Sherrill v. Plumley's Estate

• Decision Date: 06 June 1974
• Docket Number: No. 16329,16329
• Parties: Catherine P. SHERRILL et al., Appellants, v. The ESTATE of George C. PLUMLEY, Deceased, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 286

514 S.W.2d 286

Catherine P. SHERRILL et al., Appellants, v. The ESTATE of George C. PLUMLEY, Deceased, et al., Appellees.

No. 16329.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

June 6, 1974.

Rehearing Denied Aug. 22, 1974.

Second Motion for Rehearing Denied Oct. 3, 1974.

Sears and Burns, David F. Beale, Lucas & Hudson, Hal S. Hudson, Houston, for appellant.

Bracewell & Patterson, Houston, of counsel, William K. Wilde, Charles G. King, III, Reynolds, White, Allen & Cook, Michael K. Swan, Barlow, Lacy & Smith, Joe D. Barlow, L. A. Greene, Jr., Houston, for appellees.

PEDEN, Justice.

This is an appeal from a judgment of the district court finding appellees to be the maternal heirs of Mrs. Alpha Genevieve Meyer and affirming the probate court's 'Order Determining Maternal Heirship and Authorizing a Partial Distribution to the Maternal Kindred.'

Mrs. Alpha Genevieve Meyer died intestate (in legal effect) on June 15, 1962, leaving no surviving spouse or children. Her mother, Mrs. Jennie C. Pettus (sometimes spelled Pettis), died in 1950. It was stipulated that appellants were all the heirs of Robert and Mary Plumbley, that appellees were all the heirs of Richard and Alice Plumley, that all the parties were properly before the court and that the only issue to be decided by the trial court was whether Richard and Alice Plumley or Robert and Mary Plumbley were the parents of Jennie C. Pettus and the grandparents of Alpha Genevieve Meyer. The jury found that Richard and Alice Plumley were the maternal grandparents of Mrs. Meyer.

Appellants contend that the trial court erred in admitting into evidence a newspaper obituary notice of the death of Robert Plumbley, an 'heirship deed' purporting to list the heirs of Richard Plumley, pleadings in Jennie C. and Sam Pettus' divorce and portions of home movies of one of the appellees, Mrs. George C. Plumley.

The obituary notice, labelled exhibit Greene 100, was printed in the Galveston Daily News on March 26, 1915 and stated:

'PLUMBLEY--Robert Plumbley, 77 years old, for forty years a resident of Galveston, died early yesterday morning in San Antonio, according to advices received by relatives here yesterday. Plumbley removed to San Antonio three years ago. He was born in England March 31, 1838, and came to Galveston when he was thirty-five years old. During most of his residence in Galveston Mr. Plumbley engaged in the sand and shell contracting business. He is survived by two daughters, Mrs. M. Ellis and Mrs. James P. Walsh of Galveston, and a son, R. G. Plumbley, of San Antonio. The funeral will be held at the residence of James P. Walsh, 3601 Avenue O, this afternoon at 3:00 o'clock. Rev. R. D. Wilson will conduct the funeral services. Interment will be made in the Lakeview Cemetery.'

Appellees introduced the notice to show that Jennie C. Pettus was not a child of Robert Plumbley, since her name was not listed as a survivor.

Appellants maintain that the notice was hearsay and not admissible under any of the exceptions to that rule.

The newspaper article is hearsay. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 831 (Tex.1960); Atchison, Topeka & Santa Fe Ry. Co. v. Ham, 454 S.W.2d 451, 461 (Tex.Civ.App.1970, writ ref. n.r.e.). To be admissible it must come under one of the exceptions to the hearsay rule. Appellees say the newspaper article was admissible under either the business records act (Act. 3737e, Vernon's Texas Civil Statutes), the ancient documents rule or the pedigree exception.

Article 3737e provides that:

'Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition of the judge finds that:

'(b) It was the regular course of that business for an employee or representative of such business With personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record.' (emphasis added)

The newspaper article apparently was not written from the personal knowledge of an employee of the newspaper, but upon 'advice received by relatives.' The statement of facts shows that the trial judge did not find that the author had personal knowledge of the death of Robert Plumbley, or of the birth of his children. We hold that the obituary notice was not admissible under Art. 3737e. Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.1962); North Texas Lumber Co. v. Kasper, 415 S.W.2d 470 (Tex.Civ.App.1967, writ ref. n.r.e.); Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889 (Tex.1969).

We have found no Texas case holding that a newspaper article is admissible under the ancient documents exception to the hearsay rule.

There appears at § 1376 in the second volume of McCormick & Ray, Texas Law of Evidence 205 (2d ed., 1956), a discussion of whether recitals in ancient documents meet the requirements essential to the existence of a recognized exception to the hearsay rule, which are said to be 1) a necessity for the evidence and 2) a circumstantial guarantee of its trustworthiness. Three guarantees of trustworthiness are listed. First is the rule of authentication, which requires that the instrument be more than thirty years old, unsuspicious in appearance and come from a proper custody. Second, the age of the instrument usually guarantees that the recitals were made before the controversy arose. It is the third guarantee of trustworthiness which we find lacking in our case: the requirement that such recitals must be made upon the personal knowledge of the declarant.

We are unable to identify the declarant in our case. Someone gave the information to the newspaper reporter and it probably was a relative of the deceased, Robert Plumbley, but the record does not show whether either the unnamed reporter or the unnamed source of his information had personal knowledge of the essential fact which appellees sought to establish: that Jennie C. Pettus should not have been listed as a daughter of Robert Plumbley. Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961), which appellees rely upon is not in point. In that case a 59 year old newspaper article stating that a fire damaged the county court house was allowed to show that charred timber may not have been caused by recent lightning. The court stated: 'We do not characterize this newspaper as a 'business record', nor as an 'ancient document', nor as any other readily identifiable and happily tagged species of hearsay exception.' It was admitted because the reporter had actual knowledge of the fire and that it was a matter of local concern. Its age gave it trustworthiness.

The mere fact that a document is more than 30 years old does not automatically make it admissible. Slattery v. Adams, 279 S.W.2d 445, 451 (Tex.Civ.App.1954, affirmed 156 Tex. 433, 295 S.W.2d 859).

Newspaper articles have been held properly admitted in evidence under other exceptions to the hearsay rule. We held in Seaway Co. v. Attorney General, 375 S.W.2d 923 (1964, writ ref. n.r.e.), that an article from an ancient newspaper, corroborating and showing early use of a beach by the public as a road, was admissible as reputation concerning a matter of public interest, when the reputation is of a past generation, citing 2 McCormick & Ray, Texas Law of Evidence 171, § 1322 (2nd ed., 1956) and numerous cases.

The pedigree exception to the hearsay rule allows evidence of 'events and incidents which are generally regarded as of importance in the family life. This includes birth, death, marriage, age, parentage, relationship and heirship.' 2 McCormick & Ray, Texas Law of Evidence 192, § 1347. The predicate for such statements is stated in Hurley v. Hirsh, 66 S.W.2d 387 (Tex.Civ.App.1933, writ dism.), 'that the declarants were in position to know the related facts, that they are now dead, and that such facts could not be shown by living witnesses.' Again, we cannot identify the declarant and it has not been shown that the declarant was in a position to know the facts in controversy.

Further, the relationship must be shown by evidence outside of the declarations themselves. Overby v. Johnston, 94 S.W. 131, 133 (Tex.Civ.App.1906, writ ref.); 2 McCormick & Ray, Texas Law of Evidence 188, § 1343. There is no showing who the 'relatives' were. We find no basis for admitting the obituary notice under any exception to the hearsay rule.

When the trial judge admitted the obituary notice in evidence, he made this observation within the hearing of the jury:

'I believe it classifies under the ancient document rule so the common law rules of evidence apply. Subject to any further attack being made, I will admit it. It possibly comes under 3737e, but to my knowledge this has not been done before and I think in overruling the objection and admitting the paper it is only proper to let the jury know when they receive this item nobody is necessarily vouching this information in the column is absolutely accurate. We can all take notice newspapers could make a mistake like anyone else could. The information could or could not be accurate, but we know that this was information that was published in March, 1915. It is subject to other evidence being received which may conflict with it. This is not conclusive and not offered as being conclusive. The whole matter is subject to cross examination and anything you care to point out.

'The objection is overruled. Greene 100 is admitted.'

This instruction tended to minimize the effect of admitting the exhibit, and we hold that the error in admitting it probably did not cause the rendition of an improper judgment in the case.

Appellant next complains of the admission of an 'heirship deed,' executed in 1892 and identified as exhibit Swan 20, because the recital contained therein that the grantors are heirs of Richard Plumley is self-serving, hearsay, a...