PEE DEE PRODUCTION CREDIT ASSOC. v. Joye ( 1984 )

Ness, Justice,

dissenting:

I disagree and dissent.

I would hold the trial judge erred in submitting conflicting instructions to the jury on the genuineness of a signature as once evidence is introduced denying the signature or where the signature is put in issue, there is no presumption. The charge of the trial judge improperly shifted the burden of proof as to the alleged signatures of the appellant. The trial judge also improperly attempted to correct his charge by the use of comparable signatures to prove a signature in issue when he stated that it would be taken in connection with the presumptions he had previously stated. We held in Thigpen v. Thigpen, 217 S. C. 322, 332, 60 S. E. (2d) 621, 626 (1950):

[T]he giving of conflicting instructions ordinarily constitutes reversible error because it is impossible for the jury to decide which should be accepted, and after the verdict of the jury, it is equally impossible for the Court to determine which the jury followed and which they ignored.

I would also hold the trial judge erred in failing to grant the motion for a directed verdict as there was no testimony as to the endorsement except for the presumption. We held in Citizens Bank of Darlington v. McDonald, et al., 202 S. C. 244, 24 S. E. (2d) 369 (1943) that once the signature on the note is put in issue, the burden of proof falls clearly on the respondent to establish the execution of the note and that the appellant personally endorsed it. See 11 C. J. S., Bills & Notes, § 659(B), page 92; 12 Am. Jur. (2d), Lot & Destroyed Instruments, § 158.

The majority relies upon the testimony of Billy Ham, a Pee Dee employee who did a handwriting comparison. The majority fails to consider that Ham could not identify the endorsement on the note. He only identified the signature given in the corporate capacity. This would not serve as the basis for any liability of the appellant in his individual capacity.

I would reverse and enter judgment for the appellant.

Reversed.