Todd v. Dysart , 23 Tex. 590 ( 1859 )

Wheeler, C. J.

It is not perceived, that the charge of the court is obnoxious to the objection, that it is a charge upon the weight of evidence. If the proposition, that the admissions of William Todd, senior, that the slaves in controversy were the property of the plaintiff, William Todd, junior, was not sufficient evidence of William Todd, junior’s property in the slaves, unless the jury were satisfied, from the whole evidence, that the property did in fact belong to him, stood alone, unqualified by other portions of the charge, it might be obnoxious to objection. It might with reason be contended, that its effect was to induce the jury to suppose, that the admissions of the party, in whose right the defendant claims, were not of themselves, sufficient evidence of title in the plaintiff, and that to warrant them in finding for the plaintiff, they must be satisfied by other evidence, independently of the admissions of the plaintiff’s ownership. But this was not what the court intended; for in the same connexion, the jury were instructed, that they were to give to the admissions of the parties, respectively, the weight to which they thought them entitled, and if from the admissions of either party, they were satisfied that the fact was as stated, the admissions were sufficient evidence of the fact. What the court intended by the instructions, given upon this point, evidently was, that the admissions proved, were not conclusive evidence of the fact, and did not operate as an estoppel upon the party; and this was undoubtedly correct, as applied to the evidence in this case. Parol or verbal admissions, which have been held conclusive on the party, are in general, those only, on the faith of which, a court of justice has been led to adopt a particular course of proceeding, or on which another person has been induced to alter his condition. (1 Greenleaf, Ev. § 204.) The admissions, to which the witnesses deposed, do not appear to have been of that character. They do not appear to have influenced the conduct of any one. As a whole, we do not think the charge of the court upon this point, was calculated to mislead.

But there was error in excluding the testimony of the witness, McWilliams. The objection to the witness was, that he was incompetent, because he was the guardian of certain of the distributees of the estate of William Todd, senior. His testimony might conduce to diminish the fund, in which his wards were interested. But he had no interest in the result of the suit, or if he had an interest, it was adverse to the party calling him. It is clearly settled, that his interest as guardian, merely, was not such as to disqualify him, though he had been called by the defendant. (1 Cow. & Hill, Notes to Phil. Ev. 151, n., 107-146; 1 Green, Rep. 153; Miller v. Thatcher, 9 Texas Rep. 482.) He was not incompetent to testify at the call of the plaintiff in this suit.

It is insisted, that it was not error to exclude the witness, because it does not appear at what time the admissions, to which he was called to testify, were made, and it may be that the testimony would not have been material. But it is to be observed, that this was not the ground of objection, or the ground on which the court proceeded, in excluding the evidence. There was no objection to the materiality, or relevancy, of the proposed evidence. The objection was to the competency of the witness, and upon this ground his testimony was excluded. The objection did not call on the plaintiff to state, what he proposed to prove by the witness. Primá facie, the evidence proposed was material, and as the objection went solely to a question of competency, it is to be taken, that it was material.

It is further insisted, that although the evidence was improperly excluded, yet upon the whole evidence, it is not a ground for reversing the judgment. We think differently. It is not, it is true, every improper ruling upon the admissibility of evidence, which will require this court to reverse the judgment of the court below, refusing a.new trial. Thus, it is held, “ where it is clear, that if the rejected evidence had been admitted, it could not have changed the result, a new trial will not be granted; ” (2 Graham & Waterman on New Trials, 271,) and the refusal of a new trial, in such a case, will not be a ground of reversing the judgment. (Bohr v. Steamboat Baton Rouge, 7 Sm. & Marsh, 715.) But we do not think that principle applicable to the present case. It was peculiarly one of fact, depending upon the credibility of witnesses, and the weight to be given to evidence. The proposed evidence went to disputed questions of fact, upon which the question of title, depended, and to the credit to be attached to the statements of some of the defendant’s witnesses, introduced to disprove title in the plaintiff. The testimony was, therefore, very material to the plaintiff. We cannot sáy, what influence it might have had upon the verdict of the jury; and are of opinion, that its exclusion is error, for which the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Roberts, J., did not sit in this case.