Thomas v. Cook
| Decision Date | 10 December 1956 |
| Docket Number | No. 40304,40304 |
| Citation | 229 Miss. 458,91 So.2d 275 |
| Parties | R. C. THOMAS v. Fay Carolyn COOK. |
| Court | Mississippi Supreme Court |
Prewitt & Bullard, Vicksburg, for appellant.
Frank E. Shanahan, Jr., Vicksburg, for appellee.
This is an action of bastardy brought by the appellee against the appellant under Sections 383-398, Code of 1942. On the trial in the circuit court she obtained a substantial judgment against the appellant, from which this appeal is prosecuted.
A peremptory instruction was granted in favor of the appellee by the lower court, and this action of the court is the basis of the first assignment of error argued. Counsel seems to contend that a peremptory instruction is never proper in a case of this nature because the action is quasi criminal and the issue must be passed upon by a jury. In the case of Welford v. Havard, 127 Miss. 88, 89 So. 812, a case of the same nature, we said: 'The giving of the nine-jury verdict instruction and the instruction that informed the jury that they could return a verdict for the appellee on the mere preponderance of the evidence involves the consideration of one question, and that is, whether or not bastardy proceedings under chapter 15, Code of 1906, Secs. 268 to 283, inclusive, Hemingway's Code, chapter 7, Secs. 217 to 232, inclusive, is a civil or a criminal cause. The nine-jury verdict statute, chapter 162, Laws of 1916, Hemingway's Code, Sec. 2214, provides that in the trial of all 'civil suits in the circuit or chancery courts of this state' nine or more jurors may agree on a verdict; and that either party may request an instruction to that effect, and it shall be the duty of the judge to give it.
We went on to point out the criminal aspects of the proceeding and also the civil aspects, and then we said:
Under this point the appellant also argues that even if it is a civil case, under the evidence produced at the trial there was an issue of fact for decision by a jury. In the case of Thomas v. Williamson, 185 Miss. 83, 187 So. 220, 221, where the plaintiff obtained a peremptory instruction, in passing upon the rule with reference to granting such an instruction, we said:
'Under the record we think that the case here was one in which the scintilla rule was properly applicable, and that the action of the trial judge in granting the peremptory instruction was correct.'
In this case there was no substantial dispute as to the facts. The record shows that the appellee was a registered nurse at Vicksburg, Mississippi. The appellant started going with her about the first of 1951 and sometime later they started having illicit relations. At that time she thought that he was a single man but in fact he was married and had one child by his wife. She became pregnant sometime between October 15th and November 15th, 1953. She continued to live in Vicksburg until about July 1st, 1954, when she went to Greenville and rented an apartment and held herself out to be a married woman under the name of Mrs. Fay Thomas. On August 1, 1954, another nurse who was a friend of the appellee went to Greenville and lived with her until the child was born. The appellee was without funds to pay for hospitalization and the baby was delivered in her apartment by the nurse who was living with her on August 15, 1954. Beginning on August 5, 1954, and continuing for several months thereafter the appellant wrote to the appellee 29 letters in addition to sending her a Christmas card and also sending a Christmas card to the baby. In the first three letters, which were written before he had knowledge that the baby had been born, he was very solicitous about her condition and about the prospects of the birth of the child. In one of these letters he said, On August 17th he wrote her, 'Darling, take care of yourself and the baby and I will be looking forward to seeing you.' Shortly after the birth of the child he visited her in Greenville. The appellee was worried about making out a birth certificate and he told her to let the birth certificate show that he was the father of the child and that it was a legitimate child. On September 9, 1954, he wrote her and said among other things, 'Take care of the girl.' On September 14, 1954, he had just returned from a visit to see her and said,
After that letter appellee left Greenville and went to Ackerman, Mississippi, where she obtained employment as a registered nurse in a hospital. She did not advise appellant where she was until the latter part of October, when she wrote him about getting a car tag for her. On October 30th he acknowledged receipt of this letter and said, 'I had been trying for a month to find you and Carolyn and find out if you are O.K. * * * Darling, please let me know when you are coming down and bring Carolyn with you so I can see her, as I want to see her very much.' The name of the child is Carolyn Marie Thomas, which is the name that he suggested. On December 15, 1954, he wrote her, On November 17, 1954, he wrote her,
On December 18, 1954, appellant sent a Christmas card which reads:
On the same date he sent a Christmas card to the appellee which contains a verse in very endearing terms. On December 7, 1954, he wrote appellee,
On January 3, 1955, he wrote the appellee, On January 21, 1955, he wrote appellee, On January 8, 1955, he wrote appellee that his wife knew about Carolyn but had not mentioned it to him, but that as soon as he can get nerve enough he is going to bring it up to her and try to get her to agree to a divorce. He also said,
On August 15, 1954, which is the very day when Carolyn was born, h...
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Dunn v. Grisham, 42812
...are governed by the rules of procedure applicable to civil actions. Welford v. Havard, 127 Miss. 88, 89 So. 812 (1921); Thomas v. Cook, 229 Miss. 458, 91 So.2d 275 (1956); 10 C.S.J. Bastards Sec. 32b; 10 Am.Jur.2d, Bastards, Sec. 75. Accordingly, the constitutional prohibition of ex post fa......