Security Finance Co. v. Cook & Son

• Decision Date: 14 February 1928
• Citation: 223 Ky. 124
• Parties: Security Finance Company v. Cook & Son.
• Court: United States State Supreme Court — District of Kentucky

Page 124

223 Ky. 124

Security Finance Company v. Cook & Son.

Court of Appeals of Kentucky.

Decided February 14, 1928.

1. Trial. — In action on notes, refusal to permit jury to have written evidence and exhibits in jury room was not error.

2. Evidence. — In action on notes, defended on ground that defendants did not execute notes, written report of salesman concerning transaction with defendants held properly excluded as hearsay where salesman was alive during trial.

3. Evidence. — Hearsay evidence is incompetent to establish any specific fact which, in its nature, is susceptible of being proved by witnesses who speak from their own knowledge.

4. Evidence. — In action on notes, salesman making report concerning transactions with defendants was competent witness on question whether defendant signed notes, but could not, by making report to employer, have report introduced in evidence, thereby depriving adverse party of right of cross-examination.

5. Appeal and Error. — A verdict of a properly instructed jury will not be disturbed on appeal unless it is palpably against evidence.

6. Bills and Notes. — In action on notes, defended on ground that defendants did not execute notes, positive and unequivocal testimony by defendants denying signing of notes, supported by positive testimony of other witnesses present when transaction occurred, sustained verdict of jury for defendants.

7. Evidence. — In action on notes, defended on ground that defendants did not sign notes, letter by defendant stating that salesman stated notes were only binding when defendant sold set, that defendant sold set, that defendants were to turn over 20 per cent. cash and notes in case set was sold, and denying making such contract in referring to first note falling due, and which defendant explained referred to customer's notes later to be taken held not so unequivocal and unmistakable in meaning as to amount to conclusive admission that defendants executed notes.

8. Appeal and Error. — In action on notes, defended on ground that defendant did not execute notes, evidence of letter in which defendant referred to notes, which was not conclusive admission of execution of notes, and which defendant explained as referring to customer's notes to be taken later, together with testimony of expert witnesses expressing opinions that signature on notes was in same handwriting as signatures admitted to be genuine by defendant held not to render verdict of jury for defendant palpably against evidence sufficient to sustain judgment for defendants.

9. Evidence. — Opinion of experts, while competent to be considered by jury, is weakest evidence known to law.

10. Appeal and Error. — Verdict of properly instructed jury will not be disturbed on appeal simply because jury credited one set of witnesses rather than another.

Appeal from Shelby Circuit Court.

TODD & BEARD for appellant.

GILBERT & PICKETT, R.F. MATTHEWS and GEO. L. WILLIS, JR., for appellees.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

This action was instituted in the Shelby circuit court by the Security Finance Company to recover judgment on six notes, aggregating $563.40, alleged to have been executed by A.L. Cook & Son to the Brenard Manufacturing Company, and by it transferred in due course to the plaintiff. A.L. Cook & Son denied the execution of the notes, and the sole issue presented to the jury on the trial was whether the notes were executed by the defendants. The jury found for the defendants.

In a motion for a new trial the appellant complained (1) that the verdict was palpably against the evidence; (2) that the court erred in not admitting in evidence Exhibit No. 12, which was a report of the salesman; and (3) in refusing to permit the jury to have certain exhibits in the jury room. The new trial was refused and the plaintiff appeals, urging here the same grounds presented in the circuit court.

We will dispose of the contentions in inverse order of the statement. It is clear that no error was committed in refusing to permit the jury to have the written evidence and exhibits in the jury room. In some jurisdictions this practice is allowed, but it has never been adopted in Kentucky. In Watson v. Watson, 137 Ky. 25, 121 S.W. 626, it was explained that any proper paper which the jury desired to examine should be submitted to them, but only in the presence of the court and counsel, and it is unnecessary for the jury to have in the jury room any papers other than the court's instructions. This doctrine has been reaffirmed quite recently. Williams v. Watson, 207 Ky. 256, 268 S.W. 1067.

Equally unavailing is the insistence that Exhibit No. 12, which was the salesman's report, should be admitted in evidence. It was the written statement of a living witness about the transaction with the defendants. Hearsay evidence is incompetent to establish any specific fact, which, in its nature is susceptible of being proved by witnesses who speak from their own knowledge. Hopt v. Utah, 110 U.S. 581, 48 S. Ct. 202, 28 L. Ed. 262.

The salesman was a competent witness as to whether defendants signed the notes, but he could not,...