# Kelly v. Consolidated Underwriters

> Court of Appeals of Texas · December 3, 1927 · 300 S.W. 981

URL: https://www.frixlaw.com/law-library/cases/9828488

## Case

- **Full name:** KELLY Et Al. v. CONSOLIDATED UNDERWRITERS
- **Court:** Court of Appeals of Texas
- **Decided:** December 3, 1927
- **Citations:** 300 S.W. 981
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Walker
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9828488

## Opinion text

On Rehearing.
Appellee insists that we are in error in holding that George Browm, the husband of Louisa Kelly, died about Thanksgiving, 1925. The facts on this issue are as follows:
Eola Chase, a niece of appellant, testified:
“I have been living at Beaumont, Tex., since about September, 1925. At that time Aunt Lou (appellant) was at home. She just had come from Mississippi the week I came up here, and spent a week at home, but I left there. * * * I don’t know how long she was in Mississippi. I couldn’t say whether it was as much as a year. * * * When she left to go there, I was at home in Amelia. * * * I never knew George Brown. I knowed of one George Brown, the George Brown she married in Mississippi, but I have not even seen George Brown. I just heard her talk about him. She married him in Mississippi. I don’t know what year she was married to him. She told me that she married George Brown in Mississippi. * * * That George Brown was not raised right there in Amelia, La. I didn’t know him personally. I couldn’t tell you where he is now; I heard that he is dead. * * * She wrote me a letter dated at Moss Point, and said she had gotten married to a man by the name of George Brown. * * * The last time I heard about him they said George was dead. * * * I also heard her say, ‘We were married at Moss Point, Jackson county, Mississippi in 1922, I think.’ And also that ‘George Brown is now living at Amelia, La.’ * * * I heard that George Brown was dead since I have been over in Texas, because I never have gone back home. Yes; I did hear that George was dead. That was after Joe was killed. I heard about that after-wards; yes, sir. I don’t know how long he had been dead at the time I heard it. I don’t know when he died. I just heard that George Brown was dead.”
Jesse Brown testified:
“My name is Jesse Brown; I live at Morgan City, La., and am 35 years old. I know Louisa Kelly. I have known her a pretty good while. I have only known her by the name of Louisa Kelly. I knew Joe Kelly. I worked under him. He got killed. That is the same Joe Kelly that was working for Mr. Ferguson. I have worked for Mr. Ferguson.- I knew a man by the name of George Brown. I knew him at Morgan City. I knowed him ever since I can remember, myself. George is dead. He died about Thanksgiving, 1925. He was a relation of mine. He and my father were brothers. He was my uncle; yes, sir. I was there when they buried him. He died of some kind of hemorrhage. He was sick for two or three days before he died. I was in New Orleans when he died; but I come up. I don’t know anything about George Brown and Louisa living together. I don’t know anything about my uncle, George Brown, living with Louisa Kelly; no, sir. I don’t know where he died; but it was out on a farm in Louisiana. I don’t know how far it is from Amelia, or from Morgan City. As to what the closest town was, well, you get off the train at Raceland Junction, and then it is about ten miles out in the country. I was there shortly after he died; yes, sir. He died about Thanksgiving, 1925. Louisa Kelly is colored. I don’t know what her maiden name was. George Brown was colored, and so was Joe Kelly. I couldn’t say whether the George Brown I spoke of was married to Louisa, because I wasn’t at no wedding or anything like that.”
Louisa Kelly, appellant, testified:
“I married a man by the name of George Brown at Moss Point, Miss. * * * It was after I heard that Joe was dead that I contracted to marry George Brown. I afterwards learned that Joe was alive, and I separated from Brown after that time. * * * As to how long it was before I rejoined Joe that I saw Brown — well; I saw Brown when I left home, and I left there in 1925, and lm was there when I left on the 20th day of October. I saw him two or three days before I left there. He was living when I left. Boeuf, La., is my home, which is the same as Amelia. The railway station is named Boeuf, and the post office is Amelia. After I left home in October I came to Beaumont, to Joe. * * * I have not seen Brown any more since 1925. I have not been back to Amelia since then. * * * When Joe went off in 1919 he left me at Amelia. I went to Mississippi a year after *984 that. Yes; I went there in 1920, to Jackson county. Miss. It was there that I married George Brown. I had not known George before that tíme. I met him over in Mississippi. I got my license on the 12th of March, 1920. * * * I continued to live there with George Brown from March, 13, 1920, up to 1925; then I came back to Amelia. * * ' * I have not seen Brown any more since 1928. The last time I saw him was in 1925 at Amelia. * * * As to whether George had been raised at Amelia, no; I don’t know where he was raised.”
Morgan City was six or. seven miles from Amelia.
We have taken the following brief of authorities from article, “Identity,” Ency. of Ev. vol. 6, p. 910:
The general rule is that identity of name is evidence of identity of person, and in the absence of controverting evidence is sufficient to raise a presumption to that effect. But this is a rule of convenience and is limited both in its application and its effect by the purposes and attending facts of the judicial' hearing in which the issue is involved. Thus in Bryan v. Kales, 3 Ariz. 423 , 31 P. 517 , it was said;
“An examination of authorities will show that this rule of evidence is not one of universal application; that it grew out of the general presumption in- favor of the validity of contracts, the regularity of land titles, and the integrity of records; that, wherever its effect would be to negative these general presumptions, the reason of the rule ceasing to exist, the rule itself becomes inoperative.”
In Ellsworth v. Moore, 5 Iowa, 486 , the court refused to apply the rule in a case where the judge was “Honorable J. D. Thompson,” and one of the attorneys of record was “J. D. Thompson.” In Prescott v. Tufts, 7 Mass. 209 , where the name of the plaintiff was the same as the name of the trial judge, identity of person was not presumed. In Richardson v. Dugger, 85 Ill. 495 , where the name of the county judge who approved a conservator’s bond and that of the surety were the same, the presumption was not indulged. Again, the presumption was denied where one of the parties to a suit was the same name as the sheriff who- served the process. Howard v. Locke (Ky.) 22 S. W. 332 ; Waller v. Edmonds, 47 Tex. 468 . That two of the petit jurors have the same name as two of the grand jurors does not raise the presumption was held in Wickersham v. People, 1 Scam. (2 Ill.) 128. The rule was not invoked where the plaintiff and an officer taking his affidavit as an incident to the trial had the same name. Dorente v. Sullivan, 7 Cal. 279 . Where the plaintiff and the defendant have the same name, the presumption is not indulged. Wilson v. Benedict, 90 Mo. 208 , 2 S. W. 283 ; Allin v. Shadburne, 1 Dana (Ky.) 68, 25 Am. Dec. 121 . But, there are au-' thorities to the contrary. Sweetland v. Porter, 43 W. Va. 189 , 27 S. E. 352 ; Tavenner v. Barrett, 21 W. Va. 656 . It is corroboration of identity of name to show fhat only one person of that name resided in the same vicinity. Savery v. Moore, 71 Ala. 236 . The time when a person became a resident of the state or of the community may be relevant. Keck v. Woodward, 53 Tex. Civ. App. 267 , 116 S. W. 75 . And to show that another person of the same name resided in the same vicinity weakens the presumption, but does not destroy it. Jackson v. Cody, 9 Cow. (N. Y.) 140; Flournoy v. Warden, 17 Mo. 435 ; Cuddy v. Brown, 78 Ill. 415 . That the name is a very common name weakens the presumption. Wilson v. Holt, 83 Ala. 528 , 3 So. 321 , 3 Am. St. Rep. 768 . However, there is respectable authority for the proposition that the presence of another party of the same name in the. same vicinity destroys the presumption. Garrett v. State, 76 Ala. 18 ; Jones v. Parker, 20 N. H. 31. The rule that identity of person can be presumed from identity of name has its most frequent application to chains of conveyances of real estate. The general principles of the rule are illustrated by the authorities cited. In this state the evidentiary value of identity of name depends upon whether the question of identity is seriously controverted. It has been held:
“Similarity of name is held to be sufficient to establish identity of the person, when there is no evidence to the- contrary, and no suspicion cast upon the transaction by the evidence; but in case the identity is controverted, then similarity of name alone is not sufficient to establish such identity. Robertson v. Du Bose, 76 Tex. 1 [ 13 S. W. 300 ]. It depends upon the issue made by the evidence as to whether or not the similarity of name is sufficient. McNeil v. O’Connor, 79 Tex. 229 [ 14 S. W. 1058 ]; Fleming v. Gibboney [Giboney] 81 Tex. 427 [ 17 S. W. 13 ], If the issue is that the deed was not executed by the person in question, then the identity of the person is put in direct issue, and if evidence be introduced tending to prove that the person who executed the deed was not the person in question, similarity of name alone will net be sufficient to establish the fact. If the issue be that a given person did not sign the deed, then similarity of name is sufficient to connect the links in the chain, of title.” Jester v. Steiner, 86 Tex. 415 , 25 S. W. 411 .
Our conclusion that George Brown, the ceremonial busband of Louisa Kelly, died about Thanksgiving, 1925, can be supported only by invoking the rule that identity of person can be presumed from identity of name. Under the Texas rule, on the fasts of this case, the conclusion that the George Brown, who died at Morgan City at Thanksgiving, Í925, was the husband of Louisa Kelly, would not follow on identity of name alone. But the evidentiary value of the presumption is strengthened by the following circumstances: (a) The witness Eola Chase testified, without objection from appellee, *985 that she had heard that George Brown, appellant's husband, was dead; (b) George Brown and appellant lived in Mississippi from 1920 until September, 1925, when they moved to Amelia; Amelia, Morgan City, and Boeuf were in the same immediate neighborhood; the George Brown who died Thanksgiving, 1925, was a resident of Morgan City, that is, he lived near Morgan City, and it was near this place where appellant last saw her husband; (c) it was not shown that any other George Brown lived in that community. The fact that Jesse Brown did not know of the marriage of his uncle to Louisa Kelly has very little probative force. . Louisa Kelly had been known to Jesse Brown for a long time, but he had not seen her since 1920. His .uncle, George Brown, died on a farm somewhere near Amelia or Morgan City. The witness did not know whether his uncle was married to Louisa, to quote his language, “because I wasn’t at no wedding or anything like that.” Indulging the presumption and giving it the benefit of the corroborating circumstances, we believe the conclusion follows as one of law that the George Brown who died in 1925 ■was the husband of appellant.
However, because of the practice .controlling judgments in compensation cases, appellee can suffer no injury from this conclusion, since the trial court has the authority to correct its judgment if it is based on a mistake of fact. Reviewing the 'record, it is our conclusion that appellee’s motion be and the same is hereby granted, and that the cause be remanded to the trial court, with instructions to enter judgment in favor of appellant for the amount of compensation as per agreement filed in that court, reserving to itself the power to reopen the case and set aside the judgment upon a showing that George Brown, the husband, is, in fact, living. But appellee shall continue to pay compensation under the judgment until that fact shall have been judicially ascertained.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9828488. Public record. Not legal advice.