210 Pa. 456 | Pa. | 1904
Opinion by
This action is based upon a beneficiary certificate issued to the father of Mary G. Dinan, one of the appellants, and in her favor, by the appellee, a mutual beneficial association. The re
The application of appellant’s father for membership was acted upon by appellee July 2,1891, and his initiation in pursuance thereof took place in the following August. Prima facie the beneficiary certificate established that the age of the applicant at the time of the application was forty-eight years and further proof was not upon appellants to show affirmatively that such was the fact.
Such the ease appellee, the defendant below, undertook to show that at the date of his application and initiation, the decedent was upwards of fifty years of age and, therefore, under the requirements of the association not entitled to membership and the certificate therefor. In support of this contention the appellee called the priest of St. Paul’s cathedral, who produced the record of that church showing the marriage of one Charles Coll and Ann Quinn, on date of September 28, 1855, and that the marriage was performed by the Rev. Thomas Malone. James White, a witness called on behalf of the appellee to identify the parties represented in the church register as then married, was asked whether he knew Charles Coll and whether this Charles Coll thus married was the father of the appellant and he stated that he thought so to the best of his
A brother of appellant’s father, a witness produced on behalf of the appellee, testified that he was born in 1841 and that his brother Charles was older. Upon cross-examination he was asked: “ Q. So at the second trial preceding this you were uncertain as to whether Hugh was older than Charles or not? At the trial immediately preceding you were absolutely certain, but at the second trial preceding this you were uncertain as you now are, whether Hugh was older or younger than Charles ? At the trial immediately preceding, you were positive that Hugh was younger than Charles ? ” And his answer was: “ Well it was my impression at the time that he was. That was a long time ago.” With the inconsistencies of his answer and with the uncertainty as to exactness of his memory, his credibility also became a question for the determination of the jury. The appellee undertook to establish affirmatively that the apellant’s father was over fifty years of age when he made his ap
In the case of Holland v. Kindregan, 155 Pa. 156, it was said in a per curiam: “ It does not follow that because the evidence on one side may be overwhelming in the opinion of the trial judge, that the case can be withdrawn from the jury. If there is a conflict of evidence it must go to the jury, unless the evidence on one side amount but to a scintilla.”
In the case of Corcoran v. Mutual Life Insurance Company, 183 Pa. 443, Mr. Justice Williams says: “The rule that separates the province of the court from that of the jury is pretty well defined. If the evidence is direct, certain, presenting no question of credibility, and leaving no sufficient ground for inconsistent inferences of fact, the court .may be asked to instruct the jury as to its legal effect. But if it is uncertain, if it depends on the credibility of witnesses and if there is room for drawing from it different inferences of fact, it must go to the jury. They must clear up the doubts, settle questions of credibility, draw the correct inferences and give final shape to the findings of fact.”
In the case of Howard Express Company v. Wile, 64 Pa. 201, Mr. Justice Sharswood says: “If a verdict is contrary to the charge of the court on a question of law it must be set aside whether it be second or the second hundredth. Where evidence on both sides is to be weighed, so as to determine on which side the scales incline, the jury is the appropriate tribunal: ” Grabs v. Lynch, 20 W. N. C. 376; Harlow & Co. v. Homestead Bor. 194 Pa. 57.
It may well be in a case that the weight of the evidence may be sufficient to justify a trial judge in setting aside successive verdicts yet it does not follow that he is warranted in taking from the jury in the first instance the determination of a question of fact depending upon the credibility of witnesses.
The first and' second assignments of error are sustained, the judgment is reversed and a venire de novo is awarded. „