Smith v. Price

• Court: North Carolina Supreme Court
• Writing for the Court: BILLINGS; Hall
• Citation: Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (N.C. 1986)
• Decision Date: 18 February 1986
• Docket Number: No. 332PA85,332PA85
• Parties: Georganne SMITH v. William George PRICE.

Page 408

340 S.E.2d 408

315 N.C. 523

Georganne SMITH v. William George PRICE.

No. 332PA85.

Supreme Court of North Carolina.

Feb. 18, 1986.

Pettyjohn, Molitoris & Connolly by Anne Connolly, Winston-Salem, for plaintiff-appellee.

David B. Hough, Winston-Salem, for defendant-appellant.

BILLINGS, Justice.

I. Judgment Notwithstanding The Verdict

According to the defendant, the plaintiff's motion for JNOV was not properly before the trial judge because when the plaintiff made a motion for a directed verdict at the close of all of the evidence (a prerequisite for JNOV), the plaintiff did not state the specific grounds therefore, as required by N.C.G.S. § 1A-1, Rule 50(a). When making the motion, the plaintiff's attorney said, "Your honor, for the record purposes only, we'd also make a motion for a directed verdict with respect to the paternity issue but do not feel we need to argue that." The judge replied, "Okay, well, with respect to the issue of paternity, I'm going to deny the motions for directed verdict." The judge referred to motions in the plural because the defendant's counsel had just argued his own motion for directed verdict on the paternity issue, after plaintiff's counsel had argued his motion for directed verdict on the fraud issue. The plaintiff claims here that the judge and the parties knew the grounds for the plaintiff's motion. The defendant claims that, although an order entered by the trial judge states that the judge was aware of the grounds for the plaintiff's motion, there is nothing in the record to show that the defendant knew the grounds. This Court held in Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974) that, although stating the grounds for a directed verdict is mandatory, N.C.G.S. § 1A-1, Rule 50(a) should not be inflexibly enforced in situations where the grounds are apparent to the court and to the parties. We do not decide whether Anderson applies in this case because, assuming arguendo that the motion for JNOV was properly before the trial court, the judge erred in granting it.

In a paternity action under N.C.G.S. § 49-14, the plaintiff must prove beyond a reasonable doubt that the defendant is the father of the child whose paternity is in issue. In this case, in order to affirm the JNOV we must conclude as a matter of law that the jury could have had no reasonable doubt that the defendant was the biological father of the plaintiff's son. The evidence in this case is not so overwhelming, however, that the doubt expressed by the verdict of a unanimous jury can be said to be without reason.

In considering a motion for JNOV, the trial court is to consider all evidence in the light most favorable to the party opposing the motion; the nonmovant is to be given the benefit of every reasonable inference that legitimately may be drawn from the evidence; and contradictions must be resolved in the nonmovant's favor. Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981). The same standard is to be applied by the courts in ruling on a motion for JNOV as is applied in ruling on a motion for a directed verdict. Investment Properties v. Allen, 281 N.C. 174, 188 S.E.2d 441 (1972), vacated on other grounds on rehearing, 283 N.C. 277, 196 S.E.2d 262 (1973); Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). In Cutts v. Casey, 278 N.C. 390, 417, 180 S.E.2d 297, 311 (1971), an action in trespass to try title, this Court said that the trial court cannot "direct a verdict in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses." Subsequent cases have explained the statement in Cutts, and it is now clear that a directed verdict or a judgment notwithstanding the verdict may be entered in favor of the party with the burden of proof "where credibility is manifest as a matter of law." Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979). "In such situations it is proper to direct verdict for the party with the burden of proof if the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be shown." Id. In Burnette, this Court identified three situations where credibility is manifest as a matter of law:

(1) Where non-movant establishes proponent's case by admitting the truth of the basic facts upon which the claim of proponent rests. [Citations omitted.]

(2) Where the controlling evidence is documentary and non-movant does not deny the authenticity or correctness of the documents. [Citations omitted.]

(3) Where there are only latent doubts as to the credibility of oral testimony and the opposing party has "failed to point to specific areas of impeachment and contradictions." [Citations omitted.]

Id. at 537-38, 256 S.E.2d at 396.

In this case, although the defendant, the non-movant, admitted the truth of his own sexual relationship with the plaintiff and therefore the possibility of his paternity, he did not admit that he was the only male who could have fathered the plaintiff's son. Therefore, situation number one above does not apply in this case.

Neither is the controlling evidence in this case documentary; therefore, situation number two does not apply.

The plaintiff argues that although the plaintiff's case is dependent upon the credibility of her testimony, there are only latent doubts as to her credibility and the defendant has "failed to point to specific areas of impeachment and contradiction."

As this Court pointed out in Burnette, "the instances where credibility is manifest will be rare, and courts should exercise restraint in removing the issue of credibility from the jury." Id. at 538, 256 S.E.2d at 396. "[E]ven though proponent succeeds in the difficult task of establishing a clear and uncontradicted prima facie case, there will ordinarily remain in issue the credibility of the evidence adduced by proponent." Id. at 536, 256 S.E.2d at 395.

Although the plaintiff's evidence made out a strong prima facie case, we cannot say that all question of credibility was removed, especially since the quantum of proof required is beyond a reasonable doubt and is thus higher than in the usual civil case. Considering the evidence in the light most favorable to the defendant, several points emerge that make the plaintiff's case subject to some reasonable doubt.

Although the plaintiff stated that she thought her menstrual period began on 29 January 1981, she was not sure of the exact date. She stated that she kept a record of her periods on a pocket calendar but did not have the calendar with her at the trial. She had testified in a pre-trial deposition that her period in January had begun on the 27th. Further, although at trial she testified that she first met the defendant in December of 1980 and went out with him to the Royal Pub in January, in her deposition she had said that the first meeting occurred in November and they went out to the Royal Pub in December. Her explanation was that "the deposition was a month off altogether; if you'll just move a--everything a month late, I think everything will fall into place." Both parties stated that they engaged in sexual intercourse during the period between 20 February and 1 March 1981 and thereafter they had no further personal contact. Very shortly thereafter the plaintiff engaged in sexual relations with another man but asked the jury to discount the possibility that he was the father because she found out on 19 March 1981 that she was pregnant, and she did not have sexual relations with the other man until after that date. She was unsure of the exact date when she had sexual intercourse with him but was sure it was in late March. No results of the pregnancy test which the plaintiff said she had performed were introduced into evidence. This is not proof from which the courts can say that the evidence establishes as a matter of law that the jury could not entertain a reasonable doubt as to the defendant's being the father of the plaintiff's child.

The credibility of the plaintiff herself is at the heart of this case. She is an interested witness testifying about information within her knowledge but not available to the defendant as it relates to her menstrual cycle and her contact with other men. The jury certainly had the right to weigh her testimony and decide whether a reasonable doubt existed about her statements that the defendant was the only person with whom she had engaged in sexual relations between 29 January 1981 (the stated date of her last period) and 19 March 1981 (the date when she said she knew she was pregnant) and about whether she in fact became pregnant during that period of time.

The plaintiff also offered the results of blood grouping tests. Although the blood grouping tests gave a statistical probability ranging from 96.42% to 99.95% that defendant was the father of the plaintiff's son, blood tests are primarily reliable for excluding the possibility of paternity, not proving paternity. Cole v. Cole, 74 N.C.App. 247, 252, 328 S.E.2d 446, 449, affirmed per curiam, 314 N.C. 660, 335 S.E.2d 897 (1985). The General Assembly has determined that if blood tests definitely exclude the putative father as a possible biological father the jury shall be instructed that if they believe that the witness presenting the results testified truthfully as to those results, and if they believe that the tests and comparisons were conducted properly, then it will be their duty to decide that the alleged-parent defendant is not the natural parent.

N.C.G.S. § 8-50.1(b)(1). The legislature has not mandated any weight to blood tests which do not exclude the putative father. The jury is entitled to consider this evidence and accord it the weight deemed appropriate. The danger of relying too heavily on tests is illustrated rather dramatically in Cole, where the trial judge found paternity in part based on a 95.98% probability in the blood grouping tests, in spite of overwhelming evidence that the defendant...