Shelton v. Belknap

ON REHEARING

Mr. Justice Calvert

delivered the opinion of the Court.

In their motion for rehearing respondents call attention to three cross-points of error contained in their brief in the Court of Civil Appeals which were not considered by this Court on original submission, and which, if sustained, would require a remand of this cause for retrial rather than a rendition of judgment in petitioner’s favor. We have concluded, however, that none of the points should be sustained.

In the first cross-point it is contended that the trial court erred in not granting a mistrial when, during cross-examination of one Idell Guidry, a witness for respondents, it was brought out that she was a voluntary witness at the trial, that she was “notified” to come, and that she did not know the respondents or their attorneys before leaving her home in Houston to attend the trial in San Antonio and was not “notified” by them. Respondents contend that this type of cross-examination inevitably left the impression with the jury that an insurance company was involved in the case. As observed in our original opinion the only issue tried was that of marriage. It is stated by petitioner, and unchallenged by respondents, that those portions of the pleadings dealing with liability and damages, by agreement of the parties, were not read to the jury. We do not regard the point as well taken.

In their second cross-point respondents contend that the trial court erred in admitting testimony of the witness Ben Kaplan to the effect that Coyzet and M. A. had a general reputation in the community as being a married couple. It is admitted that marriage may be proved by general reputation. McCormick and Ray on Evidence, § 590, p. 749; Wigmore on Evi*44dence, 3rd Ed., § 1602. The objection to the testimony was that no proper predicate therefor was laid. The testimony of the witness showed that Coyzet had worked for him for some fifteen months during which time she and M. A. were living together in the witness’ servant house. He had full opportunity to observe both of the parties in their daily lives and in their contact with his neighbors. He testified that he knew the general reputation of the parties in the community. The fact that he could not relate occasions when he had heard his neighbors discuss the marital status of Coyzet and M. A. went to the weight and not to the admissibility of his testimony. Where a man and woman are openly living together in the same house an absence of discussion of their marital status would, in itself, indicate an acceptance of them in the community as husband and wife. Wigmore says that the rule recognizing general reputation as evidence of marriage is “analogous to the rule laid down for reputation as to moral character” (§ 1603), and, as to the latter rule, that “the absence of utterances unfavorable to a person is a sufficient basis for predicating that the general opinion of him is favorable” (§ 1614). See also Gilson v. State, 140 Texas Crim. Rep. 345, 145 S.W. (2d) 182.

By their third cross-point respondents complain of the action of the trial court in admitting testimony of the witness Mrs. Gertrude Gerson. Coyzet had accompanied Mr. and Mrs. Ger-son to Arizona in 1947 and worked for them there for a time but later returned to Houston, Texas. Thereafter Mr. and Mrs. Gerson returned to Houston to live and Coyzet worked for them for a period of some six months in 1949 during which time M. A., on several occasions, visited the Gerson home to get Coyzet and usually waited for her in the kitchen. The particular testimony of Mrs. Gerson to which respondents objected was as follows: “ * * * the entire time she (Coyzet) worked for us after she got back, they (Coyzet and M. A.) were man and wife so far as we knew. I mean they were living together and they were certainly working hard toward a goal together, and just as respectable as any married couple that you could hope to see.” The objection to the testimony was that it contained several opinions and conclusions of the witness. A reversal will not be ordered because of the erroneous admission of evidence unless it appears from a consideration of the record as a whole that its admission was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Rules 434 and 503, Texas Rules of Civil Procedure; Dallas Ry. & Term. Co. v. Bailey, 151 Texas 359, 250 S.W. 2d 379; Traders & General *45Ins. Co. v. Gray, Texas Civ. App., 257 S.W. 2d 327, no writ history.

There was testimony before the jury that while Mr. and Mrs. Gerson were still in Arizona they received a Christmas, card signed “Coyzet and M. A. Sheltonthat after the return of the Gersons to Texas, Coyzet introduced M. A. to Mr. and Mrs. Gerson as her husband; that during the six-months’ period Coyzet was working for them both. Mr. and Mrs. Gerson had frequent occasion to be in the house where Coyzet and M. A. lived and found them occupying a room together; that the attitude of Coyzet and M. A. toward each other was. always kind and considerate; that through their separate and community funds and joint efforts Coyzet and M. A. bought, moved and partially rebuilt two houses on lots owned by them. Assuming that the testimony of Mrs. Gerson, above quoted, was. in the nature of an opinion and conclusion it added little or nothing to the testimony properly in evidence and we cannot say, therefore, that it was reasonably calculated to cause and probably did cause an improper verdict and judgment.

The motion for rehearing is overruled.

Opinion delivered October 5, 1955.

Rehearing overruled November 2, 1955.