21 Pa. Super. 294 | Pa. Super. Ct. | 1902
Opinion by
1. The unsupported testimony of a defendant in a confessed
2. Where a judgment entered upon a warrant of attorney is opened generally and without terms, the plaintiff is put to proof of his cause of action “precisely as if no judgment had been entered : ” Sossong v. Rosar, 112 Pa. 197; Harris v. Harris, 154 Pa. 501. When it is opened upon an allegation of forgery it is not usual to impose as one of the terms that, the instrument alleged to be forged shall “ be offered and read on the trial of the
3. Where declarations or acts accompany the fact in controversy and tend to illustrate or explain it, they are treated, not as hearsay, but as original evidence, in other words, as part of the res gestee. In this case the fact in controversy was the genuineness of the signature, “ Martion Castner,” to a note purporting to be signed by him and J. P. Castner. The parties to the issue were the executor of the payee and Martin Castner. The court permitted the plaintiff’s witness to testify that the note was given for a loan to J. P. Castner, that it was drawn by the witness and signed by J. P. Castner in his presence, that it was taken away by the latter and subsequently returned by him with the name “ Martion Castner ” added. The plaintiff further offered to show by the same witness what was said at the time the note was taken away by J. P. Castner, what the condition was upon which the loan was made to him, what was done during the negotiations relative to the examination of the record as to Martin Castner, and whether upon the return of the note the attention of J. P. Castner was called to the manner in which “ Martin ” was spelled. He also offered to prove by another witness that the money loaned to J. P. Castner was applied by the latter upon another note of which Martin Castner was joint maker with him. We fail to see how the acts and declarations thus offered to be shown, standing alone, illustrate, explain or throw any light upon the fact in controversy. There being no accompanying offer to bring home knowledge of them to Martin Castner or to show
4. The extent to which a party may go in cross-examination for the purpose of testing the accuracy of recollection, the interest or th.e bias of an opposing witness rests largely in the discretion of the trial judge, and the appellate court will not reverse because of the admission of questions asked for that purpose, unless there has been a very plain abuse of discretion to the injury of the party complaining. The fact that an expert witness is to receive, or has received, per diem compensation beyond the legal witness fee does not affect his competency as a witness, and it may have very slight bearing upon the question of his impartiality. Nevertheless, his relation to the party calling him may be such as to warrant the jury in taking it into consideration in weighing his testimony. Therefore, it is not reversible error to permit cross-examination upon that subject within reasonable limits, which we think were not exceeded in this case by the questions referred to in the ninth assignment of error. See Commonwealth v. Farrell, 187 Pa. 408.
. 5. The general rule limiting cross-examination to the matters elicited in the examination in chief does not exclude questions as to declarations or conduct naturally tending to show the improbability of statements made in the examination in chief. Of this nature were the questions put to Martin Castner which are quoted in the fourteenth, fifteenth and sixteenth assignments. We overrule these assignments, not because the questions were not legitimate cross-examination, for we think they were, but because substantially the same questions were put to and answered by the witness in other parts of his testimony.
6. Mettie Castner, a competent witness called by the plaintiff, testified that in a conversation between her and the defendant the latter admitted that he had signed the note in controversy. When the defendant was called to contradict her, objection was made upon the sole ground that this conversation took place prior to the death of John Yeany, the payee in the note and original plaintiff in the issue. All the elements requisite to bring the case within the operation of the Act of June 11, 1891, P. L. 287, being present, the objection was
7. By reason of testimony of Mettie Castner, not necessary to be recited here, it became important for the defendant to show that she and her husband Matthew went to housekeeping at Blacks Corners prior to June, 1895. For that purpose Michael Toomey, a merchant, was called and permitted to testify that it was about the time he sold them a bill of goods, and to refresh his recollection as to the date was permitted to refer to his books of account in which the items were charged. This was clearly competent: First Nat. Bank of Du Bois v. First Nat. Bank of Williamsport, 114 Pa. 1. His examination upon the subject might well have ended there, but no possible harm resulted to the plaintiff from permitting him to enumerate the articles after refreshing his recollection by reference to his books. There is no merit in the tenth assignment.
8. The plaintiff offered in evidence the deposition of one Peter Walley, taken on the rule to open the judgment. Walley was living at the time of trial and was present in court part of the time, but it appearing to the court from his preliminary examination that his mental condition was not such as to enable him to testify, the deposition was permitted to be read. His testimony was to the effect that he had seen Martin Castner sign a certain note which the plaintiff desired to use in the trial as a test paper. Later in the trial the defendant offered to contradict and impeach the witness by proof of his declarations made after his deposition was taken, to the effect that he had never seen Martin Castner sign any note. The objection was made that he had not first been examined as to these declarations and given an opportunity to explain them. But how could the plaintiff raise that objection when, by his own showing, the witness was unable to testify ? Moreover, the defendant attempted to comply with the rule but was prevented
9. It appears that when this note was given, another judgment note for the same amount was drawn in favor of Martin Castner and signed by J. P. Castner. This was intended to secure the former and judgment was entered upon it, but not by Martin Castner, in 1892. It became a matter of importance in the trial to determine when he first had notice of the transaction. To repel any inference that he must have got notice of it as early as 1898 through the assessment of taxes, the defendant was permitted to show that he was not assessed with taxes upon money at interest in that year. This we understand to have been the purpose of the offers which are referred to in the twentieth and twenty-first assignments of error. We cannot say that this was a wholly irrelevant fact, nor that the book referred to in the assignments was not sufficiently proved in the first instance to warrant its admission in evidence for that purpose. The twenty-third assignment may appropriately be considered in this connection. When James Pinks, a witness called by the plaintiff in rebuttal to prove that the book put in evidence by the defendant was a mere copy of the original assessment book, finally admitted upon cross-examination that it was “the only book from which the duplicate is
10. Martin Castner having become incompetent to testify by reason of the death of John Yeany, the deposition of the former taken in 1895 and used on the rule to open the judgment, when John Yeany was alive, was offered in evidence and objected to upon the ground that it appeared on the face of the deposition that, by the advice of counsel, he had refused to answer a certain question put to him upon cross-examination. It is urged that under the authority of Stonebraker v. Short, 8 Pa. 155, it was the imperative duty of the court to reject the deposition regardless of the special circumstances. Inasmuch as his testimony given on the first trial covering the same ground was read, it is difficult to see how the error, if error there was in permitting his deposition to be read, could have been prejudicial to the plaintiff. But we need not put our decision on that ground. The question which the witness refused to answer, though perhaps proper cross-examination, was of little importance. He had testified in chief that he first saw the note in question when his attorney took him to the office of McComb and Clarke, the plaintiff’s attorneys. The question he refused to answer was, whether he went there on business of his own or that of his son. His counsel deeming this illegitimate cross-examination instructed him not to answer. But immediately preceding this he had testified, while under cross-examination: “Couldn’t tell whether McComb and Clarke were attorneys for my son, J. P., didn’t inquire into such business.” Looking at his testimony as a whole it is manifest that the question was answered substantially, and that his refusal to answer it categorically did the defendants not the slightest injury. In Crossgrove v. Himmelrich, 54 Pa. 203, a somewhat similar case, it was held that the admission of the deposition was not error. Still further, it appears that notice of the filing of the deposition was accepted by the plaintiff’s attorneys and that they filed no exceptions to it. It is argued with great force that under the rule of court quoted in the bill of exceptions the objection was thereby waived. ' The court evidently took this view of the matter, and it is well settled that, upon a question of the construction or application of its own rules a
11. Judgment was entered on the note in question, as well as upon the indemnity note of J. P. Castner to Martin Castner, in April, 1892. The former note became due in April, 1893, execution was isssued thereon in April, 1895, and a levy made, but the application to open was not made until June 29, of the same year. According to the defendant’s own admissions he was shown the records of these judgments by his attorney early in the year 1894, but he gave no notice to the plaintiff or his attorneys that his signature was a forgery, and made no application to see the note until about the time when he moved to open the judgment thereon. The court correctly charged the jury, as requested in the defendant’s second point (thirty-fourth assignment), that no act, declaration, delay or omission on his part shown in the present case would make him liable on the note, if his name was not signed to it by himself or by his authority: Henry Christian B. & L. Association v. Walton, 181 Pa. 201, and cases cited. Nevertheless his delay of over a year in moving to open a judgment against him upon a note which he now alleges to be a forgery, and which was overdue when knowledge of the judgment was brought home to him, was a circumstance of considerable significance. This was recognized by both parties; by the plaintiff in his fifth point, which was affirmed, and by the defendant in the introduction of the testimony quoted in the twelfth assignment. The defendant’s delay did not estop him, but the circumstance being such as would properly call for some action or declaration from men similarly situated, the jury might very naturally and properly regard it as some evidence of consciousness on his part that the judgment was valid. But if his delay was involuntary, it would not furnish any ground for such inference. So also, if he consulted counsel as soon as he learned of the judgment and the latter advised him to take no action until the plaintiff should move in the matter, the effect of his delay, pursuant to such advice, as evidence of a consciousness on his part that he had no defense to the judgment might be weakened in the estimation of the jury, if not wholly destroyed.
12. The plaintiff opened the door to the admission of the evidence complained of in the thirteenth assignment by asking and receiving a negative answer to the question put by his counsel to sheriff Stetzler, a witness called by him: “ State whether or not Martin Castner made any allegation at that time ’’ — June, 1895, the time of the levy — “ regarding the note, or that judgment being a forgery or anything of that kind.” If the testimony introduced by the plaintiff was relevant, it was competent for the defendant to contradict it. If it was irrelevant, still the plaintiff is not in a position to complain of the admission of evidence to contradict it: Schriver v. Eckenrode, 1 Penny. 55.
13. One of the rules laid down in Travis v. Brown, 43 Pa. 9, is: “ 1. That evidence touching the genuineness of a paper in suit may be corroborated by a comparison, to be made by the jury, between that paper and other well authenticated writings of the same party.” The Act of May 15, 1895, P. L. 69, changed the law as declared in Travis v. Brown by making it competent for experts to make such comparison, but in nowise changed the law as to the introduction of other well authenticated writings of the same party for the purpose of comparison to be made by the jury. On the contrary, it expressly declares that “ the final determination as to whether any particular handwriting is genuine or simulated shall remain, as heretofore, a question for the jury on all the evidence submitted.” The signature to the paper offered by the defendant (twenty-second assignment) was sufficiently proved; it was made in 1890, two years before the date of the note in question, and hence was not made with this litigation in view. The fact that the name “ Martin ” was written correctly and not “ Martion ” as in the note in controversy, neither destroyed nor lessened its value as a test or standard with which to compare the signature in dispute. The counsel for the plaintiff, in further support of this assignment, say that they do not claim that this signature to the note in controversy bears any resemblance to the ordinary signature of Martin Castner. But the defendant could not be expected to anticipate that the plaintiff would make such admission. Even if it had been solemnly made and put
14. To authorize the admission of the writing offered as a test or standard, nothing short of evidence by a person who saw the party write the paper, or of an admission by such party of its being genuine, or evidence of equal authority, is sufficient: Baker v. Haines, 6 Whart. 283. This rule has been adhered to in later cases (Cohen v. Teller, 93 Pa. 123), and was not changed by the act of 1895. The case of Sweigart v. Richards, 8 Pa. 436, is not an exception; it simply decides that certain evidence is of “ equal authority.” Under the act of 1895, the document or writing offered for purpose of comparison must be “admitted to be genuine,” or “proven to the satisfaction of the judge to be genuine.” The execution of the test paper offered by the plaintiff in this case was seriously in conflict. Martin Castner denied it and the witness called to prove it was contradicted by proof of his subsequent declarations, and other testimony. Even according to his testimony it is more probable that the handwriting, in a physical sense, was that of J. P. Castner than that it was that of Martin Castner. He said, “ J. P. Castner held the pen and Martin Castner had his hand on top of J. P. Castner’s hand.” The court first admitted the paper but afterwards reconsidered the matter, and upon the defendant’s motion struck it out, at the same time saying, amongst other things : “ The only evidence offered on the part of the plaintiff is that of Peter Walley taken by deposition, and it is of such an uncertain character that it leaves a doubt in our mind as to the paper being sufficiently proved.” Unquestionably it is the duty of the judge to require the same kind of proof as was required prior to the act of 1895; but if such proof is furnished and there is opposing testimony, his decision of the question of fact must ordinarily be accepted as conclusive, for the obvious reason that the credibility of the witnesses is an important factor, and of this he had better opportunity to judge than is afforded the appellate court. The paper in question was neither “ admitted to be genuine ” nor “ proven to the satisfaction of the judge to be genuine.” The statutory conditions- were not fulfilled. Tak
The remaining questions relate to the charge of the court and the answers to the points.
15. As the issue stood when the case was tried, the burden of proof rested on the plaintiff, and it was incumbent on him to establish his allegation that the note in suit was signed by the defendant or by some one authorized by him : Sossong v. Rosar, supra ; Harris v. Harris, supra; Shrader v. U. S. Glass Co., 179 Pa. 623. In such a case as this, where the defense consists of a general denial of the plaintiff’s allegation, it is sufficiently accurate to say to the jury that the burden of proof is on the plaintiff throughout, and does not shift; especially when such instruction is accompanied by the explanatory statement that the weight of the evidence may shift from side to side in the progress of a trial, according to the nature and strength of the proofs offered in support dr denial of the main fact to be established, and the further instruction that if the jury find that the evidence preponderates in favor of the plaintiff it is their duty to render a verdict in his favor.
16. The instructions complained of in the twenty-seventh, twenty-eighth and twenty-ninth assignments of error, read without reference to the context, would seem to be open to the criticism that the question at issue was to be, or at least might be, determined by the jury from a comparison of the disputed signature with the signatures proved to be genuine^
17. The answer to the thirty-second assignment of error is twofold: first, the presumption against the defendant from his failure to call J. P. Castner is no stronger than that against the plaintiff from his failure to call him ; second, the court was justified in refusing to charge as a matter of law that there was a “ presumption ” against either. Under some circumstances the jury may draw an unfavorable inference against a party from the nonproduction of evidence, but it is an inference of fact, not a presumption of law: Wills v. Hardcastle, 19 Pa. Superior Ct. 525, and cases there cited.
18. In discussing other assignments of error we have incidentally passed upon the questions raised by the thirty-first, thirty-fourth and thirty-fifth assignments, and the thirty-third does not require discussion. It is sufficient to cite the case of Penna. Co. v. Franklin Fire Ins. Co., 181 Pa. 40, at p. 49.
19. The last assignment alleges error in the affirmance of the defendant’s sixth point, which was as follows : “ Under all the evidence in this case, if the jury do not believe the evidence of Mettie Castner that Martin Castner told her, or in her presence, that he had signed the Yeany note, the verdict must be for the defendant.” It would unduly extend this opinion, already too long, to attempt a recital and an analysis of the evidence introduced by the plaintiff, outside of that of Mettie Castner, tending to show that the defendant signed or authorized his name to be signed to the note in suit. Nor is it necessary to do so, for it is fully and accurately summarized in the judge’s charge. We therefore simply state our conclusion, reached after a thorough and careful examination of it, that it would be insufficient, standing by itself, to sustain a recovery in favor of the plaintiff upon a note alleged by the defendant to be a forgery. In other words, if Mettie Castner’s testimony bad not been introduced, or for any proper cause had been struck out, the court
All the assignments of error, excepting the twelfth, twenty-eighth and twenty-ninth, are overruled, the judgment is reversed and a venire facias de novo awarded.