Lawson v. Baker

• Decision Date: 16 November 1961
• Docket Number: No. 13814,13814
• Citation: 351 S.W.2d 571
• Parties: Dennis LAWSON et al., Appellants, v. W. B. BAKER et al., Appellees.
• Court: Texas Court of Appeals

Page 571

351 S.W.2d 571

Dennis LAWSON et al., Appellants, v. W. B. BAKER et al., Appellees.

No. 13814.

Court of Civil Appeals of Texas, Houston.

Nov. 16, 1961.

Peareson, Scherer & Roberts, Walton Roberts, Richmond, De Lange, Hudspeth & Pitman, C. M. Hudspeth, M. Marvin Katz, Houston, for appellants.

Strong, Baker & Heyburn, John Heyburn, Houston, Allen P. Fannin, Pasadena, H. Cecil Baker, Rosenberg, for appellees.

COLEMAN, Justice.

This is a suit for partition of land. Appellees claim an interest in the land in question through Santee Griffin. They contend that Santee Griffin acquired an interest in the land by inheritance from Annie Belle Griffin, his daughter. Appellants deny that Annie Belle Griffin was the daughter of Santee Griffin. The following issue was submitted to the jury:

'You are instructed that the law presumes a child born during wedlock to be the legitimate child of the husband and wife. Such presumption may be overcome by proof by the Defendants, that the husband did not have access to the wife at a time which would enable him to beget the child.

'Special Issue No. 1

'Do you find from a preponderance of the evidence that Santee Griffin was the father of Annie Belle Griffin?

'Answer 'We do' or 'We do not."

'The jury answered, 'We do not.'

The trial court sustained appellees' motion to disregard the verdict of the jury and entered judgment for appellees.

It is conceded that the matter in dispute in this case is whether or not Santee Griffin was the father of Annie Belle Griffin. It is undisputed that Annie Belle Griffin was born while Santee Griffin was married to Hattie (Addie) Lawson, her mother. The evidence is disputed as to whether or not Annie Belle Griffin was conceived before or after the marriage.

The authorities are in agreement that there is a presumption that a child born during the existence of a legal marriage is legitimate. Gonzalez v. Gonzalez, Tex.Civ.App., 177 S.W.2d 328; Carnes v. Kay, Tex.Civ.App., 210 S.W.2d 882. Antenuptial conception does not weaken this presumption. Pinkard v. Pinkard, Tex.Civ.App., 252 S.W. 265; Moore v. Moore, Tex.Civ.App., 299 S.W. 653; Marckley v. Marckley, Tex.Civ.App., 189 S.W.2d 8. This presumption may be overcome by proof that the husband did not have access to his wife at the time of conception. Foote v. State, 65 Cr.R. 368, 144 S.W. 275; Marckley v. Marckley, supra; Groulx v. Groulx, 98 N.H. 481, 103 A.2d 188, 46 A.L.R.2d 994; Peoples National Bank of Greenville v. Manos Brothers, Inc., 226 S.C. 257, 84 S.E.2d 857, 45 A.L.R.2d 1070; Carfa v. Albright, 39 Wash.2d 697, 237 P.2d 795, 31 A.L.R.2d 983.

Appellants introduced certain testimony for the purpose of proving nonaccess. Dennis Lawson, one of the appellants and the brother of Hattie Griffin, testified that Hattie lived with him in Arcola; that the first time he remembered Santee coming to Arcola was in January, 1914; that his sister didn't know Santee before that time because Santee live at Chenango (about 15 miles from Arcola); that his sister quit school in January, 1914, because she was pregnant; that she was eighteen years old at the time; that she married Santee March 22, 1914 and that Annie Belle was borne in June 1914, about three months after her marriage; that he didn't know whether Santee had ever been in his community or around his house prior to January, 1914. Santee Griffin was working in Duck, Texas, at the time of the marriage. Duck is about 1 1/2 miles from Arcola.

Annie Belle Lawson, the wife of Dennis Lawson, testified that Santee first came to Duck, Texas, in 1914; that Santee had never seen Hattie before January of 1914; that Hattie became pregnant before she married Lawson in 1913. There was substantial contradictory testimony which the jury chose not to believe.

The only evidence which would support a jury finding of non-access was the testimony of Dennis Lawson that his sister did not know Santee Griffin before January, 1914, and that of his wife that Santee had never see Hattie before January of 1914. These statements are obviously conclusions of opinions about a matter concerning which the witnesses could not have had firsthand knowledge. It would not be reasonable to assume that Dennis and Annie Belle Lawson remained constantly with Hattie Griffin so as to know of their own knowledge who she knew or had seen. Unless their testimony was based on hearsay, it appears they were testifying that so far as they knew Hattie did not know Santee before January, 1914. This amounts to mere surmise and, therefore, is without probative value. American National Insurance Co. v. Dailey, Tex.Civ.App., 187 S.W.2d 716; United States Fidelity and Guaranty Co. v. Henderson, Tex.Civ.App., 53 S.W.2d 811; Leal v. State, 106 Tex.Cr.R. 68, 219 S.W. 226; Texas & N. O. Ry. v. Wood, Tex.Civ.App., 166 S.W.2d 141.

Testimony based on the statements of a husband or wife tending to prove nonaccess has no more probative force than the direct testimony of the husband or wife would have had, and will not support the verdict of a jury. Dennis Lawson testified for the purpose of a bill of exception that Hattie told him that she met Santee for the first time at church in January, 1914 and that she had never seen him before that time. This testimony was properly excluded by the trial court. Gonzalez v. Gonzalez, Tex.Civ.App., 177 S.W.2d 328; Carnes v. Kay, Tex.Civ.App., 210 S.W.2d 882; Reed v. State, 222 Ark. 119, 257 S.W.2d 362, 38 A.L.R.2d 567; United States Fidelity and Guaranty Co. v. Henderson, supra; Lambert v. State, 124 Tex.Cr.R. 33, 60 S.W.2d 460.

Hearsay evidence has no probative force even though admitted into evidence without objection. Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106, error ref.; Winn v. Federal Land Bank of Houston, Tex.Civ.App., 164 S.W.2d 864, error ref.

Here an attempt is made to establish the fact of nonaccess by...