Phillips v. State ex rel. Hathcock

• Decision Date: 07 January 1925
• Docket Number: No. 12025.,12025.
• Citation: 82 Ind.App. 356,145 N.E. 895
• Parties: PHILLIPS v. STATE ex rel. HATHCOCK
• Court: Indiana Appellate Court

82 Ind.App. 356

145 N.E. 895

PHILLIPS

v.STATE ex rel. HATHCOCK

No. 12025.

Appellate Court of Indiana, Division No. 2.

Jan. 7, 1925.

Appeal from Circuit Court, Delaware County; Clarence W. Dearth, Judge.

Proceeding by the State of Indiana, on the relation of Anna Hathcock, against Thomas Phillips. Judgment for plaintiff, and defendant appeals. Reversed, with directions.John J. O'Neill and McClellan, Hensel & Guthrie, all of Muncie, for appellant.

Wm. A. McClellan, of Muncie, for appellee.

McMAHAN, J.

Complaint in bastardy filed November 30, 1923. The child in question was born February 14, 1922, the relatrix being at that time the wife of Clarence Hathcock, whom she married October 15, 1921. The relatrix and her husband ever since that time have lived together as husband and wife. Clarence Hathcock knew the relatrix was pregnant when he married her. The child at birth was fully developed and ever since its birth has lived with the relatrix and her husband, the latter being present at its birth, and having at all times given it the same care and attention he would have given it if it had been begotten by him and born in wedlock. The relatrix and her husband had known each other for ten years prior to their marriage, and for six or seven years next preceding their marriage had been keeping company with each other, he calling on her at her home two or three times a week. From some time in March, 1921, at a time when her husband's mother was sick and confined to her bed, the relatrix did the housework for and took care of the mother, with whom the son, Clarence, was then living. There is no evidence that the relatrix and her husband did or did not have illicit relations with each other prior to marriage; nor is there any evidence tending to negative the existence of their having had sexual intercourse with each other, unless it be the statement of the relatrix when she was asked what he said when she told him she was pregnant. After having testified that, 10 days or 2 weeks before their marriage, she told her husband of her condition, she, in response to a question asking what he said at that time, replied by saying that he said it was impossible, unless she had been with some one else, as he was not guilty of anything of that kind. This conversation took place after they were engaged to be married. On the preliminary hearing before the justice of the peace she testified that, when she told him of her condition, he said: “We are already engaged to get married and I will marry you.” She also testified that prior to November, 1923, she and her husband never had any talk or conversation concerning the paternity of the child, and that prior to that time she never told any one who the father of the child was. The day after its birth the child was named Vivian Hathcock, and a few days later the attending physician made out and filed a birth certificate, giving the name of the child, the date of birth, stating it was of legitimate birth, and that its father was Clarence Hathcock, and giving his age and place of birth, as well as the age and place of birth of the mother.

The relatrix testified that she had sexual intercourse with appellant about the middle of June, 1921, and again on June 30, 1921, that the child was begotten on the last date and that appellant was its father. Appellant denied having had intercourse with the relatrix, and he is corroborated in his denial of having had intercourse with her at the times and places named by her. Appellant, having been adjudged the father of the child, appeals and insists that the evidence is not sufficient to sustain the verdict.

[1] It is a well-established rule of law that a man who marries a pregnant woman is presumed to be the father of the child, and this presumption is one of the strongest presumptions known to the law. It is a presumption both of law and fact. This presumption, however, may be rebutted. In State v. Romaine, 58 Iowa, 46, 11 N. W. 721, the court in discussing this question said:

“It appears to us that the *** rule adduced from the authorities, as well as from principle, is that a child born in wedlock, whether begotten before or after marriage, is presumed to be the child of the husband, but that such presumption may be rebutted by strong, satisfactory, and conclusive evidence that the husband did not have access to the mother of the child when it was begotten. And if a woman be pregnant at the time of the marriage, and if the pregnancy be known to the husband, he should be conclusively presumed to be the father.” (Our italics.)

And the same court, in State v. Shoemaker, 62 Iowa, 343, 17 N. W. 589, 49 Am. Rep. 146, said:

“One who marries a woman known by him to be enceinte is regarded by the law as adopting into his family the child at its birth. He could not expect that the mother upon its birth would discard the child and refuse to give it nurture and maintenance. The law would forbid a thing so unnatural. The child, receiving its support from the mother, must of necessity become one of her family, which is equally the family of the husband. The child, then, is received into the family of the husband, who stands as to it in loco parentis. This being the law, it enters into the marriage contract between the mother and the husband. When this relation is established, the law raises a conclusive presumption that the husband is the father of his wife's illegitimate child. We must not be understood to hold that this rule prevails in cases involving questions of heirship and inheritance. In these cases the rights of others besides the husband and bastard arise. In this case, the rights and liabilities of the husband and child are alone involved; they rest upon the relations which impose upon the husband the duty of maintaining the child. Our conclusion is supported by public policy, and considerations which work for the peace and well-being of families. A husband who, in the manner we have indicated, has put himself in loco parentis of a bastard child of his wife, ought not to be permitted to disturb the family relation, and bring scandal upon his wife and her child, by establishing its bastardy, after he has condoned the wife's offense by taking her in marriage.”

In Wallace v. Wallace, 137 Iowa, 37, 114 N. W. 527, 14 L. R. A. (N. S.) 5...