Berkley v. Maurer , 1907 Pa. Super. LEXIS 140 ( 1907 )

Opinion by

Head, J.,

To No. 214, February Term, 1903, of tbe court of common pleas of Somerset county a judgment was entered in favor of H. M. Berkley, cashier, against C. A. Blanchard and E. B. Maurer. This judgment was entered by virtue of a warrant of attorney attached to a note under seal purporting to have been signed by those parties. Upon the petition of Maurer, alleging that the note, as to him, was a forgery, .the court opened the judgment and an issue was framed to try the disputed question of fact. The loan, to secure which the note was given, was negotiated by Blanchard who was the son-in-law of Maurer. He had signed the note in the bank, in the presence of its officer, and undertook to procure the signature of his father-in-law who was known as a man of financial responsibility. Shortly thereafter he presented the note purporting to be thus signed, which was accepted by the bank and the money was given to Blanchard. Upon the filing of the affidavit by Maurer declaring that he had never signed the note nor authorized anyone to attach his name thereto, the cashier, Berkley, made an information before a magistrate charging Blanchard with forgery, and a warrant for his arrest issued. The record before us does not show that he was ever arrested; on the contrary, we gather from the testimony, in the case now under consideration, that he had absconded. Nevertheless a bill of indictment was framed and sent to the grand jury upon which were indorsed the names of Maurer arid Berkley, the cashier, and it was returned a true bill. Of the subsequent history of the criminal proceeding thus begun, we are not informed.

Upon the trial of the issue in the common pleas the burden of establishing that the defendant had signed the note was on the plaintiff. During the progress of the plaintiff’s case in chief Berkley was called as a witness. No testimony was sought or elicited from him as to the signature in question. He did not give nor was he asked to give any opinion concerning it. He simply identified another signature of the defendant’s as genuine for the purpose of obtaining a “standard.” There was no dispute as to this signature and it was admitted in evidence without objection. Later on he was recalled by the plaintiff and testified to the execution o£ the note by Blanchard in his presence, the length of time the latter was absent from the bank, and the condition of the note when he returned with it. The genuineness of the signature having been testified to by other witnesses competent for that purpose, the note was offered and admitted in evidence and the plaintiff rested.

By way of defense the defendant offered, inter alia, the written information, signed and sworn to by the plaintiff, charging Blanchard with having feloniously forged the name of Maurer to the note in suit. It was admitted against the objection of the plaintiff and this ruling is the subject of the fourth assignment of error. We think the offer was both competent and relevant. In the action being tried the plaintiff sought to recover from the defendant a large sum of money. The only evidence of the liability of the latter was the note purporting to be his written contract to pay. If he did not sign that note he owed the plaintiff nothing. The offer was a specific, unqualified declaration or admission by the plaintiff that the defendant had not signed the note, but that his name had been feloniously forged by another, or, in other words, that the defendant owed no money. Such an admission of a plaintiff ought to be received in any action wherein he sought to recover from another on a theory at variance with his former declaration. True, it would by no means conclude the plaintiff, and if followed, in the present case, by testimony tending to show that the information was based on the affidavit of the defendant himself, but little weight might be attached to it by the jury. It was subject to this right on the part of the plaintiff that the offer was admitted by the court. To make such an admission, by a party competent, it is not necessary that it be regarded as contradictory of any testimony delivered by him on the witness stand. In this respect he occupies a different attitude from one who is merely a witness. Professor Wigmore, Vol. II, sec. 1048, thus clearly states the distinction: “The witness speaks in court through his testimony only and hence his testimony forms the sole basis upon which the inconsistency of his other statement is predicated. But the party, whether he himself takes the stand or not, speaks always through his pleadings and through the testimony of his witnesses put forward to support his pleadings ; hence the basis upon which may be predicated a discrediting inconsistency on his part includes the whole range of facts asserted in his pleadings and in the testimony relied on by him. Thus, in effect and broadly, anything said by the party may be used against him as an admission, provided it exhibits the quality of inconsistency with the facts now asserted by him in pleadings or in testimony.” The fourth assignment must, therefore be overruled.

The fifth assignment complains of the action of the court in admitting in evidence and permitting to be read to the jury the bill of indictment already referred to and the finding of the grand jury thereon. The indictment itself was but the amplified statement in legal verbiage of the accusation contained in the information. It was in no sense the act or declaration of the plaintiff. Nor was the finding of the grand jury anything more than the formal assent of that body, after an ex parte hearing, to the proposition that the defendant ought to be tried in open court on the charge contained in the bill. Even in the trial of that case the finding of the grand jury could not be regarded as evidence helpful in determining the issue involved. Much less we think could it, in the present issue, aid the jury in reaching a correct solution of the question submitted to them. If, then, the bill and the grand jury’s return were not primary evidence tending to establish the contention of the present defendant, that his name had been forged on the note in suit, neither were they useful to contradict any testimony delivered by the plaintiff nor to show a former attitude on his part, in relation to that contention, inconsistent with his maintenance of the present action. The mere indorsement of his name on the bill by the district attorney, as a witness for the state, did not even establish that he had gone before the grand jury at all. If he did he went not as a volunteer but as any other witness. And what ground is there for assuming that if he was in fact called before that body, his testimony was in any respect different from that delivered in the present case, where it was confined to matters entirely collateral to the main question ? The proceedings in the quarter sessions were, therefore, purely res inter alios acta and their injection by the defendant into this record should'not have been permitted by the court. Whilst the point decided in Harger v. Thomas, 44 Pa. 128, was not precisely the one before us, the reasoning of the opinion delivered by Mr. Justice Thompson strongly supports the conclusion here reached. As it would be both easy and natural for the jury, in the present case, to regard the finding of the grand jury as a determination, by an independent tribunal, that a forgery had been committed, and to give it weight accordingly, we cannot say that the error in admitting the offer was a harmless one. The fifth assignment is sustained.

We have attentively considered all of the numerous assignments remaining, but can discover no advantage to be derived from a discussion of them either singly or in the groups into which they have been arranged.

The witnesses whose competency is attacked in several of these assignments did not attempt to qualify as expert witnesses. Their testimony was received on the ground that they were actually familiar with the genuine signature of the defendant either from having seen him write, from having conducted a correspondence with him, from having seen signatures acknowleged to be genuine and acted on them in the usual course of business. Although, in some of the instances complained of, the knowledge of the witness was so slight that the testimony would probably have but little weight before a discriminating jury, yet the fact that his knowledge was scant affected his credibility rather than his competency. The learned trial court could not, therefore, have properly rejected any of these witnesses : McNair v. Commonwealth, 26 Pa. 388 ; Cabarga v. Seeger, 17 Pa. 514; 15 Am. & Eng. Ency. of Law (2d ed.), pp. 254-256.

It is true also that the learned court below in' the general charge commented in a somewhat disparaging way on the quality and value of expert testimony, but we cannot say he went beyond permissible limits in doing so because our Supreme Court has said of such testimony, in Dawson v. Pittsburg, 159 Pa. 317, “ it is matter of opinion at best, and the lowest grade of evidence that ever comes into a court of justice. It is permissible only because, bad as it is, there is nothing better attainable.” All of the assignments of error, except the fifth, are overruled, but the fifth, for the reasons given, is sustained.

Judgment reversed and a venire facias de novo awarded.