219 F2d 27 McIntosh v. O Benjamin O Benjamin

219 F.2d 27

94 U.S.App.D.C. 410

John K. McINTOSH, Appellant,

v.

Katherine O. BENJAMIN, Individually and as next friend of

Carol Ann Benjamin, Infant, Appellee.

Katherine O. BENJAMIN, Individually and as next friend of

Carol Ann Benjamin, Infant, Appellant,

v.

John K. McINTOSH, Appellee.

Nos. 11271, 11272.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 25, 1954.

Decided Nov. 4, 1954.

Petition for Rehearing Denied Dec. 8, 1954.

Mr. Mark P. Friedlander, Washington, D.C., for McIntosh.

Mr. David Carliner, Washington, D.C., for Benjamin.

Before STEPHENS, Chief Judge, and EDGERTON, CLARK, WILBUR K. MILLER, PRETTYMAN, BAZELON, FAHY, WASHINGTON and DANAHER, Circuit Judges.

PER CURIAM.

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1

This is a suit on an alleged oral contract. Plaintiff is the mother, suing in her own right and as next friend, of an infant child conceived and born during the period of the mother's marriage. Defendant, alleged in the complaint to be the child's father, is a man not then or now the mother's husband. Under the alleged contract the defendant was to pay for the partial support of the child. A money judgment was entered for the plaintiff on the first count of the complaint.

2

This case1 has many facets and poses many problems. The court is divided upon those problems, and none of the varying views of the several judges concerning them is shared by a majority; except that a majority of the court are [94 U.S.App.D.C. 411] of opinion that under the circumstances of this case, including the fact that the husband and wife recognized and supported the child for a substantial period of time, they cannot be heard to say that, living together in the same house, they had not marital relations at or about the time the child must in the normal course of nature have been conceived. A majority of the court are of the further opinion that without the testimony of the husband and wife the evidence in support of plaintiff's case is insufficient.

3

The judgment of the District Court appealed from in No. 11271 will be reversed and the case remanded with instructions to enter judgment for the defendant. The judgment in No. 11272, which was a dismissal of Count II of the complaint, will be affirmed.

4

No. 11271 reversed; No. 11272 affirmed.

5

FAHY, Circuit Judge, concurs in the result.

6

WASHINGTON and DANAHER, Circuit Judges, dissent.

7

CLARK, Circuit Judge, died before the final decision in this case.

1 There are two appeals here, one by the original plaintiff and the other by the defendant. The District Court entered a money judgment for plaintiff on Count I of the complaint and dismissed Count II, which was for a declaratory judgment on the same matter. No. 11271 is an appeal from the former judgment, and No. 11272 is a cross-appeal from the latter judgment.