114 F.2d 479 (D.D.C. 1940), 7559, Beach v. Beach

Docket Nº:7559.
Citation:114 F.2d 479
Party Name:BEACH v. BEACH.
Case Date:June 28, 1940
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 479

114 F.2d 479 (D.D.C. 1940)




No. 7559.

United States Court of Appeals, District of Columbia.

June 28, 1940

Page 480

John T. Bonner, of Washington, D.C., for appellant.

John Paul Jones and Joseph J. Shevlin, both of Washington, D.C., for appellee.

Before STEPHENS, EDGERTON, and RUTLEDGE, Associate Justices.

EDGERTON, Associate Justice.

Appellant sued her husband, the appellee, for maintenance, and alleged that she was pregnant by him. Appellee denied paternity, charged appellant with adultery, and counterclaimed for divorce. Appellant's child was born pending suit, and the District Court, on appellee's motion, ordered appellant and the child to submit to a blood grouping test for comparison of their blood with appellee's. This is a special appeal from that order. The sole question is whether the court was authorized to make it.

The value of blood grouping tests as proof of non-paternity is well known. On this point it is enough to cite the report of the American Medical Association's Committee on Medicolegal Blood Grouping Tests, 1 which shows that although such tests cannot prove paternity, and cannot always disprove it, they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts. When the bloods of mother and child belong to certain groups, there are certain groups to which the father's blood cannot belong. If the putative father's blood is in such a group, he is excluded; i.e., he is not the actual father. The report shows that although 'control tests with serum' are of little value in 'infants' (babies), an infant's blood group 'can almost invariably be determined by testing the blood cells alone. In cases in which there is any doubt in the mind of the examiner, the child sould be reexamined at a later date when the agglutinins have appeared in the plasma. In general it may be advised that infants should not be examined until they are at least 1 month old. ' 2 Three eminent scientists, Doctors Ludvig Hektoen, Karl Landsteiner, and Alexander S. Wiener, composed the committee. Their report is based on their own extensive experiences and on the literature of the subject. Their data comprise thousands of tests here and abroad. They recommend that 'where necessary, laws should be passed which would authorize courts to order blood grouping tests in cases of disputed paternity, and to receive the results thereof in evidence ' when they exclude the alleged father. 3 Such laws have been passed in several states. 4 The use of the tests as disproof of paternity,

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with 5 or without 6 a statute expressly authorizing it, has been approved in a number of cases. 7

Formerly federal courts could not subject plaintiffs to physical examination 8 except in states where such examinations were authorized by statute. 9 But Rule 35(a) of the Rules of Civil Procedure, 28 U.S.C.A.following section 723c, provides: 'In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. ' 10 As the rules were authorized and tacitly ratified by Congress, and adopted by the Supreme Court, it is clear that a physical examination may now be ordered in a case covered by Rule 35(a). 11 Appellant's contention that the rule modifies the 'substantive rights' of litigants, and is therefore unauthorized, 12 is not sound. The rule relates exclusively to the obtaining of evidence, and is therefore procedural. Appellant's suggestion that it should be interpreted as limited to actions for personal injuries is also unsound. 13 The Advisory Committee's note to Rules 35(a) and 35(b) cites statutes 14 which authorize physical examinations in personal injury actions. The possibility of limiting the rule to such actions must have been considered and rejected. As its language is unlimited, there is no reason for limiting its effect to actions of one class

It remains to consider whether the 'physical condition of a party is in controversy.'

'Condition' is a broad word. Among its meanings the Century Dictionary lists 'quality; property; attribute; characteristic.' Clearly the characteristics of one's blood which are expressed in terms of red and white corpuscles, or of haemoglobin, are part of one's 'physical condition.' 15 We think that the characteristics which are expressed in terms of blood grouping are likewise part of physical condition. The fact that blood grouping remains the same throughout life differentiates it from some aspects of physical condition, but not from all. Blindness, for example, is as much a factor in the physical condition of a man born blind as of one who has lost his sight.

Although appellant, being a minor, sues by her next friend, she is of course a party. We think her child is also a party within the meaning of Rule 35(a). One who is not a party in form may be, for various purposes, a party in substance. 16

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'The general rule that the interest of parties not before the court will not be bound by the decree is subject to the exception of the case, where a party, though not before the court in person, is so far represented by others that his interest receives actual and efficient protection. ' 17 No conflict of interest between mother and child appears here; the interests of both alike require that filiation be established and maintenance obtained. She sues under Tit. 14, Sec. 75 of the District Code, which provides that 'Whenever any husband shall fail or refuse to maintain his wife and minor children, if any, although able so to do, the court, on application of the wife, may decree that he shall pay her * * * sums * * * for the maintenance of herself and the minor children. ' This authorizes suit not merely for the wife's benefit, but for the child's. Socially, he is a most important party. We recently held, in a suit brought by a wife, that her child's claim for maintenance was not subsidiary to her own, and we required the husband to support the child though not the wife pendente lite. 18 There is clear evidence in the Rules of Civil Procedure themselves that the word party, as used therein, covers a person in this child's position. Rule 17(a) provides that 'a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought.

Appellee offers his denial of paternity in support of his demand for blood tests. He thereby asserts, by necessary implication, that the blood groupings of appellant and her child are or may be inconsistant with his paternity. Appellant, on the other hand, asserts appellee's paternity and thereby denies, by necessary implication, that the blood groupings in question are or may be inconsistent with it. As this conflict underlies the issue of paternity, we think the groupings are 'in controversy' within the meaning of Rule 35(a). 19

Our construction of Rule 35(a) is aided by the deference we owe to the views of the District Court, and by the direction in Rule 1 to construe the rules so as to secure a just result. If the child is not his, it would be unjust to prevent him from proving the fact. The historic restrictions on testimony to 'non-access' are an added reason for admitting this evidence, which is independent of access.


STEPHENS, Associate Justice.

I agree with the view that one who, as a ground for relief sought, asserts paternity and is met with denial thereof, ought, as a condition of the right to relief, to be required to submit to such scientifically accredited tests as are likely to throw light upon the issue of paternity. But I think that so long as Union Pacific R. Co. v. Botsford, 1891, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734, stands unmodified, either by decision of the Supreme Court or by valid statute or rule, it compels a result opposite to that reached by the majority. In the case mentioned it was held, as I read the case, that to compel a party to a civil suit to submit to a physical examination constitutes an invasion of a substantive right. In...

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