Argued October 4, 1932. 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 *Page 238 he had used for his own purposes the money which he had collected but failed to turn over. Carlisle, clerk of the borough council and one of the auditors, testified that the shortage in Estep's accounts was first called to the attention of the council at its first meeting after the completion of the audit, and that he had, at the direction of the council, sent a copy of the audit to appellant four days thereafter, together with a letter calling attention to the loss. Appellant offered no evidence tending to contradict the testimony of these two witnesses. However, appellant contends that the court below erred in refusing its motion for a new trial, inasmuch as the trial judge, in directing a verdict for plaintiff, took from the jury the opportunity of passing upon the 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 had. In granting plaintiff's motion for binding instructions, the trial judge assumed the testimony of Carlisle and Estep to be true. This he had no right to do, even though it was uncontradicted. In the words of Justice SHARSWOOD, "However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the 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. The credibility of these witnesses, without whose testimony plaintiff could not have recovered, was for the jury, and plaintiff's motion for binding instructions should not have been granted. *Page 239
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.