
    No. 152762
    Municipal Suffolk, ss.
    RINGER v. MANOOKIAN, ALIAS
    (Bernard Berman) (Dwight L. Allison)
    From the Municipal Court of Boston Donovan, J.)
    Argued December 1, 1941
    Opinion Filed December 11, 1941
   RILEY, J. (Carr, & Tomasello, JJ.)

This is an action of tort in which the plaintiff seeks to recover damages for injuries which she alleges she sustained as a result of the defendant’s attempt to rape her. The answer consists of a general denial. The trial judge found for the plaintiff.

At the proper time and in accordance with proper practice, the defendant filed requests for rulings of law, three in number. The trial judge denied «'quests numbered 1 and 2, and allowed that numbered 3. The defendant claims to be aggrieved by the denial of requests numbered 1 and 2, and brings this report.

Request No. 1 reads, “The plaintiff has not proved her case by a fair preponderence of the evidence.”

“Preponderance of evidence” in civil cases must be preponderance of credible testimony, not balance of probabilities. Callahan v. Fleischman Company, 262 Mass. 437.

The report contains a detailed recital of the evidence material to the question reported, and no useful purpose would be served by reciting such evidence verbatim in this opinion. Suffice ¡to state, however, that such evidence was contradictory and that what part was to be believed and what part disbelieved was to be determined by the trial judge who observed the witnesses and heard them testify.

Request No. 2 reads “If the evidence is as consistent with the non-commission of an assault as it is with its commission, the defendant is entitled to a finding in his favor."

While this request resembles the situation discussed in De-Filippo’s Case, 284 Mass. 531, the type of evidence therein differs from the type of evidence in the instant case, so as to make the cases readily distinguishable. “The weight or ponderante of evidence is its power to convince the tribunal which has the determination of the fact, of the actual truth of the proposition to be proved. After the evidence has been weighed, that proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may linger there.” Sargent v. Massachusetts Accident Company, 307 Mass. 246 at 250.

That the trial judge was mindful of his duty is made plain by the finding of fact appended to his denial of request numbered 2, in these words, “I find the evidence is not as consistent with the non-commission of an assault as it is with its commission."

There was no error. Report dismissed.  