41 Pa. Super. 171 | Pa. Super. Ct. | 1909
Opinion by
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
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
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.
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
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 elabo
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.