Cortese v. Cortese

• Decision Date: 15 November 1950
• Docket Number: No. A--462,A--462
• Parties: CORTESE v. CORTESE.
• Court: New Jersey Superior Court — Appellate Division

Page 152

10 N.J.Super. 152

76 A.2d 717

CORTESE v. CORTESE.

No. A--462.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 6, 1950.

Decided Nov. 15, 1950.

Lawrence Friedman, Newark, argued the cause for appellant (Philip Insabella, Newark, attorney).

G. Dixon Speakman, Newark, argued the cause for respondent (William R. Vanderbilt, Newark, on the brief).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

The Essex County Juvenile and Domestic Relations Court ordered defendant to pay his wife, the plaintiff, a sum weekly for the support of herself and an infant child born less than five months after their marriage, and denied defendant's application for a blood test under R.S. 2:99--4, N.J.S.A. The wife admitted pre-marital sexual relations within the probable limits of conception with both the defendant and another and acknowledged her uncertainty as to the child's paternity. She refused to submit herself and the child to a blood test. She claimed she told defendant before their engagement on June 28, 1947, when about two months pregnant, of her uncertainty whether he or the other, a married man, was the father of the child to be born and that, nevertheless, he agreed to marry her. Defendant denied having knowledge of her relations with anyone except himself until 15 months after the child's birth when he says she taunted him during a dispute at their home that he was not the child's father, and he left her.

This is a civil action, plaintiff's complaint being for 'adequate support' under P.L. 1946, c. 77, sec. 2, amending R.S. 9:18--14, N.J.S.A. Frank v. Juvenile & Domestic Relations Court of Essex County, 137 N.J.L. 364, 58 A.2d 601 (Sup.Ct.1948); Lasasso v. Lasasso, 1 N.J. 324, 63 A.2d 526 (1949).

The question presented by defendant's appeal is whether the denial of defendant's motion for an order compelling a blood grouping test was a proper exercise of judicial discretion in the circumstances.

The trial court was empowered under R.S. 2:99--4, N.J.S.A. to order the requested test. The statute provides: 'Whenever it shall be relevant in a civil action to determine the parentage or the 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, to be made by duly qualified physicians under such restrictions and directions as the court or judge shall deem proper. Whenever such test is ordered and made, the testimony of the experts to the results thereof, subject to cross examination as in section one, shall be receivable in evidence, but only in cases where definite exclusion is indicated. The order for such blood grouping tests also may direct that the testimony of such experts and of the persons so to be examined be taken by deposition. The court shall determine how and by whom the costs of such examinations shall be paid.'

The source of the section is P.L.1939, c. 221, sec. 2. The first section of that statute, now R.S. 2:99--3, N.J.S.A. is applicable to criminal and quasi-criminal proceedings, for example, bastardy and filiation cases. The second section, with which we are concerned here, is applicable to civil causes in which it is relevant to determine the parentage or identity of any child or person.

The statute relates to the obtaining of evidence in the field of contested paternity where the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity.

The value of blood tests as a wholesome aid in the quest for truth in the administration of justice in these matters cannot be gainsaid in this day. Their reliability as an indicator of the truth has been fully established. The substantial weight of medical and legal authority attests their accuracy, not to prove paternity, and not always to disprove it, but 'they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts,' Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479, 480 (D.C.Cir.1940), and see Annotation, 163 A.L.R. 923; Jordan v. Mace, Me., 69 A.2d 670 (Sup.Jud.Ct.1949); Report, Committee on Medicolegal Blood-grouping Tests, 108 Am.Med.Ass'n.Journal, 2138--2142 (June 1937). A wealth of medical, scientific and legal references will be found in Schatkin, 'Disputed Paternity Proceedings' (2d Ed.1947), p. 184; Wigmore on Evidence, vol. I, sec. 165a et seq. (3d Ed.1940). Blood tests can now disprove paternity in over one-half of the paternity cases involving innocent men. 63 Harvard Law Review 1271 (May 1950).

It is plain we should hold, as we do, that this unanimity of respected authorities justifies our taking judicial notice of the general recognition of the accuracy and value of the tests when properly performed by persons skilled in giving them. The law does not hesitate to adopt scientific aids to the discovery of truth which have achieved such recognition. Cf. State v. Cerciello, 86 N.J.L. 309, at page 314, 90 A. 1112, at page 1114 (E. & A.1914), where the admissibility in evidence of finger prints, now universally acknowledged to be virtually dispositive of issues of identity, was first approved in the state by our highest court on '* * * the theory that the evolution in practical affairs of life, whereby the progressive and scientific tendencies of the age are manifest in every other department of human endeavor, cannot be ignored in legal procedure, but that the law in its efforts to enforce justice by demonstrating a fact in issue, will allow evidence of those scientific processes, which are the work of educated and skillful men in their various departments and apply them to the demonstration of a fact * * *.'

We do not, unfortunately, have the benefit of the reasons upon which the trial court based its denial of defendant's motion. In the light of the wide acceptance of the value of the tests and the legislative recognition implicit in the statute of their competency to help the courts in the search for truth, we think only reasons of considerable force should move a court in a civil case to deny a motion for an order to compel a blood test when, as in this case, the issue of parentage is relevant and, it may be, crucial, in the disposition of the matter.

Plaintiff argues in support of the trial court's action that the ordering of the tests is discretionary with the trial court under the terms of the statute. This is true, but judicial discretion is not an arbitrary or personal discretion to be exercised according to the whim or caprice of the individual judge; it is a mere legal discretion and he should use the authority reposed in him when the essential requisites for its exercise exist and the justice of the course is apparent. McFeely v. Board of Pension Commissioners of Hoboken, 1 N.J. 212, at page 215, 62 A.2d 686 (1948). We are empowered to review his action and to reverse it when it appears his judicial discretion was not properly exercised in the circumstances, and it also appears the error injuriously affected the substantial rights of a party. State v. Hunter, 4 N.J.Super. 531, at page 535, 68 A.2d 274 (App.Div.1949); cf. Rules 1:2--20 and 3:81--13.

It has been said the word 'may' shall be taken 'to be mandatory, when the thing to be done is for the sake of Justice, or the public good,' Davison v. Davison's Adm'r, 17 N.J.L. 169 (Sup.Ct.1839). We do not go so far in construing this statute. Proof that the giving of the test would endanger the health of a person submitting to it necessarily would be a proper reason for exercising discretion to deny an order to compel such person to take the test, although the giving of a few drops of blood can rarely in the light of medical experience have that consequence and the burden of proof to show that probability in a given case should be...