{ "id": 3372237, "name": "THE PEOPLE ex rel. VIVIAN R. ADAMS, Plaintiff-Appellant, v. LOUIS E. KITE, Defendant-Appellee", "name_abbreviation": "People ex rel. Adams v. Kite", "decision_date": "1977-05-13", "docket_number": "No. 76-474", "first_page": "828", "last_page": "833", "citations": [ { "type": "official", "cite": "48 Ill. App. 3d 828" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "59 N.E.2d 655", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "389 Ill. 281", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2504650 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/ill/389/0281-01" ] }, { "cite": "133 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "350 Ill. App. 504", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5105553, 5108469 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ill-app/350/0504-02", "/ill-app/350/0504-01" ] }, { "cite": "250 N.E.2d 796", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "112 Ill. App. 2d 42", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1590860 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0042-01" ] }, { "cite": "314 N.E.2d 623", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "626" } ], "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 275", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5346739 ], "year": 1974, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0275-01" ] }, { "cite": "346 N.E.2d 116", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 88", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714087 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0088-01" ] }, { "cite": "206 N.E.2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "57 Ill. App. 2d 293", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2597649 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0293-01" ] }, { "cite": "87 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "338 Ill. App. 159", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5004045 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/ill-app/338/0159-01" ] }, { "cite": "276 Ill. App. 457", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3251105 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ill-app/276/0457-01" ] }, { "cite": "347 N.E.2d 29", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 921", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2719041 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0921-01" ] }, { "cite": "173 N.E.2d 822", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "30 Ill. App. 2d 103", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5790390 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0103-01" ] }, { "cite": "35 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "311 Ill. App. 127", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3382084 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/ill-app/311/0127-01" ] }, { "cite": "331 N.E.2d 201", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 597", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499336 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0597-01" ] }, { "cite": "323 N.E.2d 62", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 192", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706158 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0192-01" ] }, { "cite": "357 N.E.2d 1203", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2721652 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0947-01" ] }, { "cite": "242 N.E.2d 275", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "101 Ill. App. 2d 183", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2900910 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-2d/101/0183-01" ] }, { "cite": "299 N.E.2d 322", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2856746 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0992-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] } ], "analysis": { "cardinality": 768, "char_count": 12825, "ocr_confidence": 0.876, "pagerank": { "raw": 9.258198217888284e-08, "percentile": 0.5113707401473986 }, "sha256": "a801139be832c6aee38ce8c1e829e450d380f22983c74e068832210d6eb2f704", "simhash": "1:ab9774789d81aa55", "word_count": 2220 }, "last_updated": "2023-07-14T15:43:36.955471+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE ex rel. VIVIAN R. ADAMS, Plaintiff-Appellant, v. LOUIS E. KITE, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE KARNS\ndelivered the opinion of the court:\nThis 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%, par. 54). The issue at trial was whether defendant was the father of plaintiff s child bom out of wedlock, and thus hable for support. See Ill. Rev. Stat. 1975, ch. 106%, pars 51-53, 56.\nPlaintiff testified that she met the defendant in March 1973 when she began work as a nurse\u2019s 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\u2019s 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\u2019s becoming pregnant. As she described it:\n\u201c \u00b0 \u00b0 \u00b0 [H]e put his penis between my legs but I had my legs closed. He couldn\u2019t put it inside my vagina and he moved up and down and then he ejaculated and his penis was right close to my vagina.\nQ. And he ejaculated on you?\nA. Yes.\nQ. And where the sperm go?\nA. In my vagina.\nQ. What general area?\nA. And part of his ran down onto the bed.\u201d\nShe 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.\nShe concluded that her pregnancy, which she discovered on January 29,1975, resulted from the act of December 13 \u201c[b]ecause he was the only one I had been with sexually, you know, involved in sex and that. 0 \u00b0 \u00b0 I had went out with this other man in January, but we didn\u2019t do anything.\u201d In February she informed the defendant that she was pregnant. She was asked what defendant\u2019s reaction to this information was, but her answer, at least as reflected in the record, is difficult to comprehend: \u2018He didn\u2019t believe that, you know, if I was that he would marry me when it showed.\u201d She testified that she later showed defendant a photograph of the child and \u201che said that the baby looked like him and that it was his and he asked for the picture.\u201d\nOn 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 \u201c[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.\u201d She and the \u201cother man.\u201d 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, \u201cbut he told me that he was unable to write.\u201d 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\u2019s birth certificate, on which the father\u2019s 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.\nAt the close of plaintiff\u2019s case, defendant moved for a directed verdict on the grounds that plaintiff had failed to make a prima facie case. Plaintiff\u2019s counsel argued that penetration is not necessary for pregnancy. \u201cIt\u2019s 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.\u201d He contended that \u201cthe only man that could be the father is Louis Kite because her testimony is clear that she has had relations with no one else.\u201d Defense counsel responded: \u201cAs 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 \u201cwhere there is no intercourse, no penetration, \u201d * \u00b0 no evidence that sperm entered the vagina \u00b0 \u00b0 \".\u2019\u2019As the court viewed the evidence in the light most favorable to plaintiff, it showed only \u201cthat there was some sperm on the surface of her body.\u201d Plaintiff\u2019s counsel responded that she had testified that the sperm was in the vaginal area. The court then directed the jury to render a verdict for defendant, stating that \u201cwithout any evidence other than the fact that a baby was bom at a time following the described incident, there is no evidence here by way of expert or other witnesses that a pregnancy can result \u00b0 \" or that in this case there was actual penetration of the vagina by sperm.\u201d\nOn appeal, plaintiff contends that the court erred in granting the motion for a directed verdict. The issue for our determination is whether the court erred in finding that all of the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favored the defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria and Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967); Petrous v. Roberts, 12 Ill. App. 3d 992, 299 N.E.2d 322 (2d Dist. 1973.)\nTo take a phrase from the Pedrick case itself, the most that can be said for plaintiff\u2019s evidence that defendant fathered her child is that it is \u201chighly equivocal.\u201d (37 Ill. 2d 494, 511, 229 N.E.2d 504, 514.) Although at first she testified that sperm went in her vagina, she later responded in the affirmative to her attorney\u2019s question whether the sperm landed upon her \u201cvaginal area.\u201d Both plaintiff\u2019s counsel and the court apparently proceeded on the assumption that her testimony was that defendant had ejaculated on her, not in her vagina. Her testimony was clear that defendant\u2019s penis never entered her vagina. Viewed most favorably to the plaintiff, what the evidence amounted to was her own, necessarily uncorroborated, testimony that she did not have sexual intercourse with anyone during the crucial period of time, and that defendant ejaculated in the vicinity of her vagina. We have no hesitation in concluding that the trial court was correct in deciding that, on the basis of this evidence only, no verdict finding defendant to be the father of her child could ever stand.\nThe ordinary rules of pleading and proof are applicable in a paternity case. (People ex rel. Jones v. Schmitt, 101 Ill. App. 2d 183, 242 N.E.2d 275 (3d Dist. 1968).) As in any other case, a jury cannot be allowed to predicate its verdict on mere conjecture or surmise. (Gillespie v. R.D. Werner Co., Inc., 43 Ill. App. 3d 947, 357 N.E.2d 1203 (5th Dist. 1976); Champion v. Knasiak, 25 Ill. App. 3d 192, 323 N.E.2d 62 (1st Dist. 1974).) Neither speculation nor suspicion is an acceptable substitute for proof. (Hawkins v. Richardson, 29 Ill. App. 3d 597, 331 N.E.2d 201 (1st Dist. 1975); Halowatsky v. Central Greyhound Lines, Inc., 311 Ill. App. 127, 35 N.E.2d 541 (1st Dist. 1941).) Nor is defendant required to introduce evidence or have a theory of the occurrence. (Krump v. Highlander Ice Cream Co., 30 Ill. App. 2d 103, 173 N.E.2d 822 (1st Dist. 1961).) The burden in a paternity action is on the mother to establish that the defendant, more probably than not, is the father of her child. In the ordinary case, her own testimony, if believed, can sufficiently meet that burden. People ex rel. Raines v. Price, 37 Ill. App. 3d 921, 347 N.E.2d 29 (4th Dist. 1976).\nBut this is not the ordinary case, where the mother testifies that conception occurred after an act of copulation with the defendant. We agree with defendant, and with the court below, that to make a prima facie case on facts such as these would necessitate proof that it is possible for conception to occur in such a manner. Such proof might take the form of the testimony of an expert witness, on the analogy of the professional liability cases (see, e.g., Olson v. North, 276 Ill. App. 457 (2d Dist. 1934). See also Wigmore Evidence \u00a7 2090, at 453-62 (3d ed. 1940) and at 177-79 (1975 Supp.)). Conceivably, it might be supplied by the court\u2019s taking judicial notice of the scientific fact that a woman can become pregnant after sperm falls upon her vaginal area, were that a fact irrefutably established in the scientific community. See Nicketta v. National Tea Co., 338 Ill. App. 159, 87 N.E.2d 30 (1st Dist. 1949); McCormick, Evidence \u00a7330 (2d ed. 1972).\nIn other contexts, Illinois courts have said that where a condition is shrouded in controversy as to origin, lay testimony may be insufficient to establish a prima facie showing of causal relationship. (Hyatt v. Cox, 57 Ill. App. 2d 293, 206 N.E.2d 260 (4th Dist. 1965); cf. Jackson v. Navik, 37 Ill. App. 3d 88, 346 N.E.2d 116 (2d Dist. 1976).) Conversely, expert accident reconstruction testimony is not necessary where \u201cthe physical evidence leaves a trail easily read by the average juror.\u201d Dobkowski v. Lowes, Inc., 20 Ill. App. 3d 275, 277, 314 N.E.2d 623, 626 (5th Dist. 1974); Abramson v. Levinson, 112 Ill. App. 2d 42, 250 N.E.2d 796 (1st Dist. 1969).\nWe agree with defendant that to permit the jury to speculate as to the possibility of pregnancy on the facts shown here would be to invite a verdict which might well have no connection with reality. Jurors are routinely instructed that they may consider all the evidence in light of their own observation and experience in the affairs of life. (IPI Civil No. 1.04 (2d ed. 1971).) They are presumed to be competent in everything pertaining to the ordinary and common knowledge of mankind. (Hays v. Place, 350 Ill. App. 504, 133 N.E.2d 178 (4th Dist. 1953).) Wigmore refers to this doctrine as \u201cjudicial notice by the jury\u2019s own knowledge,\u201d but cautions that the scope of its operation is narrow: \u201cit is strictly limited to a few matters of elemental experience in human nature, commercial affairs, and everyday life.\u201d (9 Wigmore, Evidence \u00a7 2570, at 542-44 (3d ed. 1940).) Although the ordinary circumstances of human conception areno doubt within the experience of the average juror \u2014 and thus of the court, which is not presumed to be more ignorant than other people (Theo. B. Robertson Products Co. v. Nudelman, 389 Ill. 281, 59 N.E.2d 655 (1945)) \u2014 we think that the possibility of conception under the facts of the case is a matter outside of common experience that requires proof. Nor would it be appropriate for this court to take judicial notice of critical evidentiary material not presented in the court below, even had such material been presented to us, which it has not. Ashland Savings & Loan Association v. Aetna Insurance Co., 18 Ill. App. 3d70,309 N.E.2d 293 (1st Dist. 1974).\nFor the foregoing reasons, the judgment of the Circuit Court of St. Clair County is affirmed.\nAffirmed.\nCARTER, P. J., and G. MORAN, J., concur.\nSection 4 provides in pertinent part that \u201c[i]f the woman is \u00b0 \u00b0 \u201ca recipient of assistance as defined in Section 2 \u2014 6 of \u2018The Illinois Public Aid Code\u2019, approved April 11, 1967, as amended [Ill. Rev. Stat. 1975, ch. 23, par. 2 \u2014 6] \u00b0 \u00b0 \u00b0 she may request the Department of Public Aid to file a complaint in her behalf under this Act. 0 0 0 The Department shall refer her complaint to the Public Aid Claims Enforcement Division of the office of the Attorney General as provided in Section 12 \u2014 16 of the Illinois Public Aid Code [Ill. Rev. Stat. 1975, ch. 23, par. 12 \u2014 16] for enforcement by the Attorney General. Upon such request the Attorney General shall file a complaint in her behalf \u00b0 \u00b0 0.\u201d Vivian Adams is referred to as \u201cplaintiff\u201d throughout this opinion.\nWe are not satisfied that the transcript accurately reflects the testimony in the following exchange between plaintiff and her attorney:\n\u201cQ. And he ejaculated on you?\nA. Yes.\nQ. And where the sperm go?\nA. In my vagina.\nQ. What general area?\u201d\nAnother apparently garbled portion of the testimony is the recorded response of Alean Atkins, a former co-worker of the parties, when asked whether defendant ever acknowledged the child in her presence.\n\u201cA. Well, sometimes like he\u2019s plural type you don\u2019t know sometimes whether he is telling the truth or not and then he could make something big out of nothing and then he\u2019d come back and he\u2019d switch it all the way around. I really can\u2019t say but he put things in so many words.\u201d", "type": "majority", "author": "Mr. JUSTICE KARNS" } ], "attorneys": [ "Thomas Benedick, of East St. Louis, for appellant.", "Mark Kruger, of Land of Lincoln Legal Assistance Foundation, Inc., of East St. Louis, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE ex rel. VIVIAN R. ADAMS, Plaintiff-Appellant, v. LOUIS E. KITE, Defendant-Appellee.\nFifth District\nNo. 76-474\nOpinion filed May 13, 1977.\nThomas Benedick, of East St. Louis, for appellant.\nMark Kruger, of Land of Lincoln Legal Assistance Foundation, Inc., of East St. Louis, for appellee." }, "file_name": "0828-01", "first_page_order": 862, "last_page_order": 867 }