Benedict, Hall & Co. v. Flanigan

• Decision Date: 15 February 1883
• Citation: 18 S.C. 506
• Court: South Carolina Supreme Court
• Parties: BENEDICT, HALL & CO. v. FLANIGAN.

18 S.C. 506

BENEDICT, HALL & CO.

v.FLANIGAN.

Supreme Court of South Carolina.

Feb. 15th, 1883.

1. Comparison, as an original means of ascertaining the genuineness of handwriting, will not be permitted; but when introduced in aid of doubtful proof, already offered, it may be allowed.

2. Whether the proof is doubtful must be determined, in the first instance, by the trial judge, and his ruling will not be disturbed unless his error be very patent. The direct proof in this case was properly held by the Circuit judge to be doubtful.

3. The rule established in this State does not require the witnesses making the comparison to be professional experts in the matter of handwriting.

Before WALLACE, J., Richland, April, 1882.

This was an action by Benedict, Hall & Co. against J. T. Flanigan and others, commenced in March, 1873. Mrs. L. M. Flanigan, one of the defendants, denied her alleged signature, judgment by default being taken against the other defendants. H. R. Flanigan, one of the defendants, and a son of L. M. Flanigan, was called as a witness by plaintiffs, and testified as stated in the opinion. Plaintiffs then called J. H. Sawyer and C. J. Iredell, bank cashiers, and R. S. Desportes, a merchant of long standing, and “a banker in a small way,” who testified that from a comparison of the signature to the note with two admitted signatures of L. M. Flanigan, they thought the signature was genuine. This testimony was objected to by the defendant. The judge charged the jury that the only issue before them was the genuineness of L. M. Flanigan's signatures to the three notes. That they, the jury, were to make the comparison of the papers themselves, as well as to consider the testimony of the witnesses who have been examined as experts, and the other testimony in the case; that as we had no professional experts in this State, persons who had experience in the comparison of signatures to notes were competent to testify to the genuineness of signatures in controversy, by comparison with signatures proven to be genuine, and that their testimony was entitled to weight according to their experience and skill in making such comparisons; that cashiers of banks, who, in the discharge of duty, had frequent occasion to examine signatures to notes and determine their genuineness, were competent to testify to the genuineness of signatures in controversy by comparison with signatures proven to be genuine, and that their testimony was entitled to weight according to their experience and skill in making such comparisons.

The jury found a verdict for plaintiffs against L. M. Flanigan for $3,673.97. Defendant appealed.

Mr. J. H. Rion, for appellant.

Messrs. Melton, Clark & Muller, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

The exceptions in this case, six in number, though presented in different forms, raise at last but a single question for the consideration of this court, to wit: The question of the competency of the opinion of a witness not a professional expert, as to the genuineness of a signature, derived entirely from comparison-the witness being wholly unacquainted with the handwriting of the party.

The most direct and satisfactory proof of the genuineness of a writing is the testimony of one who was present and saw the writing executed; but this is not always possible, hence the testimony of those who are acquainted with the writing of the party in question, either from having seen him write or otherwise familiar with his acknowledged writing, has invariably been allowed. From a knowledge thus acquired, the witness is supposed to have a standard in his mind, impressed by his memory, with which he can compare the disputed writing and thus reach a correct conclusion. This being the theory upon which such testimony has been uniformly received it is somewhat illogical that comparison on the witness stand of a disputed signature with one acknowledged to be genuine has been as uniformly rejected by most of the courts.

The basis of the first class of testimony being nothing more than a comparison with a standard resting in memory, it would seem that the latter class would be more reliable, resting, as it does, upon a comparison with an acknowledged standard present and in juxtaposition with the disputed writing, especially where the comparison proposed is generally to be made by witnesses of intelligence and familiar with chirography. But, nevertheless, while testimony of the character first above referred to has never been questioned, yet testimony of...