Hanzel v. Searl

MIDDLETON, PJ.

There is some discussion in this case regarding positive evidence and negative evidence. Negative evidence, as we understand the term, is nothing more than evidence tending to prove the non-existence of . a fact supported by positive evidence.

In the instant case there is no positive evidence of the fact claimed by the plaintiff, namely, that he loaned.the decedent, W. J. Burke, five, thousand dollars. The only evidence before the court reflecting upon the truth of this claim is circumstantial evidence, and the circumstances in evidence are that on May 16, 1927, the plaintiff in error delivered to Burke his check for five thousand dollars, which check Burke in turn endorsed to the Vulcan Last Company, which company credited Burke’s account with that amount. There are some other circumstánces in evidence which might be considered in a remote way to be consistent with the claim that this was a loan. The difficulty with this case is not in the failure of the evidence to establish that it was not a loan but in the complete failure to establish that it was a loan. It was observed by the court during the- submission of the case that the judgment of the lower court was protected by the same rules which apply to the verdict of a jury, and there is certainly nothing in the record which would justify a reviewing court in holding that the judgment of the lower court was against the manifest weight of the evidence. Such a situation could not be when the record fails to disclose any evidence to establish the claim that the check was given to Burke as a loan.

The judgment is affirmed.

Mauck and Blosser, JJ., concur.