5 Conn. Cir. Ct. 476 | Conn. App. Ct. | 1969
The plaintiff brought this action under § 52-435a of the G eneral Statutes, alleging she gave birth to a child on September 25, 1966, who was begotten about December, 1965, and that the defendant was the father of the child. After a trial to the jury a verdict was returned for the defendant and, judgment having been rendered thereon, the plaintiff appealed. At the conclusion of the evidence the plaintiff moved for a directed verdict, which motion was denied. After the verdict had been returned, the plaintiff moved to set it aside, but the motion was denied. The plaintiff further moved for judgment notwithstanding the verdict, and this motion was also denied. In her appeal from the judgment on the verdict, she assigns error in the denial of her motions and in certain rulings on evidence.
In reviewing the court’s action, we first consider whether on the evidence, a directed verdict for the plaintiff would have been proper. If that question requires an affirmative answer we then turn to the question whether error was committed in refusing to render judgment for the plaintiff notwithstanding
There was evidence from which the jury could have found that the plaintiff was single and had previously given birth to a child out of wedlock. The plaintiff testified she first met the defendant on Labor Day, 1962, and thereafter for a period of four or five months had relations with him. There was evidence, however, both oral and documentary, that during that period the defendant was a member of the armed forces stationed in Korea and that he did not return to the United States until June, 1963. During the fall of 1965 the defendant saw the plaintiff from time to time and had sexual relations with her. While there was evidence to the contrary, the jury could reasonably find that the last time such relations took place was on November 25, 1965. In January of 1966, the plaintiff learned she was pregnant. It was admitted that the defendant was informed of her condition and was accused by her of being the father. The baby was delivered September 25, 1966, and was a term size baby weighing seven pounds. The baby was exhibited to the jury, and they had the opportunity of viewing the child.
Much of the testimony came from a doctor, a specialist in the branch of surgery known as obstetrics, called by the plaintiff. He was asked what
The plaintiff claims that the court, in denying her motion, failed to apply the law as enunciated in Mosher v. Bennett, 108 Conn. 671, 674, wherein the court held that a prima facie case is made out by constancy of accusation, and such evidence “places upon the reputed father the burden of showing his innocence of the charge, and under our practice, he must do this by other evidence than his own.” Constancy of accusation, however, is not an essential element of the proceedings. Armstrong v. Watrous, 138 Conn. 127, 129. The plaintiff had made out a prima facie case on the basis of constancy of accusation sufficient to shift the burden of proof to the defendant. Palmieri v. Arnone, 114 Conn. 711, 712. There being no appeal from the court’s charge, it is to be presumed that the jury were correctly instructed on this subject. Lisa v. Yale University, 122 Conn. 646, 649.
The challenging issue raised by the plaintiff is whether there was sufficient evidence produced by the defendant to warrant the question of paternity going to the jury for their determination. In Mosher
The plaintiff further assigns error in a ruling of the court on evidence. On cross-examination she was asked if she knew a man named “Lennie” and she answered, “No.” She was then asked if she had gone to a Christmas party with “Lennie” and she answered, “No.” Such questions and answers came in over the plaintiff’s objection on the ground that such evidence was irrelevant and indicated no illicit relationship. Later, on direct examination, the defendant. testified that he was in the plaintiff’s home in December, 1965, and saw her leave for a Christmas party with a man named “Len.” The plaintiff objected to the evidence but was overruled and took an exception. Such questioning produced no evidence sufficient to show or impute wrong even if the events occurred as testified to by the defendant. Ferguson v. Smazer, 151 Conn. 226, 233. It has been held that mere association between the prosecutrix and another man is irrelevant. Seibert v. State, 133 Md. 309; State v. Patton, 102 Mont. 51; Brasseau v. Padlo, 113 Vt. 300; 1 Jones, Evidence (5th Ed.) § 170; note, 104 A.L.R. 84, 96. In the instant case the defendant contends that such evidence was offered solely to test the plaintiff’s credibility and was not offered for the purpose of laying a foundation which would lead to evidence of an illicit relationship with another man. The alleged untruthful
A calendar for the years 1965 and 1966 was received in evidence over the objection of the plaintiff. The court in admitting the calendar was of the opinion it would assist the members of the jury in refreshing their recollection. The plaintiff argued that the calendar was not the best evidence and that the matter of days of the week with days of the month should be left to the jury’s recollection without the aid of a calendar. The plaintiff relies on Beardsley v. Irving, 81 Conn. 489. We do not construe Beardsley to hold that a calendar is inadmissible, since that question was not before the court. The case involved a contract, and the date of its execution became material. The court held (p. 491) that a trial court should take judicial notice of the days of the week with the days of the month and the instructions as given may have misled the jury and induced its verdict upon an erroneous theory that June 3, 1906, was not Sunday. We think
Perhaps it should be pointed out that we do not weigh the evidence appearing in the record. “It is obvious that we might thus credit certain evidence which the jury discredited, and fail to credit certain evidence which the jury believed to be true. The correct rule requires that the evidence be studied to determine whether there exists a reasonable basis therein for the conclusions which the jury reached, and the presumption should be indulged that evi
The question of gestation as it bore on paternity we have already held was an issue of fact for the jury together with the other evidence and reasonable inferences which might be drawn. The court did not err in refusing to set the verdict aside. Since the court correctly refused to set aside the verdict, it necessarily follows that it properly denied the motion for judgment notwithstanding the verdict. Chanosky v. City Building Supply Co., 152 Conn. 642, 643.
There is no error.
In this opinion Wise and Kinmonth:, Js., concurred.