Galveston, H. & S. A. Ry. Co. v. Matula

• Decision Date: 13 February 1891
• Citation: 15 S.W. 573
• Parties: GALVESTON, H. & S. A. RY. CO. v. MATULA.
• Court: Texas Supreme Court

15 S.W. 573

GALVESTON, H. & S. A. RY. CO. v. MATULA.

Supreme Court of Texas.

February 13, 1891.

Appeal from district court, Colorado county.

Brown, Lane & Jackson, for appellant. Adkins & Green, for appellee.

STAYTON, C. J.

This action was brought by appellee to recover damages for an injury resulting in the death of his wife, which occurred by collision between appellant's train and a wagon in which appellee and his wife were at a public crossing over the railway. He sought also to recover damages for injury to himself, horses, and wagon, and recovered for the death of his wife and for injury to his horses and wagon. Plaintiff had caused the deposition of a witness to be taken before a notary in Fayette county and filed in the district court of Colorado county, but it was not properly authenticated, in that the notary did not insert the name of the witness who had made and subscribed the answers, nor did he attach his official seal to the certificate. Exceptions were filed to the depositions on these grounds in due time, and to cure these defects the notary made a proper certificate, and sent it by mail to an attorney of plaintiff, to be attached to the deposition, which the court below permitted to be done, and overruled the objections to the deposition. It has been held that a defective certificate to a deposition may be corrected by the officer who took the deposition, in the presence of and under the direction of the court, and it may be that under the court's direction the officer might make such a correction elsewhere than in the presence of the court, but, if so, it ought to be done under such circumstances as would preclude all collusion or substitution of one set of answers for another. In this case the court had not the guaranty that the notary's certificate was at last attached to answers that ever were subscribed and sworn to before him. He was not present, under the sanction of his official oath, to identify the answers to which the court directed his completed certificate to be attached; nor were they identified by the former incomplete certificate, which gave not the name of the witness, and itself was wanting in that evidence of verity which the officer's seal would furnish. A practice of this kind in amending officers' certificates to depositions might lead to much fraud and imposition; and, though nothing of the kind may have occurred in this case, such a practice cannot be recognized as lawful. The depositions of two witnesses were offered; and upon inquiry by the court whether they were "about the same matters as those that have already been read," counsel for defendant replied that the questions were the same as were many of the answers, but that some of the answers were different from those that had been read, whereupon the court replied "that the evidence, being but cumulative, he would not permit said depositions to be read," counsel for defendant insisting that some matters in them differed from testimony of other witnesses, but the differences are not pointed out in the bill of exceptions, nor are they shown to have been pointed out to the court, nor does the brief of counsel here point out the differences. The bill of exceptions closes as follows: "Approved with this qualification: that the court stated to the counsel he could not read any more depositions on the same subject of the five preceding witnesses had sworn to, as such evidence would be cumulative." The evidence related to facts bearing on plaintiff's ability to have seen the approaching train from where he was long before it reached the crossing, and to some other matters about which there was some conflict of testimony. There must exist in every court the power to determine when evidence purely cumulative shall cease, or there would be no limit to trials; and the exercise of such a discretion would be no ground for reversal of a judgment, unless it was made to appear that this had been abused. Such a power is one, however, to be exercised with the utmost care; and in a case in which there was but little or no controversy as to a given fact, such evidence might properly be cut off at a point where it would be improper to do so when the evidence was greatly conflicting. In a case in which a fact to be established is not sworn to directly by witnesses, but must be established by proof of other facts from which the main fact is to be inferred, then evidence of different facts from which the inference may be drawn is not strictly cumulative. From the bill of exceptions it may be inferred that the court below refused to hear further evidence tending to prove the controverted fact or "subject," because other evidence, although not to the same facts, had been introduced tending to prove the same issue. If this was the ruling it was erroneous. We do not see that the cross-interrogatories and answers read by the plaintiff from one of the depositions excluded by the court had any relevancy to the case, and think they should have been excluded. In the first paragraph of the charge the court in effect instructed the jury that plaintiff would be entitled to recover if the injuries of which he complained were caused by the negligence of the defendant's servants, and the second paragraph was as follows: "(2) But if you believe from the evidence that the injuries complained of by plaintiff were done or...