Berkley v. Maurer

41 Pa. Super. 171, 1909 Pa. Super. LEXIS 29

• Court: Superior Court of Pennsylvania
• Decided: October 11, 1909
• Docket: Appeal, No. 124
• Status: Published

Opinion

Opinion by

Rice, P. J.,

The question being as to the genuineness of the signature of E. B. Maurer, opinion evidence of two classes of persons was admissible and relevant: (a) any person “acquainted” with his handwriting; (b) persons who, to use the words of our statute, “have had special experience with or who have pursued special studies relating to documents, handwriting and alterations thereof who are herein called experts:” Act of May 15, 1895, P. L. 69. Prior to this statute there had been much diversity of opinion, and of decision as well, upon the question of “comparison of hands. ” But it was finally settled in Travis v. Brown, 43 Pa. 9, decided in 1862, and the rule was adhered to in later cases down to and including Rockey’s Estate, 155 Pa. 453, decided in 1893, that it was not competent to call in chief a witness of either of these classes to make comparison between the paper in suit and other well authenticated writings of the same party admitted as test papers, and to testify to his conclusions from such comparison; the comparison was to be made by the jury. So far as the competency of a nonexpert witness is concerned, the law remains the same: Groff v. Groff, 209 Pa. 603. And there is good reason why it should be so. Where specimens are brought into court there is no need of any opinion based on them except from persons skilled in handwriting; for the jury can judge as well as any other layman: 3 Wigmore on Evidence, sec. 1997. The second section of the act makes it competent for experts, evidently meaning the persons called experts in the preceding section, in giving their testimony to make comparison of the disputed handwriting with any documents or writing admitted to be genuine, or proven to the satisfaction of the judge to be genuine, and declares that their testimony respecting the same shall be submitted to the jury as evidence of the genuineness or otherwise of the writing in dispute.

The question raised by the first, second and seventh assignments of error relates to the competency of a witness to make a comparison of hands, where he is both acquainted with the handwriting of the party whose signature is in dispute, and also possesses the qualifications of the persons whom the statute designates as experts. The question is brought out very sharply in the first assignment of error, where it appears that such a witness was asked to leave out of view his personal knowledge of Maurer’s handwriting, acquired by having seen him write on other occasions, and testify to his opinion based merely upon a comparison of the disputed signature with other well authenticated signatures of Maurer upon writings admitted as test papers. The objection to the testimony is not put by appellant’s counsel on the ground that this witness had any incapacity to do this which is not common to all handwriting experts, but on the assumed psychological proposition that no person, no matter how skilled in chirography, who has in his mind an exemplar of another person’s handwriting, acquired by having seen him write, is capable of forming an independent and a wholly unbiased opinion as to the genuineness of the disputed signature of that person, based exclusively upon his comparison of it with duly proven standards. These are not the exact words of counsel, but we believe they present fairly the idea which one branch of their argument leads to. In support of their contention, counsel cite the following language of Woodward, J., in Travis v. Brown: “ Nor is he an expert who is called to compare a test writing, whose genuineness is established by others, with the writing under investigation, if he have knowledge of the handwriting of the party, because his judgment of the comparison will be influenced more or less by his knowledge, and will not be what the testimony of an expert should be, a pure conclusion of skill.” But inasmuch as one of the points decided in that case was that mere experts were not admissible to make the comparison and to testify to their conclusions from it, the foregoing observations, although entitled to the highest respect, could scarcely be regarded as a binding decision of the question now under consideration, even if there were no statute on the subject. The same is true of the dictum in Gentner v. Ulmer, 15 Phila. 233, “that a witness is not competent to testify in more than one capacity. He cannot give his opinion from a knowledge of the handwriting and as an expert, nor can he be examined as an expert if he has such knowledge.” We are warranted in speaking of this as a dictum, for the report of the case on writ of error, 3 Penny. 453, fails to show that this precise question was raised in the case; it certainly was not raised by the assignments of error and was not alluded to in the opinion of the Supreme Court. Nor are we convinced that the rule as broadly stated by the trial judge in Gentner v. Ulmer had been established by precedent as part of the common law of Pennsylvania, or that such a rule would be deducible from established principles of law or of science. But we need not further discuss the cases prior to the act of 1895. As was said by Justice Woodwaed in Travis v. Brown, when evidence by comparison of hands should be received, whether the witness making the comparison should be qualified by personal knowledge of the party’s handwriting, when mere experts should be admitted to make comparisons, and what degree of evidence is required to establish the genuineness of the test papers, were questions that had been debated in a multitude of cases. And it is a matter well known to the profession, that even after the clear enunciation of the five rules in that case, the subject of comparison of hands was agitated and many cogent reasons were urged in favor of a more .liberal rule. This led to the passage of the act of 1895, which is not a mere codification of existing rules established by the decisions, but was intended to establish a new and different rule. The legislature did not content itself with merely declaring that experts might make comparison of hands, but prescribed generally the qualifications which the witness must possess. If the legislature had deemed it wise that the witness must have, in addition, the negative qualification of having acquired no acquaintance with the person’s handwriting by seeing him write, we are convinced that it would have said so in unmistakable terms. This omission must be deemed to have been intentional, because the state of the law as declared in Travis v. Brown and subsequent cases in the same line must be presumed to have been known to the legislature, and to have been considered by it as requiring a radical change. The legislature evidently went on the well-warranted supposition that a witness having the prescribed qualifications can aid the jury to some extent at least, even though he may not have the additional negative qualification. The statute is remedial in its nature, and its purpose ought not to be defeated or hindered by excessive refinement of construction which goes to the extent of introducing a qualification which the legislature saw fit to omit. We conclude that a witness having the qualifications prescribed by the statute to give opinion evidence based on his comparison of the disputed signature with duly proven standards is not rendered incompetent by reason of his having acquired acquaintance with the person’s handwriting by having seen him write. The consideration to be given to this fact in weighing the witness’s testimony depends upon the circumstances of the particular case, and, if he is found by the court to have the qualifications of a witness of the second class, is for the jury. Amongst these circumstances may be mentioned the strength and vividness of the witness’s recollection of the appearance and characteristics of the party’s handwriting, his experience and skill, the thoroughness of his examination of the disputed signature separately as well as in juxtaposition with the duly proven standards, and his fair-mindedness, or the reverse, exhibited on the witness stand. The first, second and seventh assignments are overruled.

The third assignment of error complains of the rejection of the offer of David Barry as a witness “acquainted” with the handwriting of Maurer. He had never seen Maurer write, nor had he had any correspondence with him that he could recall. But he was cashier of a bank in which Maurer made a deposit, and four checks purporting to be signed by Maurer were presented to the bank and paid. The checks were not called for by Maurer but were retained by the bank, and it does not, appear that a settlement of the account took place between them, or that Maurer impliedly acknowledged the genuineness of the checks by acquiescence in the action of the bank concerning them. The dissimilarity of the qualifications of this witness and those of D. W. Weller, whose competency was passed on when this case was here before, is clear and very material. There there was sufficient evidence to qualify the witness under the rule applicable to acquaintance with the handwriting of a party, acquired in the course of business with him, from signatures impliedly acknowledged to be genuine, and acted on by both parties as such. In the present case there is no evidence of Maurer’s acknowledgment of the genuineness of the signature to the four checks, prior to the time when they were shown to him on the trial. The knowledge which the witness then acquired of their genuineness did not qualify him to testify as one acquainted with the handwriting of the party: Reese v. Reese, 90 Pa. 89. In holding that his special experience for twelve years in a bank qualified him to testify from a comparison of hands, and that alone, the court went as far as the defendant had a right to ask. The third assignment is overruled.

The rejection of the opinion evidence of E. O. Kooser, based on his acquaintance with Maurer’s handwriting, is the subject of complaint in the fourth assignment. The witness is a member of the bar. He testified that he had been attorney for Maurer when he was assignee for Robert Pickworth, that he thought he had seen him write his name when he was about his office, but, to use his words, “I have no picture of seeing him with a pen in his hand that I can recall;” that he had correspondence with him and had received letters from him; that as his attorney he had drawn papers for him to which his signature was attached, amongst which were petitions in the Pickworth estate and a return of sale in the same estate, but that he could not say they were signed in his presence. Before a man is permitted to state his belief of the genuineness or the contrary of the handwriting of another, he must, state facts and circumstances to show he has knowledge enough to speak of it with reasonable certainty: Slaymaker v. Wilson, 1 P. & W. 216; Porter v. Wilson, 13 Pa. 641. One mode of acquiring such knowledge is by having seen him write, and it is said to be sufficient to make the witness competent if he has seen the party write but once and then only his name. The probative value of the opinion of such a witness may be very slight, but the jury will be permitted to weigh it: 1 Greenleaf, Evidence, sec. 577 (15th ed.); Wilson v. VanLeer, 127 Pa. 371; Broadrick v. Broadrick, 25 Pa. Superior Ct. 225. But where the fact that the witness has seen the party write is left in uncertainty by his own preliminary examination, the trial judge cannot be convicted of error in rejecting his opinion as to the genuineness of the disputed signature unless he has acquired knowledge of the party’s handwriting in some other legally recognized mode. Another mode of acquiring such knowledge is thus described in Porter v. Wilson, 13 Pa. 641, following Best on Principles of Evidence, sec. 215 et seq., and 1 Greenleaf, Evidence, sec. 577: “The second mode, is from having seen letters or other documents purporting to be the handwriting of the party, and having after-wards personally communicated with him respecting them, or acted upon them by written answers producing further correspondence or acquiescence by the party in some matter to which they relate, or by any other mode of communication between the party and the witness, which, in the ordinary course of the transactions of life, evidences a reasonable presumption that the letters or documents were the handwriting of the party.” In Commonwealth v. Smith, 6 S. & R. 568, the question was as to the genuineness of the signature of a cashier of a New York bank. The cashier of a bank in another city was permitted to testify to his opinion upon the question after having shown that as cashier he had correspondence for many years with the New York bank, that his letters had been addressed to the cashier and answered by him, and that receipt of bills remitted had been acknowledged by him. In United States v. Simpson, 3 P. & W. 437, the witness was held to be competent upon proof that he had often remitted money to the party and received his receipts in return; In Clark v. Freeman, 25 Pa. 133, the witness was permitted to express his opinion from knowledge of the handwriting of the party acquired from correspondence with him in which the witness had addressed him letters and received replies thereto. In each of these cases, which may be taken as fair illustrations of the general rule relating to acquaintance from correspondence, the exemplar in the mind of the witness with which he compared the disputed writing was formed from his observation of other writings which he had reasonable ground for believing to be genuine. This principle, however, does not extend to a witness who has had no correspondence with the party, and has no knowledge of his handwriting except that which he derived from letters written to other persons which purported to have been written by him, even though he swears that the contents of the letters were of such a character as to enable him to judge certainly of their genuineness: Phila., etc., R. R. Co. v. Hickman, 28 Pa. 318. The witness in the present case did not say that the letters he received were replies to letters he sent to Maurer, or that they related to the business in which he was acting as attorney for Maurer, or that their contents were such as to enable him to form an opinion as to their genuineness; nor was the court bound to infer either of these facts from what the witness did testify to. To clearly qualify a witness to testify to his opinion concerning the genuineness of a disputed signature, based on his comparison of it with the exemplar in his mind formed from correspondence alone, the trial judge is justified in requiring something more to be shown than merely that the witness has received a letter or letters purporting to bear the signature of the party, or that the witness has written and mailed letters to him, or both. We come then to a consideration of the acquaintance of the witness with the handwriting of Maurer derived from his observation of the other papers referred to in the testimony. These papers were drawn by the witness as Maurer’s attorney and were afterwards seen by the witness with what purported to be Maurer’s signature upon them. Whether these papers were put into the hands of Maurer by the witness, whether Maurer placed them in the hands of the witness after they were signed, when and under what circumstances the witness saw them before the trial, are questions upon which the testimony of the witness is silent. These matters, although susceptible of clear proof, were left to inference, and the question is whether the judge is to be convicted of error because he did not draw the inferences necessary to qualify the witness to testify to his opinion derived from having seen the papers after they were signed. As in the question of acquaintance with the handwriting of another, derived from the receipt of letters purporting to be signed by him, so in the question of such acquaintance derived from seeing other documents purporting to bear his signature, the essential requisite is that the disputed writing shall be tested by its resemblance to the exemplar in the witness’s mind of documents in the genuineness of which the alleged writer has. acquiesced. His acquiescence in the genuineness of the documents, from which the witness acquired his acquaintance ante litem motam, may be shown by his express acknowledgment of them in the presence of'the witness, as in Second National Bank of Reading v. Wentzel, 151 Pa. 142, or by his acting on them to the witness’s knowledge as genuine, or knowingly permitting the witness to act on them as genuine, and perhaps by other modes, but it must be shown. Taking a strict view of the testimony of the witness in the present case, we cannot say that there is manifest error in the court’s conclusion that this essential requisite was not as satisfactorily established as it ought to have been, and as it easily could have been, if it existed. It is proper to take this view of the testimony before reversing the judgment of the trial court upon a question addressed so largely to its discretion: Wilson v. VanLeer, 127 Pa. 371; Irwin v. Patehen, 164 Pa. 51; Hemphill v. McClimans, 24 Pa. 367. The fourth assignment is overruled.

In support of the fifth assignment counsel for the defendant argue that he was entitled to instructions that if for any reason the jury found the testimony of the other witnesses unsatisfactory to them and threw it out altogether, the purely expert testimony would not be sufficient to sustain a verdict in the plaintiff’s favor. It is true expert testimony is usually regarded as corroborative only, but it is unnecessary to go into an elaborate discussion of that subject because the defendant’s point, the refusal of which is the subject of this assignment of error, was not so framed as to call for a ruling upon the question suggested in the argument of counsel. If the plaintiff’s case had depended upon the establishment of the fact that the disputed signature was a forgery, there might have been some appropriateness in the point, but it did not. It was the defendant who alleged the forgery, and he introduced expert testimony to sustain his allegation, and therefore it seems obvious that the refusal of the point did not prejudice his case. It is to be observed further that in answer to the other points of the defendant, which were affirmed, the jury were as fully instructed upon the question of the reliability of this class of testimony as the case required.

We cannot agree that the learned judge’s allusion to the defendant in the part of the charge complained of in the sixth assignment of error was prejudicial to him. It was a statement which was rather calculated to impress upon the minds of the jurors the fact that the defendant’s actual knowledge was superior to that of the other witnesses. This assignment is overruled.

In the enumeration and classification of the many witnesses who had testified on the one side and the other, the learned judge inadvertently spoke of E. K. Gallagher as being one of the witnesses who had testified as experts. He had not testified as an expert, but as one acquainted with the handwriting of Maurer. It is not at all plain that the plaintiff did not have more right to complain of the inadvertence than the defendant. But be that as it may, the duty of either party who felt aggrieved was to call the judge’s attention to the slip at the conclusion of the charge. There are numerous late cases in which it has been held that the omission to do so estops the party from complaining afterwards. A notable case is Providence Life & Trust Co. v. Philadelphia, 202 Pa. 78. In conclusion, we remark that the case was submitted to the jury in a clear, adequate and impartial charge and that no error appears of record which would justify a reversal of the judgment.

The judgment is affirmed.