105 Kan. 632 | Kan. | 1919
The opinion of the court was delivered by
About 1870 Ernest Broquet came to this country from Belgium. In 1873, shortly before settling on a ranch in Norton county, Kansas, he was married to Mary Blue. Five children were born of this marriage. About 1883 his mother came to this country and settled in Norton. She died April 18, 1907, leaving a will executed March 27, 1905, by which her son Leon was to have half of her real property in this country, and the remaining half was to be divided equally among the living children of her son Ernest, who had died in 1905. The five children referred to all survived her. They conveyed their interest in the real estate in Norton county to the Nor
Findings of fact were made, which concluded with the statement that the trial court was unable to find from a preponderance of the evidence that the plaintiff was the child of Ernest Broquet. Unless this court reaches a different conclusion on this issue (the evidence therem being substantially all in the form of depositions) no other question need be considered. The decision of the trial court is entitled to great weight, but is not absolutely controlling. (Belknap v. Sleeth, 77 Kan. 164, 93 Pac. 580.)
It was shown, and was not disputed, that on May 22, 1895, Ernest Broquet obtained a divorce from his wife, in Edwards county, and on July 1, 1895, was married in New York city to a woman described in the certificate as Marineti Atero de Romero, from whom he was divorced in Kansas City, Mo., on February 3, 1898. The plaintiff claims to have been born of this marriage on November 8, 1896. Ernest Broquet was remarried to his first wife November 14, 1901. The real name of his second wife was Sarah Malissa Tevis. In the home of her mother, Mrs. Lora Tevis, in Kansas City, the plaintiff was reared, having been generally known as Gertrude Tevis, and having been introduced by Mrs. Tevis as her daughter. The plaintiff testified that she had never adopted the name Broquet —had never come out and claimed to be a Broquet — until she brought this suit..
The plaintiff’s claim that Broquet was her father was supported by the direct testimony of the second Mrs. Broquet, supported by her own evidence and that of relatives and friends to the effect that such had been their understanding. One witness outside of the family testified that while the plaintiff was a little child he had heard Broquet say she was his daughter. A dentist testified that when she was about four years of age Broquet had brought her to him for some work. The defendant introduced evidence tending to identify
If this were all the evidence, there would be difficulty in reaching á satisfactory solution of the question of fact. Doubtless the circumstance that ten years was allowed to elapse between the death of Broquet’s mother and the assertion of the plaintiff’s claim is a matter to be considered, not only as having a tendency to suggest a suspicion of its good faith, but as increasing the difficulties of the defendant in ascertaining, and showing the real facts on which the case turns. Of these facts Mrs. Broquet alone of all the witnesses produced has actual knowledge, so that anything throwing light upon the weight that should justly be given her evidence is of the first importance. That the obligation of her oath rested somewhat
After the issue as to the plaintiff’s age had been partially developed by the taking of depositions in behalf of the defendant, and a group photograph taken in 1899 had been produced in which was included the picture of the girl Herbie (or Herba) or Gertrude Tevis, with whom it was sought to identify her, a witness for. the plaintiff living in Chicago, who testified very strongly for her in other respects, produced what she and Mrs. Broquet swore was a photograph of the plaintiff, taken in 1897. It showed a baby about a year old, sitting in a collapsible baby carriage or cab. The card on which the picture was mounted had been roughly cut off close to the photograph itself, an act for which no explanation was offered, but which probably had the effect of detaching the name of the photographer. Mrs. Broquet said she was unable to remember with certainty in what city the picture had been taken. A witness called by the defendant testified that he was and had been for about eight years the trustee and licensor for patents for collapsible baby carriages, and was a salesman for and a stockholder in the company which was the original manufacturer of them, beginning in 1906; that there were no collap
The plaintiff’s paternity is the more open to question from the circumstance that while on the stand Mrs. Broquet stated that she had had two other children, each born out of wedlock, one before the plaintiff’s birth and one after, neither being the child of Broquet. In order that the judgment may be affirmed it is not necessary that the plaintiff’s paternity be determined, or that Broquet be proved not to have been her father. It is enough for the purpose if, as the trial court found, the plaintiff’s claim of being his child shall lack the support of a preponderance of the evidence. In view of the successful and striking impeachment of the witness upon whose story the claim is based, we are led to the conclusion that there is no preponderance of evidence in its support.
Several matters were brought out in the evidence to which we have omitted reference because they are regarded as of minor importance and because their bearing could be made to appear only by considerable elaboration, which, by making the statement more intricate, might have the effect of obscuring rather than clarifying the issues. It is our view, however, that the net effect of this evidence is to strengthen the defendant's case, rather than that of the plaintiff.
The plaintiff contends that the defendant is bound by the evidence of Mrs. Broquet and two relatives contained in their depositions which were introduced by it. The rule that a party may not impeach his own witness does not go so far as to prevent his contradicting and thereby discrediting the testimony of a witness called by him. (Deering v. Cunningham, 63 Kan. 174, 65 Pac. 263.)
The judgment is affirmed.