#### Mrs. Willis ROZAS and Mrs. Cora Sonnier, Plaintiffs-Appellees, v. Joseph A. GUILLORY, Dixie Auto Insurance Company, and Hanover Insurance Company, Defendants-Appellants.

No. 5986.

Court of Appeal of Louisiana, Third Circuit.

Aug. 9, 1977.

Rehearing Denied Sept. 15, 1977.

Writ Refused Nov. 11, 1977.

*454Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Timothy J. McNamara, Lafayette, Lewis & Lewis by Seth Lewis, Jr., Opelousas, for defendants-appellees.

Earl B. Taylor, Opelousas, for plaintiffs-appellees.

Before HOOD, DOMENGEAUX and WATSON, JJ.

DOMENGEAUX, Judge.

This case was consolidated at trial and remains so on appeal with the case of *Rozas v. Guillory, et al.,*La.App., 349 So.2d 457, in which a separate judgment is being rendered this date.

The cases arose out of an automobile accident which occurred on July 20,1975, in Opelousas, Louisiana, between a vehicle which was owned and operated by defendant Joseph A. Guillory, and a vehicle being operated by Mrs. Gladys K. Rozas in which Mrs. Willis Rozas and Mrs. Cora Sonnier were passengers.

At trial all parties stipulated that the accident was caused solely by the negligence of Joseph A. Guillory (also known as Alfie R. Guillory), and limitations were placed on the damages to be recovered by each injured party, who were Mrs. Willis Rozas, Mrs. Cora Sonnier, and Mrs. Gladys K. Rozas.

Prior to the accident, Hanover Insurance Company had issued an automobile policy with uninsured motorist protection features to Mrs. Willis Rozas, one of the guest passengers, which also covered Mrs. Cora Son-nier, the other guest passenger. This policy would only apply if Joseph A. Guillory were not insured under a policy which had been issued by Dixie Auto Insurance Company, but which Dixie claimed had been cancelled prior to the accident at the request of Guil-lory.

Thus the cases went to trial with the only issue being whether or not the automobile liability insurance policy issued to Guillory by Dixie had been cancelled prior to the accident.

The trial judge held that Guillory had never requested the cancellation, and thus the policy was in full effect. We affirm the holding of the district court.

Joseph Guillory had in effect some time prior to March, 1975, an automobile insurance policy number EAD 826203 with Dixie Auto Insurance Company. On April 18, 1975, the following handwritten letter was received by Dixie:

> “P. 0. Box 524

> Opelousas, Louisiana

> March 29, 1975

> Dixie Auto Insurance Co.

> 2308 4th Avenue, North

> Birmingham, Alabama

> Dear Sir:

> Cancel insurance policy numbered EAD 826203.

> Sincerely,

> /s/ Alfie R. Guillory”

On May 2, 1975, Dixie allegedly mailed a notice of cancellation to W. J. Fruge, Guil-lory’s insurance agent or broker who obtained the policy. A copy of that notice was also sent to General Motors Acceptance *455Corporation, the holder of Guillory’s mortgage note. Dixie also sent to Fruge the unearned premium as required by La.R.S. 22:637.

At trial, Guillory denied ever having written the letter requesting cancellation of his policy. Fruge also denied sending the letter on behalf of Guillory.

The trial judge held that the purported signature of Guillory on the letter requesting cancellation was not the true signature of Guillory. He reached this conclusion by comparing this signature with other bona fide signatures of Guillory, and did not resort to the aid of expert opinion.

As the trial was coming to a close, defendants requested that the trial judge later reopen the evidence so that expert opinion might be sought on this issue. The trial court denied this request in his written reasons for judgment. Defendants cite this denial as manifest error. We disagree.

Where the insurer defends on the ground that the policy was cancelled, the insurer carries the burden of establishing facts which will relieve liability. *I.C. Realty, Inc. v. Clifton Conduit Company, etc.,*291 So.2d 422 (La.App. 4th Cir. 1974).

Guillory disavowed his signature to the letter of cancellation. Under *I.C. Realty, Inc.,*supra, it is incumbent upon the insurer Dixie to prove that the signature was valid. See also C.C. 2244 and 2245.1 Dixie offered no witness or expert to prove the validity of the signature. It disputes the authority of the trial judge to decide this issue without the benefit of expert testimony.

In the venerable case of *Vickers v. Coburn,*7 La.App. 206 (1927) the court stated:

> “Some question is raised in argument as to the right of the trial judge to make a comparison of handwritings and to draw conclusions from his own examination of the writings, but such a proceeding is clearly sanctioned by Article C.C. 2245 and Art. C.P. 325. It would indeed be a strange anomaly if judges could not make comparisons of handwritings, but would have to depend solely upon so-called expert testimony, which, although generally helpful, is by no means infallible. Watts *vs. Collier,*140 L. 99; 72 South. 822.”

More recently, in *White v. Williams,*313 So.2d 333 (La.App. 1st Cir. 1975), the appellate court made its own comparison of the handwriting in question to verify the comparison made by the trial judge. Although the trial judge in that case had benefit of expert testimony, we see no reason to disapprove the comparison made in the instant case. Defendant knew in advance of trial that he would need experts on this issue, but waited till the end of trial to consider obtaining them. Under those circumstances we do not feel the judge abused his discretion in not granting a continuance for the purpose of receiving additional testimony; especially in view of his authority in determining this factual question.

Although there appears to be a mysterious cloud surrounding the circumstances of the so-called cancellation letter, we cannot afford ourselves the luxury of speculation in finding manifest error on the part of the district judge. There is a sufficient evidentiary basis to conclude that neither Guillory or Fruge wrote or mailed the letter. Such being the ease, the so-called cancellation by Dixie is not effective because it fails to meet the requirements of LSA-R.S. 22:636.1 or LSA-R.S. 22:637.

We decide this case upon the issue of the disavowed signature. The issue of whether Fruge was an agent or a broker is therefore pretermitted.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs are assessed against defendant-appellant, Dixie Auto Insurance Company.

*AFFIRMED.*

HOOD, J., dissents and assigns written reasons.

1

. Compare Louisiana Code of Criminal Procedure Article 460.1.

*456HOOD, Judge

(dissenting).

I believe that the judgment appealed from should be reversed and that the case should be remanded to the trial court with instructions to appoint a handwriting expert, as requested by defendant Dixie Auto Insurance Company.

The principal question presented is whether the insured, Joseph A. Guillory (also known as Alfie Ray Guillory), signed the letter dated March 29, 1975, addressed to Dixie Auto Insurance Company, instructing that insurer to cancel the policy which is at issue here. Guillory said he didn’t sign it. The evidence convinces me that he did. All parties agree that the judgment of the trial court should be reversed if Guillory, in fact, signed that letter.

During the trial, defendant Dixie requested that the court appoint a handwriting expert to examine the letter, and to compare it with other documents in the record containing the signatures of Guillo-ry, and to make a report of his findings to the court. *Dixie offered to bear all of the expenses incurred in obtaining the opinion of the handwriting expert.*The trial judge refused that request. He assigned as his sole reason for doing so that Dixie was aware of the defense in advance of trial and that it waited until near the close of the trial to make the request. The trial judge conceded that it had the power to appoint such an expert, even without a request, but that “this addresses itself to the discretion of the court.” I think the trial judge abused his discretion in refusing to grant Dixie’s request. A number of circumstances compel me to arrive at that conclusion.

In the first place, the appointment of the expert would not have delayed the completion of the trial. The trial of the case began on May 20, 1976, and it was on that date that Dixie requested the appointment of the expert. Prior to the submission of that request, the court announced that the trial would be held open for ten days in order to enable the parties to obtain a document to file in evidence and to propound additional questions to one witness. The court thus had already determined that the trial would be continued for other reasons. Actually, the trial was delayed more than five weeks, until July 26, 1976, at which time additional evidence was presented. The opinion of the handwriting expert certainly could have been obtained within that period of time, and there thus would have been no delay in disposing of the case.

Second, it is apparent that a fraud either *is*or *is not*being perpetrated on Dixie and on this court. The means of resolving that question fairly and finally is available to the court, *at no expense to anyone except the party which requests that we use it*I think this court should do what appears to me to be plainly necessary to see that the matter is resolved justly to all parties. My view is that the trial court should have appointed a handwriting expert ex proprio motu, even if a request to that effect had not been made. Since the trial court did not do so, we should remand the case with instructions that that be done.

Third, I think the evidence is overwhelming that the letter requesting cancellation of the policy was signed by Guillory. The trial judge, after refusing to allow a handwriting expert to examine the available documents and to testify, undertook to compare the signatures appearing on some documents in the record and to determine from that comparison whether Guillory actually signed the letter. It is apparent from his written reasons for judgment that the judge experienced considerable difficulty in distinguishing the signatures. He eventually concluded that defendant had signed two documents (D-ll and D-13), and that he had not signed two others (D-l and D-8, the latter being the letter requesting cancellation). My examination of these signatures convinces me that all of those documents were signed by the same person. I concede that I am not a handwriting expert, but I feel that there at least is some basis for my views, and that the opinion of a handwriting expert is needed. The trial judge found a “break” between two letters, and a different “configuration” of an “R” in two of the signatures, and on the basis of that finding he determined that Guillory *457did not sign the letter. It is significant, I think, that the document marked D-l, being one of the documents which the trial judge found was *not*signed by Guillory, was the application made by Guillory for the insurance policy which is at issue here. W. J. Fruge, the insurance agent or broker who joins Guillory in contending here that the policy was valid and had not been can-celled, also signed the same application. As far as I can determine, neither Fruge nor Guillory question the latter’s signature to Exhibit D-l, and I feel that the trial judge and my colleagues have erred seriously in finding that Guillory did not sign that application. As already noted, the trial judge based his conclusion that Guillory had not signed the letter almost entirely on his finding that the signatures on D-l and D-8 appeared to be the same, and that Guillory had not signed D-l, the above application.

Fourth, the circumstances show that Guillory requested cancellation of the policy. The letter requesting the cancellation was received by Dixie, and Dixie promptly sent out notices of the cancellation, long before the accident occurred. A check was issued to the agent or broker, Fruge, on May 14, 1975, for the amount of the unearned premium on the policy, and that check was mailed to Fruge. Fruge testified at first that he did not receive that refund check until about 45 days after the accident. Later, however, when he was confronted with the original check which showed that he deposited it to his account on May 23, 1975, he conceded that he received the refund check almost a month before the accident occurred. The check showed plainly on its face that the policy had been can-celled. There can be no question, therefore, but that Fruge knew that the policy was cancelled long before the accident occurred, despite the contrary position he took at the trial.

Fifth, my colleagues concede that there is a “mysterious cloud surrounding the circumstances.” They state, however, that they “cannot *afford ourselves the luxury*of speculation in finding manifest error on the part of the district judge.” I feel differently. I think we should *Insist on the luxury*of determining the truth.

It seems to me that the trial judge erred seriously in finding that the policy had not been cancelled. There at least is a serious question, however, as to whether the signature of Guillory was forged on the letter. I feel that in view of the “mysterious cloud” which surrounds the circumstances here, the majority should reverse and remand the case with instructions that a handwriting expert be appointed, at Dixie’s expense, to examine the available documents and report to the court.

For these reasons, I respectfully dissent.