Mobley v. Baxter & Co.

Lumpkin, J. (After.stating the foregoing facts.) 1. The evidence of Wakeley was properly excluded. It was merely a conclusion on his part. It did not appear that Wakeley was a member of the family of Thomas Taylor, deceased. The witness did not state any family repute known to him, or any statements of deceased persons who were members of the family, or any other distinct admissible fact. He stated the death of Taylor and its date, who were his heirs, and which of them survived at a certain time, and other facts in regard to them. He testified that he did not know of the death of Taylor or who were his sole surviving heirs at the time mentioned, of his own personal knowledge, but that he did know it “from family repute and from various other sources of information, such as a vast amount of correspondence from said Thomas Ta}dor’s family, and from the court records, and from wills and documents, which made the matter conclusive so far [568] as could be ascertained by search.” This was not the statement of any fact, but an inference or conclusion of the witness, drawn from various sources, and was not admissible in evidence. Section 5764 of the Civil Code (1910) does not authorize the introduction of such evidence. While in Imboden v. Etowah etc. Mining Co., 70 Ga. 86, some broad and rather unguarded language was used in regard to the admissibility of hearsay evidence to prove death, that case does not decide that the conclusion of a witness drawn from various sources, some oral and some documentary, is admissible to prove death and relationship. Moreover, it appeared that a witness in that case stated that he believed a certain person to be dead from'having heard so by word of mouth from a named deceased person, and having also seen documents relating to his death. No objection was made that the deceased person who made the declaration was not a member of the family, whose statement would be admissible, and apparently he was treated as such. 2. The suit first brought was dismissed on October 29, 1912. The present suit was filed on November 22, thereafter. The letter from Messrs. Toomer & Reynolds amounted to nothing more than agreeing that the interrogatories of Wakeley, which had been taken in the first case, might be used in the second, for the purpose of showing that certain persons who executed a deed were the heirs of Thomas Taylor, deceased. It did not purport to agree that the witness might testify to his conclusions on this subject from various sources of information, or to waive objection to such incompetent evidence. 3. The evidence of Wakeley having been excluded, no prima facie case was made by the plaintiff, and a nonsuit was properly granted. Judgment affirmed. All the Justices concur.