Miller v. Dill
| Decision Date | 28 January 1898 |
| Docket Number | 17,940 |
| Citation | 49 N.E. 272,149 Ind. 326 |
| Parties | Miller et al. v. Dill et al |
| Court | Indiana Supreme Court |
From the Tippecanoe Circuit Court.
Affirmed.
George P. Haywood, Charles A. Burnett and R. P. DeHart, for appellants.
R. P Davidson and D. E. Storms, for appellees.
In the lower court two suits were instituted by the appellees, Edwin S. Dill and Calvin Dill; one against the appellant, Anna Collins, and one against the said Anna Collins and the appellant, Henry A. Miller. In each suit it was sought to cancel, as a forgery, a note, in the one suit for $ 500.00 claimed to have been made to and held by said Anna Collins; and in the other suit for $ 600.00, claimed to have been made to said Anna Collins, and by her transferred to said Miller. The two suits were consolidated, and tried together upon the issues of general denial of the complaints, counterclaims seeking to recover upon the notes, and answers to the counterclaim in sworn denials of the execution of the notes. The questions for decision arise upon the motion for a new trial and a motion for the apportionment of costs.
The first question presented upon the motion for a new trial relates to the sustaining of appellees' objection to this question, asked of Calvin Dill upon cross-examination: "Isn't it a fact, Mr. Dill, that you yourself have heard Ed. say things affecting the chastity of Anna Collins during that summer?"
The relevancy of the question is urged upon the theory of the appellants that in the summer of 1891 the appellee Edwin S. Dill had been threatened by Anna Collins with a suit for slander, claimed to have been uttered by him in certain reflections upon her character for chastity, which threatened suit had been compromised by him by the execution of the notes in suit, said Calvin Dill executing them as surety for Edwin. The objection to the question, however, was that it was not a proper cross-examination, and this, we have no doubt, was correct. The examination in chief had not involved any inquiry as to the statements of Edwin concerning her character, nor as to any knowledge of the witness that her character had been questioned by Edwin.
In the cross-examination of Edwin S. Dill the court excluded questions as to whether he had not, prior to the time of the alleged execution of the notes, made certain statements of a slanderous character concerning Anna Collins, to persons named. The witness had, in chief, only testified in denial of the execution of the notes and of his knowledge of their existence. He had not gone into the question of the consideration of the notes, and had not mentioned any of the slanders involved in the theory of the appellants. There was no possible foundation for the attempted cross-examination, and the court's ruling was proper.
Questions were asked upon the cross-examination of Calvin and of Edwin S. Dill as to when it was that Anna Collins and Harry Dill, a son of Calvin, "had some difficulty * * * with reference to a breach of promise suit." The court excluded the questions as not pertinent to the examination in chief, and we think no error was committed thereby. It is further insisted, however, that the inquiry was proper to show an ill feeling between the Dills and Anna Collins. It is not claimed that it had theretofore been inquired as to the state of feeling between them, and without this it cannot be proper to examine into the character of a difficulty claimed to have generated an ill feeling.
On the cross-examination of Edwin S. Dill it was asked if he then owned property, and if he had not conveyed property, held by him at the time of the alleged execution of the notes; to which questions the court sustained appellees' objections. It is claimed that these questions would have elicited the information that the witness had conveyed property held by him at the time of the alleged execution of the notes, and that he had no property at the time of the examination. The inferences sought to be drawn were that the conveyance was fraudulent, having been intended to defeat these notes, and therefore an act inconsistent with the evidence of the witness that he had not executed the notes, and had no knowledge of their existence. Whatever the legitimate inference from a fraudulent or voluntary conveyance, there can be no inference from the mere conveyance of one's property that he is a debtor, or that he does so to defeat a claim the validity of which he denies. Nor is it true that the examination was proper upon the theory that one liable in slander is subject to evidence of his financial condition. This was not a suit for slander, and if it were, the inquiry, as a matter of cross-examination, would require some basis from the examination in chief, which is wholly absent here.
A witness for the appellants had testified that Edwin S. Dill, in the summer of 1891, repeated to the witness a statement which he claimed to have made to another concerning Anna Collins, which statement, if untrue, was slanderous. The witness was then asked if he had ever heard the statement before, and he answered that he had not, but the answer was stricken out by the court without an exception by the appellants. He was then asked if before that occasion he had heard talk of her condition, to which question the court sustained an objection. There was no error in the ruling. Whether that was or was not the first expression of the alleged slander which came to the witness would not aggravate the slander, and appellants were not to be benefited by mitigating it.
It was asked of a witness for the appellants if Edwin S. Dill at any place or time denied the execution of the notes. The court sustained the objection of the appellees, and appellants offered to prove that the witness and Dill had several times conversed about the notes, and that the latter had not denied their execution. Upon the rule that silence, when one is required to speak, is admissible in evidence, the appellants insist that the offered evidence should not have been excluded. Nothing in the evidence of the witness disclosed the character or extent of the conversation concerning the notes, and, if the rule urged were applicable in this kind of a case, we are in possession of no facts disclosing the importance or the necessity for Dill to deny the execution of the notes. The duty rested upon the appellants to disclose circumstances which required Dill to speak before his failure could become proper evidence.
Complaint is made that an expert was not permitted to testify that a forger, in disguising and imitating handwritings, is more particular at the beginning than at the closing of the effort. The question seems not to have been within the domain of expert testimony. It presented no question of science, and involved no rule not subject to as many variations as there might be efforts at forging. The care of one man is not evidence of the care which may be exercised by another in an effort to commit a forgery, any more than is the skill of one man, in executing the imitation or disguise, evidence of the skill of another.
In numerous instances evidence was admitted, in rebuttal, over the objections of the appellants, which evidence the appellants, in their brief, have classified as "(1) Rumors and general rumors affecting the chastity of Anna Collins; (2) her general reputation for chastity in the neighborhood where she lived in 1891; (3) evidence pretending to be of an expert character, with reference to her physical appearance, and opinions of witnesses as to whether or not she was pregnant in the summer of 1891."
As to the first class, the inquiry, as far as our attention has been directed to the evidence, was not as to rumors simply, but was as to general rumors in the summer of 1891, to the effect that she was pregnant.
As to the second class, there was no instance in which specific objections were made to the evidence, the only...
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