Robertson v. Campbell

• Decision Date: 16 December 1914
• Docket Number: No. 29469.,29469.
• Citation: 149 N.W. 885
• Parties: ROBERTSON v. CAMPBELL ET AL.
• Court: Iowa Supreme Court

149 N.W. 885

ROBERTSON

v.CAMPBELL ET AL.

No. 29469.

Supreme Court of Iowa.

Dec. 16, 1914.

Supplemental Opinion.

PER CURIAM.

[1] The ninth paragraph of division No. V of the original opinion [see 147 N. W. 304, near bottom of first column] is withdrawn, and the following is substituted:

It was also shown by many witnesses that throughout the Timber Creek neighborhood the appellant was generally reputed to be the child of Campbell; and there is as to that neighborhood no substantial dispute that such was so understood. We recognize that testimony of this kind cannot be determinative of the question, for busy tongues often create undeserved reputations; but it is competent evidence as bearing upon the question of paternity, when supplemented by substantive facts tending to show that such reputed relation actually existed. Hays v. Claypool, 145 N. W. 874, supra; Tout v. Woodin, 137 N. W. 1001, supra; Alston v. Alston, 114 Iowa, 29, 86 N. W. 55;Van Horn v. Van Horn, 107 Iowa, 247, 77 N. W. 846, 45 L. R. A. 93. But such evidence could not go to the question of recognition, which is a distinct and necessary ultimate fact in cases of this nature, affirmative in character, and not properly deducible from reputation.

[2] Evidence was introduced, over objection as to its competency, tending to show the declaration of Campbell about the time the early suits were brought or pending, and later that the child was not his. The objection that such denials may not be considered, as they are self-serving declarations, invokes a rule which we think too narrowly limits the field of legitimate inquiry in cases like this. Recognition of itself involves affirmative acts or statements, in a sense declarations, but more properly to be received and considered as substantive proof of the fact rather than an admission of the fact. As going to the question of general and notorious recognition, and as evidence tending to rebut that fact, we think that proof of denials of paternity is competent, to be weighed by the circumstances under which such denials were made.

There was proof tending to show that Campbell said the child was not his; that her father was a physician of the neighborhood; and much evidence was introduced to show a resemblance in hair, actions, and other respects between her and the physician. Beyond the fact of some resemblance, there was no proof that she was the child of the physician. There was evidence to the effect that, during the pendency...