Scottish Court of Session Decisions

Mary Wilhelmina Havery, dressmaker, Galashiels, brought, in the Sheriff Court at Selkirk, an action of affiliation and aliment against Robert Brownlee, dyer, Galashiels.

A proof was taken by the Sheriff-Substitute ( Smith).

The pursuer deponed that she had known the defender for a number of years; that she and her sister had the privilege of drying their washing in the defender's father's stove-house and that the defender often helped them; that upon an evening in the middle of March 1906 the defender was alone with her in the stove-house and that he there had connection with her against her will, as a result of which she gave birth to an illegitimate child on 29th December 1906. She further deponed that the defender had connection with her on other two occasions when they were out cycling in April and in July.

The defender denied that he had connection with the pursuer in March, but admitted the two acts in April and July.

There was no evidence directly corroborative of the stove-house incident; there was evidence that the defender sometimes went to the stove-house with the pursuer and her sister, but none that he had been there alone with her on the occasion in question.

The pursuer's sister deponed that in September the pursuer told her of her condition and that she had had connection with the defender in the stove-house about the middle of March.

There was evidence from various members of the pursuer's and defender's families which showed that the pursuer had at first been willing to marry her when he became aware of her condition, but had subsequently declined, apparently when it had become evident that she was further advanced in pregnancy than he had at first supposed.

The defender averred upon record that the pursuer had repeatedly had connection with another man in March, April, and

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May, but at the proof he entirely failed to substantiate the charge.

On 29th April 1907 the Sheriff-Substitute gave judgment in favour of the pursuer.

Note.—“The defender admits connection about two months subsequent to what would be presumably the date of conception. With such an admission proof of opportunity at a time which would account for paternity has been generally regarded as sufficient corroboration of the woman's evidence that connection actually took place. The nature of the opportunity and the whole circumstances must of course be taken into account. In this case these, in my opinion, are such as to establish the pursuer's case.

“I see no reason to doubt the evidence of the pursuer's sister, who impressed me as being a reliable witness. Her evidence is quite enough, along with the unchallenged facts, to show opportunity of a special kind. The exact day when the pursuer and defender were alone in the stove-house is not fixed, but I think it established that it was not earlier than the beginning of March, and most probably nearer the end than the beginning. If connection took place in March at all it would be sufficiently within the time recognised by our Courts as the possible period of gestation. The testimony of the Haverys that they dried their clothes in the stove-house until April is not really contradicted by anyone but the defender. The Brownlees speak merely from hearsay and from their own actings. The witness Seton, who undertook that duty for them, apparently knew nothing about the Haverys using the place at all. It would not readily occur to one that the weather would change so decidedly in March as to put it out of the question that reasonable people would continue to prefer to dry their clothes in the stove-house rather than in the open air. The Brownlees might quite well elect to make a change while other people might not.

There is no substance in the suggestion that the stove-house was a place where connection would have been impossible or even improbable. It might indeed have been an awkward place in which to commit a rape, but there is nothing said by the pursuer to indicate that her resistance was of a determined character.

The defender's account of his relations with the pursuer is not a convincing one. He was clearly on very friendly terms with the pursuer, helping her and her sister regularly with their weekly washing, yet, according to him, from the end of February to the 26th of May he never spoke to her except possibly in the most casual way until the day he had connection with her.

There is no attempt to account for this renewal of friendship, and no circumstances adduced to explain how she was led to yield herself up to him so suddenly. But the case against the defender does not stop there. His conduct after the pursuer told him of her condition is not reasonably explicable except in the view that he then accepted responsibility. He would have it believed that from the first he only accepted at most a conditional responsibility. He even goes the length of saying that he repudiated it altogether when first charged with it by the pursuer. Although he knew he had had connection with her four months previously, he says he told her he could not be the father. That must have meant that he then believed she was too far gone in pregnancy for the connection of 26th May to account for her condition. He indeed says that was his belief, and although the pursuer told him she had been going with no other man who could have been the father, he was so satisfied that his belief was well founded that he urged her to see a doctor for the purpose of ascertaining how far gone she was. Why he should expect her to help to prove her own statements false it is not easy to imagine, but the most extraordinary thing is that notwithstanding his suspicions, and his anxiety to have them confirmed, he never mentioned them even to his own parents when he was tackled about the paternity. He says himself he has no doubt he led his father to believe he was the father of the child. This appears to me to be quite incredible. His whole conduct up to the day he returned from his visit to Eskbank is incompatible with the idea that he had any such doubts as he now says he had. His evidence strikes me as being just an attempt to make statements of what occurred at the time which will square with his present defence. I think he has only succeeded in showing that his testimony is not worthy of credence. The pursuer's story, on the other hand, appears to me to be quite credible and consistent all through.

Regarding the interviews between the Haverys and the Brownlees when the pursuer's condition was made known to them, I do not think it necessary to say much. Allowing for such minor discrepancies as to the terms of conversations as are not unusual between perfectly honest witnesses, I do not find any material conflict, and, taking it in the most favourable light for the defender, it does not help him.

“The attempt to prove familiarities between Wintrup and the pursuer has admittedly completely failed.”

The defender appealed, and argued that there was no corroboration of the March incident.

The pursuer argued that there was corroboration, but that proof of opportunity at the date of conception wag sufficient, in view of the defender's admission of acts of connection in April and July, founding strongly on M'Donald v. Glass, October 27, 1883, 11 R. 57, 21 S.L.R. 45.