn Distilling Co. v. Dervin, 260 Pa. 414 ; see Phila. v. Ray, 266 Pa. 345 . Tbe credibility of these witnesses, without whose testimony plaintiff could not have recovered, was for tbe jury, and plaintiff’s motion for binding instructions should not have been granted.

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As the court below clearly erred in this respect, the judgment must be reversed. Since the case must be tried again, it is not necessary for us to pass upon the other questions urged on this appeal.

Judgment reversed and a venire facias de novo awarded.