(147 N.E.) to give me $2,000 for this case;" that Oli- Springfield and asked if they rented typever said, "All right; if you will let Mr. writers; that upon being informed that they (naming the witness) go in the case and work did and being shown a machine, Oliver inwith him I am willing to let you have that quired if witness would give him a sample $2,000 we agreed upon." Upon cross-exami- of the typewriting of the machine; that Olnation the witness stated that his recollection | iver said he had a boy who wanted to do a in regard to the conversation had not been in any way refreshed, and that it had been in his mind all the time for five years as distinctly as he had just stated, for the reason that Strawn called him an upstart, and he did not like that very well. His testimony is minimized by the fact that he had drawn the several answers to the amended and supplemental bills in this case, in all of which was the statement that the Strawns were entitled to be paid what their legal services were reasonably worth, and in none of which answers did he allege that such services had been rendered under an express contract for a fixed sum. [3, 4] To corroborate his testimony that he had received Exhibit D in December, 1908, Oliver sought to introduce in evidence a letter purporting to have been written by him from Iowa Park, Tex., December 18, 1908. to his brother-in-law, Max Lang, at Mount Olive, in which letter was the statement: "I just received a letter from Lawyer C. C. Strawn, of Pontiac, Illinois, wanting me to send him $100; he says his fees for handling my case will be $2,000, besides $20 a day for taking the evidence." Oliver testified that it was written at the time of the date mentioned in the letter and was sent to Lang through the regular course of the mail from Iowa Park. Objection was made to the letter and the objection was sustained by the master, who retained the letter to remain with the record for the consideration of the court. It is contended by defendants in error that this letter was competent and was conclusive of the truthfulness of Oliver's statements as to Exhibit D. As a general rule, proof of statements made by a witness out of court harmonizing with his theory is inadmissible, but where it is charged that his story is a recent fabrication, or that he had some motive for testifying falsely, proof that he gave a similar account of the transaction when the motive did not exist or before the effect of the account could be foreseen is admissible. Waller v. People, 209 Ill. 284, 70 N. E. 681. In the present case, however, Lang was not called as a witness regarding the receipt of the letter. The letter was before the circuit court for its consideration. Its authenticity was alone vouched for by Oliver, and in no event was it entitled to more weight than the court deemed should be given to Oliver's testimony. Paul F. Jones, the manager of the Springfield office of the Royal Typewriter Company, testified that shortly after the first day of August, 1920, Oliver came to his office in little typewriting, and witness took a sheet of Royal stationery and wrote several lines thereon; that Oliver asked if he might keep this sheet of paper, and upon being informed that he could, said he would let witness know later if he wanted to rent a machine; that Oliver returned August 18, 1920; that he had the same sheet of paper with him, and that upon it were several different kinds of typewriting underneath where witness had typed; that Oliver had the typewriting done by witness marked and asked if that was the work of the Royal machine; that upon being told that it was he said he wanted one of the machines, gave witness a check for the first month's rent, signed a receipt for the machine, and told witness to deliver it; that the machine was delivered; that it was out about four or five weeks, when it was returned. It is the contention of plaintiff in error that the typewriting upon Exhibit D was done upon the Royal typewriter which OliThe machine was ver rented from Jones. taken before the master and there exhibited upon the hearing. A copy of the typewrit. ing upon the second page of Exhibit D was made by this machine and was introduced in evidence as Exhibit 170. Three witnesses were called as experts by plaintiff in error who testified that in their opinion Exhibit D and the exhibit written upon the machine rented by Oliver from Jones were written upon the same machine and testified as to the facts upon which they based their opinions. Three experts called by defendants in error testified that in their opinion Exhibit D was not written upon the same machine as the exhibit written upon the Jones machine, and they gave the facts upon which they based their opinions. [5, 6] Two of the experts on behalf of plaintiff in error were professional experts, who had had years of study and experience in the examination and photography of questioned documents. They testified that they received $100 per day for their services. Defendants in error contend that these experts were influenced by a pecuniary stimulus and that their opinions should be given less credence than the testimony of defendants in error's experts, who had had less experience and given less time to the study of questioned documents and received less compensation for their services. While expert testimony is too often commercialized and frequently discredited, there is no reason why a person who has devoted years of time and study to a particular subject, when called upon to testify with reference to that subject, should not receive a greater com imperfect or become filled or fouled with ink. It is highly improbable that any one, even, of these accidents should occur in precisely the same way upon two machines, and that any two or more should do so is well-nigh impossible." pensation than one who has not given the, Certain letters from use become more or less subject the same study and consideration. The testimony of an expert witness is not to be discredited solely by the amount of his compensation. The testimony of such witnesses is to be tested and weighed by the same rules as the testimony of other witnesses is tested and weighed. The value of such testimony varies with the circumstances of each particular case, and in weighing such testimony its nature and character are to be taken into consideration. While opinion evidence based upon hypothesis has been held to be of but little value, the opinion of an expert may be of great value where it calls the attention of the court to facts which are capable of verification by the court, which the court otherwise would probably have overlooked, and the opinion of the expert is based upon such facts and is in harmony therewith. Original Exhibits C and D (the copy of the last page of Exhibit D being shown as Exhibit 170), several letters bearing the signature of C. C. Strawn (some admitted to be genuine and some questioned), photograph. ic copies of the exhibits, and other original exhibits having a bearing upon the genuineness of Exhibit D, have been certified to this court. Exhibit C, which is the envelope in which Exhibit D is claimed to have been received by Oliver, contains on the upper lefthand corner the address of the Strawns. It is addressed to "Hon. Revilo Oliver, Iowa Park, Texas." It bears the postmark, "Pon In Wharton on Criminal Evidence it is tiac, Ill., Dec. 15, 11 p. m., 190-." It is a said in paragraph 425a: "The principles applicable to handwriting apply equally to typewritten documents. The general use of such machines is so recent that any purported typewritten document dated prior to 1876 would afford inherent evidence of its spurious character. Again, the date of such document may be accurately determined by the make of machine on which it was written. The machine reveals the identity of the work through its imperfections, such as battered letters, lack of alignment, and the strikingly individual characteristics that mark each machine. There are no two operators whose work is identical, even though made on the same machine, writing the same matter. It is no longer in question that the individuality of the typewriter and of the operator are as distinctive and easily determined as are the characteristics of handwriting." long envelope and both ends have been folded back, causing two deep creases from the top to the bottom of the envelope. One of these creases crosses the place where the last figure of the year is in the postmark. The fiber of the paper is disturbed, so that the figure is indistinguishable. The envelope bears a two-cent postage stamp, alongside of which are the unmistakable evidences that another stamp had originally been there. The stamp was canceled by a canceling stamp the imprint of which ends abruptly at the edge of the stamp now on the envelope, and it is evident that the other stamp originally upon the envelope was canceled by the same imprint. Across the left end of the envelope there now appears, "Ans. Dec. 21, 1908," with two small marks above the "21" connected by a stroke of the pen with the In Osborn's Questioned Documents, p. 438, figure "1" in 1908. The envelope shows that it is said: "Without careful investigation it is impossible to say what can be determined from the examination of any particular piece of typewriting, but it is important that those whose interests are attacked by such documents should know that typewriting can sometimes be positively identified as being the work of a certain particular typewriting machine, and the date of a typewriting in many cases can be determined with certainty." In Ames on Forgery, p. 117, it is said: "Since typewriting has come so generally into use, the question often arises as to the identity of writing by different operators as well as that done on different machines. This may usually be done with considerable degree of certainty. Different operators have their own peculiar methods, which differ widely in many respects in the mechanical arrangement, as to location of date, address, margins, punctuation, spacing, signing, as well as impression from touch, etc. The distinctive character of the writing done on different machines is usually determined with absolute certainty. With most machines there are accidental variations in alignment. one of these small marks had originally been a line extending down between where the figures "2" and "1" now are. This line has been erased and the fiber of the paper broken at the place where the figure "1" now is. The surface of the paper shows that there had been an erasure where the figure "S" now is. The ink of that figure is darker than that of the adjoining figures. On the back of the envelope appears the postmark, "Iowa Park, Dec. 18, 19-8." The paper shows that the last two figures of the year in the original postmark have been erased, so that where the third figure was there is only an irregular mark, which is not legible. The figure "8," which is very indistinct, is not in alignment with the figures "1" and "9" and does not correspond with them either in size or color. the second sheet, at the place where the adIn Exhibit D, at the upper left corner of dress in a letter or the amount in a note or receipt usually appears, there is a yellowish stain, irregular in outline, plainly visible to the eye when the exhibit is held up to the (147 N.E.) bon at the point of contact or the manner in light, extending from left to right for about one and one-half inches. Toward the upper right corner, where the date line usually occurs, there is a similar irregular stain extending from left to right about two inches. No stain appears between these two. To the right of and a little below the first stain there is another extending to within about one-sixteenth of an inch of the right margin of the paper. Below this last mentioned stain, and corresponding practically with the location of the four lines of typing which now appear on the exhibit, there are four similar stains, extending from about onesixteenth of an inch of the left margin of the paper to a similar distance from the right margin. Four experts on behalf of plaintiff in error gave as their opinion that these stains were caused by the use of an eradicator containing acid, used in erasing some document which had previously appeared there over the signature of C. C. Strawn. One of these witnesses had tested the paper with litmus paper and found the presence of an acid. The experts called by defendants in error gave as their opinion that these stains had not been caused by the use of an eradicator and that no writing had been upon Exhibit D prior to that which now appears thereon. They did not account for the presence of these stains, except that one of them said that they might have been caused by perspiration. This theory, however, is not tenable, as, if there were a genuine document, it was kept folded and inside of Ex-tified that he had compared the two exhibits with reference to the space between the lines hibit C. and the first sheet of Exhibit D, by folding the sheets upon which they are which shows no similar stain, would neces- written, and that he found that the spacsarily have been stained, as would likewise ing of the five lines in Exhibit 170 traveled Exhibit C, which has no stain. There are the width of a letter farther than it does also perpendicular creases or blisters upon in Exhibit D. By measuring the spaces bethe surface of the paper which appear only tween the lines of Exhibits D and 170 with within the area of discoloration and which a draftsman's instrument, it is found that do not extend clear through the paper. The the space between each line of Exhibits D experts for plaintiff in error testified that and 170 is exactly the same with the exthe application of moisture caused the paper ception of the last line of Exhibit D, where it to swell and that an attempt to iron it out is less. This last line is not written parallel caused the creases which appear. A microto the line above it. The distance between scopic examination of Exhibit D shows plain- the first part of the line and the line above ly the evidences of former writing. The experts for defendants in error gave as their opinion that Exhibit D and Exhibit 170 were not written upon the same machine. They say that in Exhibit 170 the period is very heavy and round like a ball, and in Exhibit D it is egg-shaped and not a complete circle. Exhibits D and 170 were not written by the same person, and it is apparent from an examination of the two exhibits that the writer of Exhibit 170 had a heavier touch than the writer of Exhibit D, and for that reason the period is heavier than in Exhibit D. They appear to be alike in all other respects in the two exhibits except that in Exhibit D two of the periods appear to be not round but blurred, which could be caused by the condition of the rib 147 N.E.-17 it is greater than the distance between the what more than two double spaces below the, dence. It is also to be noted that on July line "Yours truly." While "C. C. Strawn" 20, 1920, before the production of Exhibit is written above the last-mentioned line the D, Revilo and Flora Oliver, whose memosignature nowhere touches it. ries seem to have been very hazy at times as to the whereabouts of Exhibit D, testified to the terms of the alleged contract with C. C. Strawn in almost the exact language in which those terms are stated in Exhibit D. An examination of Exhibits D and 170 discloses that the loop of the letter "d" in every instance is battered or defective on the left-hand side, the defect in each being exactly similar. The figure "o" in each of the The master in chancery who took the eviexhibits is found to be off its feet, and dence saw and heard the witnesses and had while the upper part of the figure shows an opportunity of examining the documents plainly the lower part does not show at all in evidence while they were in better conin most cases, and where it is shown it is dition than they now are. While he made almost imperceptible. The letters "t" and "c" no findings in his report to the circuit court, in every instance in both exhibits are out of very shortly after making that report he was lateral alignment, the "t" being too far to elected judge of the circuit court, and, while the right and the "c" too far to the left. the matter was still fresh in his mind, as These defects do not appear in the typewrit-circuit judge he heard the case and rendered ten letters of Strawn which are admitted by a decree, in which he found "that defendboth sides to be genuine and the originals ants' Exhibit D, dated December 15, 1908, of which have been certified to this court. The letter "m" appears the same in each exhibit but differs from the "m" in the admitted genuine letters of Strawn. There is testimony in the record tending to show that the "m"s in the form in which they appear in the exhibits were not in use until several years after 1908. Jones, the man from whom Oliver rented the typewriter, testified that he had made a microscopical examination of the keys of that typewriter and compared them with the letters shown on Exhibits D and 170, and that he found defects in the type of the machine rented to Oliver exactly corresponding to the defects of the letters shown in Exhibit D. While both sheets of Exhibit D show creases running lengthwise across the letter these creases do not exactly correspond with each other, and while the sheets likewise show creases extending from the top of the notehead to the bottom and these do correspond each with the other, yet none of these creases correspond with the creases shown in Exhibit C. It is a circumstance to be noted, that while Exhibit D is written upon noteheads it is alleged to have been sent in a long envelope, such as is commonly used by lawyers for sending documents, and that the envelope shows that more postage was placed thereon than would be necessary for the transmission of Exhibit D in Exhibit C, which a lawyer or business man would not be likely to do. It is contended by defendants in error that! the language used in Exhibit D is such as to show that it was written by a lawyer rather than a layman. The evidence shows that Revilo Oliver for many wears prior to August, 1920, had been constantly engaged in litigation, spending much of his time in consultation with lawyers, and, as shown by his letters, was familiar with legal terms and had some knowledge of the value of evi has been proved to be a forgery beyond a reasonable doubt, and the court finds it is a forgery" From an examination of the record in this case, including the exhibits certified to this court, we are of the opinion that the evidence fully warrants the finding of the circuit court and that its decree was right. The judgment of the Appellate Court is therefore reversed and the decree of the circuit court affirmed. Judgment of Appellate Court reversed. (316 III. 357) ROST v. F. H. NOBLE & CO. (No. 16114.) Feb. 17, 1925. 1. Death 57-Allegations of death within Allegations of declaration that death occurred within state must be proved, since statute gives no right of action for wrongful death outside state. 2. Evidence 10(3)-Court cannot take judicial notice that Fifty-Ninth and Wallace streets in Chicago. Court cannot take judicial notice that factory located at Fifty-Ninth and Wallace streets is in Chicago. 3. Evidence 471(10)-Exclusion of evidence whether it was physically possible for plaintiff's witness to see deceased as testified held error. Where witness for plaintiff, in action for death of employee from strangulated hernia, stated that he, when standing at foot of a stairway, had seen deceased carrying heavy box at freight elevator 75 feet away, it was error to testified as to obstructions to vision between refuse to permit employer's witnesses, who had such points, to answer question whether it was physically possible for person at foot of stairway to see person standing at freight elevator. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) 4. Evidence 470-Witness may state opin-printed pages and only small part of which ion of condition impossible to reproduce by were applicable, was improper in action for description. death of minor illegally employed. A witness may express his opinion upon a nontechnical subject, based upon facts which he has observed, when it is impossible by word of mouth or gesture to reproduce the data before the jury so that they may as intelligently as the witness draw an inference therefrom upon the subject. 5. Appeal and error 1058 (2)-Error in excluding testimony held not cured by statement not responsive to question. Statement of defendant's witness that it was impossible at one point to see object at another point as testified by plaintiff's witness, which statement was not responsive to question, held not to cure error in previously excluding such testimony. 6. Appeal and error 1060(1)-Conduct of counsel in commenting on excluded evidence held prejudicial error. Where plaintiff's counsel in arguing to jury, over repeated objections which were sustained, persisted in commenting on properly excluded evidence, held, that this prejudiced defendant's case and required reversal. 7. Evidence 333(6)-School record held incompetent to show deceased minor employee's age. In action against employer under Child Labor Act (Laws 1917, p. 511), for death of minor under 16 years of age illegally employed, school record was incompetent to show minor's age when employed. 8. Evidence 75-No presumption against employer because it objected to incompetent evidence or failed to introduce it. In action against employer under Child Labor Act (Laws 1917, p. 511), for death of minor under 16 years of age illegally employed, there was no legal presumption against employer because it objected to introduction of school record offered to show employee's age, or from its failure to introduce such record. 9. Master and servant 264(1)—Not necessary to prove minor unlawfully employed was doing all things alleged in declaration. Basis of action under Child Labor Act (Laws 1917, p. 511), for death of minor employee under 16 years of age, was his unlawful employment, and, where that was proved, it was not necessary to prove that he was doing all things alleged in declaration, or that he was specifically ordered to do what he was doing. 10. Master and servant 276(2)-Evidence held to show minor employee's death resulted from employment. Evidence held sufficient to sustain verdict that strangulated hernia which caused death of minor employee resulted from his employ ment. 11. Trial 241 - Instruction incorporating several sections of statute, only a small part of which were applicable, held improper. Instruction incorporating several sections of Child Labor Act, which covered several 12. Master and servant 291 (13)-Instruction authorizing recovery for minor employee's death without requiring finding of cause held erroneous. Instruction, directing verdict for plaintiff suing for death of minor under 16 years of age employed in violation of Child Labor Act (Laws 1917, p. 511), if jury believed from evidence that he was injured and was at time working for employer, without requiring any finding that injury was the result of employment, was erroneous. 13. Master and servant 278 (2)-Death of minor from employment in violation of Child Labor Act must be proved beyond reasonable doubt. In action against employer for death of minor under 16 years of age employed in violation of Child Labor Act (Laws 1917, p. 511), making such employment crime, plaintiff must establish his case beyond reasonable doubt, though crime was not alleged in declaration. 14. Death 24-Negligence of one of benefiIciaries defense to action for death. Negligence of one of beneficiaries, contributing to injury causing death, is defense to statutory action for death. 15. Negligence 100-Doctrine of contributory negligence does not apply to injuries willfully inflicted, nor to crimes. Doctrine of contributory negligence does not apply to injuries willfully or intentionally inflicted, nor to crimes. 16. Death 24-Master and servant 204 (2), 228(2)—Doctrine of contributory negligence and assumption of risk inapplicable to action for death of minor unlawfully employed. Action against employer for death of minor under 16 years of age employed in violation of Child Labor Act (Laws 1917, p. 511), is not based on negligence, but on employer's criminal misdemeanor, and neither doctrine of contributory negligence of deceased or of beneficiaries, nor of assumption of risk, applies. 17. Appeal and error 173(13)-In absence of request for instruction or evidence as to parents' violation of statute in permitting employment of minor, question could not be considered on appeal. In action under Child Labor Act (Laws 1917, p. 511), for death of employee under 16 years of age, where employer asked no instruction as to effect of parents' violation of section 13 in permitting minor's employment, and there was no evidence thereon, contention that parents could not recover because they permitted minor to be so employed could not be considered. 18. Death 79-Brother of deceased held entitled to nominal damages only. Law presumes substantial injury to parents from death of minor child, but damages to collateral kindred must be proved, and in absence For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |