Appeal from the County Court of Lake County; the Hon. MINARD
E. HULSE, Judge, presiding. Judgment reversed.
Rehearing denied October 10, 1963.
A paternity action was commenced in the County Court of Lake County upon the complaint of the plaintiff, Laura Gonzalez, against the defendant, Walter G. Monroe. At the time of the conception of the child, the plaintiff was a married woman living in the same household with her husband. A preliminary hearing was had before the County Judge who found that there was sufficient cause to hold the case for trial.
A trial by jury resulted in a verdict finding that the plaintiff, on the 10th day of March, 1960, was delivered of a male child out of wedlock, born alive and now living and further found that the defendant was the father of said child and that the plaintiff and defendant were not husband and wife.
Defendant's post-trial motion was overruled and judgment entered on the verdict. From this judgment, defendant appeals.
The defendant contends that the child here involved was conceived at the time plaintiff was married to Frank Gonzalez and that there is a presumption that the child is legitimate which has not been rebutted by sufficient evidence.
The plaintiff was married in 1934 to Frank Gonzalez and five children were born of that marriage. She was divorced from him on January 19, 1960, and continued to live in the same household after the divorce. The child in question was allegedly conceived during the first week of June, 1959, and was born on the 10th day of March, 1960. The plaintiff and defendant first met at a hospital in 1957 where she was employed as a nurse and he was a patient. She testified that they met at different places during 1957 and he professed to love her and vice versa. She stated that about the first of June, 1959, she and the defendant went on a one-week vacation leaving on a Sunday and returning on a Sunday; that they stayed in various motels and went to the Wisconsin Dells and to Lake Geneva where they stayed at a rooming house. On this trip, the defendant is alleged to have purchased a wedding band for her. She stated that on this trip and at various and numerous other times they engaged in sexual intercourse and discussed divorcing their respective spouses.
During 1959, plaintiff advised the defendant that she thought she was pregnant. The plaintiff was hospitalized in August of 1959 for high blood pressure and defendant visited her in the hospital every day and after her release from the hospital the defendant told his wife about the situation. Plaintiff went to the residence of the defendant and had a conversation with Mr. and Mrs. Monroe. A few days later, she again returned and had a conversation at which time, Reverend Charles McElvancy who was then pastor of the First Methodist Church was present. Shortly after the series of meetings between Mrs. Gonzales and Mr. and Mrs. Monroe, Mrs. Gonzalez and Mr. Monroe went to the home of Dr. Robert Robbins, a physician in the City of Waukegan, and the personal physician of the Monroe family.
Dr. Robert H. Robbins, M.D., testified that the defendant called him at his home stating that it was important that he talk to him. The plaintiff and the defendant talked with Dr. Robbins at his home about the possibility of terminating her pregnancy. In other words, the question of abortion was discussed, at which time he said he was not going to do it and he didn't know of anybody who would.
Patricia Miller, a lady friend of the plaintiff's, testified that on or about June 1, 1959, she drove the plaintiff to the Northwestern Railroad Station to meet the defendant where the plaintiff unloaded her suitcases into the automobile of the defendant's. She further testified that she met the plaintiff and defendant together approximately seven days later at which time they transferred the luggage from the defendant's automobile into the automobile driven by Mrs. Miller. Mrs. Miller testified that during this seven-day period, while plaintiff was gone, she kept the plaintiff's young daughter. Mrs. Miller also testified to participating in conversations with the plaintiff and defendant about the defendant obtaining a divorce and telling his wife about the situation because of the baby.
Frank Metz, age 23, and Marina Metz, age 21, children of the plaintiff, both testified that their father was Spanish and that the two of them and the other three children of the plaintiff's are all dark complected with dark eyes and dark hair and that the child in question has a very fair complection, blue eyes and light blond hair.
The witness, Frank Metz, further testified that he had seen his mother with the defendant on numerous occasions; that the defendant had admitted to him that he had gone to different motels with the plaintiff and had told his wife that he was going on a trip. Marina Metz testified that she had taken drives in an automobile on different occasions with her mother and the defendant and on some of these occasions, the defendant asked her if she would live with her mother and him after they got married.
The plaintiff testified that she and her husband had not slept in the same bed or bedroom since 1955 and did not speak to each other. This was verified by the testimony of Frank Metz. The testimony of the plaintiff concerning sexual intercourse or the lack thereof with her husband is conflicting. On direct examination, she testified, "I had intercourse with my husband once after I met Walt. To the best of my knowledge it was in 1957. I am positive this was the last time." On cross examination, she testified, "While I lived in the house with Gonzalez from 1957 until 1960, I only had intercourse with him one time."
The defendant denied categorically that he had, at any time, had sexual intercourse with the plaintiff. He denied that he was ever in Wisconsin with the plaintiff and denied that he had ever contemplated divorce of his wife and marriage to the plaintiff. He admitted that he accompanied the plaintiff to the home of Dr. Robbins for a discussion with him of the termination of her pregnancy. He also admitted that he had been alone with her for automobile drives on more than one occasion. He testified that he had left by himself about the first of June, 1959, for a fishing trip in Wisconsin but he did not know the names of any motels where he stayed; that he ...