Donati v. Gualdoni

• Citation: 216 S.W.2d 519,358 Mo. 667
• Decision Date: 13 December 1948
• Docket Number: 40769
• Parties: Rose Donati, Appellant, v. Louis J. Gualdoni, Louis J. Gualdoni, Executor of the Purported Last Will and Testament of Angelina Gualdoni, Deceased, James Gualdoni, Tony Gualdoni, Henry Gualdoni, Lena Borroni, Joseph Gualdoni, and Louise Vineyard, Respondents
• Court: Missouri Supreme Court

216 S.W.2d 519

358 Mo. 667

Rose Donati, Appellant, v. Louis J. Gualdoni, Louis J. Gualdoni, Executor of the Purported Last Will and Testament of Angelina Gualdoni, Deceased, James Gualdoni, Tony Gualdoni, Henry Gualdoni, Lena Borroni, Joseph Gualdoni, and Louise Vineyard, Respondents

No. 40769

Supreme Court of Missouri

December 13, 1948

Rehearing Denied January 7, 1949.

Appeal from the Circuit Court of City of St. Louis; Hon. Harry F. Russell, Judge.

Affirmed and remanded.

Milton F. Napier for appellant.

(1) The mere unverified and unsupported statement of defendants in their motion for a new trial, that "the judgment of the Court was influenced by the false testimony of one of plaintiff's witnesses", without more, is not a ground for a new trial in this State. Williamson v Wabash R., 196 S.W.2d 129, 355 Mo. 248, 330 U.S. 824, 91 L.Ed. 1274, 67 S.Ct. 860; Sec. 115, Laws 1943, p. 338; Sec 1168, R.S. 1939; Rule 3.23, Supreme Court; 2 Carr, Mo. Civil Procedure, p. 561; Sec. 117, Mo. Code of Civil Procedure (Sec. 847.117 Mo. R.S.A.); 2 Carr, Mo. Civil Procedure, Sec. 855, p. 33; Sec. 116, Mo. Civil Code (Sec. 847.116, Mo. R.S.A.); In re Jacob's Estate, 188 S.W.2d 956; Powers v. Penn Mutual Life Ins. Co., 91 Mo.App. 55. (2) What defendants meant by Ground 10 of their motion was that they are dissatisfied with the jury's verdict, believing the evidence of plaintiff and disbelieving the evidence of defendants, although each side was sustained by substantial expert evidence, properly submitted as "a question of fact" to the jury under proper cautionary Instructions 6 and 7, asked by defendants; and the court erred in sustaining the motion on Ground 10 thereof, after so submitting the question of forgery, or no forgery, to the jury, for that the court, in so sustaining said motion, imposed its own judgment upon the judgment of the jury on the question of fact whether the paper writing was the Last Will and Testament of Angelina Gualdoni, under all of the evidence in the case. Sec. 1915, Mo. R.S.A.; Grange v. C. & E.I. Ry. Co., 69 S.W.2d 955, 334 Mo. 1040; Parrent v. Mobile & O.R. Co., 70 S.W.2d 1068, 334 Mo. 1202; Seago v. N.Y.C.R. Co., 155 S.W.2d 126, 348 Mo. 761, reversed 62 S.Ct. 806, 315 U.S. 781, 86 L.Ed. 1188; Rosenberg v. Term. R. Assn. of St. Louis, 159 S.W.2d 633; Russell v. Johnson, 160 S.W.2d 701, 349 Mo. 267; Finley v. St. L.-S.F.R. Co., 160 S.W.2d 735, 349 Mo. 330; Brinkley v. U. Biscuit Co., 164 S.W.2d 325, 349 Mo. 1227; Hold v. Term. R. Assn. of St. Louis, 201 S.W.2d 958; Reardon v. F.W. Woolworth Co., 154 S.W.2d 373; Schoen v. Am. Natl. Ins. Co., 167 S.W.2d 423, affirmed in 180 S.W.2d 57, 352 Mo. 935; Young v. Wheelock, 64 S.W.2d 950, certiorari denied in Wheelock v. Young, 54 S.Ct. 527, 291 U.S. 676, 78 L.Ed. 1064; Neal v. Caldwell, 34 S.W.2d 104, 326 Mo. 1146; Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 562, 328 Mo. 1009, 81 A.L.R. 400; Brown v. Farmer Mtr. Co., 17 S.W.2d 615; McClure v. H.R. Ennis R.E. & Inv. Co., 19 S.W.2d 531; Jones Store Co. v. Kelly, 36 S.W.2d 681, 225 Mo.App. 833; Robinson v. C., B. & Q.R. Co., 38 S.W.2d 514; Pedigo v. Roseberry, 102 S.W.2d 600, 340 Mo. 724. (3) The court, having determined the propriety of stating the rule of falsus in uno, falsus in omnibus to the jury in instructions 6 and 7, asked by defendants determined in its own mind, before submitting the case, that material contradictory testimony has been given; so that when given, the credibility of the witnesses was then for the jury; and the Court erred in thereafter setting aside the jury's verdict after it had determined the credibility of the witnesses and the facts in the case. Bellovich v. Griese, 100 S.W.2d 261; Alexander v. Emmke, 15 S.W.2d 868; Farmers' State Bank v. Miller, 26 S.W.2d 863; Oliver v. City of Vandalia, 28 S.W.2d 1044; Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793; Marden v. Radford, 84 S.W.2d 947, 229 Mo.App. 789; Eisenbarth v. Powell Bros. Truck Lines, 125 S.W.2d 899, 235 Mo.App. 442, certiorari denied State ex rel. Powell Bros. Truck Lines v. Hostetter, 137 S.W.2d 461, 345 Mo. 915; Emanuel v. K.C. Title & Tr. Co., 127 F.2d 175. (3) Since the admitted genuine signatures of deceased were introduced in evidence for the purpose of comparison of such genuine handwriting with the questioned signature on the purported will, the testimony of the expert witness with the testimony of the other witnesses that the signature on the purported will was not genuine, was sufficient substantial evidence to support the jury's verdict upon which the probate of the will was denied, for the statute makes it so; and the court erred in setting aside the jury's verdict in this case on Ground 10 of the motion after the jury had, by its verdict, passed upon the credibility and the veracity of all the witnesses in this case. Hemonas v. Orphan, 191 S.W.2d 352; Walton v. Kendrick, 27 S.W. 872, 122 Mo. 504, 25 L.R.A. 701; Secs. 538, 539, R.S. 1939; Sec. 1915, R.S. 1939; State v. Pace, 192 S.W. 428, 269 Mo. 681; St. Louis Natl. Bank v. Hoffman, 74 Mo.App. 203; State v. Stegner, 207 S.W. 826, 276 Mo. 427; Weber v. Strobel, 194 S.W. 272; Klaus v. Zimmerman, 174 S.W.2d 363; Pedigo v. Roseberry, 102 S.W.2d 600; Walter v. Alt, 152 S.W.2d 135; Callaway v. Blankenbaker, 141 S.W.2d 810, 346 Mo. 383; Whittlesey v. Gerding, 246 S.W. 308; Flohman v. Lowenstein, 260 S.W. 460, 303 Mo. 339; Denny v. Hicks, 2 S.W.2d 139, 222 Mo.App. 1206; Dukenson v. Williams, 242 S.W. 653; Goodfellow v. Shannon, 94 S.W. 979, 197 Mo. 271; Sanford v. Holland, 207 S.W. 818, 276 Mo. 457; Gordon v. Burris, 43 S.W. 642, 141 Mo. 602.

Robert N. Jones for respondents.

(1) Under the Civil Code of Missouri, a new trial may be granted for any of the reasons for which new trials have heretofore been granted, which includes the satisfaction of the trial court that perjury has been committed by a witness and that an improper verdict or finding was occasioned thereby and that there is a just cause of action or of defense. Civil Code of Missouri, Sec. 115; Laws 1943, p. 388; Sec. 1168, R.S. 1939. (2) Respondents' ground in their Motion for New Trial that "(10) The judgment of the court was influenced by the false testimony given by one of plaintiff's witnesses" is a sufficient statement. Moreover, any statement, and even no statement at all, in such motion is sufficient to clothe the trial court with authority to grant a new trial on this ground; particularly is this true where the form of motion is attacked for the first time in the appellate court. Barnes v. Childers, 246 S.W. 342; Lee v. Baltimore Co., 136 S.W.2d 695, 345 Mo. 458; Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 674; Beer v. Martel, 55 S.W.2d 482, 332 Mo. 53; King v. Kansas City Life Ins. Co., 164 S.W.2d 458, 350 Mo. 75. (3) All pleadings shall be so construed as to do substantial justice. Civil Code of Missouri; Laws 1943, sec. 57, p. 373. (4) It is unnecessary that affidavits or other evidence supporting the allegation of prejury in a motion for a new trial be presented before a trial court can grant a new trial. Civil Code of Mo., Sec. 117; Carr Civil Procedure, Sec. 855; Pitzman's Co. v. Bixby & Smith, Inc., 338 Mo. 1078, 93 S.W.2d 932; Neal v. Kansas City Rys. Co., 229 S.W. 215. (5) The jury's verdict not only should, but must be disturbed where the trial judge finds perjury on material matters whether the evidence has been substantial and conflicting or not; and this is true even though the trial court might not have been justified in taking an issue from the jury. Sec. 1168, R.S. 1939; Ritzheimer v. Marshall, 168 S.W.2d 159; Citizens Bank v. Thompson, 132 S.W.2d 700, 234 Mo.App. 448. (6) The statute on granting a new trial for false testimony invests the trial judge with the functions of a trier of fact. The fact that the trial court prior to the verdict instructed the jury on the veracity and credibility of witnesses (as in Instructions No. 6 and No. 7 given by the trial court here) does not change this law, nor is the action by trial court in granting a new trial because of false testimony an invasion of the province of the jury. Sec. 1168, R.S. 1939; Byrd v. Vanderburgh, 168 Mo.App. 112, 151 S.W. 184; Davis v. Querman, 22 S.W.2d 58; Citizens Bank v. Thompson, 132 S.W.2d 700, 234 Mo.App. 448; Buehler v. Baum, 71 S.W.2d 851. (7) In granting a new trial on the statutory ground that a witness has given false testimony, the trial judge is limited only by the rule that the action must not be arbitrary; and generally appellate courts will not review such action unless the trial judge has clearly abused his discretion. Citizens Bank v. Thompson, 132 S.W.2d 700, 234 Mo.App. 448; Scott v. St. Joseph Ry., etc., Co., 168 Mo.App. 527, 153 S.W. 1058; Byrd v. Vanderburgh, 168 Mo.App. 112, 151 S.W. 184; Pitzman's Co. v. Bixby & Smith, Inc., 338 Mo. 1078, 93 S.W.2d 932; Waddle v. Insurance Co., 184 Mo.App. 571, 170 S.W. 682; Asadorian v. Sayman, 282 S.W. 507.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action to contest the will of Angelina Gualdoni, who died January 31, 1946. The purported will bequeathed several legacies, and devised real estate situate in St. Louis. Testatrix was survived by eight children of whom Rose Donati, a daughter, is plaintiff herein; and defendants are the seven other children of testatrix, and the executor. The sole issue of contest was the alleged forgery of the signature of testatrix. A jury found for plaintiff-contestant, declaring the paper writing not to be the will of testatrix, and judgment went for plaintiff on the verdict. The trial court sustained defendants' motion for a new trial, specifying Ground No. 10 of the motion as the ground for granting a new trial. Plaintiff has appealed.

Ground No. 10 of the motion for a new trial...