Bank of Malden v. Stokes

• Decision Date: 02 March 1926
• Citation: 280 S.W. 1055,220 Mo.App. 131
• Parties: BANK OF MALDEN, APPELLANT, v. ROY M. STOKES AND B. F. MARKLE, RESPONDENTS.
• Court: Missouri Court of Appeals

280 S.W. 1055

220 Mo.App. 131

BANK OF MALDEN, APPELLANT, v. ROY M. STOKES AND B. F. MARKLE, RESPONDENTS.

Court of Appeals of Missouri, Springfield

March 2, 1926

Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.

AFFIRMED.

Judgment affirmed.

C. M Edwards, of Malden, for appellant.

Cox & Morris, of Malden, for respondent.

BRADLEY J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.--

This is an action on a promissory note in the principal sum of $ 200. Defendant Stokes made no defense. Defendant Markle filed a plea of non est factum. The cause was tried to a jury, and verdict and judgment went for defendant Markle and plaintiff appealed. The note sued on is dated November 17 1917, and is claimed to be a renewal of a note dated January 16, 1917. Sometime prior to the date of the original note defendant Stokes borrowed from Markle the sum of $ 500, and at or about the date of the original note owed on said loan a balance of $ 221.50. Stokes at the time the original note was given was assistant cashier of plaintiff bank, and testified that he used the proceeds of the original note to pay the balance he owed Markle on the $ 500 loan. The bank records show and Markle admits that on January 9, 1917, Stokes deposited in plaintiff bank to his (Markle's) credit the sum of $ 221.50. Stokes explained that from January 9th to January 16th the matter was carried as an overdraft against his, Stokes' account. Markle was unable to sign his name, and identified his signature by mark. He testified that he did not sign the original or the note sued on. Stokes testified that Markle authorized him to sign his, Markle's name to the note, and that he did so and left it in the bank with the understanding that Markle would in a few days came in and make his mark. E. Zimmerman, who was cashier of plaintiff bank at the time, testified that Markle came into the bank and made his mark to his signature on the note and that he, the witness, held the pen while said mark was being made and that Markle also touched or held the pen during the making of said mark. The note also bears the signature of the witness Zimmerman as a witness to what is alleged to be Markle's signature, and Zimmerman testified that he placed his name on the note as a witness to the signature of Markle at the time Markle came into the bank and made his mark.

Plaintiff challenges the sufficiency of the evidence. The jury is the judge of the weight of the evidence and the credibility of the witnesses. [Griffin v. Railway, 199 Mo.App. 682, 204 S.W. 826.] In law cases the weight even of undisputed parol evidence is for the triers of the facts, and their finding is conclusive on appeal. [St. Louis Union Trust Company v. Hill, 283 Mo. 278, 223 S.W. 434.] There are many cases where verdicts have been set aside on appeal because not supported by substantial evidence, but such is not the case before us. There are cases, however, which when viewed upon the whole record are said to shock the judicial conscience, and in such extreme cases new trials have been ordered in order to subserve substantial justice. [Norris v. Whyte, 158 Mo. 20, l. c. 36, 57 S.W. 1037, l. c. 1042; Traw v. Heydt, 216 S.W. 1009.] Such cases, however, for the most part, concern excessive damages allowed for personal injury.

Plaintiff assigns error also upon alleged improper argument of counsel for defendant. The record does not definitely show the language used in argument of which complaint is made. There is, however, in the record a colloquy between the court and counsel relative to "that argument." At the conclusion of the colloquy counsel said: "I am asking for a ruling. Thereupon the court said: "The attorney must confine himself to the testimony; the jury are the judges of what the testimony is. Of course I know the entire sheet wasn't offered in testimony." No exception appears. In this situation there is nothing for review before us respecting the alleged improper argument. [Brim v. Alexander, 186 S.W. 544.]

If plaintiff was seriously prejudiced by anything in the progress of the trial it was the misconduct of certain members of the jury. Plaintiff strenuously sought a new trial on the ground that a grave injustice had been done to it by certain members of the jury who were not qualified to sit if the evidence be true that plaintiff offered in support of its motion. In the motion for a new trial plaintiff alleged that juror J. A. Fry was not a qualified juror although he had duly qualified on the voir dire examination. On the hearing of the motion for a new trial plaintiff called T. A. Neely one of the jurors in said cause who did not concur in the verdict, and having reference to juror Fry asked this question: "Did you hear him say after the jury retired at the close of the evidence and instructions were given you by the court, and arguments of counsel, that he knew all about the case?" Objection was made on the ground that a verdict could not be impeached by a juror in the case. The court sustained the objection, but suggested that an offering be made. Offering was made to which the same objection was made, and the court then overruled the objection, remarking at the time that he would hear what the witness had to say "and pass on it finally later on." The question, supra, then was read by the court reporter, and the record shows the following:

"A. It seems like I don't remember it that way; but now there was two men in there that did claim they knew all about it and I believe ruled the jury; I don't know who told this now, I don't know how it got out. There was a fellow by the name of Taylor that said he knew all about it, and knew that Stokes wrote these names on there, and also put this old man's name on it; I heard him repeat it over there just when we was in there this time.

"Q. Did Mr. Fry say anything? A. I don't think Mr. Fry said anything that I remember, only that he just knew the old man being a perfect gentleman. Maybe he said he didn't believe he did it, or believed he was telling the truth, that he knew him; that's about the way I can remember it.

"Q. He didn't say he had been hearing about that note for a year or two? A. No sir, I can't recall that; if he said that I don't remember it.

"Q. But there were two jurors who did claim to know all about the case. A. Well, Mr. Taylor said that he knew he didn't sign it, and said Stokes did it; that Stokes was a crook and he put these names on there with the calculation of paying these...