Scottish Court of Session Decisions

Catherine Eleanor Florence, Warthill, Aberdeenshire, pursuer, brought an action of affiliation and aliment in the Sheriff Court at Dundee against George Smith, Dundee, defender.

Proof was allowed, the import of which sufficiently appears from the note (infra) of the Sheriff-Substitute (Neish), who on 26th July 1912 assoilzied the defender.

Note.—“The parties to this case resided on neighbouring farms in Aberdeenshire, their fathers were related, they were at school together, and have known each other from childhood. The pursuer has always resided with her father at Knowley, except for a period from January 1909 to May 1909, when she was in Aberdeen attending cooking classes.

“The defender on leaving school in January 1906 went to a bank in Inverurie. In May 1908 he was transferred to Durno. He remained there till January 1910, and during this period resided at home. From Durno he was transferred to Huntly, and remained there till September 1911, when he was transferred to Lochee. While at Huntly he came home at times for the week-end.

The pursuer says she was sweethearting with the defender, and this is the view taken of their relations by her father, her sister, her brother, Adam Addison, and John Addison. On the other hand, the defender's mother will not admit that her son was more friendly with the pursuer than with any other girl, although she admits that she knew that ‘Eleanor was fond of George.’ The defender's brother Robert did not look upon them as sweet-hearts. The defender admits that he was ‘on pretty friendly terms’ with the pursuer, and walked her home pretty often from church and choir practice. He has taken her arm and put his arm round her

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waist, but he had not kissed her except when they were children. He was not courting the pursuer. ‘I liked her; that was all. I had nothing against her.’

There are two incidents to which I must refer in connection with the degree of intimacy between the parties.

The first took place about the end of 1909 after choir practice. The defender drove his sister home to Tocher, then got on his bicycle and met the pursuer and her sister at the end of Tocher Road. He saw the girls home to Knowley, and at the gate he left his bicycle with the pursuer's sister Alice and went with the pursuer to the back of the house. The pursuer then says the defender tried to have connection with her, but that she resisted him. The defender denies that he attempted connection, and says his going away with the pursuer was by way of a joke to tease the younger sister. He says he expected Alice to lay down the bicycle and come and look for the truants. That part of the joke certainly did not come off. The idea of a joke never occurred to Alice, who says she was asked to hold the bicycle and light the lamp. Nor did it occur to the pursuer's father that it was a joke against Alice. He, finding Alice with the bicycle, took it inside the house, locked the door, and did not give the bicycle back to the defender till he had chaffed him, he does not say on what subject, but certainly not I fancy on playing hide-and-seek with Alice. The impression left on my mind is that the idea of a joke upon Alice is an afterthought, and that the defender desired to be alone with the pursuer.

Again, I doubt the defender when he says that he merely went out to take a run on his bicycle. I believe he came just to meet the girls on their way back from choir practice. I also doubt his tale about the soft tyre. At anyrate this incident is not put to the girls.

In my opinion, whether or not the defender attempted connection on this occasion, he left Alice and went round to the back of the house for the purpose of being alone with the pursuer, and not, as he says, to play a game of hide-and-seek with Alice.

The next incident took place in the loft or barn at Knowley about six weeks before the Premnay expedition, which took place in September 1910. The description of this building is very confused in the evidence, but it seems to have had a door and a trap-door down to the cart-shed. It is admitted that the parties were in the loft together. The pursuer says the defender locked the door and again attempted connection, but without success. The defender denies both these statements. The pursuer's brother Douglas came to look for them, the defender jumped through the trap-door, and the pursuer came out at the door. Again the defender says he jumped through the trap-door for a. joke.

I do not say that the evidence with regard to these incidents necessarily leads to the conclusion that the defender did attempt connections on these occasions.

After all, the parties had known each other since childhood, they were near neighbours, their families were on terms of intimacy, and their fathers were related. I should have thought these incidents trivial had it not been for the impression left on my mind that the defender is unduly anxious to avoid any imputation of intimacy with the pursuer. Whether or not they were sweethearts, I think it is not easy to read the evidence in the case without coming to the conclusion that they mutually evinced a decided preference for each other's company, and when the occasion served preferred that they should not be troubled with the presence of a third party.

I ought to say a word about the post-cards which the pursuer has produced. Again, looking to childhood friendship of the parties, I do not know that they are unduly affectionate in their terms. The pursuer says she destroyed letters which she had, at the defender's request. The defender denies that he made any such request. It she did so, it is a little difficult to understand why she did not burn the post-cards also. She says herself that she did not burn the post-cards because she had the post-cards at Knowley and the letters in Aberdeen, but if, as the pursuer says, the bonfire took place in Aberdeen, she has preserved three of the post-cards which she received in Aberdeen, and presumably she had them there.

Premnay, September 1910.—This is the first occasion upon which the pursuer speaks to connection. The defender and his brother were bicycling to Premnay. They were overtaken by the pursuer and her brother. The four visited a mutual friend in Premnay. On the way back the party divided at Old Rayne. The pursuer and defender took the long road, the other pair took the short road, and the four met again at Rayne School. The pursuer says connection took place on this occasion. Defender denies it. There is controversy as to how long James Smith and Douglas Florence had to wait at the school. Douglas says twenty minutes or half-an-hour. James says five minutes. The defender says he suggested a race; his brother corroborates him. I see no reason to doubt that a race was suggested, but I also suspect that the defender wanted to get away with the pursuer alone. Whether or not connection took place on this occasion is a very difficult question. I do not think it can be said that this public road during the daytime was a suspicious or secret place; no one saw any familiarity between the parties on this ride; and although I do think the parties may be fairly described as sweethearts by this time, I do not think I am prepared to say the connection on this occasion is proved.

September 1910 — January 1911.—The pursuer says she had connection with the defender several times between these dates. She gives neither day nor place, and there is no evidence as to the parties even having been seen together during this period.

The end of January or beginning of February 1911.—The pursuer speaks to

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connection at this time. This is the crucial date for the pursuer, because it corresponds with the ordinary date of conception. The child was born on 5th November 1911. The pursuer fixes the date because it was about the time the choir practices were resumed. According to Isobel Smith, the first choir practice for the session was on 14th February. The defender, according to his own account, was at home on Sundays 15th and 22nd January, and 5th and 12th February. The pursuer says—‘He had connection with me on a Saturday or Sunday. I saw him at church on the Sunday and he walked home with me. He said he would be passing in the evening and to look out for him between seven and eight. I did so and he came. I went out with him and we went down the road between Tocher farm and our own farm. He had connection with me on the roadside. I was with him about a quarter of an hour. My father suspected we were out.’ Now the father is not asked about this incident; no one saw the parties together at this time, and no one saw them walk home from the church. The meeting rests upon the pursuer's evidence alone. The defender says he was never at Knowley during this time between 1st January and 18th March, and he denies connection.

11 th or 12th March. —This is the next occasion to which the pursuer speaks. She is somewhat confused as to whether it was a Saturday or a Sunday (11th or 12th March). The defender says he was not at home that week-end, and he is corroborated by his mother, his sister, and his brother. His sister remembers that Sunday, because one of the candidates for the post of organist did not come forward and she had to play. Mr Ross for the pursuer objected to evidence being led as to the defender not having been home for this week-end, on the ground that it was an attempt to prove an alibi, of which no notice had been given on record. I did not think the evidence did amount to an attempt to prove an alibi in the strict sense of the word. Such an attempt would have been made had the defender adduced evidence to prove that he was in Huntley, but he led no such evidence. All he tries to prove is that he was not at home. Possibly he should have said so on record, but I do not think the question of whether or not the evidence should have been allowed is of much importance. I certainly did not think it right to compel the defender to amend with the penalty of paying expenses, but I expressly reserved the pursuer's right to lead her conjunct probation, and she did not avail herself of this reservation, I suppose because she could not produce any witness who did see the defender at home this week-end. If the evidence is bad, then again the alleged meeting rests solely on the pursuer's evidence. If the evidence is good, as in my opinion it is, I think it is quite clearly proved that the pursuer is mistaken as to this date.

18 th March. —It is admitted that on this date the parties walked home from choir practice, the defender leading his pony, and that they sat down on the brae. Adam Addison says he saw the couple lying at the roadside and that the defender had both his arms round the pursuer. The defender admits his ‘arm was through hers.’ ‘Both my arms were not round her.’ The pursuer says connection took place on this occasion; the defender denies connection.

2 nd April. —On this occasion the pursuer, defender, Mary Durno, and Watt walked home together from church in the evening. Pursuer and defender started in front, but afterwards allowed Mary Durno and Watt to pass them. Mary Durno says they had to wait for the other couple a quarter of an hour, and that defender had his arm round pursuer's waist. Watt thinks they waited ten minutes. This is the last occasion on which pursuer says connection took place. The defender again denies connection. The pursuer has consistently maintained from the first that the defender is the father of her child, and the defender has as consistently denied the imputation.

I think the most serious part of the evidence for the defender as regards connection is the meeting on 18th March. If Adam Addison is to be believed, the defender's position was very compromising. The hour was late, about ten o'clock. Choir practice began that night at 7'30, and usually lasted an hour, so that the parties had taken some little time on their way home. Addison watched them for ten minutes, but it is fair to presume that he saw no further impropriety than both the defender's arms round the pursuer. I frankly confess, however, that in my opinion, looking to the intimacy between the parties as evidenced by other incidents in the case, there is enough evidence to corroborate the pursuer's story of connection on this occasion. But then I do not think connection, even if proved on this occasion, is sufficient to father the child upon the defender.

The pursuer is quite indefinite in her condescendence as to the particular act of connection to which she attributes the conception of her child. She is equally indefinite in her evidence—indeed she is not examined on this point. Now the child was born on 5th November, and if conceived on 18th March the period of gestation would be 232 days in place of the usual 274 to 280 days. I do not, of course, suggest that 232 days is an impossible period of gestation, but it is an unusual period. There is no hint or suggestion on the whole case or in the pursuer's evidence that her baby was not a full time child, and I think that if the pursuer intended to rely upon this date as the occasion when her child was conceived some such evidence as I have indicated should have been forth-coming. In fact, of course, she maintains connection at the end of January or beginning of February, a date which would coincide with the ordinary period of gestation.

It is right that I should say that I am

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not prepared to hold that the pursuer has proved connection either on the road from Premnay or on 2nd April. Granted that on these occasions the defender showed a greater desire to be alone with the pursuer than he is ready to admit, I do not think the surrounding circumstances of these incidents necessarily or actually lead to the conclusion that connection took place on, these occasions, but again neither occasion coincides with the usual period of gestation.

The question remains whether, granted that connection is proved on 18th March, that, taken along with the other incidents in the case, such as the parties' partiality for each other's company and such familiarities as are spoken to, is sufficient to corroborate the pursuer and to prove that a meeting and connection took place at the end of January or beginning of February. I do not know what might have been the result if there had been some independent proof of the parties having met at this time, although I do not know that connection in January or February is to be presumed because it took place in March, but there is absolutely no direct evidence of their meeting except the pursuer's own statement. Opportunity for meeting there was in the sense that the defender was at his own home for the week-ends of 22nd January and 5th February, but there is no direct corroboration of the pursuer's statement that they did meet; of opportunity for connection in the proper sense there is no evidence beyond that of the pursuer. No one indeed speaks to having seen the parties together between the Premnay incident in 1910 and 18th March 1911. Suspicion there may be that the pursuer is fathering her child upon the proper person, but I do not think the issue in this case can be decided upon suspicion. In my opinion the pursuer cannot succeed unless her own evidence is supported by such corroboration as is reasonable to prove the issue of paternity which she maintains, and that issue is to my mind dependent upon her proving connection at the end of January or beginning of February. It is not to be left out of account that in my opinion the pursuer is mistaken as to the meeting on 11th or 12th March, and, giving all weight to her own evidence, she may be mistaken as to the crucial meeting.

Cases of this kind are always difficult. I think there is perhaps more than the usual difficulty in this case, but I have found myself unable to hold that there is sufficient corroboration of the pursuer's evidence with regard to the alleged meeting at the end of January or beginning of February to enable me to give a verdict in her favour.

I therefore assoilzie the defender.”

The pursuer appealed, and argued—The Sheriff-Substitute had held it proved that connection took place between the pursuer and the defender on 18th March. That fact, taken along with proof of opportunity at the time of conception, the prior intimacy of the parties, and their affectionate correspondence, was sufficient to establish the truth of the pursuer's story— M'Donald v. Glass, October 27, 1883, 11 R. 57, 21 S.L.R. 45; Ross v. Fraser, May 13, 1863, 1 Macph. 783; Buchanan v. Finlayson, December 8, 1900, 3 F. 245, 38 S.L.R. 152; Costley v. Little, November 18, 1892, 30 S.L.R. 87. Further, the defender's denial of the material incidents of 18th March discredited his evidence in regard to the prior events— Macpherson v. Largue,June 16, 1896, 23 R. 785, 33 S.L.R. 615; v. Paterson, June 16, 1896, 33 S.L.R. 657. [ Lord Dundas referred to Dawson v. M'Kenzie, 1908 S.C. 648, 45 S.L.R. 473, and M'Whirter v. Lynch, 1909 S.C. 112, 46 S.L.R. 83.]

Argued for the defender— Esto that connection on 18th March was held proved, that raised no presumption of connection at the time of conception unless there was proof of definite opportunity at that time— Ross v. Fraser, cit. sup; Macdonald v. Glass, cit. sup. Here the only opportunity was that parties were living in the same neighbourhood, and that was not sufficient on the authorities— Muir v. Tweedie, December 19, 1883, 21 S.L.R. 241; Havery v. Brownlee, 1908 S.C. 424, 45 S.L.R. 312; Buchanan v. Henderson, cit. sup. Further, the defender's denial of connection on the 18th March did not discredit his account of what took place prior thereto. The present case was different from Macpherson v. Largue, cit. sup., because what the defender denied was the inference to be drawn from the facts, but not the facts themselves— Dawson v. M'Kenzie, cit. sup.