Lockman v. Fulton

• Decision Date: 20 April 1956
• Docket Number: No. 33875,33875
• Citation: 162 Neb. 439,76 N.W.2d 452
• Parties: Delores Ann LOCKMAN, Appellee, v. Robert FULTON, Appellant.
• Court: Nebraska Supreme Court

Page 452

76 N.W.2d 452

162 Neb. 439

Delores Ann LOCKMAN, Appellee, v. Robert FULTON, Appellant.

No. 33875.

Supreme Court of Nebraska.

April 20, 1956.

Syllabus by the Court.

1. In the absence of statutory permission, the statements or declarations of complainant in a filiation proceeding made by her to third persons out of court and not in the persence of defendant, in which she recited or claimed that defendant was the father of her child, are incompetent and inadmissible as corroboration in her behalf.

2. The uncorroborated testimony of the mother of a child conceived out of wedlock but yet unborn or of a child born out of wedlock is not sufficient to support a verdict or finding that the alleged father is the actual father.

3. In an action to establish the paternity of a child conceived out of wedlock but yet unborn or of a child born out of wedlock, it is not essential to a verdict or finding of guilty that the testimony of the mother shall be corroborated by the testimony of other witnesses as to the act producing conception, but only that she be corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the principal fact, the inference of guilt may be drawn.

4. In an action to establish the paternity of a child conceived out of wedlock but yet unborn or of a child born out of wedlock, only a preponderance of evidence is necessary to sustain a conviction.

5. However, the character and quality of proof of corroboration is the same in filiation proceedings as in criminal cases wherein corroboration of the testimony of the prosecutrix is required. 6. Circumstances, if material and competent, may corroborate complainant's testimony, and opportunity, disposition, or inclination are circumstances which may be considered together with other material and competent facts and circumstances which tend to corroborate her testimony, but mere opportunity alone is insufficient corroboration to support a finding or verdict and judgment that defendant is actually the father of complainant's child.

7. If the testimony of complainant with regard to the principal fact is so inconsistent, contradictory, improbable, or incredible as to be self-destructive, or if the corroborative evidence is of a like doubtful character or wholly lacking in probative force or value, a finding or verdict and judgment of guilty will be respectively set aside and reversed.

Herman & Van Steenberg, Mitchell, for appellant.

Leo F. Bolin, Gering, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CHAPPELL, Justice.

Complainant, Delores Ann Lockman, hereinafter called plaintiff, brought this filiation proceeding against defendant, Robert Fulton, under the provisions of sections 13-111 and 13-112, R.R.S.1943, seeking an adjudication that defendant was the father of her unborn child as alleged, and to recover a judgment against defendant for the amount of plaintiff's medical and other expenses of her pregnancy and confinement together with such other relief as might be just and equitable. Defendant's answer denied that he ever had any sexual intercourse with plaintiff, denied that he was the father of her unborn child, and prayed for dismissal of plaintiff's action. The issues were tried to the court without a jury in conformity with section 13-112, R.R.S.1943, whereupon a judgment was rendered finding generally in favor of plaintiff and against defendant, and adjudging that defendant was the father of plaintiff's unborn child. Further findings pertinent to the issues were taken under advisement. In such respect, section 13-112, R.R.S.1943, provides in part: 'Should it be determined in this proceeding that the alleged father is actually the father of the child, a judgment shall be entered declaring such to be the case. In the event that such a judgment is entered, the court shall retain jurisdiction of the cause, and enter such order of support as may be proper under the procedure and in the manner specified in section 13-106.' Thereafter, defendant's motion for new trial was overruled and he appealed, assigning in effect that: (1) The trial court erred in the admission of certain evidence over objections of defendant; and (2) that the findings and judgment were not sustained by the evidence but were contrary thereto and contrary to law. We sustain the assignments.

After plaintiff had rested her case, defendant moved to direct a verdict for the reason that plaintiff's testimony lacked sufficient corroboration. In that connection section 13-112, R.R.S.1943, provides in part: 'The uncorroborated testimony of the mother shall not alone be sufficient to support a verdict or finding that the alleged father is actually the father.' Thereupon plaintiff was permitted, over objection of defendant, to withdraw her rest and recall her mother for further examination in an effort to establish sufficient corroboration. Thereat, over objection by defendant, plaintiff's mother was permitted to testify that right after September 9, 1954, she had a conversation with plaintiff in defendant's absence whereat plaintiff made statements and declarations telling her the particulars about plaintiff's sexual intercourse with defendant on the night of August 14, 1954, when conception allegedly occurred. Subsequently, plaintiff rested again and defendant's motion to direct a verdict was renewed but overruled. Such a motion was not made or renewed at conclusion of all the evidence. Defendant argued here that the admission of such testimony was erroneous. We sustain that contention.

In Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382, this court concluded that in the absence of statutory permission, the statements or declarations of complainant in a filiation proceeding made by her to third persons out of court and not in the presence of defendant, in which she recited or claimed that defendant was the father of her child, are incompetent and inadmissible as corroboration in her behalf. The rule is controlling here.

However, as held in Western Smelting & Refining Co. v. First National Bank, 150 Neb. 477, 35 N.W.2d 116, 119: 'In a case tried to the court, whether at law or in equity, the presumption obtains that the trial court, in arriving at decision, considered such evidence only as was competent and relevant, and this court will not reverse a case so tried because other evidence was admitted.' Therefore, such testimony of plaintiff's mother will not be considered here, and the sole question remaining for decision is whether or not plaintiff's testimony was otherwise sufficiently corroborated as required by law. We conclude that it was not.

Recently, in State ex rel. Klostermeier v. Klostermeier, 161 Neb. 247, 72 N.W.2d 848, 849, this court held: 'The uncorroborated testimony of the mother of a child born out of wedlock is not sufficient to support a verdict or finding that the alleged father is the actual father.

'In an action to establish the paternity of a child born out of wedlock it is not essential to a verdict or finding of guilty that the testimony of the mother shall be corroborated by the testimony of other witnesses as to the act producing conception, but only that she be corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the principal fact, the inference of guilt may be drawn. * * *

'In an action to establish the paternity of a child born out of wedlock, only a preponderance of the evidence is necessary to sustain a conviction.

'In an action to establish the paternity of a child born out of wedlock, a verdict rendered on conflicting evidence will be sustained unless it is clearly wrong.' By analogy, such rules have application in a proceeding where the child is conceived out of wedlock but yet unborn.

While a filiation proceeding is penal in some aspects, it is ordinarily considered as civil in character. It seems clear, however, that the Legislature enacted section 13-112, R.R.S.1943, requiring corroboration of complainant in order to protect innocent persons wrongfully accused. Hence, we again conclude, as was done in State ex rel. Klostermeier v. Klostermeier, supra, that the character and quality of proof of corroboration required is the same in filiation proceedings as in criminal cases, such as rape or assault with intent to commit rape, wherein corroboration of the testimony of the prosecutrix is required.

In Mott v. State, 83 Neb. 226, 119 N.W. 461, this court held: 'In a prosecution for the crime commonly called statutory rape, where the prosecuting witness testifies positively to the facts constituting the crime, and the defendant as positively and explicitly denies her statements, her testimony must be corroborated by facts and circumstances established by other competent evidence in order to sustain a conviction.' In that opinion it is said, citing authorities: 'As to the nature of the corroboration necessary to sustain a conviction in such cases, the authorities seem quite clear. Where the law requires the corroboration of a witness, it must be accomplished by other evidence than that of the witness himself. His own acts or statements do not constitute corroborative evidence. * * * Facts, whether main or collateral, must be established by competent testimony before they become of probative force in a lawsuit; and it is self-evident that the main fact in this case cannot be strengthened by a collateral fact the existence of which is dependent upon the same class of testimony. Again, if it be admitted that the defendant was in the company of the prosecutrix as testified to by the Grieves girls, and if it be further admitted that the defendant on one occasion at or about June 1, 1907, brought the prosecutrix home in the evening, as stated by the mother, these facts of themselves alone are not corroborative,...