Tally v. Cross

TYSON, J. — The appeal in this case is prosecuted from a judgment granting a new trial. The sole question presented is Avhether it is competent for a witness as an expert to state that in his opinion two papers were Avritten at the same time. It was on account of the refusal of the trial judge to permit this to be done, that a new trial Avas granted. If he committed an error in not admitting the testimony offered, then he rightly granted the motion. [568] In Glover v. Gentry, 104 Ala. 222, this court sustained the ruling of the lower court in permitting, a witness to state that in his judgment the words “twelve hundred and” were not written in the same ink that the other portion of the note was written, and cited as authority the case of Vinton v. Peck, 14 Mich. 287. The opinion of the court in that case is an extended review of the authorities upon the question and we think the reasons given by the court for admitting such evidence sound and practical. In Moore’s Admr. v. Crowder, 72 Ala. 88, it is said: “Any witness who has seen the party write or who knows his handwriting, may express his opinion as to the genuineness of the signature. Of course, the extent of his familiarity with the handwriting, will enter into tlie weight of his testimony. Experts may go farther: * * they may also give their opinion whether a given writing is genuine or a feigned or forged signature. There are certain other matters pertaining to handwriting, about which they can give their skilled opinions, not necessary to be here considered.” See also Cox v. Dill, 85 Ind. 344; Goodyear v. Vosburgh, 63 Barb. (N. Y.) 154; Ludlow v. Worshing, 108 N. Y. 520; Withee v. Rowe, 45 Me. 571; Moody v. Rowell, 28 Am. Dec. 317. In 9 Am. & Eng. Ency. Law, 294, the doctrine is stated in the text to be: “An expert may testify as to tlie characteristics of the handwriting in question; as to whether the writing is natural or feigned, was or Avas not Avritten at the same time, with the same pen and ink, and by the same person and as to alterations or erasures therein, as to the age of the Avriting and obscurities therein.” See also 1 Wharton on Evidence (2d ed.) § 718; Lawson on Expert and Opinion Evidence, p. 418-419; Rogers on Expert Testimony, p. 183; note on p. 240 of 66 Am. Dec. • ' It Avas expressly decided that an expert should be permitted to testify that two papers were written at the sanie time in the folloAving cases: Fulton v. Hood, 30 Pa. St. 365; Quninsigamond Bank v. Hobbs, 11 Gray. 250; Cooper v. Bockett, 4 Moore P. O. 433; Dubois v. Baker, 30 N. Y. 355; Eisfield v. Dill, 71 Iowa 442. [569] Upon principle there is no more reason why an ex-pert should not he permitted to give his opinion that two papers were written at the same time, than there is in permitting him to express an opinion that the handwriting was feigned, or written with the same pen and ink. The only cases cited by appellants’ counsel as opposed to this Anew are the folloAving: The Phoenix Fire, Ins. Co. v. Phillip, 13 Wendell, 81; Sackett v. Spencer, 29 Barb. (N. Y.) 180; Ellingwood v. Bragg, 52 N. H. 488; Cheney v. Dunlap, 20 Neb. 265. An examination of the opinions in these cases will shoAV that only tAVO of them support his contention. The case of Sackett v. Spencer Avent off on the point that expert testimony Avas inadmissible to sIioav that part of an instrument was AA-ritten over a fold after the document had been folded and soiled, because that -Avas a matter Avithin the common observation of ordinary jurymen. In Ellingwood v. Bragg the AA’itness HeyAvood was asked Avhether in his opinion certain entries upon an account book Avere Avritten with the same pen and ink and at the same time. The court said: “We are not prepared to say that the subject matter of Mr. Heywood’s testimony Avas one upon Avhich the opinion of an expert was inadmissible.” The cause Avas reversed upon the ground that the Avitness Avas not shoAvn to be an expert. The case of the Phœnix Fire Ins. Co. v. Phillip, one of the cases supporting appellants’ contention was overruled in Miles v. Loomis, 75 N. Y. 288, and the doctrine as declared in Dubois v. Baker (30 N. Y. 355) cited supra Avas expressly reaffirmed. The other case, Cheney v. Dunlap (20 Neb. 265) is opposed to the great weight of authority and opposed to the principles announced by this court in the two cases 'cited above. - There Avas no error in granting the motion for a neAV trial. Affirmed.