Loggins v. Bundy

Hays, J. From a verdict and judgment finding defendant to be the father of plaintiff’s child, he appeals. Plaintiff, never married, has three children, the one in question being the second. She asserts defendant had intercourse with her numerous times in 1952. She became pregnant in August 1952 and the child was born in May 1953. She denies having intercourse with any other man during the spring and summer of 1952. Defendant admits having intercourse with her in 1952 but asserts the last time was in May 1952. He called three men as *154 witnesses who testified they had had intercourse with plaintiff during the summer of 1952. The error assigned is in denying defendant a new trial. Appellant contends the verdict is contrary to the evidence; the result of passion and prejudice, and that plaintiff has failed to carry the burden of proof. All parties concede that the granting of a new trial rests in the sotínd discretion of the trial court and that only for a clear abuse thereof will this court interfere. The case presents purely a fact question. Assuming that the three men did have intercourse with her, that fact would not excuse the defendant, if the father of the child — a fact which the jury could find under this record if it believed the plaintiff, as it must have done. See State v. Baker, 89 Iowa 188, 56 N.W. 425. Finding no error the judgment of the trial court is affirmed. —Affirmed. All Justices concur.