Grawe v. Schmidt's Estate

• Court: Missouri Supreme Court
• Writing for the Court: Ragland
• Citation: Grawe v. Schmidt's Estate, 293 S.W. 375 (Mo. 1927)
• Decision Date: 11 April 1927
• Docket Number: No. 25489.,25489.
• Parties: GRAWE v. SCHMIDT'S ESTATE.

293 S.W. 375

GRAWE v. SCHMIDT'S ESTATE.

No. 25489.

Supreme Court of Missouri. Division No. 1.

April 11, 1927.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Frank Grawe against the Estate of Louis Schmidt, deceased, instituted in probate court, and on appeal to circuit court case was tried de novo, and judgment rendered for defendant. Plaintiff appeals. Affirmed.

Ralph & Baxter, of Clayton, and Henry A. Baker and W. W. Henderson, both of St. Lulls, for appellant.

Clarence T. Case, Otto F. Karbe, and David W. Voyles, all of St. Louis, for respondent.

RAGLAND, J.

This case comes to the writer for opinion on reassignment. It is stated by appellant as follows:

"This is an appeal from a judgment of the circuit court, Division No. 1, St. Louis county, NIL, the case being tried in said circuit court de novo on an appeal from the probate court of St. Louis county, Mo.

"This suit is based upon a note for $10,000, which note was payable to Frank Grawe, claimant herein, and was (according to its purport) signed by Louis Schmidt, the deceased.

"The defense to said note was that the signature attached to said note was not the signature of Louis Schmidt, deceased.

"Upon this sole issue the case went to trial. "Claimant first offered the note in evidence, aid, as the execution of same had been denied under oath, he called as a witness Charles W. Holtcamp, who testified that he had known the deceased for many years; had been associated with him in business; had known him professionally and socially; was very familiar with his handwriting; and testified that, in his opinion, the signature attached to the note was the genuine signature of Louis Schmidt, deceased. The note was then introduced in evidence, and plaintiff rested.

"Defendant estate then introduced one witness who testified that he had known deceased in business and socially, and that he was familiar with the handwriting of deceased, and that, in his opinion, the signature attached to the note was not the signature of Louis Schmidt, deceased.

"Then several witnesses identified signatures attached to bank deposit cards and checks, and also enlarged photographs of signatures, as being the genuine signatures of Louis Schmidt, deceased.

"Thereupon experts were called for defendant estate, who, after comparison of the signature to the note and the signatures admitted to be genuine, and after qualifying as experts, testified that, in their opinion, the same hard that wrote the admittedly genuine signatures did not write the signature on the note.

"In rebuttal, plaintiff put on the stand a number of other witnesses who had known the deceased both socially and in a business way for many years, were familiar with his handwriting, who testified that, in their opinion, the same hand that wrote the admittedly genuine signatures wrote the signature on the note.

"Plaintiff also put on expert testimony, who, after qualifying as experts, testified that, in their opinion, the same hand that wrote the admittedly genuine signatures wrote the signature on the note.

"After the court gave the instructions set out in the abstract, and after oral argument by the attorneys, the jury, by 10 of its number, rendered its verdict, finding in favor of defendant estate."

Five instructions were given. No. 1 advised the jury, in effect, that the sole question for them to determine was whether or not Louis Schmidt, deceased, signed the note offered in evidence. No. 2 related to the amount of the recovery in the event the jury found for plaintiff. No. 3 was as follows:

"The court instructs the jury that they are not bound to accept the opinions of expert witnesses and other witnesses as to whether or not the name, `Louis Schmidt,' signed to the note sued on, is the genuine signature of Louis Schmidt, but the jury may give the opinions of such witnesses, or either of them, such weight as the jury may deem such opinions entitled to, or the jury may altogether disregard such opinions, or either of them, if the jury, from all the facts and circumstances in evidence, believe such opinions unreasonable."

This instruction without the words, "and other witnesses," which we have italicized, was asked by plaintiff; over his objection, it was modified by the court and given as above set out. No. 5 instructed as to the burden of proof. Nos. 4 and 6 were as follows:

"4. The court instructs the jury that, if you End and believe from the evidence in this case that Louis Schmidt, deceased, did not himself write the signature, as his signature, which appears upon the note introduced in evidence in this case, then your verdict will be in favor of the defendant."

"6. The court instructs the jury that you are the sole judges of the credibility of the witnesses and the weight to be given to their testimony; and that, in determining the facts, you may take into consideration, the interest, if any, which the witnesses, or any of them, may have in the result of this suit, and their relationship, if any, to the parties to this suit, and their manner of testifying, and their conduct while delivering their evidence.

"You are further instructed that, if you believe that any witness who has testified in this case has knowingly sworn falsely to any fact or facts material to the issues in this case, you are at liberty in the exercise of your judgment to reject or disregard all, or any portion of such witness' testimony."

The giving of each of the instructions 3, 4, and 6 is assigned as error.

I. It is claimed that instruction No. 3 told the jury, in effect, that they might arbitrarily and for no reason at all disregard the opinions of the witnesses, including the experts. We do not think the instruction subject to the construction which appellant puts upon it (Hull v. St. Louis, 138 Mo. 618, 626, 40 S. W. S9, 42 L. R. A. 753; City of St. Louis T....