Pomainville v. Bicknell, 12

• Decision Date: 03 November 1954
• Docket Number: No. 12,12
• Citation: 109 A.2d 342,118 Vt. 328
• Court: Vermont Supreme Court
• Parties: Rita L. POMAINVILLE v. Norman BICKNELL.

Page 342

109 A.2d 342

118 Vt. 328

Rita L. POMAINVILLE v. Norman BICKNELL.

No. 12.

Supreme Court of Vermont.

Nov. 3, 1954.

Cranston H. Howe, Fair Haven, for plaintiff.

Ralph A. Foote, Middlebury, for defendant.

Before SHERBURNE, C. J., CLEARY, ADAMS, CHASE, JJ., and BARNEY, Superior Judge.

CLEARY, Justice.

This is a bastardy case. Trial was by jury with a verdict and judgment for the plaintiff. The case is here on the defendant's exception to the refusal of the trial court to set the verdict aside on the grounds that it was against the weight of the evidence and against the law.

A medical expert testified for the defendant that it has been definitely established that two people whose blood is classified in Group O can only be parents of a child whose blood is classified in that group because there is no way that these parents can pass on the genes for any other group; that in the present case blood samples were taken of both parties and of the baby with whom we are concerned; that tests showed the blood of both parties to be in Group O and the baby's blood to be in Group B; that in his opinion, 'assuming the reliability of the results as we obtained them, it would not be possible for the man whose blood we tested to be the father of the infant;' that in order for the B and O blood to get mixed up it would have been necessary to completely confuse the tubes in which the blood of each person was placed; that whole blood was drawn from the defendant, and from the baby a small drop at a time was obtained from a small prick in the baby's heel, and the blood as it dropped out was introduced into a tube containing a salt solution; that there is very little similarity in appearance between whole blood in a test tube and blood in a saline solution; that whole blood is very thick and when you introduce a few drops of blood in a test tube of saline you merely have a red solution; that, in his opinion, there was no possibility of a mixup between the B and O blood in the present case.

The defendant contends that, even though the plaintiff's evidence tended to prove the paternity of the defendant, the defendant's evidence conclusively proved that he was not the father and therefore the denial of the defendant's motion to set the verdict aside was an abuse of the court's discretion. The only case cited is Jordan v. Mace, 144 Me. 351, 69 A.2d 670, 672. But in that case the court said 'The jury has the duty to determine if the conditions existed which made the biological law operative. That is to say, were the tests properly made?'

In the present case the medical expert testified the blood samples were drawn by his technician in the presence of the witness and counsel for both parties and that the blood was put in test tubes which were then labeled by the technician as to the person from whom the blood was taken; that the test tubes containing the blood were taken across the hall to the blood bank laboratory of the Mary Fletcher Hospital and 'we shortly thereafter proceeded to test the blood'; that the blood was out of his sight during the time in which he remained talking with counsel for the parties perhaps for ten or fifteen minutes; also that he was out of the laboratory that afternoon; that at one time they might have from five to two dozen test tubes with...