Winch v. Norman

65 Iowa 186 | Iowa | 1884

Adams, J.

Tbe libel set up in - the defendant’s counterclaim is alleged to have consisted in a publication made by sending tbrougb tbe mail, to one Louisa Yandusen, a postal card in these words: “My friends tell me you put your name to a security bond for your neighbor. I should think that you bad enough of that business tbrougb life. He don’t own or bold a cent in bis name. Take your name off, sure. [Signed] E. E.”

There was no direct evidence that the plaintiff'wrote tbe postal card, but witnesses who were familiar with tbe plaintiff’s signature testified in substance that they thought that there was some resemblance between tbe plaintiff’s writing and a part of tbe writing on tbe postal card; and others testified as experts to a resemblance between what was admitted to be tbe plaintiff*s writing and a part of tbe writing on tbe postal card. Among tbe witnesses examined in relation to tbe band writing was one Hyde. He testified that be was familiar with tbe signature of tbe plaintiff, but not with bis general handwriting, and that be thought that there was a resemblance between one letter on tbe postal card and tbe plaintiff’s writing. He was also examined as an expert for the purpose of comparing certain admitted writing of tbe plaintiff with another postal card addressed to one Topping, and signed “ J. W.,” and was allowed to testify, against tbe objection of the plaintiff, that lie saw a resemblance between one letter in the Topping card and the plaintiff’s admitted writing. The Topping card wTas then admitted in evidence to the jury, against the plaintiff’s objection, for the purpose of enabling them to make a comparison between it and the alleged libelous card addressed to Louisa Yandusen.

i evidencecierk'of^eourt as expert. The plaintiff contends that Hyde did not show himself to be qualified to testify as an expert from a comparison of Pla™tiff’s admitted writing with the Topping car<^ 5 an(^> even ^ he been qualified, that it eiTor auow the Topping card to be admitted in evidence for the purpose of a comparison to be made by the jury. Upon the question as to whether Hyde showed himself qualified to testify as an expert, we have to say that we find no evidence, except the witness’ statement that he was the clerk of the courts of Harrison county. Without determining whether a person might not become qualified to testify as an expert from a comparison of writings by service in such office, it seems clear to us that he could not be so regarded without any reference to the length of time of such service. But upon this point the evidence discloses nothing. Such being the fact, we cannot say that there was any evidence whatever that Hyde was qualified to testify as an expert.

2. —: comparison: liowestablisked. We have to say, also, that we think that, independently of the question of the expert character of Hyde, the court erred in admitting the evidence respecting the Topping card, and erred in allowing it to go to the j ury. The , , , , , m . object, of course, was to establish the Topping card as in the plaintiff’s handwriting, and then ask the jury to infer by comparison that the Yandusen card in question was in his handwriting also. But we have seen no case where it has been held admissible to make a given writing the basis of comparison, where its own genuineness is shown only by comparison with some other writing. It appears to us that the genuineness of the writing made the basis of comparison, called sometimes the standard writing, should be proved by direct or positive evidence. In Hyde v. Woolf olh, 1 Iowa, 162, the court said: “Two obvious methods of proving the standard writing are — First, by the testimony of a witness who.saw the person write it; and, Secondly, by the party’s admission, when not offered by himself. We do not mean to say that these are the only methods, but only that the proof must be positive.” The court also said: “ The very idea of proving handwriting by comparison implies, of necessity, the establishment of the genuineness of the standard. The court is not prepared to adopt the suggestion that the standard writing may be proved by witnesses who have only seen the party write, for this is in effect fixing the standard by comparison; it is supporting a probability by a probability.” The foregoing, though perhaps not strictly necessary to be said in that case, meets our approval. If'it were allowable to establish the genuineness of the writing on the Topping card, to be used as a standard writing, by mere expert evidence based upon comparison, it would be allowable to establish still a third writing as a standard writing by comparison with the Topping card, and a fourth by comparison with the third, and so on indefinitely, and all might then be given to the jury as genuine writings with which to make a comparison of the disputed" writing.

Evidence of experts based upon comparison is, at best, not very reliable, and we do not think that we should be justified in holding that writing can be used as standard writing, the evidence of whose genuineness rests only in opinion. Some other questions aré presented, arising upon the evidence, but, as the evidence may be different upon another trial, we do not feel called upon to determine them.

We think that the judgment of the circuit court must be

Reversed,