Costello v. Long ( 1915 )

Opinion by

Kephart, J.,

As we stated in Herring Brothers v. Weinroth, 61 Pa. 529, in an opinion recently handed down, “the disposition of questions of fact arising from testimony would have the same effect and should be treated in the same manner as though the evidence had been submitted to a jury at common law. This court will not disturb.the conclusions of the judge when based on proper evidence or inferences fairly deducible from such evidence.” While this is correct, where there is a motion for judgment non obstante veredicto denied by the lower court, we will examine the testimony to determine whether there is any evidence which will sustain the finding: Duke, to use, v. North Penn Gas Company, 220 Pa. 348. For this purpose we have examined the testimony and find that there is in it sufficient, if believed by the trial judge, to warrant his conclusion. It is quite clear that one of the parties to this action is perpetrating a gross fraud. The plaintiff says she took a diamond to the defendant to be set into a ring and the defendant gave her a ring with a white sapphire setting. The defendant denied this story and says the plaintiff gave her a sapphire and he returned a sapphire. This conflict of testimony would prevent a binding direction for judgment. Our consideration of the case is therefore limited to the errors of law, if any, committed during the trial. Platt’s testimony, concerning the visit to him of the plaintiff’s husband with this diamond the day before it was taken to the defendant, and his testimony as to its value were competent as corroborating the plaintiff in that she owned a diamond and as evidence of its value. It was shown that this same stone was afterwards left with the defendant. The first and second assignments of error are overruled.

Bryson, the clerk who received this stone, testified that he made no erasure in the description book and knew of none having been made. He certainly was in no position to explain an erasure if one was made. The third assignment is dismissed.

All of the questions asked witness Bryson, as to a crime committed by him while he was employed in another jewelery store sometime before, were for the purpose of attacking his credibility. These were answered favorably by him and we do not see how the questions prejudiced the defendant’s case. When he denied that he had been' arrested, or that a warrant had been issued for his arrest, his reputation stood unimpeached on the record. It was not competent for the defendant to offer evidence of his general reputation for truthfulness. Even if it may be said that the witness was incidentally charged with the commission of an offense through the questions asked, that suggestion cannot be rebutted by proof of general character. Had his credibility been assailed directly by the plaintiff by evidence as to his reputation for truthfulness, the testimony offered would have been admissible. “Evidence in support of the general character of witnesses, is not competent until their general character has been assailed. Every witness puts Ms character in issue; but until evidence tending directly to impeach it is produced, the law presumes it to be good, and therefore testimony to prove it good is superfluous” : Wertz v. May, 21 Pa. 274.

Assignments nine to twelve are without merit. Dank-worth stated that he did not keep the description book, and on the morning following the day when the diamond was taken to the store he did not see the book or personally receive the article from the defendant.

Even if this woman understood the English language the statement of Thompson was properly rejected. It does not appear that her attention was attracted to what was being said, as she was just going out the door when the remark was made; but the remark was already in evidence. Cohen, who made it, and Bryson, who heard it, had testified to it and this evidence would be merely cumulative. After careful consideration of the entire record we do not feel disposed to substitute our judgment for that of the judge who heard the evidence.

All of the assignments of error are overruled, and the judgment is affirmed.