Castor v. Bernstein , 2 Cal. App. 703 ( 1906 )

The instrument claimed to be a release was admitted in evidence by the trial court, and was thus a part of the record upon which the jury rendered its verdict. The court, therefore, on the motion for a new trial, had the right to review the evidence, and to set aside the verdict of the jury if it believed such verdict was not supported thereby. The court did review the evidence; and, believing that the verdict was contrary thereto, granted the new trial. There was no abuse of discretion in making the order. Conceding that the court erroneously admitted the release in evidence, that would not change the result, although it would have been ground of complaint if the verdict had been against plaintiff. But the plaintiff cannot, on an appeal from the order granting a new trial, claim that because of an erroneous ruling there was no evidence at all upon which a verdict or judgment could have been rendered for the defendant. If the objection of the plaintiff to the release had been sustained, then the defendant might have proved the execution of the release by other evidence. An order granting a new trial must be affirmed, unless there is a clear abuse of discretion. (Hausmann v.Sutter St. Ry. Co., 139 Cal. 174, [72 P. 905].) I do not, however, agree with what is said by the presiding justice as to the admission of the release without any preliminary proof.

The release offered and received in evidence is as follows:

"New York, March 2nd, 1900.

"Agreement entered into this second day of March, 1900, between John T. Dougherty, of the first part, and Joseph E. Howard of the second part. That the party of the first part agrees to release Joe Bernstein, so that this man, namely, Joe Bernstein, can go with the theatrical production known as 'The New York Girl,' and that he signs away all claims against said Joe Bernstein.

(Signed) "JOHN T. DOUGHERTY.

"Witness: JULIUS LIBERMAN."

This is a writing which defendant desired to prove and introduce in evidence.

It is provided (Code Civ. Proc., sec. 1940) that a writing may be proved: "(1) by anyone who saw the writing executed; or (2) by evidence of the genuineness of the handwriting of the maker; or (3) by a subscribing witness." It is further provided (Code Civ. Proc., sec. 1942) that evidence may be given that the party against whom the writing is offered has admitted its execution; or (section 1945), where it is more than thirty years old, comparisons may be made with writings purporting to be genuine and generally respected and acted upon as such by persons having an interest in knowing the fact; or (section 1942) when it is produced from the custody of the adverse party and has been acted upon by him as genuine; or (section 1943) the handwriting of a person may be proved by one who believes it to be his, and who has seen him write, or has seen writings purporting to be his upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting; or (section 1948) it may be acknowledged or proved and certified in the manner provided for the acknowledgment or proof of conveyances of real property, and the certificate of acknowledgment or proof is prima facie evidence of the execution of the writing.

In this case the paper purporting to be a release was admitted in evidence without any attempt to prove it in any of the methods referred to. It was contended, and the court held, that it might be admitted in evidence and the jury might pass upon it by comparison with a paper already in evidence as part of plaintiff's case. I do not think such is the correct construction of section 1944, cited in the opinion of the presiding justice. That section provides that evidence may be given respecting the handwriting by a comparison, made by the witness or the jury, with writings admitted to be genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. The section does not provide that the instrument may be proven in this way. It simply says that evidence respecting the handwriting may be given by comparison. Such comparison, evidently, may be made by a witness, either before or after the instrument is received in evidence. The witness by comparison may give evidence respecting the handwriting. The statements made by the witness after such comparison as to the handwriting are evidence which the jury may consider. The jury may also, after the instrument has been prima facie in some legal way proven and admitted in evidence, look at the handwriting and compare it, and such comparison is evidence. Evidence is the legal means, sanctioned by law, for proving or disproving some material fact in issue. When the handwriting is in issue, the jurors may, by comparison with the documents before them, and by the use of their eyes, look at the characters made on the two instruments, and in this way receive evidence by comparison. But this does not, in my opinion, mean that the jury are entitled to have admitted in evidence every paper offered without any proof whatever, so that they may compare it. The question as to whether or not a paper or document is admissible in evidence is for the court, and not for the jury. The court must surely have some evidence as to its execution or the signature thereto before it can admit it. The section provides that evidence may be given by comparison made by the witness. If this means that the document may be admitted in evidence without any other proof, it would be admissible for the witness as well as for the jury. This would lead to endless documents being introduced in evidence without any restraint by the court. A plaintiff might bring an action upon a written instrument the genuineness of which is in issue. The defendant answers and signs and verifies his answer. Such answer is a writing admitted and treated as genuine by the defendant. The plaintiff, under the ruling here, could introduce the instrument without a word of preliminary proof, relying upon the chances that the jury might say it was genuine by comparing it with the answer. In this case the error in the ruling is manifest by the result. The release was admitted, and the jury were, in effect, to say by comparison whether or not it was admissible, and when they retired to deliberate they found that the signature was not genuine, and hence that it was not admissible. The trial court by an inspection thinks it was genuine, and made an order granting a new trial. Hence a new trial is granted because an instrument is thought by the trial judge to be genuine without a word of evidence of any kind except by comparison, and such comparison was for the jury, and it found that the instrument was not genuine. The learned judge was not satisfied with the ruling, for in the order granting a new trial he said: "I think that in the interest of justice a new trial should be granted, in order to enable the defendant to sustain the so-called release, if he can, by the testimony of Dougherty, or himself, or of the person whose name is subscribed as witness thereto. There should be no serious difficulty in procuring the testimony of at least one of these parties." The code does not provide that the evidence by comparison may be made by the judge. I have carefully examined all the cases cited by the presiding justice, and I do not find one that is directly in point. They use general language to the effect that, when other writings admitted to be genuine are already in the case, the comparison may be made by the jury, with or without the aid of experts; but that means that the evidence by comparison may be taken, and not that the instrument may be proved in this way. It is only evidence or a means to be used by the jury in arriving at the ultimate fact. The rule is thus given in Phillips on Evidence (C. H. E. notes), volume 2, page 616: "Within a recent period a rule has been established which amounts to a considerable relaxation of the strictness of the law in regard to the direct comparison of handwriting. Upon a question respecting the identity of handwriting, the jury may be allowed to take other papers which have been proved to be the writing of the party whose handwriting is disputed, provided they are part of the proofs in the cause, and may compare them with the disputed writing for the purpose of forming their opinion whether the disputed writing is genuine." The author says the comparison may be made upon a question respecting the identity of handwriting, and that is what Greenleaf means when he says the "comparison may be made with or without the aid of experts," and is what the code means when it says evidence respecting the handwriting may be given by a comparison. It does not seem plausible that the section means that the document may be proven by a comparison made by the jury. Such is not one of the ways of proving a written instrument.

In Verzan v. McGregor, 23 Cal. 343, it is said: "And the rule is that, if there be no evidence of authenticity, the instrument cannot be read to the jury; but if there be any fact or circumstances tending to prove the authenticity from which it might be presumed, then the instrument is to be read to the jury, and the question, like other matters of fact, is for their decision." In Adams v. Field, 21 Vt. 264, it is said: "In England it was long held that a comparison of handwriting was not admissible, but I think that rule has been modified by modern decisions, and at the present day it would seem their courts admit in evidence comparison of hands, but confine it to documents which are proved to be genuine, and which are in evidence on the trial of the cause for other purposes." InAllport v. Meek, 4 Car. P. 509, it was sought to prove a bill of exchange to the jury by comparison with the written acceptance which the defendant acknowledged to be his. Tindall, C. J., said: "I think you must call some witness to lay some evidence before the jury on which they may decide." In Doe exdem. Henderson v. Roe and Hackney et al., 16 Ga. 524, the court said: "The court or jury may compare two documents together when properly in evidence, and from that comparison form a judgment upon the genuineness of the handwriting or the identity of the writer." The case of Myers v. Toscan, 3 N.H. 47, is very much like the case at bar as to the facts. The defendant relied upon a sale of the property (for which suit had been brought) to him by the plaintiff, and produced a paper purporting to be signed by the plaintiff, acknowledging the receipt of payment for the articles. The trial court permitted the jury to compare the signature to the receipt with another paper containing the genuine signature of the plaintiff, and instructed them that they might compare the signatures, and if satisfied from the comparison that the receipt was genuine, they must return a verdict for the defendant. On such instruction the jury returned a verdict for the defendant, and the plaintiff made a motion for a new trial, upon the ground that the jury had been misdirected. The opinion prepared by the chief justice states the rule thus: "We take it to be a well-settled principle of law that it cannot be left to a jury to determine whether a signature is genuine or not merely by comparing it with other signatures proved to be genuine. . . . But where witnesses acquainted with the handwriting in question have been called and examined, other signatures, proved to be genuine, may be submitted to the jury, to corroborate or weaken the testimony of such witnesses. . . . As it was submitted to the jury in this case to decide by a mere comparison of handwriting, we entertain no doubt that there must be a new trial granted." In Graham v. Nesmith, 24 S.C. 289, the witness Cooper testified that, upon examining and comparing a statement and the signature thereto "Sarah Nesmith," and comparing it with her signature to the original agreement and with acknowledged signatures of hers, he was "satisfied that this instrument is genuine, and that the signature is hers." Sarah Nesmith, although a witness, refused to say whether the signature was hers or not. The court said: "There was some testimony by the plaintiff, Tucker, tending to show, although possibly not sufficient to show, that the paper in question was signed by Mrs. Nesmith, and that makes just such a case as lets in proof by comparison of handwriting."

I am confirmed in my views as to the meaning of the section, by section 1943, which precedes it. It is there said: "The handwriting of a person may be proved by anyone who believes it to be his, or who has seen him write, or has seen writings purporting to be his upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting." When section 1944 speaks of evidence respecting "the handwriting," it means, in my opinion, that the jury may compare the writing in evidence with writings admitted or treated as genuine by the party against whom the evidence is offered. The case ofWilliams v. Drexel, 14 Md. 566, cited by the presiding justice, presents an entirely different case from the case at bar. The court held in that case that it was not error for the court to refuse to instruct "the jury to find a verdict for defendant because there was no evidence of the indorsement of the bill to the payee." The court said: "The bill of exceptions states that the plaintiff offered in evidence to the jury the following paper writing, purporting to be a bill of exchange, acceptance, and protest, which are there set forth, no objection to their admissibility appearing to have been made. The record, as amended, shows the bill of exchange to have the name of the drawer, the name of the payee, and that of the payee as indorser, all written in the same name, appearing to be the name of the same person, and all apparently in the same handwriting. The acceptance is fully proved, which admits the signature of the drawer. It is also shown that, whilst the indorsement on the bill was in blank, the defendant acknowledged the acceptance to be hers. Where in addition to these circumstances we have before us the whole conversation between the defendant and Mr. Marshall, as detailed by him, we are not prepared to say there was no evidence to prove the indorsement of the bill to the payee." It will readily be seen that in that case the bill of exchange was in evidence with the name of the payee, the name of the drawee, and the payee as indorser, all written upon it. No objection had been made as to the indorsement. As no such objection had been made, and the indorsement was in evidence, the jury then had the right to compare the signatures.

I therefore dissent from what is said by the presiding justice as to the admission in evidence of the release.

A petition for a rehearing of this cause was denied by the district court of appeal on February 21, 1906, and a petition to have the cause heard in the supreme court, after judgment in the district court, of appeal, was denied by the supreme court on March 26, 1906.