Ayrhart v. Wilhelmy

Weaver, C. J. The petition of the plaintiff declares upon a promissory note alleged to have been executed by the — 292 — defendant in the following form: “ Dedham, Iowa, Eeb. 13, 1903. For value received in certain harness goods and sundries, a list of which is hereto attached, amounting in value to $416.16, I promise to pay J. G. Catón the sum of $416.16, at various times as I sell the goods. Payments not to be made in sums less than $5. Payments to be endorsed hereon. H. Wilhelmy.” The defendant denies the genuineness of . the signature to the instrument, and denies that he ever executed or delivered the same, or authorized its execution or delivery by any other person. 1. Signature-genuineness: ho determined. As tried and submitted to the jury, the case was made to turn upon the single question of fact as to the genuineness of the signature to said writing. The defendant as a witness in his own behalf positively and unequivocally denies said -signature. No witness un(jeiqaices -(¿, testify to having seen it written, and the only attestation to its genuineness is by witnesses who speak either from general acquaintance with the defendant’s handwriting, or as experts from a comparison of the writing in question with other admitted signatures. That the issue of fact thus presented was one which the court was in duty bound to submit to the jury is too clear for argument, and too well established to call for quotations from the books. Borland v. Walrath, 33 Iowa, 133; Browning v. Gosnell, 91 Iowa, 457. It follows therefore that the verdict of the jury must be upheld, unless prejudicial error is found in some of the rulings of the trial court of which complaint is made. Such error is assigned by the appellant in the following respects: 2. Genuineness of signature: evidence. One Parr was called as a witness for the defense and permitted to testify that he at one time conducted a business in Dedham for which the payee in this note furnished the capital. He further stated that he invoiced the stock and reported it to the bank of which Catón was an officer, and that Catón and defendant were present. Witness saw' and heard nothing about — 293 — the giving of any note by defendant. The entire testimony of this witness, as abstracted, is so indefinite and fragmentary that it is difficult to understand its connection with the matter in controversy. There is very little- in it which, even if incompetent or immaterial, could have prejudiced either party. The note having mentioned the sale of a harness stock as the consideration of the promise to pay, inquiry into that alleged transaction was doubtless proper as bearing upon the question whether such a note was or was not given. Assuming that the transaction of which the witness speaks is the one out of which the note is claimed to have originated (and this seems to be conceded by counsel), his testimony had some slight tendency to corroborate the defendant’s denial of the execution of the instrument, and there was no error in its admission. 3. Expert evidence: instruction. In its charge to the jury, thé trial court said that, while expert evidence was admissible upon the genuineness of the signature, and should be given such weight as the jury found it entitled to, yet testimony of that character was of a low order of evidence, and “ ought . . ti» not to overthrow the positive and direct evidence of credible witnesses, who testify from their personal knowledge, and is most useful in the case of conflict between witnesses as corroborating testimony.” This instruction is said to be erroneous. We think otherwise. It is an instruction which has often been given, and embodies a rule which has often been approved by this court. The rule as stated in the instruction might not be approved if applied to the testimony of experts speaking as men of science •— as, for example, physicians or chemists testifying concerning matters which require special skill, study, preparation, and experience. See Ball v. Skinner, 134 Iowa 298. But expert testimony as to handwriting is universally recognized as having slight value against the positive and unequivocal testimony of credible witnesses speaking of their personal knowledge. Browning v. Gosnell, 91 Iowa, 448; — 294 — Borland v. Walrath, 33 Iowa, 130; Whitaker v. Parker, 42 Iowa, 585; Hammond v. Wolf, 78 Iowa, 227. Such being the accepted doctrine of the authorities, there is no good reason why the jury should not be so instructed. The appellant’s exception to the instruction in question is not well taken. A ground of the motion for new trial was alleged misconduct by the jury. This claim is based on the affidavit of one juror to the effect that, during their deliberations upon their verdict, some of the jurors told the rest of the panel of certain forgeries committed by Catón, the payee of the note in suit; also, that during their deliberations the presiding judge was called to the jury room, and was asked several questions by one of the jurors, the nature of which the affiant was unable to state, and thát said judge did not answer said questions nor instruct the jury in writing as to the law thereon. Another juror made affidavit that, during the pendency of the trial, one or more of said jurors engaged in playing cards with the defendant and others at the hotel. On the other hand, two of the jurors malee affidavit that they heard no mention of the charges-against Catón; that almost immediately after retiring to- the jury room a ballot revealed the finding of eleven jurors in favor of defendant; and-that at no time did their balloting show less than ten jurors holding to that conclusion. It is also shown by Counter affidavit that the game of cards referred to was a social game of “ pedro,” joined in by six persons, and that at no time was reference of any kind made to the lawsuit by the defendant or the juror, or by any other person in the company. 4. New trial: misconduct of jurors. We are. of the opinion that no misconduct is shown requiring a reversal of the case. If every bit of gossip or irrelevant statement or conversation which finds expression in a jury room is sufficient to vitiate a verdict, 1 . tew, if any, would he permitted to stand ° x against attack by the unsuccessful party. True, if extrinsic or irrelevant matter is introduced into the — 295 — deliberations of tlie jury in such manner as to raise any reasonable question whether it did not influence the verdict, the court may properly interfere and set it aside; but a casual remark or statement made by a juror derogatory to one of the contesting parties ought not to be so regarded, in the absence of any showing that anybody gave heed to the statement, or was in any manner influenced thereby. In this case, but one juror alleges that such statements were made, and, though he says they were made to the “ balance of the jury,” two of them unite in saying they heard nothing of the kind. The affiant does not attempt to give the name of the juror or jurors thus offending, or, to quote their language, nor does he himself claim to have considered the same, or to have been in any manner influenced thereby. 5. Same The statement as to invasion of the jury room by the trial judge is of a very trivial character, and is its own sufficient answer, in that it shows affirmatively that the affiant does not know the nature of the questions asked the judge, arid reveals that, whatever their nature, they were not answered. It is easily conceivable that the juror may have been asking some personal favor or indulgence having no reference whatever to the case under consideration, and certainly no presumption of misconduct by the juror or by the court can be indulged in from the showing thus presented. 6. Same Nor is the incident of the card game one of serious import. Good taste and due regard for the proprieties, doubtless, dictate that jurors and parties avoid familiar intercourse pending the trial and disposition of a case. They should be careful not only to avoid actual impropriety, but to keep themselves clear of the very appearance of evil; but it is inevitable that they should be brought into frequent contact-in hotels and other public places, and the fact that they sit at the same table in the dining room, or are drawn into the same group of persons in conversation, or take part with others in the various means — 296 — of lawful recreation going on during the hours of recess, ought not to be regarded as reprehensible misconduct, so long as this is publicly and openly done, without any attempt by any one to abuse such opportunity for the purpose of influencing a juror’s verdict. Koester v. Ottumwa, 34 Iowa, 44. Virtue of such fragile character as to be susceptible to corruption from the exercise of ordinary neighborly sociability is fortunately not so common as to constitute a serious menace to the administration of justice. We find no reversible error in the record, and the judgment of the district court is affirmed.