APPEAL from the Circuit Court of Sangamon County; the Hon.
JOHN B. CRAIN, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
A jury verdict for the defendant was declared by the trial judge to be clearly erroneous and unsupported by the evidence.
The trial court then granted plaintiff judgment non obstante veredicto and conditionally granted a new trial.
We reverse the judgment n.o.v. and remand for a new trial.
The facts are lengthy, but must necessarily be set forth in detail. The complaining witness, Cathy Reynolds, testified at trial that a child was born to her on April 19, 1978; that she was unmarried; and that the child was living and had never been adopted. Reynolds had known and dated the defendant since she was 13. Beginning on July 10, 1977, complaining witness and defendant began having sexual intercourse on a regular basis and intermittently cohabited through the end of August 1977. They did not use any birth control measures. The complaining witness discovered she was pregnant in September of 1977 and attempted to notify the defendant but was unsuccessful. Both before and after the child was born, defendant engaged in actions consistent with his paternity of the child. These acts included, stating the child was his, playing with and expressing affection toward the child, wanting to change the child's surname to his own, and acknowledging a responsibility to support the child and marry the complaining witness. There was no denial of the testimony regarding Reynolds' and defendant's sexual relationship and defendant's behavior vis-a-vis the child. Several witnesses corroborated these facts.
The controversy centers around the credibility of Reynolds' testimony regarding the date of conception and her sexual activities during the time of conception. At trial, Reynolds admitted to having cohabited with a Douglas Hurley for 1 1/2 years until approximately April of 1977. In May she went to Florida with a friend, "Danny," and her brother. She testified that she broke off the relationship with Hurley and did not have sexual intercourse with any other man other than the defendant from June through August of 1977. However, at a preliminary hearing, Reynolds said that she had engaged in sexual intercourse with Hurley in June. Again, at trial, Reynolds claimed that she spent June in Iowa with Karla Hendricker looking for a job. Corroborating testimony varied as to whether Reynolds went to Iowa in early June or later in the month. Christine Todd testified that Reynolds attended a birthday party in the company of Hurley on June 13, in Springfield, and that Reynolds dated a Maynard Coyle at least once in June. Cathy Hendricker said that until June 15, Hurley was spending the nights with Reynolds and that they continued to see each other through the summer of 1977.
Reynolds admitted to having told Thelma and Karla Hendricker (Hurley's mother and half sister, respectively) that Hurley was the father. She claimed that the reason for this was that she wanted to move in with the Hendrickers because she became scared when she discovered she was pregnant and had moved away from home after an argument with her mother. There was contradictory testimony regarding whether Reynolds cohabited with Hurley when she lived with the Hendrickers during her pregnancy. Cathy Hendricker, Karla Hendricker's sister, and defendant's girlfriend at the time of trial, said Reynolds slept in Hurley's room, but Reynolds and Karla Hendricker denied it.
Reynolds testified that her last menstrual period before her pregnancy was in early July as she began relations with the defendant. Karla Hendricker corroborated this. However, at the preliminary hearing Reynolds had testified that her last period was in June. Christine Todd testified that Reynolds told her in June, before she went to Iowa, that Reynolds thought she was pregnant and that sometime in June that was confirmed by a doctor. Todd and Cathy Hendricker also claimed that Reynolds told them in September that she was three months pregnant and that the baby was due in March. Dr. Travis L. Hindman testified that blood tests on Reynolds, Reynolds' child and Hurley precluded Hurley from being the father.
• 1 I. The standard for entering a judgment n.o.v. in Illinois is the well established Pedrick test. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) The Pedrick standard is applicable to paternity actions. Petrous v. Roberts (1973), 12 Ill. App.3d 992, 299 N.E.2d 322.
Defendant contends that (1) Reynolds' prior inconsistent statements regarding her last menstrual period and her relations with Hurley in June of 1977 impeach her credibility, and (2) the substantive effect of Reynolds' prior inconsistent statements together with the other testimony regarding the due date of the child provides sufficient evidence so that the jury's verdict cannot be said to be erroneous.
• 2 The credibility of witnesses is crucial in paternity actions, and the jury is not required to believe a witness' statement merely because it is unrebutted. (People ex rel. Martin v. Presswood (1980), 85 Ill. App.3d 975, 407 N.E.2d 770.) However, plaintiff cites three cases where the trier of fact's evaluation of the complainant-mother's credibility was overruled on appeal. In Petrous, the court affirmed a judgment n.o.v. entered in favor of the mother where a defendant admitted having intercourse with plaintiff several times during the period of conception, often without the use of protective devices, stated that he possibly could be the child's father, and could not substantiate his assertion that plaintiff had relations with others. Plaintiff testified that she did not have relations with anyone other than the defendant during the period of conception.
In People ex rel. Temple v. Williams (1976), 40 Ill. App.3d 764, 353 N.E.2d 94, error was found in the lower court's denial of plaintiff's motion for a judgment n.o.v. in a paternity action. The complaining witness denied having sexual relations with any male other than the defendant, there was no evidence that she did so, and defendant admitted having sexual relations with her during the period of conception. There was no denial of complainant's testimony that defendant and she discussed marriage when she thought she was pregnant, and defendant admitted to a friend that he could be the father of the child. Central to the decision was the court's finding that plaintiff's contradiction of her own testimony did not render it unworthy of credit because the matters contradicted were immaterial.
In People ex rel. Gomez v. Wedech (1978), 58 Ill. App.3d 518, 374 N.E.2d 849, the lower court's judgment discharging a father in a paternity proceeding was reversed. The evidence established that conception occurred around May of 1975. Plaintiff testified at one point that she had sexual relations with defendant in April through June of 1975 but also stated that they had an argument in "early spring" of 1975 which resulted in a discontinuation of sexual relations for five or six weeks. On cross-examination plaintiff's response to defense counsel's question about the date of her last menstrual period was unresponsive and defensive. The court found the contradiction and uncertainty in plaintiff's testimony was easily explained by the lapse of time between the events and trial, the fact that examination took place with an interpreter, and that descriptions of spring are often based on the weather rather than the ...