Shailer v. Bullock

• Citation: 61 A. 65,78 Conn. 65
• Court: Supreme Court of Connecticut
• Decision Date: 09 June 1905
• Parties: SHAILER v. BULLOCK.

61 A. 65

78 Conn. 65

SHAILER

v. BULLOCK.

Supreme Court of Errors of Connecticut.

June 9, 1905.

Appeal from Court of Common Picas, New Haven County; James Bishop, Judge.

Bastardy by Isabella V. Shailer against Charles S. Bullock. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Stiles Judson and Omar W. Platt, for appellant. Jacob P. Goodhart and James A. Marr, for appellee.

TORRANCE, C. J. On the trial of this case the plaintiff offered the child whose paternity was in dispute in evidence, to show a resemblance of feature between it and the defendant. The child was about 10 months old. The court ruled that the child could not be exhibited to the jury for such purpose. This ruling was not based on the fact that no such resemblance existed, but apparently upon the sole ground that resemblance in such cases was not of probative value. In so ruling, the court erred. Although the decisions upon this subject in the state courts are not in entire harmony, it is certainly the prevailing general rule in such courts, based, we think, upon good grounds, that such evidence is of probative value, and is admissible for what it may be worth, in proof of paternity, in cases like the one at bar. See the cases upon this subject cited in notes under sections 166 and 1154 of Wigmore on Evidence.

The plaintiff claimed to have proved that she had been constant in her declarations that the defendant was the father of her child, and had "declared to the attendant physician during her travail that the defendant was the father of said child." The evidence for the defendant tended to prove that she had made no such declaration during the time of her travail. Upon this subject the court, in the fore part of its charge, told the Jury that it was not necessary for them to find, in order to render a verdict in the plaintiff's favor, that she had been constant in her declarations that the defendant was the father of her child, or that she had made such declaration during her travail; and this was correct. Booth v. Hart, 43 Conn. 480; Robbins v. Smith, 47 Conn. 182. At the very close of the charge, however, the court said this to the jury: "As already stated, gentlemen, the burden of proof in this case, as in all civil cases, is on the plaintiff. If she proves by a fair preponderance of evidence admitted at this trial all the material allegations of her complaint—that is, that she is a single, unmarried woman; that she gave birth to a male child on the 15th day of September, 1903; that said child was begotten on her body at the house of the defendant by the defendant on the 13th of January, 1903; and that the plaintiff has been constant in her declarations, and made such declarations while in the pains of childbirth—then your verdict should be for the plaintiff. On the other hand, if you find from all the evidence admitted on the trial that the plaintiff has failed to prove any one of these allegations by a fair preponderance of evidence, your verdict should be for the defendant." The fact that the plaintiff had declared in her travail that the defendant was the father of her child, and that she had remained constant in her declarations as to its paternity, were thus, in effect, erroneously made material facts in the case, and the jury were emphatically told that, unless they found them to be true, their verdict must be for the defendant. The defendant says this part of the charge cannot have misled the jury to the plaintiff's harm, because the court had previously charged correctly upon this point. We cannot take this view of the matter. This part of the charge came as the very last word of the court to the jury. It was a formal, and it must have appeared to the jury a carefully made and full, statement of the essential facts which they must find proven before they could render a verdict for the plaintiff. Upon the record in this case, we think that the incorrect statement of the law in the last words of the charge was not cured by the correct statement of it in the fore part of the charge. Smith v. King, 62 Conn. 515-525, 26 Atl. 1059.

We also think that the charge, as a whole, for the reasons hereinafter stated, was so inadequate that it furnished no real guidance to the jury in its deliberations. Both sides filed numerous written requests to charge, many of which on each side related to mere matters of fact, and most of which on one side were in conflict with those of the other in their statements both of fact and of law. As a part of its charge, and by much the larger part of it, the court read impartially to the jury first the written requests of the plaintiff, and then those of the defendant, and, with few exceptions, it read them just as they were written; and it apparently charged these conflicting requests, without any adequate comment or reference to the conflict between them, as the law of the case by which the jury were to be guided. The result of such a reprehensible practice was a charge needlessly long, and utterly inadequate for the guidance of the jury in their deliberations.

For the two errors hereinbefore considered and for the character of the charge as a whole, we are of opinion that a new trial in this case must be ordered. In view of the result thus reached, we deem it unnecessary to consider any of the other errors assigned, save one relating to the cross-examination of the defendant as to credit. Upon his direct examination the defendant testified, in substance, that he was a clergyman, and had been in charge of a church in Stratford, in this state, for the past four years, and that before coming to Stratford he had been engaged in ministerial and educational...