Gibson v. Dickson

• Decision Date: 29 May 1915
• Docket Number: (No. 7347.)
• Citation: 178 S.W. 44
• Parties: GIBSON et al. v. DICKSON et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

178 S.W. 44

GIBSON et al. v. DICKSON et al.^†

(No. 7347.)

Court of Civil Appeals of Texas. Dallas.

May 29, 1915.

Rehearing Denied July 3, 1915.

Appeal from District Court, Ellis County; L. F. Hawkins, Judge.

Action by Mrs. Harriett B. Gibson and others against Miss Mary J. Dickson and another. From a judgment against plaintiffs, they appeal. Affirmed.

L. R. Callaway and Ed. J. Gibson, both of Dallas, and Farrar & McRae, of Waxahachie, for appellants. Morrow & Morrow, R. M. Vaughan, and G. D. Tarlton, all of Hillsboro, and Supple & Harding, of Waxahachie, for appellees.

TALBOT, J.

The appellants, Mrs. Harriett B. Gibson, joined by her husband, El. J. Gibson, Mrs. Lula M. Raborn, joined by her husband, S. L. Raborn, and Miss Carrie Belle McDaniel, instituted this suit on the 24th day of April, 1913, against the appellee Miss Mary J. Dickson. Thereafter, on the 26th day of April, 1913, the appellants made Mrs. Kate Dickson a party defendant. The appellants Mrs. Harriett B. Gibson and Mrs. Lula Raborn are nieces of W. T. M. Dickson, deceased, and the appellant Miss Carrie Belle McDaniel is his grandniece. The appellants sued, claiming to be the sole surviving heirs of the said W. T. M. Dickson, who died intestate, to recover real and personal property left by the said W. T. M. Dickson at the date of his death of the estimated value of $165,000. Mrs. Kate Dickson is the surviving widow of W. T. M. Dickson and was his third wife, and at the trial the appellants entered a disclaimer as to any right to recover against her. The appellee Mary J. Dickson alleged and contended that she was the legitimate daughter of the said W. T. M. Dickson, deceased, and his second wife, Amelia Josephine Dickson, also deceased. The appellants did not deny that Mary J. Dickson was the legitimate daughter of the said W. T. M. Dickson, if she was the daughter of Amelia Josephine Dickson. So that, the appellants having disclaimed any right to recover as against the appellee Mrs. Kate Dickson, the sole issue in the case, as finally presented, was whether the appellee Miss Mary J. Dickson was the daughter of W. T. M. Dickson's second wife, Amelia Josephine Dickson. The contention of appellee Miss Mary J. Dickson was and is that she was such daughter, and the appellants contend that she is the illegitimate daughter of a woman formerly named Mary Ramsey, now Mary Plew, by some man other than W. T. M. Dickson. The case was tried at the May term of the court, 1914, and the sole issue of fact in the case was submitted to the jury in the following language:

"Is Mary J. Dickson the natural daughter of Amelia Josephine Dickson? This question you will answer `Yes' or `No,' as you find the fact to be from the evidence. The burden is on plaintiffs to prove their case as alleged by a preponderance of the evidence. You are the exclusive judges of the facts proved and the credibility of the witnesses."

On the 19th day of June, 1914, the jury returned its verdict answering the question thus propounded in the affirmative. Later, on motion of appellees, judgment was entered in favor of appellees on the verdict of the jury that appellants take nothing by their suit and that appellees recover their costs. Appellants' motion for a new trial being overruled, they appealed.

The first assignment of error is as follows:

"The verdict of the jury is contrary to and not supported by the evidence in this, to wit: That it was clearly established by the great weight and preponderance of the evidence that the defendant Mary J. Dickson is the daughter of one Mary Ramsey, and not the natural daughter or the legitimate daughter of the said Josephine Dickson, deceased, and there is no evidence in the record or adduced at the trial sufficient to support the verdict of the jury."

There was a great deal of testimony introduced upon this issue, and we shall not undertake to quote it or state the substance of it. No useful purpose would be subserved in doing either. It is sufficient to say that it was very conflicting but ample to support the finding of the jury; that, such being the state of the evidence, this court would not be warranted in disturbing the verdict.

The second assignment of error complains of the trial court's action in excluding the testimony of several witnesses offered by the appellants to the effect that it was the common repute and understanding and general reputation in the town of Milford, at the time of her birth, that Mary J. Dickson was the child of Mary Ramsey, and not of Amelia Josephine Dickson, and that said Mary Ramsey had given Mary J. Dickson, when an infant only a few weeks old, to the said Amelia Josephine Dickson, to be raised by her. This testimony was offered, and it was shown that these witnesses had resided in the town of Milford during the year 1873 and for a number of years prior thereto and continuously since; that they were intimately acquainted with W. T. M. Dickson and his then wife, Amelia Josephine Dickson, during said year 1873, and before and up to the time of their respective deaths; that they had known the defendant Mary J. Dickson from the time of her birth, about January, 1873, or December, 1872, to the time of the trial; that they also knew one Mary Ramsey, an unmarried woman, who then lived at what is known as the "Old Mill Place," in said town of Milford; and that the said Mary Ramsey had given birth to a female child at said time. The testimony was excluded on objections of the defendants that it was hearsay, immaterial, and incompetent; that the issue being as to the parentage or pedigree of defendant Mary J. Dickson, and the inquiry not being addressed so as to elicit knowledge of the witness of statements by members or relatives of the family who were deceased, and who were in a position to know the facts, the testimony was inadmissible, because the maternity of Mary J. Dickson could not be established by general reputation in the community. There are two propositions urged by the appellants under this assignment:

First. That, after "the lapse of 40 years, the fact of maternity, like that of pedigree, tradition, or family history, is provable by reputation, and such evidence is an exception to the general rule applicable to hearsay testimony and should not be excluded upon objection that it is hearsay." Second. "The witness Mary Plew, who testified positively that the defendant Mary J. Dickson was her child, being a stranger in Ellis county at the time of the trial, and her testimony being assailed by witnesses introduced by appellees, who impeached her veracity, the evidence offered by appellants, as shown by their second assignment of error, was admissible also for the purpose of corroborating the testimony and supporting the credibility of said witness Mary Plew."

We hold that neither of these contentions is well taken. The fact in issue was one involving pedigree or relationship, and whatever may have been the law upon the subject in some jurisdictions, as reflected by the earlier decisions, it seems now to be well settled that such an issue cannot be established by common repute or general reputation. The well-recognized exception to the use of hearsay evidence, as is now almost universally held, does not justify the admission of such testimony. It is pointed out in Mr. Chamberlayne's Modern Law of Evidence, § 2916, that:

"Notwithstanding the position of the earlier law, in admitting on an issue of pedigree, the unsworn statements of persons, such as attending physicians, intimate friends, those living in the family, trusty servants, and the like, shown to be possessed of adequate knowledge or of opportunities for acquiring it, the law is well settled at the present day that only those connected with the family by blood or marriage are competent declarants under the present exception to the hearsay rule; that neighbors and friends, regardless of the intimacy enjoyed by them, are not regarded as competent declarants under the rule in question."

In thus declaring the present-day rule, Mr. Chamberlayne refers in his notes to some of the cases cited by appellants in support of their position as announcing the "earlier law." But the law has never been in this state other than that the "rule of admission" is restricted to the declarations of deceased persons, who were related by blood or marriage to the person whose relationship was sought to be established. The rule and the reasons for it, as stated by Mr. Wharton and Mr. Greenleaf in their respective works on the Law of Evidence, is recognized and adopted by the Supreme Court of this state.

Mr. Wharton (section 201) says:

"Pedigree, from the nature of things, is open to proof by hearsay in respect to all family incidents as to which no living witnesses can be found. If what has been handed down in families cannot in this way be proved, pedigree could not in most cases be proved at all. Nor is such tradition in its best sense open to the objections applicable to hearsay. The recognition of such relations forms part of the family atmosphere. The existence of such relationship constitutes the family. What is said by one member of the family to another as to pedigree may be received to prove such pedigree."

Mr. Greenleaf (section 114, 16th Ed.), after stating that as a preliminary to the admission of declarations by a member of a family, or reputation in the family, a necessity for resorting to such evidence must first appear, and that it was long unsettled, whether any and what kind of relation must have subsisted between the person speaking and the person whose pedigree was in question, and that there are reported cases in which the declarations of servants, and even of neighbors and friends have been admitted, proceeds:

"But it is now settled that the law resorts to hearsay evidence in cases of pedigree, upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing...