354 Mass. 757

March 27, 1968

The defendant was convicted in the Fourth District Court of Berkshire on a complaint that "being the father of two illegitimate children of Marilyn Johnson . . . [he] did neglect or refuse to contribute reasonably to their support and maintenance in violation of . . . [G. L. c. 273, Section 15]," and was "adjudicated the father of these children." Upon appeal to the Superior Court he was again convicted. The case comes here on the defendant's exceptions to the admission of certain evidence and the denial of his motion for a directed verdict. Marilyn Johnson, called as a witness by the Commonwealth, testified that the defendant "was not the father of the children." The defendant took exceptions to the admission in evidence of prior inconsistent statements made by Marilyn Johnson to the judge of the District Court and to an investigator of the Public Welfare Department of the town of Adams to the effect that the defendant was the father of the two children. The defendant did not request the trial judge to "instruct the jury that the prior inconsistent statements would be admissible on the grounds of credibility only." If there had been a request, instruction should have been given that (see Leach and Liacos, Handbook of Massachusetts Evidence [4th ed.] 118; see also Leavitt v. Maynes, 228 Mass. 350, 353-354) the evidence would be considered only as it affects the weight to be accorded the witness' testimony. It was, in any event at most, only cumulative. There was also testimony by two other witnesses that Marilyn Johnson admitted on prior occasions that the defendant was the father of the two children. The defendant did not object to the admission of this evidence and it was entitled to its "natural probative force." See DuBois v. Powdrell, 271 Mass. 394, 397; Regan v. John J. Amara & Sons Co. 348 Mass. 734, 737. There was no error.

Exceptions overruled.


354 Mass. 757

March 28, 1968

The demurrer to the petition for writ of mandamus to require reversal of the respondents' action on the petitioner's application and examination was rightly sustained. The respondents having acted, mandamus is not an appropriate remedy. Howe v. Attorney Gen. 325 Mass. 268, 270, and cases cited. Harding v. Commissioner of Ins. 352 Mass. 478, 480.

Order sustaining demurrer affirmed.


354 Mass. 757

March 28, 1968

This case in which the jury found for the defendant should not have gone to the jury. There was evidence that the minor plaintiff (hereinafter the plaintiff) fell over a stick of new lumber at about 6 P.M. on October 10, 1961, while playing, pursuant to an implied general invitation, in the parking lot adjacent to a church. Three hundred feet away the defendant was building on the church property a rectory and had left there new lumber including sawed pieces. The defendant knew that children played in the churchyard and in the area where work was being performed. The judge ruled that the site of the accident was not part of the premises in the defendant's control. The plaintiff's case is rested on this view of the evidence.

Page 758

The brief asserts that the place of injury was "far removed from the construction site." The plaintiff, in tripping, fell into woods owned by the church adjacent to the parking lot and was cut on a broken bottle. Assuming without deciding that the bottle could have been found to have been broken and left by the defendant's employees in the course of their lunch time activities, nevertheless in the circumstances their carelessness on their own time away from the construction site was not chargeable to their employer. Assuming, also without deciding, that the jury could have found that the stick of lumber came from the site, due care did not require that the defendant guard against the purloining of construction material not inherently dangerous. It was not a breach of duty to a child on other premises than the construction site to leave cut timber at the place of work. The excluded contract would not have shown negligence.

Plaintiffs' exceptions overruled.

Defendant's exceptions sustained.