This appeal is from a judgment in favor of the plaintiff and respondent rendered and entered after a jury had returned a verdict against the defendant in an *Page 319 action commenced by the plaintiff to compel the defendant to support her illegitimate son, of whom she alleged, and according to the judgment established, the defendant was the father. During the trial of the cause it was sufficiently shown that the child of the plaintiff had been born in the due course of gestation in the month of June, 1924. The plaintiff testified, and the jury apparently accepted her statement, that the act or acts of illicit intercourse between herself and the defendant occurred in Los Angeles during the last week of September, 1923, and that as a result thereof the child had been conceived. The defendant did not very seriously or successfully controvert the plaintiff's evidence as to his intercourse with her at said time, but rested his defense chiefly upon the ground that the plaintiff had been similarly intimate with other men at or sufficiently near the time of her intercourse with him as to render it possible for the jury to draw the inference that another than the defendant was the father of the child. In the course of this attempted proof the defendant offered evidence to the effect that during the latter part of September, 1923, and while the plaintiff was in the city of Los Angeles there was also living in that city a man named Raiche, whom the plaintiff had previously known in the city of Sacramento, and whom she met upon several occasions during the period of her stay in Los Angeles, and with whom she was apparently upon friendly terms. Having made this showing the defendant offered proof that during the month of April, 1922, and while she was living in Sacramento the plaintiff was the mistress of Raiche and lived for a time during that year in that illicit relationship with him. The basis upon which the defendant made the latter proffer of evidence was not that such former illicit intercourse, admittedly beyond the possible period of gestation, was directly admissible for the purpose of showing another paternity of the child, but that such evidence was admissible for the purpose of showing that the former relationship between the plaintiff and Raiche during 1922, coupled with the fact that the plaintiff and Raiche remained friendly up to and including the month of September, 1923, and were shown to have met each other in the city of Los Angeles and to have been in company there upon two or more occasions during the very period when the plaintiff was maintaining *Page 320 illicit sexual relationship with the defendant, would be sufficient to entitle the jury to draw the inference that the past intercourse between herself and Raiche had been there resumed, and that the latter and not the defendant was the father of the child. The trial court, however, took the position that the defendant had not so far succeeded in showing such opportunity for the plaintiff and Raiche to resume their past illicit relation while in Los Angeles at said time as would suffice to open the door for admission of such evidence, and the trial court consistently and repeatedly refused to permit the defendant to introduce the same. It is this refusal of the trial court which the defendant assigns as prejudicial error upon this appeal.
[1] After a careful examination of the entire record we are of the opinion that the trial court was correct in its refusal to permit the defendant to make proof of the plaintiff's illicit relationship and intercourse with Raiche as of a time at least one year prior to the period within which the plaintiff's child must have been begotten. [2] That such evidence would not be directly admissible in such an action as this was fully established by this court in Estate of Gird, 157 Cal. 534 [137 Am. St. Rep. 131, 108 P. 499], wherein it was held that evidence of illicit relation on the part of the mother of an illegitimate child with men other than the defendant, whom she alleges to be its father, must be directed to a time at or about the time when, in the ordinary course of nature, the child must have been begotten. The authorities cited in said decision, as well as those to which our attention has been directed upon this appeal, are in practical accord to the foregoing effect. It was, therefore, incumbent upon the defendant in this action to sufficiently show that during the period in the month of September, 1923, when the plaintiff and Raiche were at the same time in the city of Los Angeles, there existed both the desire and opportunity on the part of each for the resumption of their past illicit relationship. We are constrained to hold that the defendant failed to make anything like a sufficient showing in the foregoing regard, for while it is true that the plaintiff and Raiche met upon two or more occasions while they were together in said city, there is no evidence whatever that at any such time of meeting an opportunity existed for sexual intercourse between them, the uncontradicted evidence in the *Page 321 case being that upon each occasion of such meeting or meetings between the plaintiff and Raiche they were never alone together, but were upon each occasion in the company of others and in such circumstances as would render it practically impossible for such intercourse to have occurred, even if the resumption of their former relationship had been desired by either. Raiche was not called as a witness in the case, and from the testimony of the plaintiff, under a most rigid cross-examination, it appeared that she had so far transferred her affections and desires toward the defendant herein as to have no wish to renew a past illicit connection with Raiche. This being the state of the record, we are constrained to hold that the trial court was correct in its refusal to permit the defendant to introduce the proposed evidence as to whatever prior illicit relationship might have been shown to exist between the plaintiff and Raiche as of a period long prior to the possible term of gestation.
This being the only question involved in the present appeal, it follows that the judgment of the trial court should be and the same is hereby affirmed.
Curtis, J., Seawell, J., Shenk, J., and Waste, C.J., concurred.