Rydell, T.

English

Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 41 | Issue 1 Article 11April 1964Paternity - Presumption of Legitimacy - ProofNecessary to Rebut PresumptionT. RydellFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion inChicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contactdginsberg@kentlaw.iit.edu.Recommended CitationT. Rydell, Paternity - Presumption of Legitimacy - Proof Necessary to Rebut Presumption, 41 Chi.-Kent L. Rev. 136 (1964).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol41/iss1/11CHICAGO-KENT LAW REVIEWindicate that some portion, at least, of the refreshing material wasprepared by the witness in his own words and was available todefendant under our prior decisions.21In summary, it clearly appears that under the Illinois adoption of theFederal rule, as clarified in Scott, the defendant in a criminal prosecutionmay have access to a testifying witness's prior statements which are in thehands of the prosecution. That is true regardless of whether the statementsare used in refreshing memory while on the stand or not.22R. HANKINPATERNITY1-PRESUMPTION OF LEGITIMACY-PROOF NECESSARY To RE-BUT PRESUMPTION-In People v. Monroe, 43 Ill. App. 2d 1, 192 N.E.2d 691(2d Dist. 1963), the Appellate Court of Illinois was confronted with thequestion of whether the presumption of legitimacy of a child conceivedduring wedlock was overcome by the wife's testimony that she had no inter-course with her husband during the possible period of conception. In thetrial court, the jury found that the evidence presented by the wife wassufficient to rebut the presumption and that the defendant paramour wasthe father of her child. On appeal, the defendant contended that the pre-21 People v. Scott, 29 Ill. 2d 97, 193 N.E.2d 814, 821 (1963).22 Interestingly, it is equally apparent that the United States Court of Appeals,Seventh Circuit, feels the traditional view should prevail in civil litigation; that no abso-lute right exists in the examining party to demand inspection of a writing not used bythe testifying witness in refreshing his memory on the stand. In Goldman v. Checker CabCo., 325 F.2d 853 (7th Cir. 1963), decided since the Scott decision, the plaintiff broughtan action for alleged injuries sustained while a passenger in the defendant's taxi whichwas allegedly struck from the rear by another of the defendant's vehicles. The Court heldthat the trial court erroneously quashed the deposition of the plaintiff's physician who hadtreated the plaintiff from the date of the accident to the trial. The osteopath, testifyingin his office from memory alone, refused the defendant's demand that he produce hisrecords of the treatment of the plaintiff. For that reason, the trial court quashed he depo-sition. In reviewing the transpirings below, the Court of Appeals cited Echert, but madeno mention of Jencks. Justice Kiley, speaking for the Court said: "Since the doctor testi-fied from memory alone, defendant was not entiled to have the records produced at thetaking of the deposition. Echert v. United States .... The opportunity given by the districtcourt to bring the doctor from Missouri with his records did not cure the error. . . . Ifdefendant wishes to obtain Dr. Gould's records, it has the opportunity to do .so by appro-priate procedures on remand."An interesting question which arises inferentially in Goldman v. Checker Cab Co. iswhether the decision limits the discretion of the trial court, previously considered partand parcel of the traditional view. The question may be answered when it is rememberedthat since the witness's testimony was under deposition, the trial court acutally had nodiscretion to compel inspection. Therefore, since there is no absolute right under the tra-ditional view to inspect, no reason then existed to quash the deposition, especially inview of Fed. R. Civ. P., Rule 45(b), which provides: "For Production of DocumentaryEvidence. A subpoena may also command the person to whom it is directed to producethe books, papers, documents, or tangible things designated therein.1 111. Rev. Stat. ch. 106 3/4 (1963).DISCUSSION OF RECENT DECISIONSsumption of legitimacy had not been rebutted since the principal factor inthe plaintiff's evidence was her own self-serving testimony that she had notcopulated with her husband at or around the period of conception. TheAppellate Court agreed with the putative father and reversed the trialcourt's judgment.The plaintiff was a married woman at the time the child in questionwas conceived in June, 1959, but was divorced from her husband on Janu-ary 19, 1960; the child was born out of wedlock on March 10, 1960. Theevidence produced at the trial indicated that the plaintiff and defendanthad been carrying on an illicit clandestine affair at the time the child wasconceived. Both plaintiff and defendant had engaged in discussions with adoctor about the expectant child. The other five children of the plaintiffand her husband were dark complected, with dark eyes and dark hair liketheir father, who was Spanish. However, the child in question had a veryfair complexion, blue eyes and light blond hair. The wife testified thatalthough she lived in the same house with her husband, she had not sleptin the same bed or bedroom with him since 1955, and they did not speakto each other. This was verified by a son. On direct examination, she testi-fied that she had had intercourse with her husband once since meeting thedefendant and to the best of her knowledge that was in 1957. On cross exami-nation, however, she testified that she had intercourse with her husbandone time while living with him in the same house from 1957 to 1960. Therewas evidence that the plaintiff and defendant were on a one week vacationtogether about the 1st of June, 1959, the period during which the childwas likely conceived. The defendant denied he had ever had sexual relationswith the plaintiff and testified that he was on a fishing trip by himself aboutthe 1st of June, 1959, but could not recall the names of any motels wherehe had sojourned.Although the presumption of legitimacy arising from birth in wedlockwas once considered practically conclusive in England, the majority of thecourts in the United States now hold that the presumption is rebuttable,2but differ as to the nature of the evidence necessary to overcome the pre-sumption. The Illinois courts have stated that the presumption is overcomeby proof that the husband was impotent or that he had no possibility ofaccess to the wife at the time of conception. 3 The degree of proof necessaryto rebut the presumption of legitimacy in Illinois has been variously stated2 Re Findlay, 253 N.Y. 1, 170 N.E. 471 (1930); Wilson v. Wilson, 174 Ky. 771, 193S.W. 7 (1917); Arthur v. Arthur, 262 Ala. 126, 77 So. 2d 477 (1955).3 In People v. Gleason, 211 Ill. App. 380 (1st Dist. 1918), the presumption of legiti-macy was overcome where it was shown that the wife did not meet her husband untilAugust, 1917; married him on December 3, 1917; and the child was born on December 8,1917; whereas she had been having sexual relations with the defendant from June, 1916to June, 1917. Also, in Robinson v. Ruprecht, 191 Ill. 424, 61 N.E. 631 (1901), the pre-sumption failed even though the legal husband was living in the same state as the wife,but had no access to her and both the wife and the paramour were not aware of thehusband's residence.CHICAGO-KENT LAW REVIEWas "clear and conclusive,"4 "dear and convincing," 5 and "clear and irre-fragable." 6 The burden of proof is upon the person alleging illegitimacy7and the presumption cannot be "shaken by a mere balance of probabili-ties.' 8 The husband is presumed to be the father of a child conceived dur-ing coverture even if the marriage is terminated prior to birth, unless it canbe shown that the husband did not cohabit with the wife at the time shebecame pregnant.9At common law both the husband and wife were considered incom-petent to testify to the husband's nonaccess to the wife, where such testi-mony would tend to bastardize or prove a child conceived after marriageillegitimate.10 The reason often given for holding the wife incompetent totestify to the access or nonaccess of the husband is one of "public decencyand morality."1 However, a wife may give evidence of illicit relations withother men on the grounds that this information could not otherwise beobtained because of the secrecy which necessarily surrounds such relations. 12Therefore, if the wife may testify to the lurid details of an extra-maritalaffair in open court, there would seem to be no reason to shelter the publicfrom her testimony regarding intimacies (or lack thereof) with her husband.Nevertheless, the wife's incompetency to testify to her husband's nonaccessstill persists in many states unless abrogated by statute. The reason for thisinconsistency is that the courts are not so much interested in protecting the"public decency and morality" as they are in sheltering the child from thestigma of illegitimacy.An early Illinois Appellate case'8 followed the common law rule instating that the mother could not deny the presumption of legitimacy,where the child is born in wedlock, for reasons of public decency and mo-rality. However, this same court said:S .* . This prohibition does not apply to her competency as awitness, but is a rule of law governing any right of action whichshe may set up, involving such bastardism of her own offspring,born in wedlock.14The Illinois Supreme Court has held, in reviewing a bastardy proceeding,that the husband is incompetent to testify as to the nonaccess to the wife,4 Sugrue v. Crilley, 329 II. 458, 160 N.E. 847 (1928).5 Dill v. Patterson, 326 Ill. App. 511, 62 N.E.2d 249 (4th Dist. 1945).6 Orthwein v. Thomas, 127 Ill. 554, 21 N.E. 430 (1889).7 Zachmann v. Zachmann, 201 Ill. 380, 66 N.E. 256 (1903).8 Orthwein v. Thomas, supra note 6.9 Drennan v. Douglas, 102 I11. 341, 40 A.R. 595 (1882). Also, see Zachmann v. Zach-mann, supra note 7, wherein a child born 20 days after the mother divorced husband #1and 15 days after her marriage to husband #2 was considered to be the child of hus-band #2.10 Goodright v. Moss, 2 Cowp. 594, 98 Eng. Rep. 1258 (1777).11 Rex v. Rook, 1 Wils. 340, 95 Eng. Rep. 651 (1752).12 Rex. v. Reading, 95 Eng. Rep. 49 (1734).13 Vetten v. Wallace, 39 Ill. App. 390 (4th Dist. 1890).14 Id. at 397.DISCUSSION OF RECENT DECISIONSbut she is given the "unqualified right to testify." After discussing the lawof England, Justice Heard said:* .*. . In this country in earlier times there was much diversityof opinion as to the competency of the wife. There does not seemto have been any as to the incompetency of the husband. This ledto the enactment of statutes on the subject in many States, whilein some the old English law still prevails. In this state under theearly statutes the question could never arise as only unmarriedwomen were given the benefit of those statutes. In 1919, the word'unmarried' was elided from the Bastardy act and married womenwere given the benefit of the act. By this act the prosecutrix is spe-cifically given the unqualified right to testify.' 5Today, Illinois still has the same statutory provision, although it has beenrenamed the "Paternity Act," which declares the mother and the accusedin a paternity action to be competent witnesses and their credibility to beleft to the jury.16In the instant case, 17 the Appellate Court, Second District, in revers-ing the lower court, held, as a matter of law, that the presumption of legiti-macy had not been overcome by the wife's testimony that she had not hadintercourse with her husband during the period in which conception likelyoccurred. The court, without definitely indicating whether it was objectingto the wife's competency or to her credibility, stated:.... Her [plaintiff's] case was based primarily upon her own tes-timony of no intercourse and our courts have held that a wife willnot be allowed to make such a statement as long as she is livingwith her husband.' 8It is difficult to rationalize the Appellate Court's opinion in the light ofthe Illinois Supreme Court's pronouncement that the mother has an "un-qualified right to testify" and the legislative mandate that the credibilityof her testimony is to be left to the jury. It would seem that an unwarrantedrestriction is being placed upon the wife's testimony.In Illinois, a paternity action is a civil proceeding and it is only neces-sary to prove by a preponderance of the evidence that the defendant is thefather of the child. However, to overcome the presumption of legitimacyof a child conceived in wedlock and born within a competent time there-after, the proof must be "clear and irrefragable." The instant case createsthe anomalous situation whereby the jury may find the defendant to be thefather of the plaintiff's child, but nevertheless must find upon the sameevidence that the plaintiff's child is legitimate. It is difficult to imagine apaternity action where a mother would be able to produce more convinc-ing evidence than was presented in People v. Monroe.15 People v. Dile, 347 Il. 23, 27, 179 N.E. 93, 95 (1931).16 Ill. Rev. Stat. ch. 106 3/4, sec. 56 (1963).17 People v. Monroe, 43 Il. 2d 1, 192 N.E.2d 691. (2d Dist. 1963).18 Id. at 8, 192 N.E.2d at 694.CHICAGO-KENT LAW REVIEWThe best method to eliminate this seemingly unconquerable barrier ofthe presumption of legitimacy, where the mother is married, would seemto be by the use of blood tests, whenever possible, showing that her husbandwas not the father of her child. 19 If the mother could eliminate the pre-sumption of legitimacy by excluding her husband from any possibility ofbeing assumed to be the father, then she could obtain a favorable adjudica-tion in her paternity action by proving the defendant to be the father ofher child by a mere preponderance of the evidence. Of course, the courtmay always order the mother, child, and alleged father to submit to bloodtests; but the results of such tests are admissible in court only to exclude thedefendant as being the father of the child and never as affirmative proof ofguilt.20T. RYDELLTORTS-RES IPSA LOQUITUR-LIABILITY OF ROPE MANUFACTURER-Arecent decision of the Appellate Court of Illinois in May v. ColumbianRope' serves to underscore the longevity and progression of the doctrineof res ipsa loquitur.The case arose out of an accident that occurred at a construction sitewhen a one-half inch, three-strand Manila line, manufactured by Colum-bian, broke and caused the plaintiff to fall and sustain injuries. Theevidence presented by the plaintiff was entirely circumstantial, consist-ing of the offending rope and the plaintiff's own testimony that on themorning of the accident the rope was "brand new," having been deliveredto the job and placed in use only some 45 minutes before it broke. Thistestimony was seemingly corroborated by the deposition of a fellow work-man, and by the direct testimony of the man who delivered the rope to thejob site. A further point made by the delivery man was that the rope ap-peared to be dirty when he delivered it, as if it had been used.2To rebut the inference of negligence arising from the circumstan-tial evidence put forward by the plaintiff, the defendant, Columbian,introduced extensive evidence pertaining to its manufacturing processes,arguing that its testing and safety procedures "showed it to be in theexercise of all due care in the manufacture of its rope.8 This evidencewas buttressed by the testimony of an expert witness that the "dirty" ropein question was not new, as the plaintiff had testified. In concluding its19 Ill. Rev. Stat. ch. 106 3/4, § 5.20 Ill. Rev. Stat. ch. 106 3/4, § 1.1 40 Ill. App. 2d 264, 189 N.E.2d 394 (1st Dist. 1963).2 Id. at 279, 189 N.E.2d at 400. The court took notice of the fact that the workmangiving the deposition freely admitted that an illness had left him with an impaired mem-ory and capacity for narration and that he was "hazy" about such events which had hap-pened long ago.3 Id. at 269, 189 N.E.2d at 396.

Paternity - Presumption of Legitimacy - Proof Necessary to Rebut Presumption

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Paternity - Presumption of Legitimacy - Proof Necessary to Rebut Presumption

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