Hamilton & Son v. Wabash, St. Louis & Pacific Railway Co. , 21 Mo. App. 152 ( 1886 )

Hall, J.

— The question in this case is, was the paper, purporting to be the pedigree of the heifer, and the other hearsay evidence, to which the defendant objected, ■competent evidence.

For the purposes of this case we shall concede that this question is to be determined in accordance with the rules of evidence governing in cases of pedigree in the human family. The principle upon which hearsay evidence, is held to be admissible in cases of pedigree has been thus stated: "Oral declarations are equally primary .as family records or other documents of the nature of hearsay, but the competency of each depends, not, indeed, on entire absence of more satisfactory evidence, but on the death of the declarant; and if he is alive, and present, or within reach of process, the declaration, whether oral or written, is incompetent, except as against him and those claiming under him, or by way of corroboration of testimony given by the declarant as a witness.” Abbott’s Trial Evidence, 96. See, also, 1 Phillips on Evid. 248, and 1 Greenleaf on Evid., sect. 103.

Clearly the evidence of plaintiff, S. Hamilton, as to ¿he statements made to him by his brother and others, touching the ancestry of the heifer, was incompetent, because it did not appear that the parties who made the statements were either dead or beyond the process of the court. The paper admitted in evidence as the pedigree of the heifer was incompetent for the same reason. The paper was simply the written declaration of the plaintiffs as to the truth of the facts stated therein. One of the plaintiffs was present in court and testified as a witness. The paper was hearsay just as would have been evidence of verbal statements to the same purport made by the plaintiffs. The paper was neither an original memorandum made by the plaintiffs or either of them, nor a record required by law to be kept, nor a copy of such record. The paper, as the testimony of the witnes Hamilton disclosed, was a statement of facts, not within the knowledge of the plaintiffs who made it, but principally based upon the statements made by others ; and the paper was no more competent than was the testimony of said witness as to what his brother and others had told him.

Plaintiff, S. Hamilton, testified that a “thoroughored” is one “whose ancestry on both sides is perfect in blood and duly recorded in the American Herd Book.” The hearsay evidence was incompetent for another reason-, That evidence was not directed to the pedigree proper of the heifer, that is, as to what animals were the ancestors of the heifer ; but, on the contrary, it was directed to the quality of those ancestors, that is, as to whether they were thoroughbreds. Whether or not any named ancestors of the heifer was duly recorded in the “American Herd Book” was susceptible of proof. “At this limit the rule stops. It does not admit hearsay as to a specific fact, however closely connected with these facts of family history is one, which, in its nature is susceptible of being proved by witnesses speaking from their own knowledge, even although such witnesses are dead.” Abbott’s Trial Evidence, 91.

Under this rule it was held that hearsay evidence was incompetent to prove that the female ancestor of a slave was free. Mina Queen and child, Petitioners for Freedom, v. Hepburn, 7 Cranch, 290; opinion by Chief Justice Marshall. This case was followed in Negro John Davis et al. v. Wood, 1 Wheaton 6. In this latter case hearsay evidence was admitted to prove who was the petitioner’ s' ancestors ; but hearsay evidence to prove that such ancestor was free was, it is held, properly excluded.

We cannot agree with the plaintiffs’ counsel in his contention that the defendant was not injured by the admission of the hearsay evidence. The plaintiff, S. Hamilton, had defined a “thoroughbred,” and had testified that the heifer as such was worth one hundred and twenty-five dollars, whereas she would have been worth • only twenty-five dollars had she not been a “thoroughbred.” By such testimony the witness unquestionably meant that the heifer was worth one hundred and twenty-five dollars as a “ thoroughbred, ” such as he had defined .a “thoroughbred” tobe, that is, “one whose ancestry on both sides was perfect in blood and duly recorded in the American Herd Book.” Although the plaintiff did testify that the heifer “outside of any record looked like a thoroughbred,” we do not think he could have been understood as meaning thereby that her appearance . alone made her worth one hundred and twenty-five dollars. We have no doubt that, from all the testimony, the plaintiff intended to say that the heifer’s value was enhanced by her pedigree as a “thoroughbred,” in connection, of course, with her appearance. And inasmuch as the said pedigree was proved by incompetent evidence, the judgment must be reversed and the cause remanded. Which is accordingly ordered, with the concurrence of .Philips, P. J ; Ellison, J., does not sit.