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Hildebrand (1897) 19 Ky. L. Rep. 983, evidence discloses that it had been the 42 S. W. 351, an action to compel the custom to exact a money deposit or the defendants to furnish light, which signature of a person known to be rethey had refused to do following the sponsible whenever the applicant was plaintiff's failure to make a deposit unknown, or known to be irresponsias security for future service. The ble. The delivery of gas necessarily court, after pointing out that the de- is its consumption. The amount can fendants were bound to serve the pub- only be ascertained as consumed. lic without discrimination, said: "It is The company is bound to furnish on conceded by appellee that appellant application, and it is but just that it may prescribe reasonable rules and be not compelled to supply unknown regulations and impose reasonable or irresponsible persons therewith, conditions upon the consumer and re- without assurance in some form that quire proper security for the payment it will receive compensation. The of their bills, and may even require adoption of a formal rule exacting deposits in advance, but his conten- security seems unnecessary if there is tion here is that the companies have a well-established custom, as appears adopted no such rule or regulation in this case, to exact security as statas they have attempted to enforce ed. The evidence discloses that this against him, and such appears to us had always been customary with the to be a fact. No rule or regulation of company. In such a case, the custom a general character is relied on or ex- has the force of a rule or regulation. hibited by the companies, and to allow Of course, it could not impose differthem to select this or that consumer ent terms according to whim or caagainst whom to enforce special rules price, but must treat all consumers in would put the consumer at the capri- like situations alike. As said in Cedar cious humor of the agents and employ- Rapids Gaslight Co. Case ((1909) 144 ees of the companies."

Iowa, 426, 48 L.R.A.(N.S.) 1025, 138 And in the reported case (BARRIGER Am. St. Rep. 299, 120 N. W. 966), the v. LOUISVILLE GAS & E. Co. ante, 1408), company may not base a rule on the wherein it is conceded by the defend- theory that the people as a whole are ant that a rule requiring deposits dishonest, but it has the right to adopt from consumers is not enforceable if a rule which, wiile giving the honest discriminatory, the court holds that citizen what he pays for, will prevent discrimination does exist where about the dishonest from getting that which 10 per cent of the defendant's patrons he will never pay for. Appellee argues are required to make a cash deposit, that the custom in any event is unreawhile no security is demanded of the sonable and unjust, in that no definite remaining 90 per cent.

test is fixed for determining from In Phelan v. Boone Gas Co. (1910) whom security shall be exacted, all 147 Iowa, 626, 31 L.R.A.(N.S.) 319, 125 being left to the company's agents. It N. W. 208, an action in mandamus to is unnecessary to pass on this point, require the defendant to replace a gas for conceding the validity of the regumeter in the plaintiff's house and sup- lation, we agree with the trial court ply him with gas, it appeared that ow- that it was not resorted to in good ing to differences over the company's faith. Prior to the suit in the justice account it had removed a meter from court, no question had been raised conthe plaintiff's house and cut off his cerning the plaintiff's responsibility. supply of gas, an action on the ac- He had paid his bills promptly. Immecount resulting in a judgment for diately thereafter the company's manthe present plaintiff, who thereupon ager instructed the employees not to sought reinstatement as a patron of reinstate Phelan's meter without sethe defendant company, which, how- curity, and on the trial he admitted ever, refused service except on deposit having no other reason for declaring of $10 as security for payment of gas, him slow in his accounts, or irresponor the procuring of someone to guar- sible, than the lawsuit in which the antee payment. The court said: “The court adjudicated that the company's account had been paid. In retaliation, from each prospective consumer of rather than because of questioning gas, the deposit to be returned with plaintiff's responsibility, the company interest on the surrender of the meter, demanded the security. In the ab- but declared that discrimination in sence of any evidence to the contrary, the application thereof would render he is presumed to have been respon- the rule invalid. It was held, howsible for obligations undertaken, and ever, that no discrimination had been the district court rightly directed the proven where the evidence showed issuance of the writ of mandamus as those not required to make the deposprayed.”

it had been connected with the pipe In Collins v. Miami County Gas Co. lines before the defendant had pur(1919) 104 Kan. 735, 180 Pac. 769, the chased the plant, had made some other court upheld as reasonable a rule of a concession to the company, or had gas company requiring a deposit of $5 evaded the requirement. R. S.

CHARLES M. ADAMS, Piff. in Err.,

V.
FRANKIE L. RISTINE et al.

Virginia Supreme Court of Appeals

L

- March 20, 1924.

(- Va. 122 S. E. 126.)

Evidence – photographs of signatures admissibility.

1. Photographs of names and signatures placed in juxtaposition on the same plate, showing questioned signatures and genuine ones, are admissible in evidence to enable expert witnesses to point out the similarities and dissimilarities in the writings.

[See note on this question beginning on page 1431.] - knowledge of handwriting.

- opinion as to genuine writing. 2. In a will contest a nonexpert wit- 5. Where one of two persons whose ness who has given the opinion that writings are much alike is claimed to the will was in the handwriting of have forged an instrument of the othdecedent may be asked on cross-ex- er, and the genuine writings of both amination if a page of accounts in a are before the court, a nonexpert who book kept in the business of the de- has given his opinion that the alleged ceased was in his handwriting. forged instrument is genuine may be

[See 11 R. C. L. 647, 648; 2 R. C. L. asked, on cross-examination, to look Supp. 1295.]

at one of the genuine writings and - comparison with other writing.

.say whether it is that of the one or

the other person. 3. Comparison of handwriting may be made with any writing proved or

[See 11 R. C. L. 648; 2 R. C. L. Supp.

1295.] admitted to be genuine, whether already in the cause or not.

of enlarged photograph on [See 10 R. C. L. 995.]

cross-examination.

6. A nonexpert witness who has - cross-examination of nonexpert wit- testified to the genuineness of the signess.

natures to a will cannot, on cross-ex4. Upon cross-examination of amination, be shown a photograph nonexpert witness to handwriting, showing several enlargements of a questions involving the extent of his written word which forms the surknowledge or observation, or his fair- name in the signature, and asked · ness, or his bias or prejudice, are per- whose signatures they are, where the missible.

photograph has not been introduced [See 11 R. C. L. 647; 2 R. C. L. Supp. in evidence or any explanation of it 1295.]

given.

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Appeal — when inadmissible evidence investigation, the reasons for his opinnot harmless.

ions, the peculiarities of the ques7. Testimony cannot be regarded as tioned writing, and the difference in harmless which tends to impeach a this respect between it and the genuwitness as to the main subject of his ine writing, the difference between testimony.

his opinion and that of other experts Witness nonexpert opinion as to who have testified in the case, and signature.

other subjects which will throw light 8. Where the only knowledge which upon the weight to be given to his one on whose testimony a will has

testimony. been admitted to probate, but who was

[See 11 R. C. L. 646.] not a handwriting expert, had of the Appeal — ruling on cross-examination genuineness of the signature, was de- of handwriting expert. rived from the signatures to checks 15. The scope and limitation of the which he had received, he cannot be cross-examination of a handwriting asked whether or not, in his opinion, expert must be left largely to the disthe signatures to the checks were the cretion of the trial court, whose ruling same as that to the will, after the sig

is rarely disturbed. natures to the checks have been [See 11 R. C. L. 347; 2 R. C. L. Supp. proved to have been made by a third 1295.] person.

Witness impeachment founda- identification of writing.

tion. 9. One familiar with the writing of

16. To impeach a witness by a prior an alleged testator and of another who

inconsistent statement, a foundation is alleged to have forged his will may

should be laid by first calling the atidentify samples of the genuine writ

tention of the witness to the alleged ing of each for use as exhibits in the

statement and inquiring whether or case.

not he made it. - banker as handwriting expert.

[See 28 R. C. L. 636; 3 R. C. L. Supp. 10. A banker who for twenty years

1588; 4 R. C. L. Supp. 1833.] had been required to examine signatures for the purpose of detecting and - impeachment by testimony on forproving forgeries may be permitted mer trial, to testify as a handwriting expert. 17. Testimony at a former trial may Evidence waiver of error.

be used to impeach a witness, if his 11. Error in permitting a witness

attention is called to the former testito qualify as a handwriting expert is

mony and he is given an opportunity waived by introducing similar evi

to explain any inconsistency with that dence in opposition.

given at the present trial.

[See 28 R. C. L. 640.] Witness cross-examination of handwriting expert.

- testimony from photographs. 12. Bankers who qualify as hand

18. A handwriting expert may be writing experts to give opinions as

permitted to make comparisons of to the genuineness of the signatures handwritings from photographs which to a will may be shown signatures

he has made and testifies to be corand photographs of various writings. rect, even though some of them are of the surname in the signature to the

enlargements. will, and required to state if they are

[See 11 R. C. L. 624; 2 R. C. L. Supp. genuine signatures of the testator.

1288.] [See 11 R. C. L. 646; 2 R. C. L. Supp. Trial question for jury what 1295.]

weight to be given expert testimony. scope of cross-examination

trial.

19. The question of the relative 13. A very wide scope should be weight to be given to the testimony of given to the cross-examination of ex- practical experts and of scientific experts on handwriting.

perts in handwriting is for the jury. [See 11 R. C. L. 646; 2 R. C. L. Supp. Evidence – photographs of grouped 1294.]

writings. - what cross-examination may in- 20. Photographs of writings grouped clude.

or placed in juxtaposition for the pur14. An expert on handwriting may pose of comparing genuine with disbe cross-examined as to his experi- puted ones, or for emphasizing certain ence and competency, his methods of letters or other peculiarities found in

(- Va, —, 122 S. E. 126.) them respectively, are admissible in giving the viewpoint merely of such evidence to enable expert witnesses expert, and that the jury must form to bring the differences between genu- its verdict from all the evidence in the ine and alleged forged writings to the case, and that it is the duty of the attention of the jury.

jury to look at the original writings Appeal error in instruction and, from them and the other evidence declaration of testator.

in the case, form its verdict. 21. It is error to instruct the jury in Evidence experts weight. a will contest where the alleged will 23. Opinion evidence as to handis claimed to be a forgery, that state- writing is valuable when direct eviments of testator as to how he in- dence of a reliable and satisfactory tended to dispose of his property go character as to the factum cannot be only to the question of the probability obtained, but it is subject to many or improbability of making the dis- abuses and is of a dangerous nature, position set forth in the alleged will, especially when given by experts in and do not affect the question of the employ of and paid by parties ofwhether or not the alleged will is in fering it. testator's genuine handwriting.

[See 11 R. C. L. 586 et seq.; 2 R. C. refused instructions duty with L. Supp. 1276; 4 R. C. L. Supp. 712.] respect to exhibit.

Appeal refusal of new trial. 22. It is error in a will contest in 24. Errors in evidence and instrucwhich the purported will is claimed to tions do not require reversal where be a forgery, to refuse to instruct that there is nothing to indicate that a new photograph exhibits made by a hand- trial will result in a different verdict writing expert are to be considered as from that already reached.

ERROR to the Circuit Court of the City of Alexandria (Brent, J.) to review a judgment refusing to admit to probate a certain paper writing as the last will and testament of Lewis M. Adams, deceased. Affirmed.

The facts are stated in the opinion of the court.

Mr. J. K. M. Norton, for plaintiff in His opinion may or may not have error:

much weight. But he is not compeAn instruction that statements of tent to compare other writings; that Lewis M. Adams as to how he intended is the province of the expert. to dispose of his property at his death .17 Cyc. 184; Massey V. Farmers' go only to the question of the proba- Nat. Bank, 104 Ill. 327; White Sewing bility or improbability of his making Mach. Co. v. Gordon, 124 Ind. 495, 19 the disposition of his property set Am. St. Rep. 109, 24 N. E. 1053. forth in the alleged will, and do not The book of photographs prepared affect the question of whether it is in by A. S. Osborn, an expert witness his genuine handwriting or not, is im- for contestants, was inadmissible in proper.

evidence. Taylor Will Case, 10 Abb. Pr. N. S. Johnson V. Com. 102 Va. 930, 46 300; Burge v. Hamilton, 72 Ga. 568; S. E. 789; United States v. Ortiz, 176 Morvant's Succession, 45 La. Ann. 207, U. S. 422, 44 L. ed. 529, 20 Sup. Ct. Rep. 12 So. 349; Hoppe v. Byers, 60 Md. 381; 466; Maclean v. Scripps, 52 Mich. 214, Lane v. Hill, 68 N. H. 275, 73 Am. St. 17 N. W. 815, 18 N. W. 209; Tome v. Rep. 591, 44 Atl. 393; Lappe v. Gfel- Parkersburg Branch R. Co. 39 Md. 36, ler, 211 Pa. 462, 60 Atl. 1049.

17 Am. Rep. 540; 9 Enc. Ev. pp. 779, A photograph is, at best, only sec- 780; Crane v. Dexter Horton & Co. 5 ondary evidence. If admitted for any Wash. 479, 32 Pac. 223; Hynes v. Mcpurpose, the jury should be properly Dermott, 82 N. Y. 51, 37 Am. Rep. 538; instructed and cautioned as to its pro- Taylor Will Case, 10 Abb. Pr. N. S. bative value.

318; Howard v. Illinois Trust & Sav. Scott v. New Orleans, 21 C. C. A. Bank, 189 Ill. 568, 59 N. E. 1106. 402, 41 U. S. App. 498, 75 Fed. 373; To tell a witness he had testified Whitaker v. Parker, 42 Iowa, 585. in a certain way at a former trial, and

A witness who has seen a testator then proceed on the theory that the write, though not an expert, is compe- witness had so testified at a former tent to testify and give his opinion as trial, is highly improper, and not perto the handwriting of the alleged will. missible.

Norfolk & W. R. Co. v. Arrington, Burks, J., delivered the opinion of 131 Va. 564, 109 S. E. 303; Davis v. the court: Franke, 33 Gratt. 424; 40 Cyc. 2719; This is a contest over a will of Unis v. Charlton, 12 Gratt. 485.

which the following is a copy: Messrs. Woolls & Bryan and Carlin, Carlin, & Hall, for defendants in er- "Alex., Va., September 10th, 1920. ror:

"My Last Will. The lower court should not comment “I give all my real estate and on or express its opinion as to the

cash in bank to my brother, Charles weight to be given to any particular

M. Adams. evidence. Bear v. Bear, 131 Va. 447, 109 S. E.

"I request no inventory and no

bond. 313; Norfolk & W. R. Co. v. Poole, 100 Va. 148, 40 S. E. 627; Burk, Pl. & Pr.

L. M. Adams." 2d ed. § 256.

This paper was admitted to proWitnesses familiar with the hand

bate by the clerk of the circuit court writing of Charles and Lewis Adams could properly identify genuine ex

in vacation, upon proof by two witamples of the handwriting of both for

nesses that it was wholly in the comparison and examination by the

handwriting of the testator. jury.

appeal, all persons interested in the Nagle v. Schnadt, 239 Ill. 597, 88

probate of said will were sumN. E. 178.

moned, and a trial de novo was had Witnesses engaged in the banking

before a jury, which found that the business and accustomed to examine paper called a will was not the true signatures may competently express

last will and testament of Lewis an opinion as to the genuineness of M. Adams. handwriting and give reasons for their There were four brothers in the opinion.

family, Ephraim, Charles M., Lewis Savage v. Bowen, 103 Va. 544, 49 M., and Frank. The first two menS. E. 668.

tioned are still living. Frank died An expert witness on handwriting a few years before Lewis M., leavmay competently support his opinion ing surviving him his widow and by referring to original and genuine

two daughters, who are the defendwritings, and photographs of them, as

ants in error. Frank had owned a compared with the alleged will in con

small grocery store in Alexandria, troversy. Rowell v. Fuller, 59 Vt. 688, 10 Atl.

which, by his will, he left to his 853.

brother, Lewis M.; but it is said Exhibits prepared by a handwrit

that it was not worth as much as ing expert, consisting of photographs he owed Lewis M. at the time. of the alleged will, and of words, parts Charles M. and Lewis M. never of words, and parts of genuine signa- married, and the latter had lived tures, placed in juxtaposition for the nearly all his life with Charles M., purpose of comparison and in explana- without any charge for board, and tion of the witness's opinion, were

the most intimate and devoted competent and admissible in evidence.

relations existed between them, Brown v. Hall, 85 Va. 146, 7 S. E. 182; Hanriot v. Sherwood, 82 Va. 1;

Charles M. frequently assisted in United States v. Ortiz, 176 U. S. 430,

conducting the store and at times 44 L. ed. 533, 20 Sup. Ct. Rep. 466;

ran it alone. He did a large part of Johnson's Case, 102 Va. 930, 46 S. E. the bookkeeping, and made prac789; Wigmore, Ev. $ 797; State v. tically all of the deposits in bank, Skillman, 76 N. J. L. 464, 70 Atl. 83;

and signed the checks in the name State v. Ready, 77 N. J. L. 329, 72

of Lewis, by which the money was Atl. 445; Wenchell v. Stevens, 30 Pa.

drawn out of the bank. He signed Super. Ct. 527; Howard v. Russell, 75 Tex. 174, 12 S. W. 525; Storey v. First

the name of Lewis to other papers Nat. Bank, 24 Ky. L. Rep. 1799, 72

whenever it was necessary to have S. W. 319; Luco v. United States, 23

the signature of Lewis. In one inHow. 531, 16 L. ed. 545.

stance he signed and acknowledged

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