Berkowitz v. Palruba Mfg. Co. , 68 Pa. Super. 559 ( 1917 )

Opinion by

Kebi-iart, J.,

We said in Robinson v. Wallace, 65 Pa. Superior Ct. 54, that when a case is tried by a judge of the Municipal Court of Philadelphia without a jury, “and the plaintiff’s case depends upon oral testimony, and no requests are presented for findings of fact or conclusions of law, a general finding for the defendant, if it is responsive to the issue presented by the pleadings has the force of the general verdict of a jury; and if the court subsequently mates an order dismissing plaintiff’s motion for judgment non obstante veredicto, the appellate court will not reverse such order in the absence of anything in the record to show that the finding of the trial judge was capricious”: (Herring v. Weinroth, 61 Pa. Superior Ct. 529). A jury is not at liberty to indulge in a capricious disbelief of testimony, and where a judge tries a case without a jury, he will not be permitted to indulge in an unwarranted disbelief of testimony which is not in itself improbable, or is not at variance with any proof or admitted facts, or with ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting: Lonzer v. Lehigh Val. R. R. Co., 196 Pa. 610; Macneir v. Wallace, 252 Pa. 323; Walters v. American Bridge Co., 234 Pa. 7.

The appellant is the claimant of property in an inter-pleader proceeding. He purchased the goods at a constable’s sale. There is no evidence attaching the validity of the debt, the regularity of the sale, or the method of conducting it. So far as this record shows, the sale was in all respects legal. The mere fact that the purchaser was a son of the defendant named in the execution would not be ground for holding that he bought with his father’s money. There is nothing remarkable about his statement that he preferred to buy the property rather than advance money to pay off his father’s debts. The price paid for the goods was fair considering the fact that it was a forced sale. There was nothing done to prevent any one from bidding higher if he wished to. The claimant showed that the money used represented his earnings as a clerk; that since the date of the purchase he conducted the business in- his own name. That his father helped him is immaterial. In short, the uncontradicted evidence was not improbable in itself, nor at variance with any proven or admitted facts, or contrary to the ordinary experience. There was no reasonable ground to doubt the candor of the witness who testified. The judge should not have indulged in an unwarranted disbelief. The second assignment of error is sustained.

The judgment is reversed and the record is remitted to the court below with instructions to enter judgment non obstante veredicto.