Huntingdon v. Crowley

• Citation: 414 P.2d 382,51 Cal.Rptr. 254,64 Cal.2d 647
• Court: United States State Supreme Court (California)
• Decision Date: 25 May 1966
• Parties: , 414 P.2d 382 Terry HUNTINGDON et al., Plaintiffs and Appellants, v. Arthur CROWLEY, Defendant and Respondent. L.A. 27702.

Page 254

51 Cal.Rptr. 254

64 Cal.2d 647, 414 P.2d 382

Terry HUNTINGDON et al., Plaintiffs and Appellants, v. Arthur CROWLEY, Defendant and Respondent.

L.A. 27702.

Supreme Court of California, In Bank.

May 25, 1966.

Howard M. Redlich and Sydney M. Williams, Beverly Hills, for plaintiffs and appellants.

Arthur Crowley, in pro. per., Crowley & Goffin and Ron Swearinger, Hollywood, for defendant and respondent.

MOSK, Justice.

This is an appeal from a judgment entered upon a jury verdict for defendant in a paternity suit. (Civ.Code, §§ 196a, 231.)

The initial question presented is whether the trial court abused its discretion in declining to admit medical testimony based on a system of blood grouping that was still in the experimental stage at the time it was offered; we answer this question in the negative. The second principal issue is whether the court committed prejudicial error in instructing the jurors, in effect, that their verdict must be for defendant if they find plaintiff had a mere association and opportunity to have sexual intercourse with other men during the probable period of conception; we answer this crucial query in the affirmative, and accordingly reverse the judgment.

In August 1961 Terry Huntingdon, an unmarried woman, learned she was pregnant. After her attempts to obtain an abortion failed or were abandoned, she filed this action against defendant. In her amended complaint Terry alleged that she and defendant engaged in numerous acts of sexual intercourse between May 1, 1961, and August 30, 1961, and that during such period she had no intercourse with any person other than defendant. In his answer defendant admitted having intercourse with Terry in the month of May 1961, but denied any such acts after that date and denied being the father of the child. Defendant also denied Terry's allegation that she had intercourse with none but him between May and August, and alleged rather than during such period Terry 'engaged in acts of sexual intercourse with various men including, but not limited to, executives in the motion picture and television industries * * *.'

Lengthy discovery procedures were then undertaken. The child, a girl of normal size and weight, was born on May 14, 1962. ¹ In his statement of contentions set forth in the pretrial conference order defendant reiterated his allegation that between May and August of 1961 Terry engaged in acts of sexual intercourse with persons other than himself, 'and that one of said persons, other than defendant, is the father of said child.' In particular, defendant named Alvin Ganzer, a television director, and Brett Wright, Terry's hairdresser, as men with whom she had sexual intercourse before, during, and after the conception period.

At the trial ² it developed that Terry's last menstrual period began on July 21 or 22, 1961, and continued for several days. Obstetrical evidence established the outer limits of the possible period of conception as July 26 to August 7. Terry admittedly had a violent argument with defendant on July 22 and did not see him again until August 2. For defendant to be the father of the child, therefore, conception must have occurred between August 2 and August 7. Terry testified that she engaged in acts of sexual intercourse with defendant on August 2, 3, and 5. Defendant, on the other hand, denied any such acts. He testified that he allowed her to visit him briefly on the evening of August 2 to watch a television show that she was in, since she had no television set in her apartment, but that throughout the evening his two children, his two servants and their child, were also present in the house; that on August 3 he did not see Terry at all; and that on August 5 he accompanied Terry at her request to a dinner party given by friends of hers, but had another violent argument with her on the way home and dropped her off outside her apartment. The jury's decision thus turned, as is not uncommon in cases of this kind, largely upon the credibility of the two principals.

Both in her depositions and in her direct testimony, moreover, Terry stated that throughout this affair, i.e., from May to August 1961, she was 'going steady' with defendant. On cross-examination and by independent witnesses defendant proved, on the contrary, that during this same period Terry dated a large number of other men; in particular, both Terry and Brett Wright admitted on the witness stand that on July 27 and 28 they spent two nights together, alone in a house in West Los Angeles even though each had an apartment a relatively short distance away.

Not only did the latter fact tend to impeach Terry's assertions of steadfast devotion to defendant, it also constituted affirmative evidence, when taken in conjunction with other testimony, pointing to Wright as the father of the child. ³ Terry's former roommate, Nancy Sandack, testified by deposition that in March 1961 Terry had admitted having sexual intercourse with Wright. Furthermore, certain obstetrical evidence based on Terry's menstrual cycle, her complaints of nausea beginning August 3, and the condition of her uterus when pregnancy was diagnosed on August 28, pointed to conception actually having occurred between July 27 and 31, 1961. As just noted, during these crucial days Terry admittedly did not see defendant but did spend two night in the company of Wright.

Ganzer was likewise implicated as the possible father of the child, although somewhat less directly. Nancy Sandack deposed that while making a television film in February 1961 with Ganzer as director, Terry did not sleep in her room and later admitted having slept with Ganzer and having sexual intercourse with him. On July 28, before returning for the night to the house she shared with Wright, Terry spent the evening until midnight at Ganzer's apartment. On August 12, i.e., within the period Terry was assertedly 'goint steady' with defendant, she telephoned defendant and stated she had been 'balling it up all last night' with Ganzer, and had remained with him at his apartment until 6:30 the following morning. When the fact of her pregnancy was discovered Ganzer bought Terry an airplane ticket to go to Mexico City to have an abortion, supplied her with the name of an abortionist, and gave her $600 to pay for the operation.

In a disputed paternity proceeding, of course, the burden of proving the defendant to be the father of the child is on the plaintiff; but such proof need only be by a preponderance of the evidence, and the unsupported testimony of the mother is sufficient for this purpose. (Berry v. Chaplin (1946) 74 Cal.App.2d 652, 661, 169 P.2d 442.) As has been well said by one of the leading authorities in this filed, 'It is easy for a woman to bring the charge that a man is the father of her child. It is not quite as easy for her to substantiate the charge. But it will be difficult for the defendant to disprove the charge.' (Schatkin, Disputed Paternity Proceedings (3d ed. 1953) p. 472.) In the emotional atmosphere generated in the courtroom by the spectacle of the unwed mother and the unwanted baby, it will often not be enough for an unjustly accused man to simply deny paternity, especially when, as here, he concededly has had sexual intercourse with the mother at an earlier date. To aid in reestablishing this balance the law therefore allows the defendant to introduce evidence that the mother had sexual intercourse with another man or other men during the period in which, in the ordinary course of nature, the child must have been conceived. (Mensing v. Croter (1930) 209 Cal. 318, 320, 287 P. 336, 280 P. 1026; Berry v. Chaplin (1946) supra, 74 Cal.App.2d 652, 662, 169 P.2d 442.)

The first major question presented by this case is how far the complainant should be allowed to go in rebutting the inferences raised by such evidence of sexual intercourse with other men. Obviously some limit must be declared, or the proceedings will quickly degenerate into a series of paternity trials of each of the other men thus drawn into the case. The Uniform Act on Blood Tests to Determine Paternity (Code Civ.Proc., §§ 1980.1--1980.7) is not clear on this point. ⁴ Some guidance is to be found in the basic command of section 1980.3 that upon proper and timely request the trial court 'shall order the mother, child and Alleged father to submit to blood tests.' (Italics added.) Taken in its context, the phrase 'alleged father' appears to mean the man actually charged by the complainant with being the father of her child, rather than any other man later injected into the case to cast doubt on the verity of her accusation. On the other hand, the code not expressly exclude blood tests of the latter group of men, and such evidence has been admitted both in California courts (Foster v. Gray (1962) 203 Cal.App.2d 434, 436, 21 Cal.Rptr. 429) and elsewhere (Thompson v. Scavo (1959) 8 A.D.2d 652, 185 N.Y.S.2d 47).

In any event, it bears repeating that a request for an order to take blood tests must be timely. Section 1980.3 specifies that such a motion must be 'made at a time so as not to delay the proceedings unduly * * *.' In their prefatory note to the corresponding section of the uniform law, the commissioners explain that the motion is to be made 'a reasonable time Before the case is reached for hearing. What is a reasonable time is left to the discretion of the trial court. The purpose of an early application for the test is to permit the results of the test to become known Prior to the trial. * * * It would also permit the taking of additional tests if there was any claim as to the inaccuracy of the one given. * * * The provisions in the Act leave it to the discretion of the court as to what constitutes reasonable time, taking into consideration the facilities for examination.' (Italics added.) (9 U.L.A., p. 108.) Here as early as the pretrial conference order there was no doubt as to defendant's charge that Ganzer and Wright,...