Summary
In Kirby v. Brooks, 215 Ala. 507, 111 So. 235, it was held that a witness must qualify before testifying relative to an opinion as to genuineness of handwriting.
Summary of this case from Lambert v. StateOpinion
4 Div. 233.
January 20, 1927.
Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
J. L. Murphy, of Andalusia, and W. O. Mulkey, of Geneva, for appellant.
The witnesses who made the comparison of the handwriting on the deed, and expressed their opinion thereon, did not qualify as experts and objection to their testimony, should have been sustained. Code 1923, § 7505; Brown v. Welch, 209 Ala. 518, 96 So. 610; Moon v. Crowder, 72 Ala. 88; Griffin v. Working Women's Asso., 151 Ala. 604, 44 So. 605. Defendant should have been permitted to testify as to the genuineness of the handwriting of the grantor upon the deed.
Simmons Simmons, of Enterprise, and C. B. Fuller, of Opp, for appellees.
The witness Woodham showed himself qualified as an expert. Glover v. Gentry, 104 Ala. 222, 16 So. 38; Tullis v. Kidd, 12 Ala. 650; 22 C. J. 522. The question of the qualification vel non of an expert witness is addressed to the sound discretion of the court. Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; 22 C. J. 526. The admissibility of the evidence of Woodham was for the court; its weight being for the jury. Sovereign Camp v. Graham, 214 Ala. 239, 107 So. 98. If the witnesses were not qualified as experts, each was competent to testify by reason of familiarity with the handwriting of the person in question. Brown v. Welch, 209 Ala. 518, 96 So. 610.
Under sections 7705 and 7707 of the Code, the trial court properly allowed the introduction in evidence of the several collateral signatures of the alleged grantor, Brooks, and of the notary public, Windham, which witnesses testified were genuine.
In order to be allowed to compare the proven signature with the one whose genuineness is challenged, the witness must either be an expert, or he must be familiar with the author's handwriting. Code, §§ 7705, 7707; Brown v. Welch, 209 Ala. 518, 96 So. 610.
As to the witnesses Woodham and Woodall, no objection was made as to their want of qualification, and the objections of irrelevancy and incompetency were not sufficient to raise the question. Southern Ry. Co. v. Dickson, 211 Ala. 481, 482, 484, 100 So. 665.
The specific objection was, however, made as to the witness Buck. This witness was not familiar with the handwriting of H. C. Brooks or A. B. Windham, and it was therefore necessary for him to qualify as an expert in judging handwriting. Counsel for appellant insist that the testimony did not show that he had the requisite qualifications. It is elementary law that the inquiry as to an expert's competency is addressed to the sound discretion of the trial court, whose decision on the evidence will not be disturbed on appeal except for palpable abuse. Burnwell v. Setzer, 191 Ala. 398, 67 So. 604, and cases cited therein; 22 Corp. Jur. 526, § 610.
It is a matter of common knowledge that the cashier or assistant cashier of a going bank must, as a part of his daily routine, examine signatures to checks, bills, and notes very often for the purpose of determining their genuineness. His vocation, if long pursued, necessarily renders him more or less expert in the identification of handwriting, and in the determination of its authorship, just as a physician's vocation renders him, prima facie, an expert in the diagnosis and treatment of disease. Tullis v. Kidd, 12 Ala. 650. It does not appear that the trial court abused its discretion in holding that the witness Buck was qualified to testify as an expert in handwriting.
Under our decisions the defendant, Mrs. Kirby, was not a competent witness as to the genuineness of the signature of H. C. Brooks to the deed under which she claimed. Code, § 7721; Kirksey v. Kirksey, 41 Ala. 626, 634; Ware v. Burch, 148 Ala. 529, 42 So. 562, 12 Ann. Cas. 669. The fact that plaintiffs waived her incompetency under the statute to testify that the deceased grantor himself delivered the deed to her (Napier v. Elliott, 152 Ala. 248, 44 So. 552) could not operate as a waiver of her incompetency to testify as to other matters within the inhibition of the statute, if seasonably objected to. She was not called to testify by the opposite party, and there was no general waiver of her incompetency.
We have discussed the questions argued by counsel, and have found no errors in the rulings of the trial court. The judgment will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.