APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
J. HYDE, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
On July 3, 1975, plaintiff, Paula Johnson, brought this action against defendant, Robert Hampton, to establish the paternity of a child born to plaintiff. (Ill. Rev. Stat. 1977, ch. 40, par. 1354.) Defendant pleaded not guilty to the charge and demanded a jury trial. Following the denial of plaintiff's motion for a directed verdict, the jury found defendant not guilty of the charge of paternity. In her post-trial motion plaintiff sought judgment n.o.v., a directed verdict or a new trial. The court denied this motion and the instant appeal followed.
On appeal plaintiff contends that: (1) the trial court erred in denying her motions for a directed verdict and judgment n.o.v.; (2) the trial court erred in denying her motion for a new trial; and (3) the jury instructions given were erroneous. We affirm. The following pertinent evidence was adduced at trial.
Defendant testified as an adverse witness pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 60.) He first met the plaintiff in July of 1972, but did not see her again until August. He then began seeing plaintiff on a weekly basis until October of 1972. He first had sexual intercourse with plaintiff in August 1972, and continued to have intercourse with her on a weekly basis until October 1972. During October he had intercourse with plaintiff only once and that was for the last time. At one point, he said that this was October 1972, but later said it was October 1973. Defendant was impeached with his sworn answers to plaintiff's interrogatories, wherein he stated that the last time he had intercourse with plaintiff was January 1973. Defendant then testified that he had seen the child but never visited him at plaintiff's home. He identified three photographs of himself and plaintiff.
On examination by his counsel defendant stated that he had earlier given October 1973 as the last time he had relations with plaintiff but was mistaken and meant October of 1972. He was also mistaken on his answer to the interrogatories as to the last time he had relations with plaintiff. He could not remember when the photographs were taken.
Paula Johnson testified. She first met defendant in August 1972. She began dating him in October and first had intercourse with him in November 1972. At about this time she was having a thyroid problem and entered a hospital on November 9 for an examination. She remained in the hospital for a week and was picked up by defendant and brought to his apartment. She lived with defendant from November 1972 through January 1973. During that time she had sex with him about four or five times a week. In December 1972 she went into the hospital for surgical removal of her thyroid. Her last period before pregnancy was from November 9 to 16, 1972. While in the hospital in December it was irregular and she began "spotting."
Once out of the hospital, she resumed her relationship with defendant. In February 1973, she told defendant that she might be pregnant and he told her not to worry, that they were going to have a little boy. They also discussed an abortion. In February 1973, she had a pregnancy test, and in March she discovered that she was four months pregnant. On July 22, 1973, she gave birth to a baby boy.
About a week later, she telephoned defendant and told him the baby had no food or diapers and asked him to bring some to her house. Later that day defendant did bring these things.
Around Christmas 1973, defendant brought a bag of toys for the baby to her mother's house. Plaintiff identified one of the photographs showing defendant, herself and her baby accompanied by her family. It was taken by her brother at her mother's house on Christmas of 1973. During December 1972 through April 1973, she had sex with defendant about five or six times a week. After the baby was born she had intercourse with defendant in the fall of 1973.
Plaintiff identified a second picture as being of her and defendant at a lounge taken in January 1973. She identified a third picture of herself and defendant as taken at his birthday party in November 1973. All three photographs were admitted into evidence.
On cross-examination plaintiff admitted that the baby was born two months premature. She stated that the last time she had sexual relations with defendant was in May of 1975. She was impeached with her sworn answers to interrogatories wherein she answered that she last saw defendant socially in May 1974. The witness stated that she did not change the address on her driver's license, voter's registration, or her postal address while she lived with defendant. She denied finding defendant with any other women in his apartment in October 1972 and also denied taking birth control pills for her thyroid condition. On redirect, she denied telling defendant that she was taking birth control pills.
Paul Johnson, plaintiff's brother, testified that he took the photograph of plaintiff, defendant, and plaintiff's child, accompanied by other members of plaintiff's family, around Christmas 1973 at his mother's house. He remembered this since he had received the Polaroid camera which he used for Christmas that year. At that time he noted the date and subjects on the back of the photograph.
Deloris Johnson, plaintiff's mother, testified that plaintiff was living at home off and on in January 1973. She knew that her daughter was staying with defendant. In November 1972 she and her husband had gone out with plaintiff and defendant socially. About a week after plaintiff had her child, defendant brought milk and other items for the baby to plaintiff who was staying at ...