#### Wilhoit et al. v. Cundiff.

June 9, 1942.

Charles F. Montgomery and E. C. Moore for appellants.

Oliver Popplewell and Walker & Walker for appellee.

Opinion op the Court by

Judge Cammack —

Affirming.

This case involves the question of whether or not the appellee, E. L. Cundiff, former sheriff of Casey County, deposited^ $745.73 in his tax account in the now defunct Commercial Bank at Liberty on October 26, 1939. Nine members of the jury found in favor of Cundiff; hence this appeal.

Reversal is urged upon the grounds that (1) the court erred in overruling the bank liquidator’s motion to transfer the case to the equity docket; and (2) the verdict is not sustained by the evidence and is flagrantly against it and the appellant’s motion for a directed verdict should have been sustained.

The motion to transfer to the equity docket was made the day of the trial. In substance, the petition showed that Cundiff was asserting that he was entitled to a credit of $745.73 because of an entry in his deposit *100book of October 26, 1939, and that tbe F. D. I. C. and tbe bank liquidator had refused to satisfy bis claim. Tbe appellants denied tbe material allegations of tbe petition and that tbe claim was a just one. It can be seen that tbe pleadings presented no complicated issues, but rather, tbe sole question as to whether tbe alleged deposit was made as claimed. Tbe rule is that, before an action properly commenced at law can be transferred to tbe equity docket, under Subsection 4, Section 10 of tbe Civil Code of Practice, because of tbe complicated nature of tbe action, tbe pleadings must show tbe complication. Tbe right to such a transfer is determinable exclusively on tbe pleadings. Insurance Co. of North America v. Creech Drug Store, 256 Ky. 56, 75 S. W. (2d) 552, and Commercial Union Assur. Co. v. Howard, 256 Ky. 363, 76 S. W. (2d) 246. As indicated above, tbe pleadings in tbe case at bar showed no complication which would have warranted tbe transfer of the case to tbe equity docket. This brings us to the question of whether tbe appellants were entitled to a directed verdict.

That tbe case is a close one is indicated by tbe fact that only nine members of tbe jury signed tbe verdict. Tbe appellants presented an array of figures developed from analyses of tbe tax records in Cundiff’s office and tbe records in tbe bank to show that tbe claimed deposit was never made. There was also *the*testimony of tbe officer of tbe bank who said that be made tbe questioned entry in Cundiff’s passbook and that be made tbe other entries therein. This officer said that be could not recall tbe circumstances as to tbe making of tbe deposit except to say that it was not all in cash. Frankly, we are not particularly impressed with Cundiff’s testimony, because, on cross-examination, be gave several versions of bow be made tbe deposit. His story changed in several respects. Whether be was deliberately telling an untruth, or whether, finding himself confronted with tbe array of figures presented by tbe appellants and being unable to remember all of the details of tbe numerous financial transactions bandied through bis office, be was seeking to present tbe most plausible picture possible, is unknown to us; but as said in Crowe v. Miller, 239 Ky. 444, 39 S. W. (2d) 693, the fact that a witness’ evidence on cross examination is in conflict with bis direct testimony goes to bis credibility and is therefore determinable by tbe jury. See, also, Staples v. Continental Ins. Co. of New York, 223 Ky. 842, 5 S. W. (2d) 265.

*101In onr opinion the strongest evidence for Cundiff is the entry of the $745.73 credit in his passbook on October 26, 1939. We have noted that an official of the bank said that the entry was in his handwriting and that his only recollection of the transaction was that the deposit was not all in cash. The officer who stole some $50,000 from the bank, thereby causing it to close, was in charge of the bank’s records. No entry was made therein of the deposit in question. This officer of the bank did not testify. There was testimony that some of the deposit slips and some of the bank records were found at the place of business of the defaulting officer. The inferences to be drawn from this state of affairs clearly are favorable to Cundiff. Under the circumstances, it is obvious that it would take clear and convincing proof to show that the bank’s records reflected the true condition of its affairs and those of its depositors. With this background the jury had before it the entry of the questioned deposit in Cundiff’s passbook and the testimony of an officer of the bank that the entry was made in his handwriting. Certainly we would not be justified under these facts and circumstances in saying that there is not sufficient evidence of substantial and probative value to uphold the verdict. This we say, notwithstanding our view that the preponderance of the evidence is in favor of the appellants. But as said in Pearl Packing Company v. Ransdell, 285 Ky. 456, 148 S. W. (2d) 350, the mere fact that the verdict is contrary to the preponderance of the evidence will not warrant its reversal. The test is as set forth in Nugent v. Nugent’s Ex’r, 281 Ky. 263, 135 S. W. (2d) 877, that it is supported by evidence of probative value and of a substantial nature.

Judgment affirmed.