Groulx v. Groulx

• Decision Date: 02 March 1954
• Citation: 46 A.L.R.2d 994,103 A.2d 188,98 N.H. 481
• Parties: , 46 A.L.R.2d 994 GROULX v. GROULX.
• Court: New Hampshire Supreme Court

Page 188

103 A.2d 188

98 N.H. 481, 46 A.L.R.2d 994

GROULX v. GROULX.

Supreme Court of New Hampshire.

Argued Feb. 2, 1954.

Decided March 2, 1954.

Devine & Millimet, Manchester, for plaintiff.

James B. Sullivan and Maurice A. Broderick, Manchester, for defendant.

KENISON, Chief Justice.

In legal proceedings involving the legitimacy of a child, modern developments in medicine and science enable qualified experts conducting accurate blood grouping tests to disprove paternity in appropriate cases. Since the first reported American case on a blood grouping test in 1931, Commonwealth v. Zammarelli, 17 Pa.Dist. & Co.R. 229, there has been steady and increasing judicial recognition of the accuracy and reliability of such tests. Jordan v. Mace, 144 Me. 351, 69 A.2d 670; Annotation 163 A.L.R. 939. Some of the earlier authorities are collected and analyzed in I Wig., Evidence (3rd ed. 1940) §§ 165a, 165b; Schatkin, Disputed Paternity Proceedings (1st ed. 1943) c. V; Wig., Principles of Judicial Proof (3rd ed. 1937) §§ 88-90; Maguire, A Survey of Blood Group Decisions and Legislation in the American Law of Evidence. 16 So Calif.L.Rev. 161 (1943). It is true that in some jurisdictions the reliability of blood grouping tests has been disregarded, Arais v. Kalensnikoff, 10 Cal.2d 428, 74 P.2d 1043, 115 A.L.R. 163; Berry v. Chaplin, 74 Cal.App.2d 652, 169 P.2d 442 but these decisions are not representative of the modern rule today. Harper, Problems of the Family (1952) pp. 112-114; 29 N.D.L.Rev. 156 (1953); 50 Mich.L.Rev. 582 (1952). See Schatkin, supra (3rd ed. 1953).

While New Hampshire has adopted the Uniform Act on Blood Tests to Determine Paternity, Laws 1953, c. 126, it cannot control the determination of this case which was heard and decided before the enactment of that statute. However it may be noted that scientific and medical evidence from qualified experts is generally accepted in this jurisdiction in both criminal and civil cases. State v. Baron, 98 N.H. 298, 99 A.2d 912; Bohan v. Lord & Keenan, Inc., 98 N.H. 144, 147, 95 A.2d 786. Whatever defects there may be in this trend it at least avoids the common criticism made elsewhere that '* * * Trial Courts have tended to lag far behind' in utilizing probative methods developed by medicine and science. Maguire, Evidence, Common Sense and Common Law (1947) 30. It is unnecessary to decide in this case whether the blood grouping tests should be regarded as conclusive or only evidentiary, since Saunders v. Fredette, 84 N.H. 414, 151 A. 820, establishes the rule that the presumption of legitimacy need not be rebutted by conclusive evidence but may be rebutted by clear and convincing proof. This brings us to a consideration of the blood grouping tests used in this proceeding.

Two blood samples each from the plaintiff, the defendant and the child were taken by a licensed physician in this state. They were labeled by name and contained the initials of counsel for both parties and they arrived at the laboratory in good condition in 'vacutainer' test tubes. A partial vacuum was noted in each tube when opened indicating that the seal was intact. Typing tests were done independently by Dr. Allen and his technician and the results agreed in every particular. The tests showed that the blood cells of the plaintiff and the defendant lacked the S factor but those of the child contained the S factor. Paternity of the plaintiff was excluded by Dr. Allen's report because of the genetic rule that a child cannot have the S factor in its blood cells unless S is also present in the blood cells of at least one of the parents. The report conceded that the genetic data was much greater in the blood groups A-B-O, M-N and Rh but gave two reasons which were said to counterbalance the paucity of family studies. First, the laboratory had two excellent anti-S typing reagents from two different sources which previous tests indicated were pure and potent. Secondly, it was stated that the serum anti-S had been tested in parallel with the serum 'Muller' so that it was 'fantastically improbable' that the plaintiff and defendant would have weak variants of S which would combine to produce the appearance of a strong S in the child Rita. The report concluded that the genetic laws shown by the family studies under the A-B-O, M-N and Rh groups apply without modification to the S groups, as well as to the Kell and Duffy blood group systems.

After Dr. Allen's report was received by the court, Dr. A. S. Wiener of New York, a leading authority in blood grouping tests, wrote Dr. Allen that his conclusions as to exclusion of paternity based on the S factor alone were 'too strongly worded.' Thereupon Dr. Allen modified his original opinion in some details as appears in the statement of facts but reaffirmed his essential conclusion as appears from the following concluding paragraph: 'My personal opinion is that exclusion of paternity is demonstrated by the tests with anti-S, as stated in my original report, and that the evidentiary value of my tests is greater than any other biologic tests which might be done in this particular case at the present time. This letter is written to make it clear that this is my personal opinion, which might, or might not, be fully shared by Dr. Wiener. In order not to jeopardize the future value of tests with anti-S in legal cases, I should have to testify that the tests done in this case with anti-S do not absolutely...