Plymouth Saving and Loan Association No. 2 v. Kassing

• Decision Date: 19 December 1919
• Docket Number: 10,138
• Citation: Plymouth Saving and Loan Association No. 2 v. Kassing, 125 N.E. 488, 72 Ind.App. 1 (Ind. App. 1919)
• Parties: PLYMOUTH SAVING AND LOAN ASSOCIATION NO. 2 v. KASSING, ADMINISTRATOR
• Court: Indiana Appellate Court

125 N.E. 488

72 Ind.App. 1

PLYMOUTH SAVING AND LOAN ASSOCIATION NO. 2 v. KASSING, ADMINISTRATOR

No. 10,138

Court of Appeals of Indiana

December 19, 1919

From Marion Probate Court (975); Mahlon E. Bash, Judge.

Action by Edmond H. Kassing, administrator of the estate of William Bretthauer, absentee, against the Plymouth Saving and Loan Association No. 2. From a judgment for plaintiff, the defendant appeals.

Reversed.

Newton J. McGuire, for appellant.

Pickens Cox & Conder and Harry F. Pavey, for appellee.

OPINION

MCMAHAN, J.

Action by appellee, as administrator of the estate of William Bretthauer, absentee, against appellant to recover on a deposit alleged to have been made by said absentee with appellant.

Appellant in defense contended that said absentee had borrowed $ 1,400 of it and had executed a note to appellant for said amount and asked that the same be set off against any sum found due appellee. The appellee contended that the note was a forgery.

The only question for determination on this appeal relates to the action of the trial court in refusing to permit appellant to introduce in evidence a number of checks, designated as exhibits 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17 and 18. The appellee contends that there was no error in the refusal to admit these exhibits in evidence for the reason that they were offered in evidence generally, and not for the purpose of comparing the signature of the absentee on them with the signature on the note. During the examination of the witness Elias Katterhenry concerning these exhibits, and before any of them were offered in evidence, appellee asked and was granted the privilege of asking the witness a preliminary question, at which time counsel for appellant and appellee entered into a discussion relative to the right to use the signature on them as standards of comparison. In the course of this discussion appellant's counsel contended in substance that it was proper to use a known genuine signature for the purpose of showing it to the jury as a genuine signature. That such signatures ought to do more than any other thing to determine the genuineness of the signature in question, to which counsel for appellee replied: "If a genuine signature was exhibited and became a paper in the case, then comparison is proper." We are clearly of the opinion that the purpose for which the exhibits were sought to be introduced in evidence was understood by court and counsel to be for the purpose of comparing the signatures of the absentee thereon with the signature on the note.

In so far as exhibits 6, 7, 8, 9, 14, 15, 16, 17, and 18 are concerned, the signature of the absentee was neither proved nor admitted to be genuine. There was therefore no error in the action of the court in refusing to permit them to be introduced in evidence and submitted to the jury for comparison.

Exhibits 6, 7, 8, 9, 10, 11 and 12 were voucher checks drawn by appellant and claimed to have been indorsed by the absentee. The other exhibits were checks claimed to have been drawn on a bank and signed by the absentee.

Exhibits 10, 11 and 12 were voucher checks which had been issued by appellant to the absentee several years prior to the execution of the note in controversy. Mr. Katterhenry, who was the secretary of the appellant, testified that he saw the absentee, William Bretthauer, sign his name on the back of each of these exhibits.

Under the common law as applied and interpreted by the courts of appeal in this state, irrelevant papers not admitted to be genuine were not admissible for the sole purpose of comparison. It was not competent to establish the genuineness of such papers by other evidence for the purpose of using them as a standard of comparison. Williams v. State (1911), 175 Ind. 93, 93 N.E. 448; McDonald v. McDonald (1895), 142 Ind. 55, 41 N.E. 336; White Sewing Machine Co. v. Gordon (1890), 124 Ind. 495, 24 N.E. 1053, 19 Am. St. 109. This rule made the proof of forgery difficult, tied the hands of those seeking to show the facts, encouraged crime, and assisted the criminal. Osborn, in his introduction to "Questioned Documents," p. xxii, said: "This procedure is a curious inheritance projected into the present day practice and its continuance is one of the curiosities and misfortunes of legal procedure. In jurisdictions where no standards are admitted writing in many cases must be proved by those alone who are said 'to know a handwriting,' and the spectacle is too often presented of one line of tottering old men and women, who saw some one write many years before, all testifying that they think a certain writing is genuine and another similar line testifying that from their recollection it is not genuine. Such witnesses many times may not be able to see well enough to get the papers right side up and such 'proof' is often a veritable farce."

In discussing the standards of comparison, Mr. Osborn says: "Under this peculiar and unfortunate condition it is usual that only very inadequate if not wholly improper standards are available and under such conditions it is not surprising that so-called proof of handwriting is often a mere farce. * * * Under this old practice where the standard writing came into the case 'by accident' it is not to be wondered at that such testimony often deserved the criticism it received and the whole history of the subject has been clouded by this unfortunate procedure." Osborn, Questioned Documents 16, 18.

The common-law rule was changed in England by statute in 1854. Massachusetts and Connecticut from the first adopted the common-sense rule of permitting comparison of handwriting with properly approved standards. Virginia changed the rule by action of the Supreme Court in 1884. Hanriot v. Sherwood (1884), 82 Va. 1. Congress changed the rule in the United States courts in 1913. The legislatures of all the other states, with the possible exceptions of Arkansas, North Carolina, Texas and Utah, have by statute abrogated the common-law rule. Indiana was one of the last to adopt the practical and common-sense side of this question. This she did in March, 1913, when the legislature passed an act which provided: "That in any proceeding before a court or judicial officer of the State of Indiana where the genuineness of the handwriting of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by witnesses, or by the jury, court, or officer conducting such proceeding, to prove or disprove such genuineness." § 528a Burns 1914, Acts 1913 p. 840. Under this statute, which is a copy of the federal statute, abuses may creep in and justice be defeated, but this possibility is greatly reduced as compared with results under the old rule. With a competent judge and intelligent counsel, no unfairness to either side will result from this modern practice, and truth will be much more likely to prevail.

In the admission of such a paper for the purpose of comparison and not properly in evidence for any purpose, no instrument containing irrelevant matter likely to prejudice the jury should be introduced in evidence on the pretext of comparison. The court should be exceedingly careful not to allow any writing to go to the jury which might possibly improperly influence them in the case on trial, and where there is any matter in the writing that might have that effect, that paper should be excluded.

The right to produce standards of comparison under this statute is equally open to both parties, and the standards are all subject to examination and cross-examination, so that the opportunity for unfair selections is slight. It is not the purpose of the statute that the jury should be required or permitted to make comparison with disputed standards and to settle for themselves the collateral question of the genuineness of the standards which might very often be more difficult than the main question of the genuineness of the writing in issue. The genuineness of the writing offered as a standard of comparison cannot be proved by comparing it with some other instrument. Winch v. Norman (1884), 65 Iowa 186, 21 N.W. 511. Before a written instrument can be used as a standard of comparison, its genuineness must be satisfactorily established, either by other evidence or by the admission of the adverse party. 15 Am. and Eng. Ency. Law (2d ed.) 272.

There is some difference of opinion as to what amounts to satisfactory proof. Some courts hold that the genuineness of a standard should be proved by the testimony of a witness or witnesses who saw it written, by the admission of the party, or by other evidence of equal certainty. Hyde v. Woolfolk (1885), 1 Iowa 159; Baker v. Haines (1841), 6 Whart. (Pa.) 284, 36 Am. Dec. 224; Cohen v. Teller (1880), 93 Pa. 123. It has been held in Ohio that, where the standard is not already in the case or admitted to be genuine, its genuineness must be proved by persons who testify directly and positively to its having been written by the party. Pavey v. Pavey (1876), 30 Ohio St. 600.

Proof by preponderance of the evidence has been held sufficient in Vermont. Rowell v. Fuller (1887), 59 Vt 688, 10 A. 853. It was held in Clark v. Douglass (1896), 5 A.D. 547, 40 N.Y.S. 769, that the genuineness should be established by proof so clear that, were it an issue in the case, a verdict would be directed for the paper's genuineness. See, also, Sankey v. Cook (1891), 82 Iowa 125, 47 N.W. 1077. But in McKay v. Lasher (1890), 121 N.Y. 477, 24 N.E. 711, it was held that the mode of proof of genuineness is to be regulated by the general rules of evidence applicable to the proof of any handwriting. Most of the statutes enacted upon this subject limited the comparison to writings "proved to the...