Alexander v. Blackburn

• Decision Date: 05 June 1912
• Docket Number: No. 22,078.,22,078.
• Citation: 98 N.E. 711,178 Ind. 66
• Parties: ALEXANDER v. BLACKBURN.
• Court: Indiana Supreme Court

178 Ind. 66

98 N.E. 711

ALEXANDER

v.BLACKBURN.

No. 22,078.

Supreme Court of Indiana.

June 5, 1912.

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Action by George W. Alexander against Joseph B. Blackburn. From a judgment for defendant, plaintiff appeals. Transferred to the Supreme Court from the Appellate Court under Acts 1901, c. 259 (Burns' Ann. St. 1908, § 1405). Affirmed.

James V. Kent and Thomas M. Ryan, for appellant. John W. Strawn and William Robinson, for appellee.

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 appellant. Trial by jury. Verdict for appellee. Judgment on verdict for costs against appellant. From this 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 the evidence as a basis of comparison. The eighth reason relates to the giving to the jury by the court 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.”

[1] 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, 62 Ind. 401;Pate v. Bank, 63 Ind. 254;Carver v. Carver, 97 Ind. 497;Wines v. State Bank, 22 Ind. App. 114, 53 N. E. 389;Pope v. Branch County Bank, 23 Ind. App. 210, 54 N. E. 835.

[2] 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.

[3] 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, 63 Ind. 376;White Sewing Machine Co. v. Gordon, 124 Ind. 495, 24 N. E. 1053, 19 Am. St. Rep. 109;Morse v. Blanchard, 117 Mich. 37, 75 N. W. 93;Hatch v. State, 6 Tex. App. 384.

[4] 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 they were to measure the credibility of the witnesses and the weight to be given their testimony. Quoting...