State ex rel. Brajdic v. Seber
| Decision Date | 04 January 1972 |
| Docket Number | No. 293,293 |
| Parties | STATE ex rel. Patsy BRAJDIC, Plaintiff-Respondent, v. John SEBER, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
This is a paternity case in which the jury found the defendant John Seber to be the father of a child born to Patsy Brajdic, the plaintiff. From the judgment, Seber appeals.
Louis J. Andrew, Jr., Fond du Lac, for plaintiff in error.
Robert W. Warren, Atty. Gen., E. Gordon Young, Asst. Atty. Gen., Madison, for defendant in error.
At the trial Patsy Brajdic testified she was single, 25 years of age, and had given birth to a child on November 11, 1969. She then described the events and her relations with John Seber which she claimed made him the father of her child. Seber did not testify and on this appeal raises the sole question of the sufficiency of Miss Brajdic's testimony to sustain the jury's verdict.
In paternity cases, the complainant has the burden of proving the issue by clear and satisfactory preponderance of the evidence. Sec. 52.355, Stats. This burden of proof is statutory in origin and peculiar to paternity cases and in language, at least, is not the same as the burdens of proof in other cases fashioned in the opinions of this court. Before 1957, paternity had to be proved beyond a reasonable doubt in the minds of the jurors. Timm v. State (1952), 262 Wis. 162, 54 N.W.2d 46. But by the Laws of 1957, chapter 296, section 8, a lesser burden of proof was created and stated in terms of 'clear and satisfactory evidence.' The statute stated this burden of proof was 'greater than a clear preponder(a)nce of the evidence required in other civil cases, but which shall be less than proof beyond a reasonable doubt required in criminal cases.' This burden of proof was applied in State ex rel. Sowle v. Brittich (1959), 7 Wis.2d 353, 96 N.W.2d 337. In 1959, the burden was again changed by statute to require the issue to be proved 'by clear and satisfactory preponderance of the evidence.' This test was recognized in Schmidt v. Schmidt (1963), 21 Wis.2d 433, 124 N.W.2d 569; see State ex rel. Kapusta v. Weir (1961), 12 Wis.2d 96, 106 N.W.2d 292.
This statement of the statutory burden of proof in terms of the quality of the preponderance of evidence rather than directly in terms of the quality of the evidence (such as clear and satisfactory evidence) or in terms of the convincing power of the evidence (such as beyond a reasonable doubt) need not be discussed at length. Every standard of burden of proof, other than the standard applied to criminal cases, is composed of two elements: (1) The degree of certitude required of the trier of the fact, i.e., reasonable certainty, and (2) either the quantity of the evidence, i.e., the greater weight or convincing power, or the quality of the evidence, i.e., clear, satisfactory, and convincing. The present statutory burden seems to be a hybrid by requiring a clear and satisfactory preponderance. In any event, the current burden of proof does not require the trier of the fact to be convinced beyond a reasonable doubt. However, in reviewing a jury verdict in a paternity case, the test on appeal is the same as in any other civil case, namely, whether there is sufficient credible evidence to sustain the particular burden of proof of the complainant had in the trial court. State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 254, 255, 112 N.W.2d 701.
The testimony of a complaining witness that she had intercourse with the defendant during the conceptive period and with no one else during that period is sufficient to sustain the verdict that the defendant is the father if the jury believes the testimony. State ex rel. Kapusta v. Weir, supra; State ex rel. Werlein v. Elamore (1967), 33 Wis.2d 288, 147 N.W.2d 252; See also Holz, The trial of a Paternity Case, 50 Marquette L.Rev. 450 (1967). This means a trier of the fact may be convinced to a reasonable certainty by such evidence, which standing alone although uncorroborated constitutes the clear and satisfactory preponderance of the testimony or the greater weight or convincing power. If testimony of a complaining witness is in conflict with other testimony of the complaining witness or the testimony of other witnesses, then the question of preponderance becomes more difficult.
The record shows Miss Brajdic was 25 years old, never finished high school, was doing sixth-grade-level work in the eleventh grade when she quit school. She could not read well and apparently drank heavily of intoxicating liquor. Before and during the trial, she was on tranquillizers. At the trial, it was necessary for both the complainant's and the defendant's attorney to frequently use leading...
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State v. Starks
...inconsistent, or contradictory” as to be considered not credible before anyone has even taken the stand. State ex rel. Brajdic v. Seber, 53 Wis.2d 446, 450, 193 N.W.2d 43 (1972). ...
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...Wisconsin JI—Civil 200 embodies two related elements: (1) degree of certitude and (2) quantum of evidence. State ex rel. Brajdic v. Seber, 53 Wis. 2d 446, 448, 193 N.W.2d 43 (1972). There appears to be no dispute that the appropriate quantum of evidence in an ordinary civil case is "the gre......
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Millonig v. Bakken, 81-2158
...a witness whose evidence is inconsistent, that does not render that testimony incredible as a matter of law. State ex rel. Brajdic v. Seber, 53 Wis.2d 446, 450, 193 N.W.2d 43 (1972). Thus, it was the function of the jury to determine where in the discrepant testimony and contradiction of th......
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...Wisconsin JI--Civil 200 embodies two related elements: (1) degree of certitude and (2) quantum of evidence. State ex rel. Brajdic v. Seber, 53 Wis. 2d 446, 448, 193 N.W.2d 43 (1972). There appears to be no dispute that the appropriate quantum of evidence in an ordinary civil case is "the gr......