Beaman v. Hedrick

• Decision Date: 11 March 1970
• Docket Number: No. 269A31,No. 1,269A31,1
• Citation: 146 Ind.App. 404,255 N.E.2d 828
• Parties: Paul D. BEAMAN, Appellant, v. Faye HEDRICK, By Next Friend Annabelle Nelson, Appellee
• Court: Indiana Appellate Court

Page 828

255 N.E.2d 828

146 Ind.App. 404

Paul D. BEAMAN, Appellant, v. Faye HEDRICK, By Next Friend Annabelle Nelson, Appellee.

No. 269A31.

Appellate Court of Indiana, Division No. 1.

March 11, 1970.

Lawrence H. Hinds, Hinds & Davis, Indianapolis, Daniel J. Harrigan, Bayliff, Harrigan & Cord, Kokomo, for appellant.

Donald J. Bolinger, Bolinger & Zirkle, Kokomo, for appellee.

SULLIVAN, Judge.

On May 9, 1968, the Howard Circuit Court, without jury, determined that appellant was the father of a child born to appellee on June 16, 1967. The court entered judgment against appellant and ordered him to pay the hospital, doctor and drug bills, together with attorneys' fees and $12.50 per week for the support of said child.

By reason of our decision in this cause we consider only the contention of appellant that the decision of the trial court is not sustained by sufficient evidence. We are well aware that a decision of a trial court may be reversed for insufficiency of the evidence, if, and only if, there is no substantial evidence of probative value to support that decision. Houser v. Board of Commissioners of the County of Dekalb (1969), Ind., 247 N.E.2d 670; Winkler v. Winkler (1969), Ind., 246 N.E.2d 375; Irons v. Irons (1961), 242 Ind. 504, 178 N.E.2d 156, 180 N.E.2d 105. (Compare Matis v. Yelasich (1956), 126 Ind.App. 287, 132 N.E.2d 728, wherein the trial court's judgment in favor of the putative father was affirmed and the court treated at great length its inability to weigh the evidence. See also Hooley v. Hooley (1967), Ind.App., 226 N.E.2d 344, to the same effect.) We further recognize that circumstances or evidence which would justify a different conclusion than that reached by a trial court does not permit the Appellate Court to substitute its judgment for that of the trial court. Chaleff v. Chaleff (1969), Ind.App., 246 N.E.2d 768. However, judgments cannot rest upon mere guess, conjecture, surmise, possibility or speculation. Hunnicutt v. Boughner (1967), Ind.App., 231 N.E.2d 159; Haney v. Meyer (1966), 139 Ind.App. 663, 215 N.E.2d 886. Upon appellate review the standard by which the sufficiency of the evidence is measured is that such evidence must have the fitness to induce conviction; it must be adequate to support a conclusion in the mind of reasonable persons. McCague v. New York, Chicago & St. Louis R.R. (1947), 225 Ind. 83, 71 N.E.2d 569, 73 N.E.2d 48; Haney v. Meyer, supra; Burke v. Burke (1963), 135 Ind.App. 235, 191 N.E.2d 530.

Paternity actions are civil in nature and the putative father must be proved to be such only by a preponderance of the evidence. Thomas v. Farr (1965), 137 Ind.App. 269, 207 N.E.2d 650. The mother of the child or her representative, however, must, without question, carry that burden of proof. Hooley v. Hooley, supra; Matis v. Yelasich, supra.

Despite the unquestioned public policy consideration in assuring economic support to illegitimate children by the father of such child, that policy consideration cannot blind us to the just and proper requirements of evidentiary proof in such matters. Because of the ease with which one may be accused and found to be the father of an illegitimate child such determination must necessarily rest upon more than mere possibility. Opp v. Davis (1962), 133 Ind.App. 365, 179 N.E.2d 298, 180 N.E.2d 788.

The only evidence of probative value which could be deemed to support the trial court's decision here is to the effect that sexual intercourse occurred between appellant and appellee, for the first time, on November 26, 1966, and no contraceptive was used; that there was a total absence of credible evidence of intercourse by appellee with any other person at any time; that the mother and grandmother of the child testified concerning the absence of fully developed finger or toe nails on the baby; that the baby was born on June 16, 1967; and, that there was a medical possibility that a gestation period of 202 days could produce a seven pound child, 19 1/2 inches in length. Under the principles of appellate review hereinabove stated we disagree that such evidence is sufficient to support the decision of the trial court.

In this cause, the physician, who treated appellee and who delivered the baby, testified in great detail concerning medical facts in general and concerning this pregnancy and delivery in particular. The testimony of a trained physician who has examined and treated a patient concerning matters peculiarly within the medical realm cannot be controverted by lay opinion or by judicial speculation or inference. Western & Southern Life Insurance Co. v. Danciu (1940), 217 Ind. 263, 26 N.E.2d 912.

The human gestation period is neither absolute nor is it controlled by legislative or judicial fiat. Benham v. State ex rel. Richardson (1883), 91 Ind. 82. A particular period of gestation, however, is generally governed by the medical testimony in that particular case. Anno. 104 A.L.R. 84 at 85.

Unlike our recent decision in Carpenter v. Goodall (1969) Ind.App., 244 N.E.2d 673, the evidence here does not carry the requisite quality of proof nor is it of such nature or degree to permit a reasonable mind to conclude that appellant is the father of the child in question. The crucial question in this appeal is whether the evidence tending to show that appellant is the father is sufficient or adequate to induce conviction upon that ultimate issue in the mind of reasonable persons in the light of the maximum period of gestation as shown by that same evidence. The evidence concerning the length of the gestation period is therefore all important.

The cases cited by appellee wherein periods of gestation somewhat shorter than usually considered to be normal, i.e., less than 280 days ¹ are not determinative of the question here and are distinguishable because the periods considered in those cases were only slightly less than normal. Hull v. State, ex rel. Dickey (1884), 93 Ind. 128 (238 days); Barkey v. Stowell (1947), 117 Ind.App. 162, 70 N.E.2d 430 (237 days); McGoldrick v. State, ex rel. Shull (1927), 87 Ind.App. 175, 155 N.E. 52 (230 days). To the extent, however, that the McGoldrick case, supra, and other cases cited herein may be considered to permit the trier of fact to disregard uncontroverted medical evidence and premise a paternity finding upon unsupported physical possibilities, they are hereby overruled.

The other authorities relied upon by appellee concerning the sufficiency of the evidence do not involve an 'abnormal' gestation period. In Goldman v. State ex rel. Thomas (1935), 101 Ind.App. 147, 198 N.E. 450, the conflicting testimony considered was that of appellee and appellant. The gestation period there was normal and the sole question involved the matter of credibility and whether other acts of intercourse occurred with other males during the same period. To the same effect and therefore inapplicable here are Michael v. State, ex rel. Pearson (1915), 57 Ind.App. 520, 108 N.E. 173; Rinehart v. State, ex rel. Keith (1899), 23 Ind.App. 419, 55 N.E. 504; Goodwine v. State, ex rel. Dove (1892), 5 Ind.App. 63, 31 N.E. 554. (Compare Whitman v. State, ex rel. Hemminger (1870), 34 Ind. 360, in which a determination of paternity was reversed when the plaintiff-appellee admitted many acts of intercourse with different persons at the approximate time of conception as judged by the 'normal' gestation period.)

The trial court's determination here is supported only by certain inferences which we believe to be unreasonable. The trial court necessarily believed, as it may have properly done, that the first time appellee had intercourse with appellant was on November 26, 1966. There was evidence that neither appellant nor appellee utilized a contraceptive on any occasion. The trial court undoubtedly disbelieved entirely, justifiably so, the testimony of two witnesses concerning acts of intercourse with appellee in July or August, 1966, by two other boys. Disregard of such testimony, however, does not give rise to a permissible inference that appellee did not have any sexual intercourse prior to November 26, 1966. It leads only to the inference that she did not have relations with the two boys named in the testimony.

This court is not prompted to agree with the findings of the trial court on the basis of the evidence above recited nor upon the fact that appellant at various times clearly indicated...