Estill v. Estill , 149 Ga. 384 ( 1919 )

Per Curiam.

1. Where, upon a material issue in a case, the evidence in behalf of one party is positive and the evidence in behalf of the opposite party is negative, it is error to instruct the jury: “The existence of a fact testified to by one positive witness is to be delieved rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired. This rule does not apply when, two pai-ties 'having equal facilities for seeing or hearing a thing, one swears that it occurred, the other that it did not,” without the qualification that the witnesses in other respects are found to be equally credible. Humphries v. State, 100 Ga. 260 (28 S. E. 25); Atlanta Consolidated Street Ry. Co. v. Bigham, 105 Ga. 498 (30 S. E. 934); Southern Ry. Co. v. O’Bryan, 115 Ga. 659 (42 S. E. 42); Atlantic Coast Line R. Co. v. O’Neill, 127 Ga. 685 (56 S. E. 986); Central of Georgia Ry. Co. v. Orr, 128 Ga. 76 (57 S. E. 89); Alabama Great Southern R. Co. v. Brock, 139 Ga. 248 (77 S. E. 20); Ware v. House, 141 Ga. 410 (81 S. E. 118); Georgia Railroad &c. Co. v. Radford, 144 Ga. 22 (85 S. E. 1006). Consequently-the trial judge did not err in granting a nev trial on the ground assigning error upon the instruction just quoted.

2. Where the paternity of a child is the issue involved, the declarations of the reputed father, since deceased, are admissible in evidence, under-section 5764 of the Civil Code, which provides: “Pedigree, including descent, relationship, birth, marriage, and death, may be proved either by the declarations of deceased persons related by blood or marriage, or by general repute in the family, or by genealogies, inscriptions, ‘family trees,’ and similar evidence.” The weight to be given the declarations is a matter for the jury.

(a) The case of Mobley v. Pierce, 144 Ga. 327 (87 S. E. 24), differs on its facts from the present case, and does not require a contrary holding.

Judgment on both bills of exceptions affirmed.

All the Justices concur, except Atkinson, J., disqualified, and Hill, J., dissenting from the ruling in the second headnote.

The court, over objection of defendants, admitted in evidence the declarations of Marion W. Estill, made after September 9, 1912, tending to show that Marian Virginia Estill was his child. The ground of objection was that the declarations were made post litem motam. For the most part these declarations were contained in letters written by Marion W. Estill, while absent from his -home, to his wife and to Marian Virginia. At the time the letters were written neither the paternity of the child nor her right to claim under the will of J. IT. Estill had ever been questioned by any member of the Estill family, so far as the record discloses. In his charge the court instructed the jury as follows: "The existence of 'a fact testified to by one positive witness is to be believed rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired. This rule does not apply when, two parties having equal facilities for seeing or hearing a thing, one swears that it occurred, the other that it did not.” The jury returned a verdict in favor of the plaintiffs. The defendants moved for a new trial, which was granted upon the ground that the court erred in giving the above-quoted instruction (30th ground of the motion). The plaintiffs sued out a writ of error, excepting to the judgment granting a new trial. The defendants, by cross-bill, excepted to the refusal of the court to grant them a new trial upon other grounds set out in the motion, and especially upon the grounds assigning error upon the ruling of the court in admitting evidence of the written and oral declárations of Marion W. Estill to the effect that Marian Virginia Estill was his child.

W. B. Stubbs, G. N. Alford, and Oliver & Oliver, for plaintiffs. Thomas P. Ravenel, Robert L. Golding, and Osborne, Lawrence & Abrahams, for defendants.