For former opinion, see 173 S.W. 960.
Appellant's motion for rehearing merely presents questions that were presented on the original hearing, without anything new being urged in its support. The motion will therefore be overruled without discussion. Appellee, however, while concurring in the final conclusion originally reached, insists that in the interest of uniformity of decision we should modify our conclusion that, under the general objection that the evidence of the usual rate of interest in sales of lands by private persons was "immaterial," we could not consider the objection that "the conditions were not shown to be similar." The insistence is that, while the general rule is as we applied it where evidence is admitted over a general objection, a distinction is to be made in instances where evidence is excluded on such objection. The authorities seem to support the distinction in cases where neither the trial court nor opposing counsel call for specific objection at the time of the exclusion of the testimony. See 5 Jones on Evidence, 377 et 894; Mine Smelter Supply Co. v. Park Lacy Co., 107 F. 881, 47 C.C.A. 34; Tooley v. Bacon,70 N.Y. 34; Hurlbut v. Hall, 39 Neb. 889, 58 N.W. 538; Storms v. Lemon,7 Ind. App. 435, 34 N.E. 644; Adams v. Southern R. R. Co., 166 Ala. 449,51 So. 987; Rosenberg v. Sheahan, 148 Wis. 92, 133 N.W. 645; Flanagan v. Womack Perry, 54 Tex. 45. In the case of Tooley v. Bacon, supra, the court say: "Where evidence is excluded upon a mere general objection, the ruling will be upheld upon appeal if any ground in fact existed for the exclusion; it will be assumed, in the absence of any request on the part of the opposing party or the court, to make the objection more definite, that it was understood that the ruling was placed upon the right ground." In the Texas case just cited, the court, among other things, said: "The court may in its discretion refuse to entertain an objection to a question propounded to a witness unless the ground of objection be stated; but, should a general objection be entertained and correctly sustained, it would be no ground for reversal, no substantial error having been committed." In the present case it is by no means clear that conditions were shown to be similar. Nor does it appear that either court or opposing counsel requested a more specific objection to the testimony referred to than was made. Had such request been made, the objection that conditions were not shown to be similar might have been obviated. In the absence of such request, however, we should perhaps assume, as stated in the quotation from the New York decision, that it was understood at the time of the exclusion of the evidence relating to the interest demanded in sales of lands by private parties that the ruling was placed upon *1201
the ground that the conditions were not shown to be similar. But, if this be assumed, it merely affords an additional reason for overruling, as we did, the assignment of error to the action of the court in excluding the evidence, and we hence need do no more than to note the distinction mentioned.
AI-generated responses must be verified and are not legal advice.
