149 Ga. 384 | Ga. | 1919
Dissenting Opinion
dissenting. I dissent from the decision of the majority of the court, so far as the second division of the opinion is concerned. Whether the letters and declarations objected to are admissible in evidence depends upon whether they were written or made ante litem motam — before the origin of the controversy, or whether they were written.or made post litem motam — after the controversy arose on the question at issue. The weight of authority is to the effect that declarations made by a reputed father or relative are admissible in evidence to prove pedigree, provided they are made without reference to any controversy which is about to arise as to such disputed fact. One of the earliest, and perhaps the leading case on the subject is that of William Fitzharding Berkeley, claiming as of right to be Earl of Berkeley, etc., reported in 4 Camp. 401. In that ease it appeared that Frederick Augustus Berkeley, fifth Earl of Berkeley, died on August 8, 1810.’ During the same year the claimant presented a petition praying that a writ might be issued to summon him to parliament by the title of Earl of Berkeley as eldest son of the late Earl, by Mary, Countess of Berkeley. The petition was referred to the House of Lords. The petitioner alleged that 'his father and mother were married in the parish of Berkeley in the county of Gloucester, on the 30th of March, 1785. They were likewise married in the parish of St. Mary Lambeth on the 16th of May, 1796, till which time Lady Berkeley did not appear as his lordship’s wife. The claimant, William Fitzharding Berkeley, was born before the second marriage, and was not until sometime after the second marriage treated as their legitimate son. They had several children after the second marriage. The question to be decided in that case respected the legitimacy of the claimant, and that depended upon the reality of the first marriage alleged to have taken place between his parents. The Earl of Berkeley was one of the witnesses examined by interrogatories for the plaintiff, and in his depositions he swore positively to the reality of the first marriage and the plaintiff’s legitimacy. Counsel for the claimant, after other evidence adduced, proposed to read this deposition as a declaration by the Earl of Berkeley as to the matter of pedigree respecting the legitimacy of his son. The admissibility of this evidence was objected to, and upon the question being submitted it was held that the deposition could not be received as evidence of the declarations of the alleged
Prof. Wigmore (2 Wigmore on Ev. § 1484) says: “The existence of a controversy is -only one circumstance (though the most common one) likely to produce a bias fatal to the trustworthiness of the declaration. Judicial opinion seems to hold, and properly, that other considerations may under certain circumstances operate to exclude the declarations. In general, they would be excluded where there is any specific and adequate reason to suppose the existence of a motive inconsistent with a fair degree of sincerity. In Lord Eldon’s words, they must appear to be the natural effusions of a party standing in an even position.”
In Byers v. Wallace, 87 Tex. 503 (28 S. W. 1056, 29 S. W. 760), the Supreme Court of Texas held: “The declaration of the-father of the plaintiff W., that he had a nephew who went to Texas, and was killed in 1836, at what was known as the ‘Fannin Massacre,’ was inadmissible, because it established the declarant to be the sole heir of the deceased, and was'contrary to the rule that the statement must be such as is not under the influence of any interest that would be active in inducing the declarant to depart from the truth.” Brown,’ J., after citing a number, of authorities, said: “In pedigree, matters of public interest, and ancient boundaries, the law excludes declarations of all persons made post litem motam, because it presumes that even that interest one may feel in the success of his friend might bias the statement, and deprive it of its value as a statement impartially made.” There can be no rational distinction between a ease where a declarant manufactures evidence for.himself, and where he manufactures it for the benefit of a friend who is to profit by it after his death. In either case the evidence, if made post litem motam, must be excluded as being self-serving. In Monkton v. Attorney-General, 2 Russ. & Mylne, 147, where the question of pedigree
Thus it will be seen that the doctrine of post litem motam extends not only to those who have a personal interest in’ the controversy, but if the declarations are made in the interest of those in whom the declarant takes an interest after his death, such statements are to be excluded. This does not change the general rule as to proving pedigree by hearsay evidence, as provided by our statute, nor the rule which prevents living, interested witnesses from testifying, for in that case they can be cross-examined. § 5764 of the Civil Code is as follows: “Pedigree, including descent, relationship, birth, marriage, and. death, may be proved either by the declarations of deceased persons related by blood or marriage, or •by general repute in the family, or by genealogies, inscriptions, 'family trees/ and similar evidence.” But this section is subject to the qualification that the declaration must' have been made ante litem motam. Mobley v. Pierce, 144 Ga. 327. § 5768 of the Civil Code provides: “The declaration's and entries of a person, since deceased, against his interest, and not made with a view to pending litigation, are admissible in evidence in any case.” The converse of this proposition is equally true. Therefore, if such declarations were made with a view to a pending controversy and in the interest of declarant’s friend, they should be excluded.
In the case of Mobley v. Pierce, supra, this court held: “Declarations of -deceased persons, related by blood or marriage to the family in question, are admissible in matters of pedigree, but before such declarations are receivable in evidence the relationship of the declarant with the family must be established by some proofs independent of the declaration itself. The foregoing rule is further qualified in that the declaration must have been made ante litem motam.” This ruling is in accord with the general weight of authority in outside jurisdictions. In the Mobley case, supra, the Supreme Court of Georgia cites § 5764 of the Civil Code, and puts a construction on our statute with reference to proving pedigree in consonance with the authorities cited in this opinion and numerous others of like import. Such proposed testimony should be free from suspicion. 2 Wigmore on Ev. § 1482, and notes.
In view of the foregoing authorities, how stands this case? At
Under the principle ruled in the foregoing authorities it was error to admit in evidence the letters and declarations’ of Marion Estill, since deceased. See, beside the authorities already cited: 1 Gr. Ev. (16th ed.) 217 § 131; Walker v. Countess of Beauchamp, 6 C. & P. 552, 561; Elliott v. Peirsol, 1 Pet. 328 (3) (7 L. ed. 164); Rollins v. Wicker, 154 N. C. 559 (70 S. E. 934); Monkton v. Attorney-General, 2 Russ & Mylne, 147.
Lead Opinion
1. Where, upon a material issue in a case, the evidence in behalf of one party is positive and the evidence in behalf of the opposite party is negative, it is error to instruct the jury: “The existence of a fact testified to by one positive witness is to be delieved rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired. This rule does not apply when, two pai-ties 'having equal facilities for seeing or hearing a thing, one swears that it occurred, the other that it did not,” without the qualification that the witnesses in other respects are found to be equally credible. Humphries v. State, 100 Ga. 260 (28 S. E. 25); Atlanta Consolidated Street Ry. Co. v. Bigham, 105 Ga. 498 (30 S. E. 934); Southern Ry. Co. v. O’Bryan, 115 Ga. 659 (42 S. E. 42); Atlantic Coast Line R. Co. v. O’Neill, 127 Ga. 685 (56 S. E. 986); Central of Georgia Ry. Co. v. Orr, 128 Ga. 76 (57 S. E. 89); Alabama Great Southern R. Co. v. Brock, 139 Ga. 248 (77 S. E. 20); Ware v. House, 141 Ga. 410 (81 S. E. 118); Georgia Railroad &c. Co. v. Radford, 144 Ga. 22 (85 S. E. 1006). Consequently-the trial judge did not err in granting a nev trial on the ground assigning error upon the instruction just quoted.
2. Where the paternity of a child is the issue involved, the declarations of the reputed father, since deceased, are admissible in evidence, under-section 5764 of the Civil Code, which provides: “Pedigree, including descent, relationship, birth, marriage, and death, may be proved either by the declarations of deceased persons related by blood or marriage, or by general repute in the family, or by genealogies, inscriptions, ‘family trees,’ and similar evidence.” The weight to be given the declarations is a matter for the jury.
(a) The case of Mobley v. Pierce, 144 Ga. 327 (87 S. E. 24), differs on its facts from the present case, and does not require a contrary holding.
Judgment on both bills of exceptions affirmed.