Rose v. Tandowsky

This is an appeal by defendant from a judgment decreeing him to be the father of the minor child of plaintiff and ordering him to pay $100 per month for the child’s support. Defendant also has appealed from an order allowing plaintiff additional counsel fees upon the appeal. The two appeals have been consolidated and presented upon a single set of briefs.

The action was commenced in November, 1945, to establish paternity of a child born May 21, 1940. Plaintiff testified that she first met the defendant, a physician practicing in Hollywood, in 1934; that in the year 1936, she commenced having sexual relations with the defendant at his office after business hours, and that their relations continued up to the time of the conception of the child in August, 1939; that she had no relations with any other man during this period.

According to plaintiff’s testimony, upon discovering her pregnancy, it was decided by plaintiff and defendant that

The defendant denied that he ever had sexual intercourse with the plaintiff. He testified that until 1936, he saw the plaintiff only in the company of a Mr. Lippman. The first visit of plaintiff to defendant’s office was in 1936, in the company of Mr. Lippman, for the purpose of determining whether plaintiff was pregnant. From 1936 to 1939, defendant saw the plaintiff only when making professional visits to her home to treat her mother, or when plaintiff was in the company of Mr. Lippman. In the summer of 1939, pla.irit.iff came to him for a pregnancy test, which was “positive,” but she did not name the father. Defendant denied that he spent three days in San Francisco with plaintiff, stating that he went there on business, and met her there only once for lunch, in order to tell her about her mother’s condition. He denied ever giving plaintiff any cash whatsoever; denied that he visited her at the hospital or paid her hospital bills, and testified that he did not see her after the San Francisco visit until April, 1941, when he was separated from his wife, and about that time he gave plaintiff a check for $10 to help her out on her rent; that in September of the same year he gave her a check for $60 to help finance a trip to New York. During the period from April to September, 1941, he visited her at her home and sometimes she visited at his home in company with others. Plaintiff worked in the defendant’s office for a short period in the summer of 1941, and again

There was testimony corroborative of the plaintiff as to frequent visits by defendant at her home from August, 1940, to September, 1941 (the defendant denied seeing plaintiff after the San Francisco visit until April, 1941), and testimony by a “surprise” witness to an act of sexual intercourse between plaintiff and defendant, at the home of the witness, in 1938. The defendant introduced evidence supporting his testimony that the San Francisco trip was primarily a business trip; records of the building in which he had his office in contradiction of plaintiff’s testimony that they met there after business hours; testimony by an employee of Mr. Lippman to the effect that plaintiff continued her association with Lippman until the early part of 1938; and evidence of a pharmacist that Lippman and plaintiff consulted with him in reference to a pregnancy test in 1938.

The first assignment of error is that the trial court gave misleading and improper instructions. It is contended that the two following instructions were conflicting and led to confusion on the part of the jury:

“You are instructed that the mere possibility that some person other than Balph M. Tandowsky might be the father of Bobert Bose will not support a verdict for the defendant, and if you believe from a preponderance of all the evidence, the defendant, Balph M. Tandowsky, is the father of the child, you must return a verdict in favor of Betty Bose, the plaintiff.

“You are instructed that the burden of proof has remained on the plaintiff throughout this trial, to prove that the defendant is the father of Bobert Bose. Therefore, you will not find that the defendant is the father of Bobert Bose unless you are satisfied by a preponderance of the evidence that the defendant had sexual intercourse with the plaintiff at the time when according to the usual laws of nature, the child was begotten, and that the plaintiff, Betty Bose, did not have sexual intercourse with any other man at the time when according to the usual laws of nature, the child was begotten.”

It is urged that the first instruction above quoted had the effect of removing from the jury’s consideration the issues

Although it would not appear at all likely that a jury could be confused or misled by the instructions quoted, appellant has presented the affidavits of three of the jurors in an attempt to show that at least two of them (two who voted for plaintiff) misunderstood the effect of the first instruction, in that, after hearing the instructions twice and obtaining permission to take the written instructions into the jury room, these two jurors concluded that by the first instruction above quoted they were foreclosed from all consideration of the alleged association of plaintiff with Mr. Lippman. Such an attempt at impeachment of the verdict by affidavits or statements of jurors cannot be considered except where the purpose is to show that the verdict was arrived at by chance. (Code Civ. Proe., § 657, sub. 2; Phipps v. Patterson, 27 Cal.App.2d 545 , 546 [ 81 P.2d 437 ], and cases there cited.)

The court also instructed the jury that “if you find from a preponderance of the evidence that the defendant . . .

Appellant requested an instruction on the unreliability of evidence of physical resemblance. This instruction was refused. In re Jessup’s Estate, 81 Cal. 408 [ 21 P. 976 , 22 P. 742 , 1028, 6 L.R.A. 594 ], cited by appellant, involved a question of photographs, and the court merely said, in the course of its decision that “proferí of the persons themselves . . . would not go far toward establishing relationship.” In People v. Burke, 18 Cal.App. 72 [ 122 P. 435 ], it was said that while proof of resemblance alone would be insufficient to establish paternity, “it would be clearly a circumstance to be considered in connection with other facts. . . . The jury are the best judges on the question of similarity, and unless it exists, a production of the offspring would be in the defendant’s favor. ...”

The defendant requested the court to instruct the jury specifically with reference to the enmity between the “surprise” witness and defendant as affecting the credibility of such witness, and also the giving of an instruction to the effect that the charge made by plaintiff “is one which is easy to make and difficult to disprove” and that plaintiff’s testimony ‘1 ought to be received with great care and caution, and the evidence in this case should be weighed with the utmost care without bias or prejudice. ’ ’ These two instructions were properly refused, because the jury was properly instructed in other instructions upon the credibility of witnesses and neither party is entitled to have instructions as to the credibility of particular witnesses. The refusal of other instrue

Appellant next seeks to ground prejudicial error upon the court’s refusal to grant a continuance for the purpose of allowing defendant to secure and introduce evidence to impeach the witness who testified to an act of intercourse between the parties in 1938, and whose testimony, it was claimed, came as a surprise to defendant and his attorney. In an effort to impeach this witness, the defendant was permitted to introduce testimony of the. ill-will existing between himself and the witness, the existence of which state of mind on his part was admitted by the witness. As grounds for a continuance defendant urged that he desired to secure from the military authorities at Washington records to show that the witness had suffered a court-martial conviction, the record of which, he claimed, would show that the witness was mentally afflicted and that his addiction to the use of morphine was indicated. However, the manifest purpose for the requested continuance was not to secure evidence in contradiction of the testimony given by the “surprise” witness, but merely to secure cumulative evidence of an impeaching character. “It is the rule that a continuance is properly refused if the testimony of the absent witness would only tend to impeach a witness of the adverse party.” (12 Am.Jur. 468. See, also, 13 C.J. 154; 17 C.J.S. 229.) Moreover, the admissibility of such impeaching evidence was, to say the least, extremely doubtful. Defendant sought to prove, not the conviction of a felony, but the conviction of a military offense for which the witness was sentenced to 12 months’ imprisonment, but placed on probation. In such circumstances, no abuse of discretion on the part of the trial court appears.

The next question presented is whether the court committed prejudicial error in limiting the scope and degree of the cross-examination of plaintiff. Appellant urges that the scope of plaintiff’s direct testimony largely determined the proper scope of cross-examination, and in this connection directs attention to the testimony of plaintiff that she met

From the foregoing it is plain, and it appears from a reading of the transcript, that the cross-examination of plaintiff was not unduly restricted, but that on the contrary, the defendant was permitted to go into all matters testified to by plaintiff from the time, according to her testimony, she first commenced relations with defendant in 1936, up to and after the birth of the child. Appellant, however, assigns error in the striking of testimony given by defendant as to a pregnancy test made in 1936, at the request of Mr. Lippman. This error, if it was an error, was so unsubstantial as to afford no ground for reversal. The defendant was permitted to testify, in contradiction of plaintiff, that her first visit to

It is next asserted that the conduct of plaintiff’s counsel during the trial “was highly improper and prejudicial to the defendant.” Excerpts from the reporter’s transcript indicate that on several occasions plaintiff’s counsel asked her questions such as, “Who is the father of the child? Did he give you any money for the support of the child?” and other questions implying that the money paid by defendant was for the support of the child, to which objections were made that such questions assumed facts not in evidence. Under the same heading appellant asserts that counsel sought to influence the jury, which was to try the issue of paternity only, by references to the substantial income of the defendant. The alleged misconduct was not such as to warrant a reversal or new trial.

The second appeal with which we are here concerned relates to the allowance of counsel fees to plaintiff and respondent in connection with defendant’s appeal from the judgment. It was stipulated that the sum of $750 was a proper allowance for fees and costs in connection with the trial of the cause. It is contended by appellant that the sum of $750 allowed for services in representing respondent upon this appeal is excessive; that if $750 is adequate for the work involved in preparing for trial, taking depositions, and engaging in a four-day trial, then a similar amount for defending upon appeal is excessive, as the amount of work and time involved on appeal is “substantially less” than that consumed prior to the appeal. No authorities are cited by appellant as to what would be a reasonable fee for work upon an appeal in circumstances similar to those here presented. The measure by which attorney’s fees are to be gauged in cases such as the one before us is (1) defendant’s financial ability to pay, and (2) the character and amount of services rendered. (Andrade v. Newhouse, 54 Cal.App.2d 339 , 346 [ 128 P.2d 927 ]; Kyne v. Kyne, 38 Cal.App.2d 122 [ 100 P.2d 806 ].)

The judgment and the order allowing attorney’s fees on appeal are, and each is, affirmed.

York, P. J., and Doran, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September 18, 1947.