Osborn v. Fabatz, Docket No. 51686
| Decision Date | 24 February 1981 |
| Docket Number | Docket No. 51686 |
| Parties | La Deanna OSBORN, Plaintiff-Appellee, v. Tom FABATZ, Defendant-Appellant. 105 Mich.App. 450, 306 N.W.2d 319 |
| Court | Court of Appeal of Michigan — District of US |
[105 MICHAPP 451] Horace W. Adams, Paw Paw, for defendant-appellant.
Robert T. Hentchel, Paw Paw, for plaintiff-appellee.
Before KAUFMAN, P. J. and R. B. BURNS and WARREN, * JJ.
Defendant appeals by leave granted from an April 18, 1980 order allowing [105 MICHAPP 452] plaintiff to use the results of a blood test of an individual not a party to this action. 1
This is a paternity suit. Plaintiff filed a complaint on May 3, 1978, alleging that defendant was the father of her child. Defendant filed an answer, and on April 26, 1979, made a demand for jury trial and a motion for blood tests of defendant and plaintiff. The trial court rendered an order on May 9, 1979, requiring that the parties have blood tests. Defendant made a second demand for a jury trial on March 3, 1980.
Plaintiff made a motion on April 7, 1980, to allow the admission of results of a blood test which had been performed for a prior paternity suit between plaintiff and John Wellman. Defendant filed an answer on April 12, 1980, requesting the trial court to deny the motion.
A hearing on the motion was held on April 14, 1980. The trial court issued an order on April 18, 1980, allowing the use of this blood test.
Defendant filed an application for leave to appeal on April 23, 1980. Defendant's application for leave to appeal was granted on June 30, 1980.
On appeal, defendant raises four issues, which we shall address seriatim. Defendant's first contention is that the trial court erred in allowing Wellman's blood test results to be used because such test was irrelevant to defendant.
To begin our discussion of this issue, we must turn our attention to the Michigan Rules of Evidence. All evidence which is relevant is admissible. MRE 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the [105 MICHAPP 453] action more probable or less probable than it would be without the evidence". MRE 401.
If plaintiff testifies that she had intercourse with only two persons at the time this pregnancy was to have occurred 2,and defendant testifies that the child is not his, then the evidence would be relevant to prove the fact that the other person could not possibly be the father. If plaintiff's testimony is believed, the blood test would then make it more likely that defendant is the father than if the test results had been excluded. It is, therefore, our conclusion that the blood test is relevant evidence.
Defendant's second issue on appeal is that the blood test results cannot be used because they are hearsay. Defendant's contention in this regard is without merit. MRE 702 allows the court to admit the testimony of an expert witness. Plaintiff has filed notice of intent to call the pathologist who evaluated Wellman's blood test results. The pathologist will relate to the court his opinion and conclusion concerning the test. Since defense counsel will have every opportunity to cross-examine the pathologist on his method and findings, there is no problem with the hearsay rule.
Defendant next alleges that the trial court erred in allowing this blood test to be used because M.C.L. § 722.716; M.S.A. § 25.496 would preclude its admission. We find defendant's contention in this regard plausible, but incorrect.
M.C.L. § 722.716; M.S.A. § 25.496 provides in pertinent part:
While the statute does not appear to expressly reach the instant case, it does state that the results "shall be receivable in evidence in the trial of the case". One could reasonably infer that the Legislature meant that the results would be admissible only in that case, or in that case only when exclusion is established.
The Michigan Supreme Court, in People v. Nichols, 341 Mich. 311, 330-332, 67 N.W.2d 230 (1954), held that the use of blood tests to establish paternity was reversible error. In the Court's opinion, blood tests should be used only to exclude a person from being the father.
This Court has also held that blood tests are the "best evidence" to exclude one from being the father. Shepherd v. Shepherd, 81 Mich.App. 465, 470, 265 N.W.2d 374 (1978). Conversely, this Court has stated:
"We find that the foregoing case law and statute amply support the conclusion that blood type evidence, when used solely for the purpose of including a defendant in a class of possible defendants, has no probative value." People v. Sturdivant, 91 Mich.App. 128, 134, 283 N.W.2d 669 (1979), lv. den. 407 Mich. 933 (1979).
It would appear that the general intent of the statute is to prevent the use of blood tests to [105 MICHAPP 455] include a defendant within a class of potential fathers. In the case at bar, the blood test is to be used to exclude another potential father who is not a party to this case. This does not appear to be within the reach or intent of the statute. It is our opinion that the statute does not exclude the use of Wellman's test results and that their admission is within the general purpose of the statute. The ruling of the trial court, that this blood test is admissible, was not error.
Defendant's final allegation is that the trial court erred in allowing this blood test to be used because defendant had standing to assert the physician-patient privilege. It is our opinion that defendant misunderstands both the nature of the privilege and his standing to assert it.
M.C.L. § 600.2157; M.S.A. § 27A.2157 sets forth the physician-patient privilege. In order to prevent the physician from disclosing information, he must have acquired it while "attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon * * * ". Id. In People v. Glover, 71 Mich. 303, 307, 38 N.W. 874 (1888), the Court stated that the physician-patient privilege does not cover cases where no confidential relationship existed between the patient and the physician. In that case, the doctor who examined defendant did so only at plaintiff's request and with defendant's consent. The purpose of the examination was to test defendant for signs of gonorrhea. Since the physician was not...
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