APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT SAUNDERS, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment entered on a verdict directed for defendant-appellee Louis E. Kite in a paternity suit instituted by plaintiff-appellant Vivian R. Adams in the Circuit Court of St. Clair County under section 4 of the Paternity Act (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 54). *fn1 The issue at trial was whether defendant was the father of plaintiff's child born out of wedlock, and thus liable for support. See Ill. Rev. Stat. 1975, ch. 106 3/4, pars 51-53, 56.
Plaintiff testified that she met the defendant in March 1973 when she began work as a nurse's aid at a nursing home in Belleville where he was an orderly. They had two unconsummated sexual encounters, in June and October of 1974, prior to plaintiff's alleged impregnation; defendant ejaculated on one occasion, but on neither occasion did a completed act of intercourse take place. On December 13, 1974, the event occurred which allegedly resulted in plaintiff's becoming pregnant. As she described it:
"* * * [H]e put his penis between my legs but I had my legs closed. He couldn't put it inside my vagina and he moved up and down and then he ejaculated and his penis was right close to my vagina.
Q. And he ejaculated on you?
Q. And where the sperm go?
A. And part of his ran down onto the bed."
She testified that she then fell asleep without cleansing herself. Under further questioning by her counsel, plaintiff repeated that defendant did not penetrate her, but that semen fell upon her vaginal area.
She concluded that her pregnancy, which she discovered on January 29, 1975, resulted from the act of December 13 "[b]ecause he was the only one I had been with sexually, you know, involved in sex and that. * * * I had went out with this other man in January, but we didn't do anything." In February she informed the defendant that she was pregnant. She was asked what defendant's reaction to this information was, but her answer, at least as reflected in the record, is difficult to comprehend: `He didn't believe that, you know, if I was that he would marry me when it showed." She testified that she later showed defendant a photograph of the child and "he said that the baby looked like him and that it was his and he asked for the picture."
On cross-examination, plaintiff testified that at no time had defendant ever put his penis inside her vagina. She stated that she had started to keep track of the onset of her menstrual periods because "[i]t would be possible that sometime I would have sexual intercourse with him [the other man] and that I wanted to keep track in case I thought I was pregnant." She and the "other man." however, never engaged in intercourse, according to her testimony. She said the defendant had never made any written acknowledgment that he was the father of her child, "but he told me that he was unable to write." Neither he nor his family had ever made any gifts to her or the child, or offered to support the child. Defendant offered into evidence the child's birth certificate, on which the father's name did not appear. Plaintiff testified that she provided the information for the certificate at the hospital, but was not asked for, and did not offer to supply, the name of the father.
At the close of plaintiff's case, defendant moved for a directed verdict on the grounds that plaintiff had failed to make a prima facie case. Plaintiff's counsel argued that penetration is not necessary for pregnancy. "It's possible that the sperm can drip into the vaginal opening and then enter and fertilize the egg although, I will agree, it is improbable. The chances of becoming pregnant are substantially less." He contended that "the only man that could be the father is Louis Kite because her testimony is clear that she has had relations with no one else." Defense counsel responded: "As I understand their burden, it is [to prove that] more likely than not that he is the father. If they are basing the whole thing on the matter that they admit is highly improbable, that is not showing by a preponderance of the evidence * * *." The court indicated its concern with submitting the case to the jury "where there is no intercourse, no penetration, * * * no evidence that sperm entered the vagina * * *." As the court viewed the evidence in the light most favorable to plaintiff, it showed only "that there was some sperm on the surface of her body." Plaintiff's counsel responded that she had testified that the sperm was in the vaginal area. The court then directed the jury ...