Alexander v. Blackburn

• Decision Date: 05 June 1912
• Docket Number: 22,078
• Citation: 98 N.E. 711,178 Ind. 66
• Parties: Alexander v. Blackburn
• Court: Indiana Supreme Court

98 N.E. 711

178 Ind. 66

Alexander v. Blackburn

No. 22,078

Supreme Court of Indiana

June 5, 1912

From Clinton Circuit Court; Joseph Combs, Judge.

Action by George W. Alexander against Joseph B. Blackburn. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Affirmed.

James V. Kent and Thomas M. Ryan, for appellant.

John W Strawn and Wm. Robinson, for appellee.

OPINION

Spencer, J.

This was an action brought by appellant against appellee, his alleged cosurety, on a certain promissory note, for contribution. The issues were made up by plaintiff's complaint in one paragraph, to which defendant filed his verified answer in two paragraphs. The first was a general denial. The second denied the execution of the note paid by plaintiff. Trial by jury. Verdict for defendant. Judgment on verdict for costs against plaintiff. From that judgment this appeal is prosecuted.

The only error relied on for reversal is the action of the lower court in overruling appellant's motion for a new trial.

Eight reasons are assigned as causes for granting a new trial under appellant's motion. The first five assigned raise the question of the sufficiency of the evidence to sustain the verdict. The sixth and seventh assigned reasons relate to alleged misconduct of appellee's attorney in his argument to the jury; the misconduct complained of being the use of a magnifying glass by which each juror examined certain signatures, used in evidence as a basis of comparison. The eighth reason relates to the giving to the jury, by the court, of the following instruction: "Third. Some expert testimony has been introduced in this case and I instruct you that you should consider their testimony the same as that of any other witness. I mean in weighing their evidence. The same rule applies to them that applies to any other witness and they are not entitled to any more credit from the mere fact that they are experts."

Appellee's verified answer, denying the execution of the note as cosurety, placed the burden on appellant of proving, by a preponderance of the evidence, the signature to the note to be that of the appellee. Brooks v. Allen (1878), 62 Ind. 401; Pate v. First Nat Bank (1878), 63 Ind. 254; Carver v Carver (1884), 97 Ind. 497; Wines v. State Bank (1899), 22 Ind.App. 114, 53 N.E. 389; Pope v. Branch County Sav. Bank (1899), 23 Ind.App. 210, 54 N.E. 835.

There was some evidence tending to show that appellee did not execute the note as cosurety, and this court cannot say that the jury erred in finding that appellant failed to prove, by a preponderance of the evidence, the execution of the note by appellee.

The magnifying glass did that which, in the realm of science, it was intended to perform, viz., it assisted the natural power of the eyes of the jurors to see; and it was not additional evidence in this case. It was not error to permit the jury to use the magnifying glass in examining the signatures. Short v. State (1878), 63 Ind. 376; White Sewing Mach. Co. v. Gordon (1890), 124 Ind. 495, 24 N.E. 1053, 19 Am. St. 109; Morse v. Blanchard (1898), 117 Mich. 37, 75 N.W. 93; Hatch v. State (1879), 6 Tex. Ct. App. 384.

The latter part of the third instruction, taken alone, was erroneous. But in this case the court gave other instructions which fully informed the jury as to the law by which it was to measure the credibility of the witnesses and the weight to be given their testimony.

Quoting from Shields v. State (1897), 149 Ind. 395, 406, 49 N.E. 351, this court said "It is settled law in this State that instructions are considered with reference to each other, and as an entirety, and not separately or in dissected parts; and if the instructions as a whole correctly and fairly present the law to the jury, even if some particular instruction, standing alone or taken abstractly, and not explained or...