Crosat v. Paige

PETERS, P. J. This action was brought by the plaintiff, an unmarried woman, to have defendant, also unmarried, declared to be the father of plaintiff’s child, and for an order for the support of the child. After a trial before a jury, the trial judge granted the plaintiff’s motion for a directed verdict. Prom a judgment based on the order for a directed, verdict and from an order for support, costs and attorney’s fees defendant appeals.

The case is a simple one. The child was admittedly conceived in June of 1952. Plaintiff testified that on the night of June 14th and early morning of June 15th of that year defendant had intercourse with her. Defendant, while admitting being in the company of plaintiff on the night in question, denied having intercourse with plaintiff on that night or any other time after April, 1952. In the face of this conflict in the evidence the trial court granted a directed verdict for the plaintiff. This was error. “A motion for a directed verdict may be granted upon the motion of the plaintiff, where, upon the whole evidence, the cause of action alleged in the complaint is supported, and no substantial support is given to the defense alleged by the defendant.” (Walters v. Bank of America, 9 Cal.2d 46, 49 [69 P.2d 839, 110 A.L.R. 1259].) The trial court, on such a motion, has no power to weigh the evidence, or to pass upon conflicts in the evidence or upon the credibility of the witnesses. If there is a material conflict in the evidence the motion must be denied. (Estate of Flood, 217 Cal. 763 [21 P.2d 579]; Estate of Lances, 216 Cal. 397 [14 P.2d 768].)

Tested by these standards it is obvious that the trial [387]court was in error in granting the motion for the directed verdict.

Both principals admit first meeting in 1948 while they were both employed in San Francisco by the same company. They began dating early in 1951. Thereafter, defendant’s job required him to do considerable traveling away from San Francisco, but they corresponded. Plaintiff testified that late in January or early in February, 1952, she visited defendant in Los Angeles and they had intercourse; that she again went to Los Angeles and saw defendant in April of 1952, and again they had intercourse. Plaintiff also testified that on June 14, 1952, she and defendant had dinner with friends in San Francisco, and then, in defendant’s antomobile, went to their favorite “necking” spot at Bernal Heights, where, between 1:00 a. m. to 6:30 a. m. of June 15th they engaged in the acts of intercourse.