Eilar v. Theobold

• Decision Date: 09 April 1947
• Docket Number: No. 11691.,11691.
• Citation: 201 S.W.2d 237
• Parties: EILAR v. THEOBOLD.
• Court: Texas Court of Appeals

Page 237

201 S.W.2d 237

EILAR v. THEOBOLD.

No. 11691.

Court of Civil Appeals of Texas. San Antonio.

April 9, 1947.

Appeal from District Court, Thirty-Third District, Mason County; Raymond Gray, Judge.

Action by W. D. Theobold against P. O. Eilar for damages caused in automobile collision. From an order overruling a plea of privilege, defendant appeals.

Affirmed.

Thompson, Knight, Harris, Wright, & Weisberg, of Dallas, for appellant.

Thomas & Thomas, of Big Springs, for appellee.

MURRAY, Justice.

This is an appeal from an order overruling a plea of privilege. W. D. Theobold sued P. O. Eilar in the District Court of Mason County for damages allegedly caused by a collision between a truck belonging to Theobold and one belonging to P. O. Eilar. The collision occurred in Mason County. P. O. Eilar resides in Harris County. Venue was claimed by reason of Subdivision 9 of Article 1995, Vernon's Ann.Civ.Stats.

Appellant assigns as error the admitting in evidence of certain statements claimed to have been made by P. O. Eilar to appellee. Appellee testified that shortly after the collision he was introduced to a man by the name of P. O. Eilar and that the man also introduced himself as P. O. Eilar. This meeting occurred in a cafe in the City of Brady. This man told appellee, in effect, that he was the owner of the truck which had collided with appellee's truck and that it was being driven at the time by one of his employees by the name of Hap Sandel.

Appellee has never seen the P. O. Eilar who has filed this plea of privilege, unless the man he met in Brady is that man. It occurs to us that there is no better way to learn a man's name than for him to state his name. Appellant did not attend the trial and no opportunity was given appellee to see whether or not the man he met in Brady is the appellant. Appellee did give a description of the man he met in Brady. There is no reason to believe that the man appellee met in Brady was not the appellant, and the only reason to believe he was is that he said his name was P. O. Eilar and that he owned the truck which was in the collision. There was a card found on the ground at the scene of the collision reading as follows:

                     "Office                                              Special Tools
                  3215 South Main
                    Lehigh 7787                                      Experienced Workmen
                                               Eilar Tree Experts
                                       Let Us Save and Beautify Your Trees
                           Trimming—Cavity Work—Bolting—Cabling
                       Fertilizing, Spraying and Shrubbery Trimming
                    Fully covered by Property Damage and Liability Insurance
                   Representative                                  Box 1039
                     P. O. Eilar                                Houston, Texas"
                

There was also enscribed on the truck, "Eilar Tree Experts."

In Ryan v. City National Bank & Trust Company, Tex.Civ.App., 186 S.W.2d 747, 748, it is stated:

"The contention that it was not shown that the defendant in the Oklahoma judgment and in the Texas case were the same person is overruled. A person with the same name as the defendant in the Oklahoma judgment filed an answer in the Texas case that shows said parties are identical."

It is uncontradicted that appellee met a man in a cafe at Brady by the name of P. O. Eilar, and appellant's name is P. O. Eilar. In the absence of proof to the contrary it will be presumed that the man appellee met in the cafe at Brady was the appellant. Chamblee v. Tarbox, 27 Tex. 139, 84 Am.Dec. 614.

In Davidson v. Wallingford, Tex.Civ. App., 30 S.W. 827, 828, it is said:

"It has been decided in this state that it is error to submit to the jury the question of identity when the names are similar, and there is an absence of evidence creating doubt of the identity of the person bearing the name. It is said that `the similarity of names ought to be sufficient in every case, and the jury, if instructed at all, ought to be told so.'"

The statements offered in evidence were in the nature of admissions against interest. Inasmuch as the person making the admissions bore the same name as appellant it will be presumed, until the contrary appears, that he was the appellant. The evidence shows that a serious wreck had taken place. At the scene of the collision was found a card with the name and address of appellant thereon. Appellant is notified of the collision and in due time a man appears in Brady, introduces himself as P. O. Eilar, and admits that he is the owner of the truck and that it was being operated by his agent. Nobody but a knave or a fool would do such a thing unless he was in truth and in fact the owner of the truck. Appellant did not see fit to offer any evidence of mistaken identity. The presumption must prevail that appellant made the admissions. Similarity of names is sufficient to establish identity of persons when there is no evidence to the contrary and no suspicion has been cast upon the transaction. Dittman v. Cornelius, Tex. Com.App., 234 S.W. 880. Identity of names is prima facie evidence of identity of persons. Ryle v. Davidson, Tex.Civ.App., 116 S.W. 823, certified question answered, Davidson v. Ryle, 103 Tex. 209, 124 S.W. 616; Bailie v. Western Livestock, etc., 55 Tex. Civ.App., 473, 119 S.W. 325.

In Wigmore on Evidence, 3d Ed., p. 788, Sec. 667a, is found the following statement:

"A person's name is the title by which habitually he calls himself and others call him. To know a person's name, therefore is to have heard him so called by himself and by others. In strictness, such an utterance is not hearsay (Fact, Sec. 1772), except where it is made as an assertion of fact. But, though it may be hearsay, as a source of information, yet it is universally relied upon as a source of knowledge. Courts...