{
  "id": 1527154,
  "name": "Bispham v. Turner",
  "name_abbreviation": "Bispham v. Turner",
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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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    "judges": [],
    "parties": [
      "Bispham v. Turner."
    ],
    "opinions": [
      {
        "text": "HiEE, C. J.\nAppellee presented a claim against the estate of her deceased husband. Allowance for $500 was made in the probate court, and she appealed to the circuit court, where a verdict was rendered in her favor for the sum of $3,166.66, and judgment entered thereupon. The administrator appealed.\nAppellant urges that the verdict is against the evidence, and that there is no competent evidence to support it. It would serve no useful purpose to review the evidence in detail. Suffice it to say that there were declarations of the deceased of use of his wife\u2019s money, evidence of bank deposits in Mrs. Turner\u2019s name, and the use of these deposits by Mr. Turner, and other competent testimony, tending to prove her allegations of indebtedness of her husband to her. The verdict has substantial evidence to sustain it.\nThe only serious question is in regard to whether the admission of certain incompetent testimony should call for a revei'sal. It was proved by Mr. Sejournant, an uncle of Mrs. Turner, that certain moneys were paid to her from her father\u2019s estate; in one instance a share in a verdict against a street-car company for causing the death of her father, and in the other a share of life insurance money. L,ater, it was 'developed that he did not know of these facts of his own knowledge, and the court refused to direct that the testimony theretofore given be stricken out. Mr. Sejournant was asked and permitted to answer that it was generally understood at the time among the relatives that Mrs. Turner got money from her. father\u2019s estate; and he was asked and permitted to testify that it was rumored that she had money.\nOf course, this testimony was grossly incompetent. Appellee seeks to sustain it on the theory .that in inquiries as to pedigree it is admissible to adduce hearsay testimony establishing family relationships, ownership of property, etc. Citing 16 Cyc. 1224, par. b. But this doctrine does not apply to the pedigree of money; and when the source of money is to be proved, it must be proved like any other fact, and not by hearsay evidence, as relationships may be proved.\nThe question resolves itself into whether this evidence was prejudicial. Appellant placed upon the stand one Sullivan, a brother of the appellee, who gave testimony in behalf of the appellant upon other matters; and upon cross-examination it was fully proved by him that he was present when the streetcar company made settlement on account of the killing of his father; and that he and his brother renounced and waived their claim in favor of their sister, Mrs. Turner, who was then a minor, about fourteen years of age, and that the money was turned over to her guardian. Witness further testified that he was present when payment was made by the insurance company of the policy upon his father\u2019s life, and that money was paid to him and his brother, and the guardian of Mrs. Turner took charge of her part. This testimony was not disputed. Objection was made that this was 'not proper cross-examination. It was competent to be introduced as testimony in chief, and the witness became Mrs. Turner\u2019s for that, purpose, and there was no error in permitting this.\nThat these facts were properly proved by a competent witness, whose testimony is not disputed on this issue, prevent it being prejudicial for the same facts to -have been proved in an incompetent manner. If this was a disputed question, and the incompetent testimony was let in to throw weight on one side or the other, necessarily it would call for a reversal.\nJudgment is affirmed.",
        "type": "majority",
        "author": "HiEE, C. J."
      }
    ],
    "attorneys": [
      "Witt & Schoonover, for appellant; John B. McCaleb, of counsel.",
      "Henderson & Campbell and John T. Lomax, for appellee."
    ],
    "corrections": "",
    "head_matter": "Bispham v. Turner.\nOpinion delivered June 17, 1907.\n1. Evidence \u2014 hearsay.\u2014The ownership of money cannot be proved by rumor. (Page 333.)\n2. Appeal \u2014 harmless Erkor. \u2014 The admission of incompetent evidence was not prejudicial where the facts which it tended to prove were established by other evidence that was competent and not disputed. (Page 333.)\n3. Witnesses \u2014 cross-examination.\u2014It is within the trial court\u2019s discretion to permit a witness to be cross-examined as to matters not brought out on direct examination. (Page 333.)\nAppeal from Randolph Circuit Court; /. W. Meeks, Judge;\naffirmed.\nWitt & Schoonover, for appellant; John B. McCaleb, of counsel.\nWhere evidence is erroneously admitted, it is presumed to have been prejudicial unless the contrary is shown, and the burden is on the party introducing it to show that no prejudice resulted. 4 Ark. 527; 69 Ark. 653; 77 Ark. 431.\nHenderson & Campbell and John T. Lomax, for appellee.\nSejournant\u2019s testimony was competent, on the theory that ancestral estates, like pedigrees, can be proved by hearsay. 16 Cyc. 1224 b. But, if it was incompetent, it related to an undisputed fact, and was not prejudicial. 66 Ark. 587; 77 Ark. 74; Id. 453; 78 Ark. 7; Id. 374. Admission of incompetent evidence is not prejudicial- if the facts toward which it was directed were otherwise proved by competent evidence. 58 Ark. 125; 74 Ark. 417; 73 Ark. 453; 68 Ark. 607; 58 Ark. 374; Id. 446; 7 Ark. 542; 9 Ark. 545; 76 Ark. 276. A judgment which is right on the whole record will not be reversed although incompetent evidence was admitted, or improper instruction given. 44 Ark. 556; 19 Ark. 667; 43 Ark. 296; 46 Ark. 542; xo Ark. 9; 23 Ark. 115; 33 Ark. 811; 18 S. W. 762; 17 S. W. 879; 55 Ark. 31; 51 Ark. 459."
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  "file_name": "0331-01",
  "first_page_order": 351,
  "last_page_order": 354
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