Miller v. Domanski

• Decision Date: 18 June 1953
• Docket Number: No. A--84,A--84
• Citation: 97 A.2d 641,26 N.J.Super. 316
• Parties: MILLER v. DOMANSKI.
• Court: New Jersey Superior Court — Appellate Division

Page 316

26 N.J.Super. 316

97 A.2d 641

MILLER v. DOMANSKI.

No. A--84.

Superior Court of New Jersey Appellate Division.

Argued Feb. 24, 1953.

Decided June 18, 1953.

Jerome J. Heyman, Plainfield, argued the cause for the defendant-appellant (Myron L. Levy, Somerville, attorney).

Charles A. Reid, Jr., Plainfield, argued the cause for the plaintiff-respondent.

Before Judges EASTWOOD, BIGELOW and JAYNE.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The defendant Andrew Domanski appeals from an adverse judgment in a bastardy proceeding under R.S. 9:17--1 et seq., N.J.S.A., entered in the Somerset County Court. The cause was heard De novo by the County Court, sitting without a jury, and resulted in an adjudication of paternity of a child born out of wedlock to C.B. The defendant appeals from the ensuing judgment of filiation.

Dr. Phillip Levine, a medical expert, in preparation for the trial pursuant to L.1939, c. 221 (N.J.S. 2A:83--2 and 3, N.J.S.A.), was authorized by the court to make blood grouping tests of the mother, the child and the putative father. Dr. Levine testified that while his tests did not exclude paternity, he would like to testify concerning 'an assumption that the mother's blood has a very rare and unusual serologic makeup.' The trial court refused to permit the doctor's supplementary qualifying testimony.

As we view this appeal, we think the primary controversial question concerns the trial court's exclusion of the aforementioned testimony of Dr. Levine. This issue necessarily poses the question of the limitations, if any, of the statute (N.J.S. 2A:83--2, N.J.S.A.) as a legislative expression of public policy, permitting the testimony of a medical expert on the results of blood grouping tests performed pursuant thereto. The pertinent provisions of the statute are:

'Whenever it is relevant to the case of the prosecution or the defense in a proceeding involving parentage of a child, the trial court, by order, may direct that the mother, her child and the defendant submit to one or more blood grouping tests to determine whether or not the defendant can be excluded from the probability of being the father of the child. The testimony of experts to the result of the test shall be receivable in evidence, but only in cases where definite exclusion of parentage of the defendant is indicated. The tests shall be made by duly qualified physicians, to be appointed by the court. Such experts shall be subject to cross examination by both parties after the court has caused them to disclose their findings to the court or to the court and jury. * * *'

Dr. Levine, testifying as to the results of his examination, stated:

'Because of a very unusual serologic finding, I could not use my usual report. Where there is no exclusion of paternity, there is a qualified serologic detail, which I will disclose if I have the opportunity. * * * The tests in this case would show no exclusion, but we have to make the assumption that the mother's blood has a very rare and unusual serologic makeup. If she had a usual serologic makeup, why then, it would have to be considered an exclusion. * * * In short, your Honor, the scientific facts in this case were not available to me and to workers in the field in 1939 when this New Jersey Statute became effective.

'Q. 'These tests in this case show no exclusion.' Is that the wording? A. That's right.' (Italics ours.)

Towards the turn of the century, Dr. Karl Landsteiner discovered that the blood of all persons was not homogenous, but that the blood of each individual could be classified in one of several distinguishable types of blood (called 'phenotypes'). This heterogeneous quality of the blood coupled with the incompatibility of certain blood groups (I.e., reactions caused by mixing different types of blood), form the basis upon which serological blood tests theories are predicated. 163 A.L.R. 941.

Dr. Landsteiner discovered the presence of two genes (also known as antigens or agglutinogens), called 'A' and 'B,' in the human blood. The theory of blood groups was discovered by a mathematician named Bernstein in 1925. During the next five or ten years, certain rules laid down by him were confirmed by long statistical and family studies.

In 1928, Doctors Landsteiner and Levine discovered two new genes in the red corpuscles called 'M' and 'N.' Every person has either an 'M' or 'N' gene, or both 'M' and 'N' genes in his red blood cells. These genes are entirely independent of the genes 'A' and 'B.'

According to the Landsteiner-Bernstein theory, it is possible to determine in which group the blood of a particular person belongs by mixing a sample of his blood with solutions containing the antibodies or aglutinins and observing whether or not the blood clots (or agglutinates).

For a more thorough discussion of the medical and legal aspects of blood grouping tests and the scientific development thereof by the late Dr. Landsteiner and Doctors Bernstein, Levine, and Alexander S. Wiener, see 163 A.L.R. 939--961 and Schatkin's Disputed Paternity Proceedings (1947).

Blood grouping tests are most frequently, but not exclusively, resorted to in proceedings, both civil and criminal, in which paternity is in issue. According to serological blood-test theories, it is possible not only to identify the type of blood of any given individual, but also to exclude paternity (or maternity) in certain instances. The test, however, is only of use to prove non-paternity; paternity cannot be proven by these experiments. In other words, the results of the tests either exclude paternity or are inconclusive. It has been established that 'M' and 'N' genes are transmitted from parents to child in accordance with the Mendelian law observed in the inheritance of many characters in animals and plants discovered by Gregor J. Mendel (an Austrian Augustinian abbot, 1822--84), in breeding experiments made by him. Neither gene 'M' nor gene 'N' can appear in the blood of a child unless it is present in at least one of its parents. On the basis of these discoveries it has been demonstrated that parents belonging to given blood groups can only have children with certain types of blood, and no other.

In the adoption of the act the purpose of our Legislature seemed clear enough, but some doubts were cast thereon by the decision in Bednarik v. Bednarik, 16 A.2d 80, 18 N.J.Misc. 633 (Ch.1940), a divorce action, wherein a request for compulsory blood grouping tests was denied as an invasion of the individual's right of privacy, and collaterally as contrary to the statutory privilege against self-incrimination. The Bednarik case was the only reported case construing this statute until 1950, when the Chancery Division of the Superior Court, in the case of Anthony v. Anthony, 9 N.J.Super. 411, 74 A.2d 919, 920, held Contra to the Bednarik case and granted an order for blood grouping tests to aid in an issue of paternity involved in a matrimonial action. The court in that case declared that the Legislature, in enacting the enabling legislation, reflected a recognition of

'* * * '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,' State v. Cerciello, 86 N.J.L. 309, 314, 90 A. 1112, 1114, 52 L.R.A.,N.S., 1010 (E. & A.1914).'

Thereafter, the Appellate Division of the Superior Court in Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717, 719 (1950), affirmed the holding of the admissibility of the results of blood grouping tests to aid in disproving paternity, stating:

'* * * 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, 131 A.L.R. 804 (D.C.Cir.1940), * * *'

citing Annotation, 163 A.L.R. 923; Jordan v. Mace, 144 Me. 351, 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 (3d ed. 1940), sec. 165a et seq.

In all the decisions of our courts touching upon evidence of the results of blood grouping tests it will be observed that it has confined admissibility to those instances provided for by the legislative enactment, I.e., where the results indicate exclusion of paternity. Ross v. Marx, 24 N.J.Super. 25, 26, 93 A.2d 597 (App.Div.1952); Cortese v. Cortese, supra. It is also observed that from the early days of recognition of the value of these tests there have been rather strict limits placed upon their use, and it is generally agreed that the only practical value of the tests is a negative one; that it cannot be used to establish paternity but as evidence of non-paternity. 104 A.L.R. 447; 115 A.L.R. 167; 20 Am.Jur., Evidence, sec. 352, p. 326; 163 A.L.R. 959; Wigmore on Evidence, sec. 165a, p. 610.

Judge Proctor, in the case of Ross v. Marx, supra, 24 N.J.Super. at page 28, 93 A.2d at page 598, after noting that the committee of medical experts in a report in The Journal of the American Medical Association recognized the inconclusive effect of the results of serological tests, stated:

'In view of the acknowledgment of the above mentioned possible exceptions, it cannot be said that the results of the blood grouping tests excluding paternity are conclusive. The statute (N.J.S. 2A:83--3)...