Birmingham National Bank v. Bradley , 116 Ala. 142 ( 1896 )

McCLELLAN, J.

The issue below was whether the paper confessedly issued by the Gate City National Bank was altered as to amount and payee before it was presented to and cashed by the Birmingham National Bank. Leaving out of view for the moment the fact that the paper itself bears no evidence of alteration, it is shown about as -clearly and conclusively as the nature of the case admitted of and as oral testimony and attendant circumstances could show, that the check as issued was for the sum of two dollars, payable to James Fix, and that its amount was not indicated by figures cut through the paper, and that when presented to the Birmingham National Bank, it was for four thousand dollars, payable to John G. Bradley, and its amount was indicated both in its body and by figures cut through the paper. If the case rested here, the affirmative charge, of course, would have been given for the plaintiff. But against the case thus made is interposed the fact that the paper itself gives no indication whatever that the name of John G. Bradley has been substituted for that of James Fix' as payee, or that the words “four thousand dollars” have been substituted for the words “ two dollars, ” as the amount for which it was drawn, or that the figures “ 4000 ” have been cut through the paper since it was issued; and the argument upon this evidence is that the alleged alterations could not have been made without leaving some indication or trace of the change wrought by them upon the paper, and hence that no alteration has in fact been made. This theory would be conclusive against the plaintiff if it could be said as of common knowledge, or if the evidence showed, that such an alteration could not be made without leaving some indication or trace of the change or that the paper had been tampered with. On the other hand, if it could be affirmed as of common knowledge that a paper such as this could be altered as this one is claimed to have been altered, by such means and in such way as to defy detection upon all the tests to which this paper has been subjected, then the fact that it has withstood those tests and defied detection would be of no probative force against the.oral testimony of witnesses and the attendant circumstances going with great clearness to show that the alterations had in fact been made : the thing was done, in other words, if the evidence shows it could have been done, and the plaintiff would still be entitled to an affirmative instruction. We, however, do not assume to have any common knowledge upon the point. But if the evidence adduced upon it was free from conflict and diverse inference in support of the feasibility of obliterating the original writing and substituting therefor new names, words and figures, without leaving any evidence on the paper of the change, the case for alteration would still be made out if the jury believed the evidence. The evidence in this case does not come up to this measure : it cannot be said to be free from conflict in establishing the practicability of such alteration being made without leaving any sign of the operation ; and so plaintiff was not entitled to the general charge. But, in our opinion, the evidence for the plaintiff, to the effect that such alterations were practicable and could be made by the use of chemicals in the obliteration of the original writing and the substitution therefor of other writing so as to defy detection, was so decided and overwhelming in its preponderance against the contrary conclusion reached by the jury as to carry clear conviction that the verdict was wrong and unjust, and should have been set aside on plaintiff’s motion for a new trial. There was indeed a general concurrence and concensus of opinion on the part of all but one of the numerous witnesses examined as experts both by the plaintiff and defendant, that it was entirely feasible and practicable for alterations to be so made on plain white paper like that of this check, and the witnesses who were shown tobe most expert and to have had the largest experience deposed to such feasibility as matter of fact as well as matter of opinion. The one witness, Mr. Phillips, who entertained a different opinion does not appear to have had the training and experience possessed by plaintiff’s expert witnesses, nor is his testimony as positive and direct as theirs, nor does it appear to go upon all the conditions involved in the question as presented in this case. The paper of this check was perfectly white, there was no coloring matter whatever in it. On it had been printed prior to the time at which it was drawn all the words necessary to a check except the date, amount, and the names of drawer and payee. Phillips’ opinion seems to be that chemicals applied to take written words out of otherwise -plain white paper would disturb the surface of the paper and abrade the glaze of it so as to indicate that the paper had been tampered with. This opinion appears to have had reference to paper which had never gone through a printing press. For the plaintiff it was shown that the process of printing to which this particular paper had been subjected had the effect of dampening the whole surface of the paper and disturbing or abrading its glaze precisely as the application of chemicals to a virgin surface would dampen, disturb and abrade it; and that having been thus dampened in the process of printing, and the result which might otherwise be wrought by the chemicals having been attained by that process, the application of the chemicals would pi’oduce no effect whatever on the appearance of- the paper where writing is taken out of it. This evidence impresses us with its reasonableness, atad we do not understand even the witness Phillips to gainsay the conclusion to which it goes, or to testify at all as to the effect, in respect of disturbing surface, the application of obliterating chemicals would have upon pure white paper which had passed through a printing press. And upon these considerations we base our conclusion, after allowing all reasonable presumptions in favor of the correctness of the verdict of the jury, that the preponderance of the evidence against the verdict is so decided as to involve the conviction that it is wrong and unjust. And we, therefore, hold that the trial court erred in overruling plaintiff’s motion for a new trial.

The question on the trial was not whether the check appeared on its face to have been altered. To the contrary, it was conceded that it did not so appear. But the real, and, indeed, the only inquiry was, whether a check could be altered in the way it was claimed this one had been by the use of gas, or acids, or other chemicals without afterwards bearing any evidence of alteration. This was a question for solution by expert evidence from the mouths of witnesses who knew something about the effect of chemicals, in the connection under inquiry. A man without knowledge on this subject is not a competent witness upon it, however much experience he may have had in the examination of checks and other papers with a view to determining whether they in fact gave any indication, in and of themselves, upon their faces of having been tampered with. However expert such persons may become in the interpretation of a paper by everything that appears on its face, they yet may be as entirely ignorant of the means and processes by which writing is taken out of paper, and as to whether it can be taken out so as to leave no sign or token that any writing other than that presently appearing on the paper had ever been there, as a person having no experience or special information in either respect. Hence, we think the court erred in Allowing certain of defend-' ant’s witnesses, bank tellers and the like, who had no expert knowledge on the subject, to be asked their opinion as to whether such an alteration could be made. Their answers, however, do not appear to have been of a character to prejudice the plaintiff.

The statement of defendant’s attorney in argument to the jury “that Lewis Redwine, the cashier of the Gate City National Bank, was ominously silent, that interrogatories were propounded to him which he had not answered, or if he had answered, were not read to the jury by counsel for the plaintiff,” should have been excluded and the jury cautioned against giving any effect to it. The fact that interrogatories had been propounded to Redwine, if it was a fact, was not in evidence nor in the case at all except as it was thus lugged in by this unauthorized statement of counsel.

The court was similarly in error in forcing plaintiff’s counsel to object to the reading of the interrogatories which had been propounded to Redwine. The counsel who aéked the court’s permission to read these interrogatories to the jury should have been told by the court of its own motion that he could neither read them to nor refer to them in the presence of the jury. Through the-course- adopted by the court counsel for defendant secured all the advantage that could have enured to his client from the reading of this wholly extraneous matter to the jury, if not more indeed.

There was no error in allowing counsel to'refer to the possibility of ultimate liability on the part of the Gate City Bank to the Birmingham National Bank. If the check was -not raised, the former bank would have to pay it, and this legal conclusion was proper to be brought forward in argument as bearing upon the credibility of the officials of that bank as witnesses in this case.

Reversed and remanded.