Bednarik v. Bednarik

• Citation: 16 A.2d 80,18 N.J.Misc. 633
• Decision Date: 15 October 1940
• Docket Number: 131-50.
• Parties: BEDNARIK v. BEDNARIK.
• Court: New Jersey Court of Chancery

16 A.2d 80

18 N.J.Misc. 633

BEDNARIK

v. BEDNARIK.

131-50.

Court of Chancery of New Jersey.

Oct. 15, 1940.

Syllabus by the Court.

1. On husband's petition for divorce on the ground of adultery, his application for an order to subject himself, defendant and her child (whose paternity he denies) to blood grouping tests, in the hope that such tests may demonstrate that he is not the father of the child, will be denied on the ground that such an order would constitute an invasion of the constitutional right of defendant and of the child to the enjoyment of liberty, safety and happiness (N.J.Const. Art. 1, plac. 1, N.J.S.A.), and a violation of their common-law immunity from self-incrimination.

2. N.J.S.A. 2:99-4 (P.L.1939, chap. 221), providing that "whenever it shall be relevant in a civil action to determine the parentage or identity of any child or other person, the court, by order, may direct that any party to the action and the person whose parentage or identity is involved submit to one or more blood grouping tests", was not intended to empower the court to order such tests in aid of a suit for divorce on the ground of adultery.

Suit for divorce by Victor Bednarik against Dorothy Bednarik, wherein the defendant filed a counterclaim seeking a decree of divorce against the petitioner. On petitioner's application after issue joined and before order of reference, "for an order directing that Victor Bednarik, the petitioner, Dorothy Bednarik, the defendant, and Nancy Mildred Bednarik, daughter of the defendant Dorothy Bednarik, whose parentage is involved, submit to one or more blood grouping tests, to be made by duly qualified physicians under such restrictions and directions as this Honorable Court shall direct in order to determine the parentage of said Nancy Mildred Bednarik."

Petition denied.

Augustus C. Nash, of Westfield, for petitioner.

Jerome J. Sonnabend, of Newark, for defendant.

Israel B. Greene, of Newark, amicus curiae.

HERR, Advisory Master.

Petitioner's petition for divorce against defendant on the ground of adultery has been met by an answer denying his charges and by a counterclaim seeking a decree of divorce against him. Petitioner alleges that a child born to defendant on August 27, 1938, is not his child. This charge is specifically denied by the answer. Petitioner's present application, made before reference under Rule 128(e), N.J.S.A. tit. 2, is based upon an affidavit in which he says: "As the parentage of said child is involved in this suit I feel that it is absolutely essential to the trial of the same, that one or more blood grouping tests be made of myself, wife and said child in order to determine the parentage".

The blood grouping tests to which petitioner seeks to subject defendant and the child, together with himself, in an effort to prove that he is not the father of the child, are of comparatively recent development. According to medical authority, hereditary characteristics are determined by units called "genes" which are said to occur in pairs in rod-like chromosomes of the nuclei cells. The human blood groups follow the chromosome theory. The blood groups, of which there are four, are predetermined by the presence or absence in the chromosomes of two genes called "A" and "B". Absence of both "A" and "B" is indicated by "O". Because each somatic cell possesses two of these genes (one from each parent) there are six possible genetic formulae, "00", "AA", "AO", "BB", "BO", and "AB". However, since the blood of an "AO" individual is routinely indistinguishable from that of an "AA" individual, and since similarly "BO" blood is routinely indistinguishable from "BB" blood, we have only four demonstrable types of blood (the phenotypes) namely "O", "A", "B", and "AB". There is a wealth of literature on this subject, some of the authorities being gathered in the footnote below.¹

It is said that the requisite series of blood grouping tests cannot identify a person as the parent of a child, but may eliminate such person as a possible parent. The tests will either answer "no", or give no answer at all. For example, if a man is charged with being the father of a certain child, and if the tests show that his blood belongs to Group A, the mother's to Group AB, and the child's to Group B, the possibility of his being the father of the child is eliminated, and his innocence of the charge established. On the other hand, if the tests show that his blood belongs to Group O, the mother's to Group AB, and the child's to Group A, he is not excluded, although the tests in that case will not constitute proof that he is in fact the child's father. According to the authenticated records it is now possible by these blood grouping tests to detect approximately 30% of all false accusations of paternity.

We have no reported cases in New Jersey in which blood grouping tests have been ordered by the court, for any purpose. But there are decisions in other jurisdictions which should be noted.

The first reported case involving such blood grouping tests seems to be Commonwealth v. Zammarelli, 1931, 17 Pa. Dist. & Co. R. 229. There the prosecutrix, an unmarried girl, obtained an indictment against the defendant for fornication and bastardy. In defense, the defendant produced a pathologist who made blood tests and testified that the defendant could not possibly have been the father of the prosecutrix' child, because the defendant was type "O", the mother type "A" and the child type "B". Apparently disregarding this evidence, the jury found the defendant guilty, and the verdict was upheld by the trial court. On appeal, the county court reversed the decision and granted a new trial because of the contrary uncontroverted expert testimony based upon the blood grouping tests. But in Commonwealth v. Morris, 1934, 22 Pa. Dist. & Co. R. 111, a similar case, the court denied an application to compel the prosecutrix to submit to a blood grouping test because of lack of legislative authority.

Commonwealth v. Visocki, 1935, 23 Pa. Dist. & Co. R. 103, was in keeping with the final result in the Zammarelli case. This was an action for desertion and non-support of a wife and minor child. The wife was twenty years old, the husband forty-two, and the child was born in wedlock approximately seven months after the marriage. The husband claimed that he had never had sexual intercourse with his wife because he had heard on the evening of their marriage that she was pregnant. Two physicians called by the defendant testified that they had made blood grouping tests of him, the mother, and child and that it was impossible for the defendant to be the father of the child. The case was dismissed.

In Commonwealth v. English, 1936, 123 Pa.Super. 161, 186 A. 298, 301, the defendant was prosecuted for fornication and bastardy. The defendant's application for an order directing prosecutrix to submit herself and her child to blood grouping tests was denied. On appeal, the court's action was affirmed, as not an abuse of discretion, the court saying: "While * * * such an operation is not regarded as entailing any serious danger to the health of the patient, it cannot be said that there is no danger for there is always present some risk of infection. Until the Legislature finds that blood grouping tests have attained such scientific standing as to possess probative value as to paternity * * * the courts have not the power in a criminal case such as this to compel a prosecutrix or other witness to submit her body for blood tests".

In State v. Welling, 1936, 6 O. O. 371, a bastardy proceeding, an application by defendant for the making of blood grouping tests was granted.

In the recent case of State v. Wright, 1938, 59 Ohio App. 191, 17 N.E.2d 428, the prosecutrix, an unmarried female, charged the defendant with being the father of her unborn child. After the birth of the child the case came on for trial. Blood grouping tests were made of the mother, child and putative father. The state excepted to the admission of this evidence. The witness testified on the basis of the tests made that the defendant could not possibly be the father of the child. Nevertheless the jury gave a verdict of "guilty". A new trial was granted. The Court of Appeals for Franklin County held that there was no error in admitting the evidence under such safeguards as should surround the testimony of every expert witness, and that there was no abuse of discretion in setting aside the verdict, which in the judgment of the trial court was against the weight of the evidence.

In State v. Damm, 64 S.D. 309, 266 N.W. 667, 668, the court said: "It is our considered opinion that the reliability of the blood test is definitely, and indeed unanimously, established as a matter of expert scientific opinion entertained by authorities in the field".

In Beuschel v. Manowitz, 1934, 241 App. Div. 888, 272 N.Y.S. 165, 166, which was an action for damages for carnal assault, Steinbrink, J., granted an order for the taking of blood grouping tests, acting under Section 306 of the Civil Practice Act. On appeal, the order was reversed, the court saying: "Plaintiff may submit or not to the taking of her own blood, but it plainly determines nothing. She asserts, and no one would gainsay it, that she is the mother of this child".

The appellate court held that Section 306 of the Practice Act did not apply to such a cause of action. But in 1935 the New York statute was amended so as to confer jurisdiction in similar cases where definite exclusion is established. See In re Swahn's Estate, 1936, 158 Misc. 17, 285 N.Y.S. 234.

In Arais v. Kalensnikoff, infra, a case heard by the Superior Court of Los Angeles, the defendant, a Russian 70 years of age, was charged by plaintiff, a Spanish woman, with being the father of her illegitimate daughter. Mrs. Arais testified that she had been married twice, that she was separated from her second husband, and that since the time of that separation ...