Prochnow v. Prochnow

80 N.W.2d 278, 274 Wis. 491, 1957 Wisc. LEXIS 422

• Court: Wisconsin Supreme Court
• Decided: January 7, 1957
• Status: Published

Opinions

Brown, J.

The trial judge found the fact to be that Robert is the father of Joyce’s child. The question is not whether, on this evidence, we would have so found: What we must determine is whether that finding constituted reversible error.

Sec. 328.39 (1) (a), Stats., commands:

“Whenever it is established in an action or proceeding that a child was born to a woman while she was the lawful wife of a specified man, any party asserting the illegitimacy of the child in such action or proceeding shall have the burden of proving beyond all reasonable doubt that the husband was not the father of the child. . . .”

Ignoring for the moment the evidence of the blood tests and the effect claimed for them, the record shows intercourse between married people at a time appropriate to the conception of this baby. The husband’s letters after the child’s birth acknowledge it is his own. The wife denies intercourse with any other man during the entire period when she could have conceived this child. Unless we accept the illegitimacy of the baby as a fact while still to be proved, there is no evidence that then, or ever, did she have intercourse with anyone else. The wife’s conduct with Andy on the few occasions when the witness saw thefii together can justly be called indiscreet for a married woman whose husband is absent, but falls far short of indicating adultery. Indeed, appellant did not assert that Andy is the real father but left that to the imagination of the court whose imagination, as it turned out, was not sufficiently lively to draw the inference. Cynics, among whom on this occasion we must reluctantly number ourselves, might reasonably conclude that Joyce, finding herself pregnant in February or early March, made a hasty excursion to her husband’s bed and an equally abrupt withdrawal when her mission was accomplished. The subsequent birth of a full-term child a month sooner than it would usually be expected if caused by this copulation does nothing to dispel uncharitable doubts. But we must acknowledge that a trial judge, less inclined to suspect the worst, might with reason recall that at least as early as the preceding August Joyce had lost her taste for her husband’s embraces. Divorce offered her freedom from them, but magnanimously she might determine to try once more to save the marriage; hence her trip to Texas. But when the night spent in Robert’s arms proved no more agreeable than such nights used to be she made up her mind that they could live together no more, frankly told him so, and took her departure. The medical testimony concerning the early arrival of the infant does no more than to recognize eight months of gestation as unusual. It admits the possibility that Robert begat the child that night in that San Antonio hotel. Thus, the mother swears the child is Robert’s and she knew, in the Biblical sense, no other man. Robert, perforce, acknowledges that it may be his. Everything else depends on such reasonable inferences as one chooses to draw from the other admitted facts and circumstances. And such inferences are for the trier of the fact. Particularly, in view of sec. 328.39 (1) (a), Stats., supra, we cannot agree with appellant that even with the blood tests left out of consideration, the record here proves beyond a reasonable doubt that Joyce’s husband was not the father of her child.

Accordingly we turn to the tests. The expert witnesses agreed that the tests excluded Mr. Prochnow from all possibility of this fatherhood. Appellant argues that this testimony is conclusive; that-with the tests in evidence Joyce’s testimony that she had no union except with her husband is insufficient to support a finding that her husband is the father. The conclusive effect of the blood test is sometimes imposed by statute, such as is found in secs. 4 and 5 of the Uniform Act on Blood Tests to determine paternity, presently in force in California, Michigan, New Hampshire, and Oregon. But the Wisconsin statute authorizing blood tests in paternity cases pointedly refrains from directing courts to accept them as final even when they exclude the man sought to be held as father. In its material parts it reads:

“Sec. 325.23. Blood tests in civil actions. Whenever it shall be relevant in a civil action to determine the parentage or identity of any child, . . . the court . . . may direct any party to the action and the person involved in the controversy to submit to one or more blood tests, to be made by duly qualified physicians.Whenever such test is ordered and made the results thereof shall be receivable in evidence, but only in cases where definite exclusion is established. . . .”

This statute does no more than to admit the test and its results in evidence, there to be given such weight and credibility in competition with other evidence as the trier of the fact considers it deserves. No doubt in this enactment the legislature recognized that whatever infallibility is accorded to science, scientists and laboratory technicians by whom the tests must be conducted, interpreted, and reported retain the human fallibilities of other witnesses. It has been contended before this that a report on the analysis of blood is a physical fact which controls a finding of fact in opposition to lay testimony on the subject, and the contention was rejected. Kuroske v. Aetna Life Ins. Co. (1940), 234 Wis. 394, 401, 402, 291 N. W. 384. When the trial judge admitted the Prochnow tests in evidence and weighed them against the testimony of Mrs. Prochnow he went as far in giving effect to them as our statute required him to do. Our opinions say too often that trial courts and juries are the judges of the credibility of witnesses and the weight to be given testimony which conflicts with the testimony of others for us to say that in this case the trial court does not have that function.

In bastardy actions “a verdict of guilty can only be properly reached when the presumption of innocence recognized as surrounding such accused has been overcome by evidence convincing the jury beyond reasonable doubt.” Windahl v. State (1926), 189 Wis. 424, 427, 207 N. W. 694; Timm v. State (1952), 262 Wis. 162, 54 N. W. (2d) 46. Even with this legal principle in his favor, in a bastardy action the testimony of the woman that she had timely intercourse with the man and that she had none with anyone else, if believed by the jury, is sufficient to support a verdict that he is the father of her child. Wille v. State ex rel. Kessler (1927), 192 Wis. 224, 212 N. W. 260; State v. Willing (1951), 259 Wis. 395, 48 N. W. (2d) 236. That is the common rule. “In the absence of a statute requiring corroboration, the jury may find that defendant is the father of the child on the sole testimony of the mother, provided they believe it to be credible.” 10 C. J. S., Bastards, p. 179, sec. 94. So, if Joyce and Robert were not married and the child now in question had been born to Joyce her testimony of intercourse with him, which he admits, and her denial of it with any other man would, if believed by the trier of the fact, be sufficient to establish that Robert is the child’s father beyond a reasonable doubt. How much greater, then, is the sufficiency of the same testimony, when believed by the trial court, to establish such fatherhood when, the parties being married to each other, the burden of proof has been reversed by statute, supra, and the burden is now Robert’s to prove beyond reasonable doubt that he is not the parent. The conclusion seems inescapable that the trial court’s finding must stand when the blood-test statute does not make the result of the test conclusive but only directs its receipt in evidence there to be weighed, as other evidence is, by the court or jury. We hold, then, that the credibility of witnesses and the weight of all the evidence in this action was for the trial court and error cannot be predicated upon the court’s acceptance of Joyce’s testimony as more convincing than that of the expert witnesses. On substantially identical facts in Arais v. Kalensnikoff (1937), 10 Cal. (2d) 428, 74 Pac. (2d) 1043, the California court reached the same conclusion.

By the Court. — Judgment affirmed.