Wright v. Williams's Estate

47 Vt. 222

• Court: Supreme Court of Vermont
• Decided: October 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Barrett, J.

In respect to Stewart, Huntington, and Henry, whose opinion as experts was offered by defendant, each gave testimony touching the matter of his peculiar skill in judging of the identity of the handwriting which was the subject of comparison. The court found that testimony to be true; and still refused the proffered testimony of their opinion, on the ground that the testimony given did not show that either of said witnesses was such an expert as to make his opinion, based upon examination and comparison alone, admissible. This is tantamount to saying that in the judgment of the court, the facts testified by said witnesses, did not as matter of law, constitute them experts, nor as matter of evidence, show that they were experts, according to the true idea of the law on that subject. If those facts are to be regarded as matter of evidence from which the court is to find whether experts or not, of course such finding is not revisable in this court. If those facts are to be regarded as ultimate, and the perfected ground for a definitive judgment of law, then such judgment would be revisable in this court. This proposition is iii harmony with all the cases in which it has been held that the decision of the county court is not to be revised in this court. In the present case we think it was warrantable for the county court not to find as matter of fact, that the witnesses were experts ; and this is equivalent to saying that what the witnesses testified as to themselves, taken to be true, did not constitute them experts. The kernel of this character of expert, is, the fact of peculiar skill, derived from experience in the particular matter in question; in the present case, in the matter of determining the identity of the handwritings by comparison. For a statement of the law and reference to the cases on this point, see 4 Phil. Ev., Cow. & Hill’s notes (ed. of 1849), 112; and note 173, page 52, vol. 3; vol. 4, p. 488; note 258 to page 254, vol. 2.

“ The opinions of witnesses are confined to men of science, art, or skill in some particular branch of business.” Crowell v. Kirk, 3 Dev. 356-7; Corlis v. Little, 1 Green, 232. “ In respect to matters which call for opinions founded on peculiar knowledge, it is proper for the court first to ascertain whether the witness be an expert, that is to say, skilled in the matter to which his opinion is desired. They may be satisfied on this question by examining the witness himself and others, as was done in Mendum’s case, 6 Rand. 709.” See Davis v. Mason, 4 Pick. 156. “This species of evidence, if admissible at all, must obviously stand upon the general principle allowing persons skilled in a particular science or art, to give their opinions upon questions relating to it, and in respect to which they are supposed to possess peculiar knowledge.” Neither of the witnesses professed or testified that he regarded himself as having any peculiar skill, or that in his own supposition he had any such skill as would enable him to rely on his own opinion as to the identity in question. The experience testified to did not of itself, as matter of law, either constitute or conclusively imply such skill. All that experience might have been had by each, and still that peculiar skill have been wanting. It does not help, to say that it might as well have resulted in such skill, or that it was likely to have resultéd in such skill, or that it was most likely so to have resulted, unless it should come up to the point of settling conclusively that it had resulted in such skill. Short of that point, it was for the court to determine the question of peculiar skill, upon the evidence pertinent to it. If the court had found the other way, it would not have been subject to revision in this court, for the reason that the evidence was of an experience in the direction of inducing the peculiar skill, and might have resulted in it, at any rate might be regarded as not being, as matter of law, inadequate to have resulted in such skill.

It is to be repeated, that so long as the evidence or facts do not constitute or conclusively show the skill, and such skill is matter of fact to be inferred from such evidence or facts, the finding of the court in that respect is not revisable as being error in law. So are all the cases. It may not be improper to remark, that while we are not disposed to narrow the scope of the law as it has been developed and applied cn this subject, we see no occasion or reason for enlarging that scope. It would be trite to repeat the very uniform expression of judges and the books as to the small value of this kind of evidence, yet it is warrantable to say that such expression is corroborated by our own observation and experience in judicial administration.

What was offered to be shown by McEwen, was offered in contradiction of plaintiff’s statements in his testimony given before the commissioners, that testimony having been introduced on the trial in this cause by the defendant. The plaintiff was not a witness on said trial, so it could not be pertinent as impeaching his credit as a witness. As matter of contradiction, then, it could only operate to show that he had falsified in testifying before the commissioners thus : “ It was money I had collected on my demands in St. Lawrence county. I commenced saving what I collected about the first of October, 1868.” It is not shown by the exceptions nor claimed in the argument, that any point was made by defendant against the plaintiff’s claim that he loaned the money, on the score that he had not money in such amount as to render such a transaction likely. If such a ground of defence had been taken, any evidence tending to show want of money for such a loan, would have been proper, whether it was what plaintiff had said or what he had done. The plaintiff had said nothing to constitute evidence against himself in that respect. He had given no evidence and made no claim on the trial, to be met by evidence that he had not money for such a loan. There was, then, no issue or question before the jury to which the fact that plaintiff had loaned money and taken notes within the time named, could be pertinent. As plaintiff’s credit as a witness on the pending trial was not in question, and as his means for making such a loan was not in question, it is difficult to comprehend the view in which the rejected evidence was admissible. Whether plaintiff had saved or loaned money within the time named, was wholly immaterial, except as bearing on his means for making a loan for which the note was given. There being no question on that subject, what he testified before the commissioners, whether true or false, had no pertinency in this trial.

On the subject of the second request of the defendant, the court instructed the jury according to the law as administered in Mattocks v. Lyman, 18 Vt. 98, as stated in 1 Greenl. Ev. § 201, and as shown and established by the current of leading cases.

i s to the first request. That request, and the response to it, are to be considered in view of the state of the case and the posture of the subject as the trial went on. It is expressly stated that no claim was made by plaintiff that the indorsement itself was any evidence that the note was executed by Williams. The note, with the indorsement on it, was properly in evidence, said indorsement being in plaintiff’s handwriting. This was all that plaintiff put in as to such indorsement. If defendant had let the matter rest there, the whole subject would Save been embraced in his request, and would have been disposed of by a literal compliance with it. But instead of that, the defendant put in what constituted the “ other evidence in the case tending to show that the money was in fact paid, and indorsed by thfe plaintiff at the request of the deceased.” The defendant also introduced evidence to show that such evidence was not true. The defendant alone thus presented the subject of that indorsement, and as thus presented, his request did not fully embody the subject. The court were charged with the duty of disposing of it as it was made up and presented by the course of the trial. The controversy was, whether the payment was made, indicated by the indorsement. No stress was laid on the indorsement by itself, but only on the payment. Unless that was made, nothing was claimed for the indorsement. If it was made, then the indorsement was a proper act, deriving all its character and force from the payment, but really giving no additional effect to the payment as bearing on the genuineness of the note. The court so treated the matter, and properly put it to the jury — giving the defendant the full benefit of all that could be properly claimed by him on that subject. The jury could not mistake it in just the sense indicated by the language of the charge, viz : that the payment was the effective fact, and the indorsement but a resulting incident — of no effect, unless the payment should be established.

As to the offer of the notes in plaintiff’s handwriting, purporting to be signed by different persons since deceased, and to prove that plaintiff had presented them against the estates oj the said deceased persons, and claiming that said signatures were forgeries, to go to the jury for comparison of those signatures with' that to the note in suit, claiming that in certain particulars they were alike : defendant abandons his exception to the rejection of said offer; but he insists on his exception to the court’s rejecting the same offer with the addition of “ claiming that there were certain peculiarities in the writing of the plaintiff in the body of the notes so offered, that also appeared in the signature of the note in question.” We have no occasion to consider whether the notes offered would have been admissible if offered merely for the purpose of this comparison of the handwriting of the body of them with the signature of the note in question. Such was not the offer, but it was the first offer supplemented with the claim as to the peculiarities in the body of the notes. It was not the duty or the business of the* court to dissect and analyze an entire offer, which, as a whole, was illegitimate, and select and allow such elements of it as would be legitimate if standing alone, excluding the rest. We assume, from the abandonment of the claim that the fir^t offer of said notes was legitimate, that it is conceded that such offer was not legitimate. So, though we so hold it, we take no time in discussing it, and remark, that no reason is indicated or apprehended, why it is less illegitimate when supplemented by the claim in the second offer. If counsel would have disembarrassed the offer of those notes for the mere purpose of a comparison of the handwriting of the body of them with the signature in question, the former offer of them should not have been incorporated into the second. We think it plain that it was so incorporated, both from the express terms of the second offer, and from the fact that none of the claimed peculiarities were pointed out in connection with the making of the offer, and no use was made of other conceded specimens of plaintiff’s handwriting already in the case, by way of instituting or inviting the proposed comparison. It is not taxing ourselves with a very strained conjecture, that the claim appended to the first offer, when that offer was repeated in the second, was made in some hope that it might be regarded as sanctifying the legal view of the first offer, and constitute a kind of sugar-coating, that, while it might render the pill more gustable, would leave it to its full operation as medicinal.

Judgment affirmed.