Davidson v. Wallingford

• Decision Date: 01 May 1895
• Citation: 30 S.W. 827
• Parties: DAVIDSON et al. v. WALLINGFORD et al.
• Court: Texas Court of Appeals

30 S.W. 827

DAVIDSON et al. v. WALLINGFORD et al.

Court of Civil Appeals of Texas.

May 1, 1895.

On rehearing. Denied.

For opinion on former appeal, see 30 S. W. 286.

Additional Findings and Opinion.

COLLARD, J.

Appellants' motion for rehearing calls our attention to the fact that their bill of exception No. 2 shows that the objections to the testimony were made in writing before the trial. Their brief upon the subject did not mention the fact, and we did not notice it. It is true, as stated, that the bill does show that the objections were made to the testimony, notice of which, in writing, was given to plaintiffs before the trial; so that the objection to the form of the deposition of the witness T. G. Wallingford — that the interrogatory was leading and suggestive — is before us. The question propounded to the witness was: "Please state whether you are testifying from your own knowledge, or from what people have told you. If you say it is from your own knowledge, state what part. Also, if you state some of it is from what some one had told you, please state what part, and who that is dead told you." The answer was: "I know what I do know about W. W. Wallingford from what others have told me. My brother, mother, and P. C. Clarke are all dead, and they are the persons that I gained most of my information from." The objection made to the testimony in the bill of exception No. 2, that the interrogatory is leading, and suggests to the witness the answer that the parties who told him were all dead, was properly overruled. The witness was testifying about the death of his uncle, W. W. Wallingford, when and where he died. This testimony was based upon hearsay admissible in such cases, — that is, declarations of members of the family who are dead. It was proper and necessary to know of him who the persons were who informed him upon the subject, and if they were dead, as their declarations would not be admissible upon the subject unless they were dead. It was therefore proper to ask him who told him, and who told him that was dead. This was proper, so that the court would be able to determine whether the testimony would be admissible, and to separate that which was admissible from that which was not. The interrogatory was neither leading nor suggestive. Clarke was a member of the family. He was the father of Mattie Day, having married her mother, who was the sister of the witness T. G. Wallingford. All the parties whose declarations were admitted were members of the family, and were dead. The witness testified: "Mattie Day's father was P. C. Clarke. Her mother was my sister, Mattie Wallingford. They are dead. My sister died September 9, 1853, and P. C. Clarke in November, 1861. * * * My sister Mattie was married to P. C. Clarke by Rev. Duc. Foster. I was present. * * * I know that my mother and brother and brother-in-law have told me about W. W. Wallingford, — that he came to Texas in 1833 or 1834, taught school in Gonzales county, started to Mexico, and died. I have a dim recollection of W. W. Wallingford's being at father's house when I was small [the witness was 63 years old at his next birthday after the trial], but all I have testified is mostly from information from my brother Hiram, my oldest brother, and P. C. Clarke, who were in Texas in early days. * * * I know what I do know about W. W. Wallingford from what others have told me. My brother, mother, and P. C. Clarke are all dead, and they are the persons that I gained most of my information from." His brother Hiram died at Greensburg, Ind., on the 11th day of September, 1889. If there had been a doubt about the identity of W. W. Wallingford as the relative of the plaintiffs, we think there would have been no error in allowing testimony of declarations of deceased members of the family that he taught school in Gonzales county, and that he died on his way to Mexico. These matters are so intimately connected with the issue of death as to be pertinent to it. They serve to make more definite the very matter inquired about, and should not be disconnected from it. Shields v. Boucher, 1 De Gex & S. 40; Howard v. Russell, 75 Tex. 179, 12 S. W. 525. We still hold to our original opinion that there was no issue as to the identity of W. W. Wallingford as the...