Farrell v. Weitz

• Decision Date: 02 January 1894
• Citation: 160 Mass. 288,35 N.E. 783
• Parties: FARRELL v. WEITZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 288

35 N.E. 783

FARRELL v. WEITZ.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1894

COUNSEL

Thomas Riley, for plaintiff.

George H. Towle and Clarence W. Rowley, for defendant.

MORTON, J.

1. The declaration of Leary was mere hearsay. The fact in issue was the paternity of the child, and the defendant could not establish, by the declarations and admissions of a third party, made in the absence of the plaintiff, that another person was the father. Young v. Makepeace, 103 Mass. 50; Boyle v. Burnett, 9 Gray, 251. The fact that the declarations and admissions were those of the person whom the defendant alleged to be the father did not render them competent. Even in questions of pedigree, the relationship must be established in the first instance by some proof independent of the declaration itself. Tayl.Ev. (8th Ed.) § 640.

2. The circumstances under which the photograph was offered are not disclosed. It is possible that it was excluded because the court thought that it was not sufficiently verified. If that was the reason, then the ruling was not subject to exception. Com. v. Morgan, 159 Mass. 378, 34 N.E. 458. It does not appear from the exceptions how old the child was, nor that any description was given of Leary's personal appearance. The offer of the photograph appears to have rested simply on the fact that it was a photograph. It is manifest that the photograph would throw no light in some material particulars on Leary's personal appearance, such as the color of his eyes, hair, and complexion. There was no testimony even that it was a good likeness, though we do not mean to intimate that, if there had been, it would have been admissible. Juries have been permitted to consider the result of their own observations when the child and putative father were both in court, and photographs have been admitted in a great variety of cases, and in some instances to prove identity. But the question in the present case is whether, as the exceptions stand, the exclusion of the photograph was wrong. We cannot say that it was. Exceptions overruled.