Barnes v. Ingalls , 39 Ala. 193 ( 1863 )

R. W. WALKER, J.

[1.] The witness Parlow was by' occupation an ambrotypist and daguerro typist. His vocation, as he states, and as we judicially know, (Salomon v. State, 28 Ala. 88,) is intimately connected with that of the photographic painter. The two processes, sometimes followed as separate pursuits, sometimes jointly prosecuted by the same individual, are frequently, if not usually, carried on in the same establishment, as branches of the same business, and made to co-operate as mutual auxiliaries in the production of a joint result. This witness had been employed in at least one gallery where photographic paintings, as well as ambrotypes, were executed, and had thus enjoyed peculiar opportunities for seeing such work performed, and for examining paintings of that description. Not only so, but he had at times practiced, to some limited extent, the art of painting photographic likenesses, though not such as plaintiff professed to take; the difference being, as we infer, that the plaintiff painted large portraits, while the pictures which the witness had painted were of a smaller size. Moreover, he professed to know something about the business of photographic painting, and of the value of that kind of work. Under these circumstances, 'the court did not err in permitting him to testify that the pictures of the plaintiff, which he had seen, were well executed. — Tullis v. Kidd, 12 Ala. 648; Dickson v. Barclay, 22 ib. 370; McCreary v. Turk, 29 ib. 244; Gilmer v. City Council, 33 ib. 116; Sikes v. Paine, 10 Iredell, 280 ; Buffum v. Harris, 5 R. I. 243 ; Haskins v. Hamilton Ins. Co., 5 Gray, 432; 1 Greenl. Ev. § 440.

[2.] This witness was permitted to testify, that the number of paintings, of a fair quality, wbicb a photograph painte r could execute during a month, when constantly employed, was one of the criteria by which to judge of the value of his services to his employer by the month. This was but the statement of a self-evident proposition, the admission of which in evidence, even if not justifiable on other grounds, would not be considered a reversible error, as it could not possibly have prejudiced the defendan t

[3.] The next exception was to a question calling for an answer which the witness declined to give ; saying that, as to the matter inquired of, “ he did not know.” What he proceeded to state, as to the number of paintings executed by the plaintiff, in Stanton’s gallery, &c., though suggested perhaps, by the question referred to, must be viewed as independent testimony, not covered by the exception to that question; and its introduction in evidence should have been separately objected to, and made the subject of a distinct exception. The subsequent exception, “ to all the testimony of the witness,” was too broad for the purpose, and was properly overruled, because, as we have seen, a part at least of his evidence was competent. No separate exception having been taken to its introduction, the admissibility of the statement as to the number of paintings executed by plaintiff in'Stanton’s gallery, and that they appeared to give satisfaction, is not a question for us to consider.

[4.] The substance of the testimony of the witnesses Geary and Eoulston was, that during the period of plaintiff’s engagement with defendant, certain likenesses had been painted ‘ for them ’ by the plaintiff, which were well and satisfactorily executed — that is to say, they were good likenesses, and suited them. That this is a fair construction of the evidence is apparent, we think, when the whole of their testimony is viewed together. The meaning of the witnesses, in saying that the paintings were “well and satisfactorily executed,” is explained by their subsequent statement that, though having no special skill in ambrotype or photograph pictures, yet “ they knew when a picture was a good likeness, or suited them.” Adopting this view of the evidence of the witnesses, one of the facts to which they testified was, that certain portraits, painted for them b j the plaintiff, were faithful likenesses. A most important requisite of a good portrait is, that it shall be a correct likeness of the original; and although only “experts ” may be competent to decide whether it is well executed in other respects, the question whether a portrait is like the person for whom it was intended, is one which it requires no special skill in, or knowledge of the art of painting, to determine. The immediate family of the person represented, or his most intimate friends, are, indeed, as a general rule, the best judges as to whether the artist has succeeded in achieving a faithful likeness. To eyes sharpened by constant and intimate association with the original, defects will be visible, and points of resemblance will appear, which would escape the observation of the practiced critic. “We should think the painter had finished the likeness of a mother very indifferently, if it did not bring home to her children traits of undefinable expression which had escaped every eye but those of familiar affection.” The fact of likeness, or resemblance, is one open to the observation of the senses, and no peculiar skill is requisite to qualify one to testify to it. Evidence on such a question stands upon the same footing as evidence of handwriting, the value of property, the identity of an individual, &c.; and we think that the testimony of witnesses, that pictures which the plaintiff, while in the defendants employment, had executed “for them,” were good likenesses, was competent evidence in this case. — See Ward v. Reynolds, 32 Ala. 389 ; Barker v. Coleman, 35 Ala. 225 ; Blackman v. Johnson, ib. 252; Rembert v. Brown, 14 Ala. 360; 1 Greenl. Ev. § 440; 2 Phill.Ev., C. & H. Notes, (Edwards’ edit. 1859,) 916, note. The objection was to the entire evidence, and having ascertained that a part of it was legal, we need not consider whether the objections to the remaining part of it are well founded.

[5.] In considering the testimony of the witnesses McCord and Groves, we shall notice only such objections to it as have been brought our attention by the appellant’s counsel. Those objections are not that proof by legal testimony of a reasonable custom in ambrotype and photograph galleries would be incompetent evidence in this case, but that the testimony introduced as to the custom among mechanics and artisans was not legal evidence of a custom in ambro-type and photograph galleries, and that, if it was, the custom as proved was unreasonable. The ambrotypist or daguerrotypist, whatever title he may give himself, is rather an artisan, than an artist. His labor is more manual than mental. He works more by rule, than under the inspiration of genius. The process by which he accomplishes his undertaking, is mainly mechanical; and success in his vocation demands, not creative power, but dexterity, contrivance, and the skillful application of fixed rules. He follows an art, but not one of the fine arts-; and he alone is an artist, in the appropriate sense of the word, who professes and practices (one of) the latter. The labor performed in anambrotype and photograph gallery is so largely mechanical — the processes pursued are so regulated by established rules ; the results produced depend so much upon mere trained dexterity and skillful manual execution; and there are, in other respects, so many points in common between such an establishment, and those in which the ordinary mechanic arts are pursued, that (without saying that ambrotypists, daguerrotypists, and photographic painters, are alike artisans) we think that evidence of a universal custom among all mechanics and artisans, by which employees and journeymen are required to work for their employers only for a certain number of hours each day, and have the privilege of working for themselves during the remainder of the day, or on Sundays, tends to show the' existence of a similar custom in establishments where am-brotypes and photographs are executed; and whenever this latter fact becomes a legitimate subject of inquiry, such evidence may be submitted to the jury, even though the witnesses who testify to the custom “ have no particular acquaintance with the customs in this regard in photograph and ambrotype galleries.” That would be a circumstance affecting the weight, but not the competency of the evidence.

We do not understand these witnesses as testifying to a custom whereby employees are privileged to work for themselves, either with the materials of their principal, or during the hours when the latter requires their services, or to do any act to undermine his business, or to draw away his customers. We are unable to perceive that the custom to which they testify, is so contrary to reason, or to public policy, as to justify us in pronouncing it illegal.

The testimony of the witness Wright, which forms the subject of the last exception, could not have prejudiced the defendant; nor can we say that it was irrelevant to the matters of defense set up by the defendant, and brought before the jury by the evidence of the same witness, when examined on behalf of the defendant.

Judgment affirmed.