Nanty-Glo Boro. v. American Surety Co. , 309 Pa. 236 ( 1932 )

I dissent from the rule laid down in this case which amounts to this: That where witnesses have testified to facts and their testimony is uncontradicted and unimpeached, the case must be submitted to the jury, with the privilege to them to disregard the testimony and find a verdict counter to it. I think the rule should be to the contrary, that a jury may not be permitted to disregard evidence given by witnesses whose credibility is not attacked where there is nothing before them to discredit it. Under such circumstances, and in the case in hand, I think binding instructions are proper. What was said in Second National Bank v. Hoffman, 229 Pa. 429, was greatly modified when the case came up again on appeal: Second National Bank v. Hoffman, 233 Pa. 390.

The rule relied upon by the majority, based upon the cases cited, has behind it the idea that there is clairvoyance in twelve minds when they sit in a jury box, which enables them to know whether a witness is telling the truth or not. I can no more credit such a gift than I could that of fortune telling. I do not believe that when twelve heads are put together they radiate a power of divination in this respect superior to that in each individual cranium. In the instant case the defaulter admitted his embezzlement. A jury is to be permitted to say that he is not truthful in so stating, although he is a party defendant. The clerk of council says he notified the surety within the time notice was required to be given. No witness says that he did not. In the ordinary affairs of life such statements unchallenged would pass for verity. In my opinion, they should in court. If the case had gone to the jury and they found a verdict for the defendant in the face of this testimony, the court would have been compelled to set such a verdict aside, since there would be no evidence to support it. "A judge . . . . . . may direct a verdict for failure of the evidence, or where the evidence is contrary to all reasonable probabilities, or where it is uncontroverted. Likewise, a directed verdict is proper where it is plain that a contrary verdict cannot be allowed to stand": 16 R. C. L. 185. "That a verdict may also be directed for the proponent is accepted by the majority of courts. . . . . . The usual situation is that of a plaintiff who has produced a mass of evidence sufficient to throw upon the defendant the liability of producing some evidence to the contrary, and if this duty is not sustained, it is the judge's function to make the decision. The only objection here can be that the judge must not reach his decision by assuming the plaintiff's testimony to be true (because that is the jury's province); yet where the testimony is undisputed, . . . . . . this objection disappears": 5 Wigmore on Evidence, 2d edition, page 461. "Where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury": Gunning v. Cooley, 281 U.S. 90, 94.

I would affirm the action of the trial judge in giving binding instructions for plaintiff.