Pate v. Mellen, N--383

• Decision Date: 12 December 1972
• Docket Number: No. N--383,N--383
• Citation: 275 So.2d 562
• Parties: Lennie Elizabeth PATE, Appellant, v. F. Churchill MELLEN, as Administrator of the Estate of Henrietta Farnham, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 562

275 So.2d 562

Lennie Elizabeth PATE, Appellant, v. F. Churchill MELLEN, as Administrator of the Estate of Henrietta Farnham, Deceased, Appellee.

No. N--383.

District Court of Appeal of Florida, First District.

Dec. 12, 1972.

On Rehearing April 5, 1973.

Charles L. Cetti, of Phillips, Williams, McGraw & Cetti, Pensacola, for appellant.

Joe J. Harrell and Donald H. Partington, of Harrell, Wiltshire, Bozeman, Clark & Stone, Pensacola, for appellee.

JOHNSON, Judge.

In this case, the trial court in contemplation of defendant's offering standards of specimens or exemplars, predetermined that such exemplars would not be admitted unless there was a witness to the signing by Mrs. Farnham. The court also ruled that the defendant could testify that she saw Mrs. Farnham sign certain checks, but that she could not testify as to the reasons therefor.

Counsel for the defendant exhibited numerous checks to the defendant while she was on the witness stand, purporting to have been signed by Mrs. Farnham, and the defendant asked if she had seen Mrs. Farnham sign these checks, which were fairly close to the date in question of the transfers of money, and the defendant in We agree with the statement of the trial court that under F.S. § 92.38, F.S.A., 'it is the province and responsibility of the court to determine the genuineness of the standard offer and the court must be satisfied that it is genuine before admitting it to be used as a standard.' While we hold that it is a correct statement of the law, it does not mean that the court has unbridled discretion in admitting or refusing to admit evidence which has been testified to as being genuine. In this case, the trial court had ruled that the defendant could testify to the fact that she saw Mrs. Farnham sign the particular checks, and in answer to the questions of whether or not she saw Mrs. Farnham sign each of certain checks exhibited to her, she answered to the affirmative. After questions by counsel for defendant concerning these checks, there was not even any cross-examination of the defendant about said checks, nor was there any rebuttal evidence offered rebutting the truth of the testimony of the defendant. The unbridled determination by the court, without any rebuttal testimony or even any question of the veracity of the defendant's testimony by the plaintiff, we feel constituted an abuse of discretion on the part of the trial court. These checks were not included in the record before us, of course, because the trial court refused them to be submitted, but from the testimony of the defendant, the name of the payees to each check and the dates thereof shows two factors which we deem important which sway our thinking in favor of the idea that the trial court should have admitted these checks to be introduced into evidence. One is that the checks were not payable to the defendant nor as shown to have been for the benefit of the defendant, and therefore no reason by the defendant's testimony should be tainted with self-interest. The other factor is that the dates of said checks more closely correspond to the dates of the transactions which are the subject of this suit. This is important because it is apparent that a person ninety-two years of age would be weaker every week which would necessarily affect her writing.

each case testified that She had seen Mrs. Farnham sign each of said checks. This testimony ws not rebutted. In fact, plaintiff's counsel did not even cross-examine the defendant on this testimony. Counsel for defendant then offered to introduce these checks as samples of Mrs. Farnham's signature, which was denied by the trial court.

The Supreme Court of Florida, in Brantley v. State, 84 Fla. 649, 94 So. 678, said, in speaking about the contention that when the trial court had compared any disputed writing 'proved to the satisfaction of the Judge to be genuine,' that when the court was satisfied, the question is not open for further inquiry, and that his decision upon this point was conclusive. The Supreme Court then said they did not agree with this contention, and cite the Supreme Court of New York in support. While the case, supra, held that the trial court's determination that it was satisfied about the genuineness of the writing, did not estop an appellate court reviewing the same, and determining that there was insufficient evidence to sustain the lower court, the same is true when the trial court has refused to let experts examine the writing.

Again the Supreme Court of Maine, in Williams v. Williams, 109 Me. 537, 85 A. 43, it was held that a trial court had abused its discretion with regard to the determination of genuineness of a writing to be used as an exemplar where the trial court heard evidence of such genuineness from certain witnesses but refused to hear expert testimony to the contrary.

In the case at bar, the unrebutted testimony, even if it was from the defendant, should have been sufficient to warrant the submitting of the checks as exemplars of the handwriting of Mrs. Farnham. The fact that the two handwriting experts, one for the plaintiff and one for the defendant, may have differed in their expert opinions, we do not know that, and neither did the In 41 A.L.R.2d 584, Annotation, we find this statement of law:

trial court. If the checks had been admitted, the plaintiff's expert witness might have found enough similarity between the writings to testify that the signatures on the proffered checks were in fact of Mrs. Farnham, and still not have found the alleged forged instruments to be genuine.

' § 6. Direct (eyewitness) evidence. The courts appear to be agreed that evidence in the form of uncontradicted testimony of a competent eyewitness to the execution of a writing is sufficient proof (under both statutory and nonstatutory requirements of proof of genuineness) that it is the genuine writing of the person seen to have executed it to permit its use as a standard against...