Summary
In Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, the trial court granted a new trial in a will contest, specifying in its order "Ground No. 10" of the motion for a new trial.
Summary of this case from Hammond v. Crown Coach Co.Opinion
No. 40769.
December 13, 1948. Rehearing Denied, January 7, 1949.
1. APPEAL AND ERROR: New Trial: Memorandum of Trial Judge Not Included in Record: Motion to Correct Transcript too Late: Memorandum Not Essential. A memorandum of the trial judge explaining in more detail the ground upon which he granted a new trial was not included in the transcript. The motion to correct the transcript by including the memorandum comes too late under Rule 1.03, and the Supreme Court does not regard the memorandum as essential to the review of the appeal and so does not exercise its discretion to require the memorandum to be sent up on its own motion.
2. WILLS: New Trial: Will Contest: Issue of Forgery: Effect of Finding by Jury. The jury finding against the will upon conflicting evidence as to forgery is final, save and except for the exercise of the right or power of the trial court to grant a new trial, as in other cases.
3. WILLS: New Trial: Will Contest: Perjured Testimony: Right to Grant New Trial. The trial court had the duty to grant a new trial if satisfied that perjury had been committed and that an improper verdict or finding was thereby occasioned, although a falsus in uno falsus in omnibus instruction was given.
4. WILLS: New Trial: General Statement of Ground: Liberal Construction. A general statement of the ground for granting a new trial will be liberally construed in sustaining the action of the trial court.
5. WILLS: New Trial: Perjured Testimony: Action of Trial Court Not Arbitrary. In view of the decided conflict in the testimony on the issue of perjury it cannot be said that the trial court's action was arbitrary.
6. WILLS: New Trial: Perjured Testimony: Discretion of Trial Court. The purpose of Sec. 115 Civil Code and Rule 3.22 is to clothe the trial judge with a wide discretion to be exercised in the furtherance of substantial justice. Affidavits or evidence in support of the ground were not necessary if the trial court was otherwise satisfied the verdict was occasioned by false testimony. The action of the trial judge may have been based upon matters of such character that they cannot be preserved in the record and thus brought to the attention of the appellate court.
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.
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 stated the "judgment of the Court was influenced by the false testimony given by one of plaintiff's witnesses."
Plaintiff-appellant contends the unverified and unsupported statement, quoted supra, of the specified Ground No. 10 is not a ground for a new trial in this State, and does not justify a disturbance of the verdict which was supported by substantial evidence — the issue of forgery vel non having been submitted to the jury upon substantial but conflicting evidence, the veracity of the witnesses was solely for the jury — and especially was this true, says plaintiff-appellant, since a falsus in uno falsus in omnibus instruction was given. It is urged the trial court in sustaining the motion on the specified ground erroneously set aside the jury's verdict and imposed the court's own view of the evidence.
The trial judge prepared and filed a "Memorandum" in which he mentioned the (expert) witness whose testimony was considered false; gave the judge's views relating to the reliability of the testimony of experts; and discussed and weighed the conflicting evidence introduced upon the issue of forgery. It seems the trial judge was thus explaining his reasons for believing the witness testified falsely. The memorandum does not appear in the transcript of the record certified to this court on appeal.
The defendants-respondents, after the service of their brief, moved this court for an order correcting the transcript of the record so as to include the memorandum [521] or, in the alternative, asked this court on its own motion to send for the memorandum and consider it in reviewing the case on this appeal. Absent consent of the parties, the motion to correct the transcript of the record was too late. Rule No. 1.03, Rules of the Supreme Court of Missouri. Although this court in its discretion may, on its own motion, require the clerk of the trial court to send up a complete transcript or any portion thereof or any original documents or exhibits pertaining to the cause (Supreme Court Rule No. 1.03, supra; Whealen v. St. Louis Soft Ball Ass'n., 356 Mo. 622, 202 S.W.2d 891), we do not deem it essential to the review of the instant appeal that we should have resort to the memorandum in question. We will consider the record entry as the sole repository of the recital of the specification of ground upon which the trial court sustained the motion. [See Ponyard v. Drexel, Mo. App., 205 S.W.2d 267, and Stark v. St. Louis Public Service Co., Mo. App., 211 S.W.2d 500, for observations relating to the limited use of a trial judge's written memorandum, or oral statement, accompanying the trial court's required action in specifying (Sections 115 and 119, Civil Code of Missouri, Mo. R.S.A. §§ 847.115 and 847.119) of record the ground or grounds for granting a new trial.]
The evidence introduced by plaintiff and defendants upon the sole issue of forgery was voluminous and in sharp conflict. Evidence, testimony of the subscribing witnesses and of lay and expert witnesses, introduced by defendants, was substantial in tending to prove the purported signature was the genuine signature of testatrix; and there was substantial evidence, testimony of lay and expert witnesses, introduced by plaintiff lending to show the signature was a forgery. In this case, an action to contest a will, the jury's verdict on such conflicting evidence was final save and except for the exercise of the right or power of the trial court to grant a new trial, as in other cases. Section 539 R.S. 1939, Mo. R.R.A. § 539. We bear in mind the dual function of a motion for a new trial — to obtain relief on appeal, and to obtain relief in the trial court. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Rules Nos. 3.22 and 3.23, Rules of the Supreme Court of Missouri; Vol. 2. Carr, Missouri Civil Procedure, § 852, at page 20. In the instant case we are treating with the relief afforded in the trial court by the granting of a new trial upon a specified ground within the purview of the trial court's sound discretion. The trial court sustained defendants' motion for a new trial. Cases cited by plaintiff, in which appellate courts have refused to disturb judgments upon verdicts (approved by the trial courts) based upon substantial evidence, are not helpful to us here.
The trial court may now grant a new trial "for any of the reasons for which new trials have heretofore (see repealed Sections 1125, 1167, 1168 and 1169 R.S. 1939, Mo. R.S.A. §§ 1125, 1167, 1168, 1169) been granted." Section 115, Civil Code of Missouri, supra; Supreme Court Rule No. 3.22 supra: Vol. 2, Carr, Missouri Civil Procedure, § 851, pp. 1-2. No verdict and resultant judgment, in any case, could be said to be just if the result of false testimony. The trial court had the duty to grant a new trial, if satisfied that perjury had been committed and that an improper verdict or finding was thereby occasioned. Section 115, Civil Code of Missouri, supra; Supreme Court Rule No. 3.22, supra; Pitzman's Company of Surveyors Engineers v. Bixby Smith, 338 Mo. 1078, 93 S.W.2d 920; Citizens Bank of Liberty v. Thompson, 234 Mo. App. 448, 132 S.W.2d 700; Scott v. St. Joseph Ry., Light, Heat Power Co., 168 Mo. App. 527, 153 S.W. 1058. The trial court had this duty, although a falsus in uno falsus in omnibus instruction was given. Re-examine Citizens Bank of Liberty v. Thompson, supra.
The Ground No. 10 of the motion was general in that the statement of the ground did not name the witness who assertedly testified falsely, nor did the specified ground state the particular testimony which was assertedly false. And there was no statement that the asserted false testimony was material. But, in reviewing the action of the trial court in sustaining the motion, the appellate court will give the specified [522] ground a broad and liberal construction. Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482.
We could not but assume the trial court in the instant case in granting a new trial was considering and using the word "judgment" (as used in the statement of Ground No. 10) in the sense of a result which followed upon and was entered as of the same day as the verdict of the jury (Section 116, Civil Code of Missouri, Mo. R.S.A. § 847.116). We may assume that, since the trial court sustained the motion, the trial judge must have been satisfied the verdict for plaintiff was the result of false testimony, that is, false testimony of facts, which facts were material upon the issue of forgery and which testimony brought about the verdict for plaintiff upon the issue. In determining the testimony was false the trial court was exercising its function in weighing the evidence and determining the credit to be given the testimony of the witnesses. It could not be convincingly argued the trial court's action did not have a substantial supporting basis in fact in view of the decided conflict in the testimony upon the issue. We cannot say the trial court's action was arbitrary.
The purpose of the Section 115 and the Supreme Court Rule No. 3.22, supra, is to clothe the trial judge, who enjoys the advantage of meeting the parties and witnesses face to face, with a wide discretion to be exercised in furtherance of substantial justice. It was not essential that affidavits be presented or evidence introduced in support of the statement in Ground No. 10 of the motion, if the trial court was otherwise satisfied the verdict was occasioned by false testimony. The trial judge may well have discovered that the witness testified falsely from what occurred at the trial. Pitzman's Company of Surveyors Engineers v. Bixby Smith, supra; Neal v. Kansas City Rys. Co., Mo. Sup., 229 S.W. 215. With respect to the ground for a new trial under consideration in the instant case the trial judge is vested with the functions of a trier of the fact and his discretion is limited only by the rule that his discretion must not be arbitrarily exercised. Byrd v. Vanderburgh, 168 Mo. App. 112, 151 S.W. 184; Citizens Bank of Liberty v. Thompson, supra; Rickroad v. Martin, 43 Mo. App. 597. The trial court's discretion must be a wise, judicial discretion. Stark v. St. Louis Public Service Co., supra. The action of the trial court, in the exercise of its discretion in granting a new trial, may be based upon matters known to the court (oftensaid to be in the breast of the court) because the trial judge participated in the trial and knew what took place, much of which cannot be preserved in the record. It is recognized that the trial judge has a favorable position which enables him to know matters calculated to affect the result of the trial, but which matters may be of such character that they cannot be preserved in the record and thus brought to the attention of an appellate court. Castorina v. Herrmann, supra; Beer v. Martel, supra; Stark v. St. Louis Public Service Co., supra; Rickroad v. Martin, supra. In the last named case it was said an indiscriminate interference by an appellate court with a trial court's action in matters of discretion "would in the end be productive of more injustice than a refusal to interfere in any case. . . . It frequently happens that there are circumstances influencing the action of the trial court which cannot be spread upon the record." 43 Mo. App. at pages 603-604.
The order granting the new trial should be affirmed, and the cause remanded.
It is so ordered. Bradley and Dalton, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.