Eborn v. Zimpelman

• Decision Date: 01 January 1877
• Citation: 47 Tex. 503
• Court: Texas Supreme Court
• Parties: WILLIAM EBORN v. GEORGE B. ZIMPELMAN, ADM'R, &C.

47 Tex. 503

WILLIAM EBORN

v.GEORGE B. ZIMPELMAN, ADM'R, &C.

Supreme Court of Texas.

1877.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

The opinion states the case.

N. G. Shelley and Peeler & Fisher, for appellant.--The second exception--to the admission of photographic copies--presents a novel question in the law of evidence. We have been able to find but few cases in which it has been discussed. In volume 4, American Law Review, page 625, is an interesting article on the celebrated “Howland Will Case,” which will, we think, satisfy the court of the utter unreliability of this character of evidence. The case involved a very large amount, the costs alone exceeding $150,000, and was managed by very able counsel, one of whom, as stated by the reviewer, expressed, in court, the opinion, “that all the testimony drawn from photographs was clearly inadmissible;” and the author adds: “we are not aware of any decision admitting such testimony upon a question of handwriting.” (Page 653.)

In Daly v. Maguire, 6 Blatchford, 137, which was an action for the infringement of the copyright of a play, the plaintiff applied to the court to take a printed programme of a performance at a theatre in San Francisco, which was annexed to and filed with the deposition of the defendant, with a view of annexing it to a commission which plaintiff proposed to send out for examination of witnesses in San Francisco, Blatchford, judge, said: “The application is granted on condition that the plaintiff shall, under the direction of the clerk, first cause to be made and placed on file, in lieu of the original exhibit, photographic fac similes thereof.” It does not appear that there was any question of forgery in this case. It seems, too, that counsel and court both thought it necessary to send the originals, and not the photographic copies, with the depositions. In the case at bar, the photographic copies, and not the originals, were sent. If the originals had been sent and lost, the photographic copies might have been used as secondary evidence of the original contract, but under no circumstances would they have been admissible to prove the genuineness of the handwriting. Mr. Hillyer, who took the photographic copies, in this case, whilst having a good deal to say upon the subject, does not state the refractive power of the lens, the angle at which the originals were inclined to the sensitive plate, or the accuracy of the focusing. While he thinks it is “mathematlcally accurate,” he does not know whether it was the same size as the original, as he “ was not particular in that respect.”

In support of the third exception taken to the rejection by the court of certain paper writings, which had been sworn to be genuine by the witnesses West, Zimpelman, Cook, and Miller, which were offered by the plaintiff, that the jury might compare them with the papers sued on, we cite the following authorities: Hammon's Case, 2 Greenl., (Me.,) 33; Bush v. Lyon, 9 Conn., 55;Myers v. Toscan, 3 N. H., 47;Richardson v. Newcomb, 21 Pick., 315;Travis v. Brown, 43 Pa., 9.

There were but two questions in the case, viz: Were the claims barred by limitation?--were the claims forgeries? A slight examination of the charge will, we think, satisfy the court that it was clearly erroneous.

When Thomas came west, he held the money in his hands under a direct trust to invest in lands, and he continued so to hold it until William had the opportunity of ascertaining whether he had made the investment; and on his failure, of calling on him for its return. If, as alleged, William never heard of Thomas until a short time before his death, in 1870, there was no possible opportunity for him to put an end to the trust by ascertaining that Thomas had not made the investment, as promised, and calling on him for a return of the money. The trust was, therefore, a continuing and subsisting one, and the statute did not commence to run until 1870. We cite, on this point, Wingate v. Wingate, 11 Tex., 430;Murchison v. Payne, 37 Tex., 306;Stanton v. Stanton, 37 Vt., 411;Baker v. Joseph, 16 Cal., 174; Buchanan v. Parker, 5 Ired., (N. C.,) 597; Emmons v. Hayward, 6 Cush., (Mass.,) 501.)

The administrator was unquestionably the only proper party to be sued, and the only person who, under the law, could interpose or swear to the plea of non est factum. Without the oath, it was no plea at all, and should not have been considered. (Paschal's Dig., arts. 1442, 1443; Johnston v. Jefferson, 31 Tex., 332;Drew v. Harrison, 12 Tex., 282.)

In this case, the papers sued on were charged to have been made by the intestate, and the statute expressly provides in such case that it “shall be received in evidence,” unless some suspicion is cast upon it by the affidavit of the administrator of the intestate. This not having been done, the claim must be regarded as fully proved. (Yeary v. Cummins, 28 Tex., 94.)^a1

Terrell & Walker, for appellee.--* * * The original notes, it will be borne in mind, were filed as exhibits in the case, and, even if they were the best evidence, could never have been sent by permission of a court (not that in session) to North Carolina, in the hands of one pleading non est factum to them. No court would have permitted it. Why then go through the form of requiring the production, a thousand miles away, of an instrument not under the control of either party, before we could use its exact image? * * *

No two signatures made with a pen were ever exactly alike; and yet, while we permit experts to swear from points of resemblance, under some circumstances, to the common origin of signatures, we are asked to exclude as secondary evidence an achievement of science, which reproduces, with exact and mathematical accuracy, the lines of the very signatures in dispute, with all the relations of their lines to each other.

As late as 1874, Lord Coleridge, the chief justice of the Court of Common Pleas of England, in answer to an application to withdraw documents of the court, to be sent out to Bombay, to have identified the handwriting of some of them, said: “That difficulty might be got over by taking photographic copies, a thing by no means uncommon in the present day.” ( Re Stephens, 8 Moak, 482.)

The very question we are discussing was thus decided as a matter of course, and without giving reasons for it.

The same thing was done, as stated in our former brief, in the Tichborne case.

In the case of Udderzook, Chief Justice Agnew, of the Supreme Court of Pennsylvania, delivering the opinion of the court, held that the photographic likeness was admissible, in a murder case, to prove the identity of the deceased, without producing the artist, to show that it was correctly taken; and the man was hung. Why not? That court was charged with judicial knowledge of matters of science, and they knew, without being told, that a photographic copy reproduced the exact and unmistakable likeness (save in color) of an object set before it.

The American Law Review, referring to the Udderzook case, in the very year (1874) in which Lord Coleridge held that a photograph might be sent to Bombay to prove handwriting when the original was on file, used this language: “It came to this, whether the court would take judicial cognizance of photographs, as an established means of producing a correct likeness; this the court could not refuse to do. Its common use, the length of time the process has been known, the scientific principles on which it is based, all combine to make any other decision impossible.”

In Leathers v. The Salver Wrecking Company, (2 Wood, 682,) decided in 1875, Judge Bradley decided that photographic copies of papers deposited in a public department could be read after “an authentication of their genuineness in the usual way, by proof of handwriting.” What does this mean? The copies were not authenticated properly under the act of Congress; objection was, therefore, made to their being read, and it was said that being a photograph it was ““duplicate original,” and, even without the proper certificate required by law, might be read as an original, by proving the handwriting of the photograph, and thus, in the usual way, prove handwriting.

Until photography was discovered, nothing in nature was exactly like any other thing, except that thing's image reflected in a polished surface, which disappeared when the object was removed. Until this discovery, there was, therefore, reason in the rule which required the production of the original paper writing as the best evidence of its appearance. Science now steps forward and relieves the difficulty, by making permanent, and materializing with minute exactness the reflected image. What reason thus remains why a discovery, which destroys the foundation for a rule, should not be used as proposed in the ascertainment of right?

Every object seen with the natural eye is only seen because photographed on the retina. In life the impression is transitory; it is only when death is at hand that it remains permanently fixed on the retina. Thus we are secure in asserting that no witness ever swore to a thing seen by him, without swearing from a photograph. What we call sight is but the impression made on the mind through the retina of the eye, which is nature's camera. Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death. (See recent experiments stated by Dr. Vogel in the May number, 1877, of Philadelphia Photographic Journal.) Take the case of a murder committed on the highway: on the eye of the victim is fixed the perfect likeness of a human face. Would this court exclude the knowledge of that fact from the jury, on the trial of the man against whom the glazed eye of the murdered man thus bore testimony? In other words, would a living eye-witness, whose memory only preserved the fleeting photograph of the deed, be heard, and the permanent photograph on...