Jordan v. Davis.

• Decision Date: 17 February 1948
• Citation: 57 A.2d 209
• Parties: JORDAN v. DAVIS.
• Court: Maine Supreme Court

57 A.2d 209

JORDAN

v.DAVIS.

Supreme Judicial Court of Maine.

Feb. 17, 1948.

On Motion from Superior Court, Hancock County.

Bastardy action by Martha L. Jordan against Charles H. Davis. Verdict for complainant. On respondent's motion for new trial.

Motion overruled.

Clarke & Silsby, of Ellsworth, for complainant.

Blaisdell & Blaisdell and Hale & Hamlin, all of Ellsworth, for respondent.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS and MURRAY, JJ.

THAXTER, Justice.

This is a bastardy action brought under the provisions of Rev.Stat.1944, Ch. 153, Secs. 23-34. There was a trial before a jury which found for the complainant. The case is before us on a motion for a new trial.

There was ample evidence to satisfy the jury that the respondent had sexual intercourse with the complainant on August 12, 1945, and that she gave birth to a child on May 23, 1946. Except for the blood grouping test referred to later, there is no evidence whatsoever that any one other than the respondent could have been responsible for her pregnancy. He did not take the stand to deny her story and in conversations with her mother and father inferentially admitted that he was responsible for her condition.

Under an order of court and in accordance with the provisions of Rev.Stat.1944, Ch. 153, Sec. 34, a blood grouping test was made to determine whether the paternity of the respondent could be excluded. The section of the statute which is here involved reads as follows: ‘Sec. 34. Blood grouping tests. 1939, c. 259. After return day, the court, in term time or vacation on motion of the respondent, shall order the complainant, her child, and the respondent to submit to one or more blood grouping tests to determine whether or not paternity of the respondent can be excluded, the specimens for the purpose to be collected and the tests to be made by duly qualified physicians and under such restrictions as the court shall direct, the expenses therefor to be audited by the court and borne by the respondent. The results of such tests shall be admissible in evidence, but only in cases where exclusion is established. The order for such tests may also direct that the testimony of the examining physicians may be taken by deposition.’

Scientific research over many years by the use of blood grouping tests has made important discoveries which have had a profound effect, not only in the practice of medicine, but in the proof of issues in courts of law. Medical men have accepted these as accurate in many cases in which has depended the question of life and death.

The law has moved more slowly in giving full weight to what these tests appear to prove. What medicine today may treat as a fact, as well established as the circulation of the blood, some courts still regard as a matter of opinion, which as evidence is tainted with all the skepticism which attaches to many forms of expert testimony on an abstruse subject. See the discussion of this problem by the courts of California in Arais v. Kalensnikoff, 1937, 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. Other courts in later decisions, hestitating perhaps to lay down as a rule of law, what may come into collision with scientific fact, have given to these blood tests the weight which is their due. As was said in Shanks v. State, 1945, 185 Md. 437, 45 A.2d 85, 86, 163 A.L.R. 931: ‘Blood tests are now accepted everywhere, scientifically, as accurate, and the courts and legislatures have generally followed the same view.’ See also Beach v. Beach, 1940, 72 App.D.C. 318, 114 F.2d 479, 131 A.L.R. 804.

The value of these tests in determining the issue of non-paternity was recognized by the legislature of this state nine years ago when the statute above quoted was enacted, which in 1944 was incorporated into the revised statutes of this state. This provision makes it mandatory on the court on motion of the respondent in a bastardy case to order such a test and makes the result admissible in evidence where it shows non-paternity.

It is not here necessary to discuss the intricate details by which science has reached certain definite conclusions founded on biological laws. We are told that by the examination of the blood of the mother, the child, and the putative father, non-paternity may be conclusively proved in a certain proportion of cases. The statute in question accepts this verdict of science,-that even though such tests cannot prove paternity, they may in certain instances disprove it.

The tests in the instant case were made by, or at least under the direction of, Dr. Hooker, one of the leaders in this research work. According to his testimony they show that the mother's blood group formula is ‘O’ ‘M’ ‘N’, that the child's is ‘O’ ‘M’, and that the respondent's is ‘A’ ‘N’. ‘A’ and ‘O’ in these cases refer to what are called groups, ‘M’ and ‘N’ to types. And the doctor states categorically that it is a biological law that a male with type ‘N’ blood cannot be the father of a child with type ‘M’ blood by a mother with type ‘M’ blood. By the application of this law to the case before us, he definitely excludes the respondent as the...