Crepaldi v. Wagner, C-217

• Citation: 132 So.2d 222
• Decision Date: 18 July 1961
• Docket Number: No. C-217,C-217
• Parties: Karen Alice CREPALDI, a Minor by her mother and next friend Mildred J. Tutor, Appellants, v. Maurice WAGNER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 222

132 So.2d 222

Karen Alice CREPALDI, a Minor by her mother and next friend Mildred J. Tutor, Appellants, v. Maurice WAGNER, Appellee.

No. C-217.

District Court of Appeal of Florida, First District.

July 18, 1961.

Richard E. Conner and Robert H. Matthews, New Smyrna Beach, for appellants.

Maurice Wagner and Richard D. Bertone, Daytona Beach, for appellee.

WIGGINTON, Chief Judge.

Plaintiff has brought this interlocutory appeal from an order granting defendant's motion for summary decree. The principal of appellant's position is that from the pleadings, deposition and affidavits on file in the cause there is created a genuine issue of a material fact relating to the question of whether defendant is the father of plaintiff's newly born child. Appellant therefore contends that the chancellor erred in disposing of this issue on motion for summary decree, thereby depriving her of the right to a trial by jury as permitted by statute. ¹

The action is one in bastardy by which plaintiff alleges that defendant is the father of a girl child born to plaintiff of February 8, 1960. The evidence contained in the record, and the reasonable inferences arising therefrom when construed in a light most favorable to plaintiff, reveals the following picture. Plaintiff, an unmarried minor female, kept company with defendant during the months of May and the first half of June, 1959. During this period she denied that she was ever in the company of any other man. It was during this time that she had sexual relations with defendant as a direct result of which she became pregnant on or before June 9, 1959. She gave birth to a child the early part of February, 1960. It is on the basis of these facts that she asserts without equivocation that defendant is the father of her child born out of wedlock. We pause here to observe that the foregoing evidence, corroborated as it is by other evidence in the to justify a verdict in plaintiff's favor.

In support of his motion for summary judgment defendant points to the evidence judgment defendant points to the evidence in the record on which he relies to disprove plaintiff's contention that he is the father of her child. Defendant's evidence, as established by depositions and affidavits submitted by him, shows that on October 10, 1958, some six months prior to his intimate contacts with plaintiff, he underwent an operation described as a vasectomy which consisted of servering and removing sections of the vasal deferentia bilaterally. The affidavits submitted by defendant's medical experts are to the effect that as a result of the operation defendant was rendered sterile and unable to procreate. It is noted that each of defendant's medical experts admitted in their depositions that there have been cases reported in medical journals wherein men were known to have more than one right or left vas deferens, in which cases the removal of only one right and left vas deferens would not render the patient sterile. Sperm analysis tests of specimens taken from defendant made one month after his operation, and again after plaintiff's child was born, revealed a complete absence of spermatozoa. Defendant filed an affidavit by a qualified pathologist who testified that on July 3, 1960, he examined defendant and that in his opinion the scars resulting from defendant's operation were at least two years old. Another pathologist who testified for defendant stated on his deposition that it is virtually impossible to determine the age of a scar after six weeks following the opeartion. The testimony of the first pathologist was adduced for the apparent purpose of corroborating the testimony of defendant's surgeon that the operation took place on October 10, 1958. In view of its conflict with the testimony of the second pathologist, its probative force is of doubtful value. It was on the basis of the proof submitted by defendant that the chancellor found there was no genuine issue of fact relating to defendant's paternity of plaintiff's child, as a consequence of which the motion for summary decree was granted.

In essence, the material fact on which the chancellor found there was no genuine issue relates solely to defendant's sterility at the time plaintiff claimed she became pregnant as a direct result of sexual relations with defendant. The import of the evidence offered by defendant's medical experts is that during the critical period in question defendant was sterile and unable to procreate, and they have their records of the operation and sperm analysis tests to prove it. On the other hand, the import of plaintiff's evidence is that during the same critical period defendant was not sterile, and she has a newborn baby girl to prove it. Unquestionably the evidence as to defendant's sterility was in direct conflict, and there was created thereby a genuine issue of fact unless it can be held as a matter of law that defendant's medical proof on this point is conclusive and irrebuttable by lay testimony. Our research fails to reveal any decision of an appellate court, and none has been cited us by either of the parties to this appeal, which holds that uncontradicted medical proof as to one's sterility is conclusively binding on the trier of facts, and be irrebuttable by lay evidence to the contrary.

Our research has disclosed only one case which deals with the specific question now under consideration. ² This was a bastardy proceeding brought in the Children's Court of Westchester County, New York, in which the complainant claimed that defendant was the putative father of her child. She testified that she had sexual relations with defendant during the period of time in which conception of the child occurred. Defendant introduced in evidence the statement of a qualified medical expert of a sperm analysis test made by him of a specimen taken from defendant in which the expert testified that from the test he was of the opinion that the specimen would not be adequate to impregnate. In considering the weight of this evidence the court held that the medical proof as to defendant's sterility was not conclusive, although it was important evidence to be considered along with all other evidence in the case in determining the question at issue. This decision was subsequently affirmed by the appellate division of the Supreme Court of New York. ³ Other decisions dealing generally with this subject also seem to indicate that proof of sterility, adduced either by lay witnesses or medical experts, shall be considered by the trier of facts as any other evidence, and if believed, is sufficient to support a finding based thereon. ⁴

In Crovella ⁵ plaintiff wife sued the defendant medical doctor for damages resulting from his negligence in failing to properly diagnose and treat her for an alleged pregnancy. On motion for summary judgment plaintiff's proof showed that she knew she was pregnant and so advised defendant at the time she consulted him for advice. Defendant made an examination of plaintiff, and as a result of this and several tests, advised her that she was not pregnant but could return to her normal work schedule. In reliance on defendant's diagnosis and prescribed treatment, plaintiff returned to work and shortly thereafter suffered a...