Greenstreet v. Greenstreet, 7092

• Decision Date: 26 June 1943
• Docket Number: 7092
• Citation: 139 P.2d 239,65 Idaho 36
• Parties: JOSIE GREENSTREET, Appellant, v. A. L. GREENSTREET, Individually and as Executor of the Will and Estate of Henry Greenstreet, Deceased, Respondent
• Court: Idaho Supreme Court

139 P.2d 239

65 Idaho 36

JOSIE GREENSTREET, Appellant, v. A. L. GREENSTREET, Individually and as Executor of the Will and Estate of Henry Greenstreet, Deceased, Respondent

No. 7092

Supreme Court of Idaho

June 26, 1943

1. Evidence

An "expert witness" is one who has superior knowledge of a subject and is therefore able to afford tribunal having the matter under consideration a special assistance, and his knowledge may have been acquired by professional, scientific or technical training or by practical experience in some field of human activity conferring on him an especial knowledge not shared by men in general.

2. Evidence

A mark in lieu of signature on contract allegedly entered into by one since deceased was properly the subject of expert testimony, where there was testimony that deceased held pencil in his hand and made the mark.

3. Trial

An instruction that jury should determine what credit it would give to any expert's opinion the same as they would determine what weight they would give to testimony of any other witness in case, in absence of a request for an additional instruction, was proper.

4. Appeal and error

Even if withdrawal after its admission of disputed document from court room by defendant's handwriting expert without trial court's permission was error, it was not reversible, in absence of showing how such action prejudiced plaintiff.

5. Appeal and error

Where no assignment as such raised issue of trial court's claimed bias or called attention to any objection or exception made at time of trial in respect thereto, issue of trial court's claimed bias would not be considered on appeal.

Appeal from the District Court of the Tenth Judicial District, in and for Nez Perce County. Honorable Miles S. Johnson District Judge. Action by Josie Greenstreet against A. L Greenstreet, individually and as executor of the will and estate of Henry Greenstreet, deceased, to recover on an alleged contract for caring for and nursing deceased. Judgment for defendant and plaintiff appeals.

Affirmed.

Cox Ware & Stellmon, for appellant.

An expert witness may not give his opinion as to the genuineness of the signature of a person by an ordinary mark or cross. (In re Astolas' Estate, (Mich. 1935), 273 Mich. 189, 262 N.W. 766, 101 A.L.R. 760; Travers v. Snyder, (1890) 38 Ill.App. 379; In re Hopkins' Will, (N.Y., 1902) 172 N.Y. 360, 65 N.E. 173, 12 N.Y. Ann. Cas. 55; In re Reynolds, (1886) 4 Dem. (N.Y.) 68.)

The testimony of expert witnesses is generally unsatisfactory, unreliable and often the weakest kind of testimony and the lowest order of evidence, as experts uniformly and invariably testify in accordance with the position of the party who calls them. (In re Caffrey, (1916) 174 A.D. 398, 161 N.Y.S. 277, 18 Mills 138; Grigsby v. Clear Lake Water Works Co., (1870) 40 Cal. 396, 405; Roberts v. New York El. R. Co., (N.Y., 1891) 28 N.E. 486; 22 C.J. 735, sec. 825; 32 C.J.S. 394, sec. 569.)

Durham & Hyatt, for respondent.

Signature includes mark, when the person cannot write, but must be witnessed by a person who must write his own name as a witness. (Sec. 70-114, I.C.A.)

A signature may be proved by the use of an authentic exemplar for the purpose of comparison with the disputed signature. (Sec. 16-405, I.C.A., sec. 16-406, I.C.A.; sec. 16-412, I.C.A.; Estate of Fisher, 47 Ida. 668, at p.674, 279 P. 291.)

If the one who has seen a person make his mark is able to judge of its pecularities and from memory make a comparison, then one skilled in discovering pecularities and distinguishing features is competent to state whether such peculiarities and characteristics discovered by such an expert in an examination of 52 authentic marks of the decedent are present or lacking in the mark in dispute. (Ausmus v. People, (Colo.) 107 P. 204, at p. 213.)

GIVENS, J. Holden, C.J., Budge and Dunlap, JJ., and Reed, D.J., concur. Reed, D.J., sat in place of Ailshie, J., who deemed himself disqualified.

OPINION

GIVENS, J.

--Appellant, wife of respondent, brought suit to compel recognition by respondent, individually and as executor of his brother's will, of a contract which she contends was made between her and the deceased brother, as follows:

"April 12, 1937.

Agreement between Henry Greenstreet and myself Josie Greenstreet

I Henry Greenstreet agree to Give Josie 12,000 twelve thousand dollars. to take care of me, Henry Greenstreet till death. for nursing and care as long as I live. She is the only one that is caring for me. at present and If she continue ' to do so, she is to have at my death the 12000. which I firmly agree to do.

sign

his

Henry X Greenstreet mark

A. L. Greenstreet

Josie Greenstreet"

Appellant alleged full compliance with the contract and submitted sufficient competent, probative evidence in support thereof. The cause was tried to a jury, and upon the issue of authenticity of the deceased brother's signature by mark and respondent's attestation the jury found on two special interrogatories:

"Did Henry Greenstreet execute the contract in question by personally placing his mark thereon as his signature? Answer. No.

"Was the mark of Henry Greenstreet witnessed by A. L. Greenstreet by said A. L. Greenstreet placing his signature near the same after Henry Greenstreet made his mark, if you find that he did so make it? Answer. No."

Judgment was responsively rendered in favor of respondent.

Appellant does not question the sufficiency of the evidence to sustain the verdict and judgment, and in substance makes but three assignments of error which present two decisive questions: first, whether or not a mark, in lieu of a signature, is properly the subject of expert testimony; and, second, whether the instruction as to the weight to be given expert testimony was correct.

The mark herein was not made by merely touching the tip of the pencil, but, if made by deceased, was, according to appellant's own testimony, executed by his holding the pencil in his own hand and making the crossed lines.

In support of her proposition that a mark in lieu of a signature is not properly the subject of expert testimony, appellant relies upon the following cases:

In re Astolas' Estate, 273 Mich. 189, 262 N.W. 766, 101 A.L.R. 760, wherein the court, after reviewing a number of cases from different jurisdictions, which are not uniform in their treatment of the subject and are in conflict with each other, concluded that:

"The rule seems to be an expert witness may not testify to the signature of a witness by an ordinary mark or cross. Where the mark appears to have something in its construction to distinguish it from other ordinary marks, something by which it may be identified, something so uniformly used by the party that it may be identified as peculiar to her signature or her mark, where some established characteristic of the mark of the person is apparent, and the witness is familiar with the signature by mark of the person whose mark is in question, the witness may testify to his opinion based upon having seen the witness make her mark, upon comparison with the questioned document, upon the same basis that he may testify in relation to handwriting."

Such pronouncement, instead of being a categorical denial of the admissibility of expert opinion testimony, makes it dependent upon whether the mark seems to have something in its construction to distinguish it from other ordinary marks, etc., and also that a person who has seen the signatory make a mark may testify as to the one disputed, but that one may not so testify merely from a comparison with exemplars. The latter distinction, while formerly the reason why expert testimony based upon the comparison of handwriting generally was in some jurisdictions denied, recognizes that the one testifying who has seen the person make a mark is nevertheless in effect an expert, merely using a different basis for the opinion. The crux of the matter is the distinguishing peculiarities, and while the nonexpert witness testifying from having seen the person make the mark might not be able to give as explanatory testimony as an expert, he must have reasons for differentiation or his opinion would be a mere ipse dixit.

Travers v. Snyder, 38 III. App. 379, in holding comparison between a disputed mark and exemplars inadmissible, on the ground that it was obnoxious to the principle that a party cannot be permitted to manufacture evidence for himself, is contrary to sec. 16-412, I.C.A., which authorizes the use of exemplars, and does not support appellant's position.

Matter of Reynolds, 4 Dem. (14 N.Y.) 68, merely shows that the surrogate substituted his opinion for, that of an expert, stating: "But a cross mark has no such case or form as to distinguish it from a like mark made by any other individual. It cannot be the subject of expert testimony." The opinion begs the question by assuming that which is the very subject of the controversy, namely, whether there are individual, recurrent, or absent characteristics or distinguishing features.

In re Corcoran's Will, 145 A.D. 129, 129 N.Y.S. 165, and In re Romaniw's Will, 163 Misc. 481, 296 N.Y.S. 925, merely follow In re Hopkins' Will, 172 N.Y. 360, 65 N.E. 173, 12 N.Y. Ann. Cas. 55, 65 L.R.A. 95, elsewhere distinguished herein.

The statement in Wolf v. Gall, 176 Cal. 787, 169 P. 1017,

"A writing expert was being interrogated in the apparent effort to bring forth from his examination of the cross made by Mrs. Funkenstein in attestation of the genuineness of her signature that the mark was made by somebody else, or that somebody else directed the pen. We do not perceive, nor are we told, how an expert in handwriting could bear evidence upon the matter, and can quite understand the court's remark in ruling upon it:

"...