Opinion
Rehearing Denied March 1, 1960.
Hearing Granted March 30, 1960.
Opinion vacated 7 Cal.Rptr. 129.
Edward L. Lascher, Van Nuys, for appellant.
Cooper & Nelsen, Grant B. Cooper, Phyllis N. Cooper, Los Angeles, for respondent.
LILLIE, Justice.
Plaintiff is the mother of a five-year old child born July 29, 1954, nine days after the entry of a final decree of divorce dissolving her marriage to Thaddeus Kusior. Claiming that defendant is the infant's father, she brought this action to establish The record of the oral proceedings below has reached this court by way of a settled statement. Therefrom it appears that plaintiff and her husband separated in February of 1953 at which time, they both testified, sexual relations between them permanently ceased. In July of 1953 plaintiff secured an interlocutory decree of divorce. By the terms of the decree the husband was given the right to visit their eight-year old daughter whose custody had been awarded to plaintiff; thereafter he exercised this right at regular intervals, On the occasion of these visits he would perform maintenance work on the property; once or more he took the plaintiff and their daughter out to dinner; and several times he remained at the plaintiff's home until the early hours of morning. In this latter regard plaintiff stated: 'I had to have someone to talk to. Yes, we sat and talked until 3 or 4 in the morning.' In May of 1954, the daughter was sent east on a visit but Mr. Kusior nevertheless continued his visits to plaintiff's residence. He denied that he was impotent.
Two neighbors of the plaintiff testified that Mr. Kusior was seen by them at plaintiff's home sometimes in the evenings, during the period of possible conception; they were unable to state, however, whether he remained overnight.
According to the plaintiff, she first had intercourse with defendant early in June of 1953, and subsequently about four more times until she underwent an operation in September of that year. She testified she had intercourse with defendant several times thereafter. He slept in the den the first time he came to plaintiff's house, about the middle of October, shortly after a roomer, Mrs. Nelson, moved out of the premises.
Mrs. Nelson never saw the defendant until her appearance in court. She testified that plaintiff had eight or nine different male callers. They would visit with plaintiff in the den, occasionally bringing groceries. Early one morning, about 4 o'clock, the witness was awakened by a commotion; as she came out of her bedroom she observed a man hurry into the bathroom, then re-enter the den and get his coat; he quickly made his departure from the house and plaintiff threw a beer bottle in his direction as he left the premises.
Plaintiff gave testimony of her relationship with other men from August through November of 1953. She 'dated' a Mr. Hyatt, a Mr. Mathews, and a photographer whose first name was Richard; she also frequented, unaccompanied, a certain cocktail bar. Defendant, she stated, was the only man with whom she had sexual intercourse.
Blood tests were taken of the parties pursuant to the provisions of Section 1980.3, Code of Civil Procedure. These tests resulted in findings that defendant was within the class of persons who could have been the father of the child; and that plaintiff's husband could not have been its father.
In view of the evidence hereinabove summarized, the sufficiency of which to support the judgment is not disputed, the plaintiff challenges the propriety of giving certain instructions on the conclusive presumption of legitimacy (Section 1962, subd. 5, Code of Civil Procedure), as well as the accuracy of the phraseology therein used; she also claims prejudicial error in the giving of an instruction on the effect of the blood tests, it being contended that their results compelled a mandatory contradiction of the rebuttable presumption of legitimacy (Sections 193, 194, Civil Code; Section 1963, subd. 31, Code of Civil Procedure). Despite commendable efforts of her present counsel to convince us otherwise, although some of his argument would be more persuasive if addressed to the trier of fact, we have concluded that plaintiff's contentions cannot be sustained.
Section 1962, subd. 5, Code of Civil Procedure declares: 'Notwithstanding any other provision of law, the issue of a wife The criticized instructions relating to the conclusive presumption are set forth below. They were given on the court's own motion although both parties had proposed a single instruction dealing with the general subject matter of Section 1962, subd. 5. The court, likewise on its own motion, read other instructions explaining indirectly the legal effect of an interlocutory decree of divorce ; dealing with the rebuttable presumption
'Now, you will observe there are two conditions which must exist and which you must find to exist before this conclusive presumption applies: 'The issue of a wife cohabiting with her husband, who is not impotent.'
'Now, ladies and gentlemen, we come to the central issue in this case: Is the defendant, Dr. Silver, or is he not the father of the child Dorothy.
Preliminarily, appellant complains somewhat bitterly of the trial court's action in proceeding sua sponte and to the lengths indicated by the record; however, the court in its discretion may clarify the subject matter of an instruction whenever it sees fit and accordingly in charging the jury 'may of its own motion instruct them as to all matters which it thinks necessary for their information in giving their verdict.' Jennings v. Arata, 83 Cal.App.2d 143, 146, 188 P.2d 298, 300; see also Alwood v. City of Los Angeles, 139 Cal.App.2d 49, 65, 293 P.2d 69. While we do not commend unnecessary amplification of propositions of law readily apparent to jurors of ordinary intelligence (Sharpless v. Pantages, 178 Cal. 122, 125, 172 P. 384), it may not be said that the peculiar circumstances at bar did not warrant some departure from the recognized rule.
We also deem this a proper place to comment on certain introductory matter in appellant's brief. Quoting a statement from Berry v. Chaplin, 74 Cal.App.2d 652, at page 657, 169 P.2d 442, at page 447, that '(I)n effect the court is the guardian' of the minor in a filiation action, she asks us to proceed on the premise that 'whatever best serves the child should be effectuated' and this may not be accomplished by a 'blind preference for legitimacy'; and argues, '(t)he record discloses no reason for a conclusion that the child can be served best by refusing defendant's paternity.' Contrary to appellant's claim that the presumption of legitimacy is now outdated or, as she puts it, 'not so appropriate to California in the age of space, science * * * and social conscience,' the laws establishing the presumption of legitimacy, although dating back to antiquity, are predicated on certain standards and principles which have remained constant throughout civilized society. 'The family is the ultimate foundation upon which the soundness of the structure of the state depends. 'The family is the origin of all society and all government'' (In re Forte's Will, 149 Misc. 327, 267 N.Y.S. 603, 606). As society's primary unit and the basis of our democracy, therefore, it is understandably safeguarded by the presumption that marriage vows are observed and that the wife's husband is the father of her children. The premise appellant would have us adopt is an unrealistic one and disregards recognized public policy to support the presumption of legitimacy where it can be fairly done. Dazey v. Dazey, 50 Cal.App.2d 15, 21-22, 122 P.2d 308.
Pertaining to the results of the blood tests, the court instructed the jury as follows: 'The doctor's report of the blood tests made of the parties to this action, and of the minor child Dorothy, does not establish that the defendant is the father of the minor child Dorothy. It merely establishes that the defendant is one of that group of men whose blood is such that, physiologically, any one of them could father a child having blood such as Dorothy, so that therefore it is physiologically possible for the defendant to be Recognized exceptions to the operation of the conclusive presumption include situations where the husband was (1) incompetent; (2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which the child must, in the course of nature, have been begotten; and (4) only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse (Williams v. Moon, 98 Cal.App.2d 214, 217, 219 P.2d 902).
Referring again to Williams v. Moon, supra, 98 Cal.App.2d at pages 218-219, 219 P.2d at page 905, therein, quoting from In re Estate of Walker, 180 Cal. 478, 181 P. 792, the court stated a further exception: "There is no doubt but that the presumption of legitimacy goes at least to this extent: That if it appear that by the laws of nature it is possible that the husband is the father (that is, if it appears that the husband had intercourse with the mother during the period of possible conception), Legitimacy is conclusively presumed, and no guessing or weighing of probabilities as to paternity because of relations between the mother and other men will be permitted. The only exception to this, if it really be an exception, is where it is clear that, although the husband had intercourse with the wife, yet by the laws of nature it is impossible for him to have been the father, as, for instance, where husband and wife are white and the child is a mulatto.' * * *' In re Estate of McNamara, 181 Cal. 82, 96, 183 P. 552, 557, 7 A.L.R. 313, the court said: 'There is one class of cases where it is recognized, in this country at least, that the husband is not to be taken as the father of the child, even though he had intercourse with his wife during the normal period of conception. That instance is where the husband and wife are of the same race, as for instance white, and it appears that the wife had intercourse with a man of another race, as, for instance, a negro, and the child is of mixed blood (Citations). The reason why the conclusive presumption is not applied in such instances is that the element of indeterminability which is the reason for the presumption in the ordinary case is absent. It is clear that the husband is not the father. The actual fact, in other words, is capable of definite determination, and for this reason the conclusive presumption which is a substitute for such determination is not properly applicable.'
Pointing to the scientific reliability of blood grouping tests (see concurring opinion of Mr. Justice McComb in Berry v. Chaplin, 74 Cal.App.2d 652, 667-668, 169 P.2d 442) which was accorded recognition by the adoption in this state of the Uniform Act on Blood Tests to Determine Paternity (infra), also known as the California Blood Test Act, appellant argues in effect that the 'actual fact' (exclusion of the husband) is here capable of definite determination, for which reason 'the conclusive presumption which is a substitute for such determination is not properly applicable.' In re Estate of McNamars, supra, 181 Cal. 82, 183 P. 552, 558, 7 A.L.R. 313. If certain well defined rules and principles relative to the subject of blood grouping tests and their reliability and applicability Having a direct bearing on the law as it stands today is the sequence of court decisions in relation to, and as influencing legislative enactment of the California Uniform Act on Blood Tests to Determine Paternity, which, in 1953, became a part of our Code of Civil Procedure (Sections 1980.1-1980.7). The evidentiary value of blood grouping tests was first advanced in Arais v. Kalensnikoff, 10 Cal.2d 428, 74 P.2d 1043, 115 A.L.R. 163, in which defendant was adjudged the father despite blood tests indicating his nonparentage. Affirming the judgment, our Supreme Court declared: 'Whatever claims the medical profession may make for the test, in California 'no evidence is by law made conclusive or unanswerable, unless so declared by this code.' Section 1978, Code of Civil Procedure.' (10 Cal.2d at page 432, 74 P.2d at page 1046). In Berry v. Chaplin, supra, 74 Cal.App.2d 652, 169 P.2d 442, the same reasoning was applied and the same result reached. Neither case, however, involved a wife-paramour situation, as in the case at bar. In Hill v. Johnson, 102 Cal.App.2d 94, 226 P.2d 655, almost parallel on its facts with the instant case, blood tests of all parties disclosed that the blood of the minor plaintiff and of the defendant was type 'B' and that of the child's mother and Mr. Hill, her husband, was type 'O'. At page 96 of 102 Cal. App.2d, at page 656 of 226 P.2d, the court stated: 'From this plaintiff argues that Mr. Hill could not have been the father of the child and that defendant could have been. Evidence of the result of a blood test is to be considered with all other evidence in the case and is not conclusive.' (Emphasis added.) Following the Hill case, supra, which was decided in 1951, the legislature of this state in 1953 enacted the California Blood Test Act (Sections 1980.1 et seq., Code of Civil Procedure). Based on the Uniform Act on Blood Tests to Determine Paternity, our lawmakers significantly refrained from adopting Section 5 thereof which reads as follows: 'The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, show that the husband is not the father of the child.' Our law (Sections 1980.1-1980.7, Code of Civil Procedure) emerged without this section or any reference to the subject matter contained therein; and that it was the result of an intentional legislative omission is clear from the history of the Act and the construction the courts have allowed.
Statutes, as a general rule, 'are to be given a reasonable interpretation to the end that the object and purpose of the law will be effectuated' (Hopkins v. Detrick, 97 Cal.App.2d 50, 59, 217 P.2d 78, 84); furthermore 'affirmative expressions in a statute introducing a new rule imply a negative of all not within their purview' (Johnston v. Baker, 167 Cal. 260, 264, 139 P. 86, 89). As presently worded our Blood Test Act undertakes to enumerate the 'cases' in which the results of such tests shall be operative; the statute being creative, 'it is a well established rule of construction that the enumeration of certain In re Estate of Madison,
Arais v. Kalensnikoff or Berry v. Chaplin Hill v. Johnson,As to the irrefutability and the scientific reliability of blood grouping tests, we note that in the Act, the term 'experts' is employed in connection with the section prescribing the manner of performing blood tests, and by whom they shall be made, and their use as 'witnesses' (Section 1980.4, Civil Code of Procedure), and that in setting out the effect of the results of their testimony the Act continues to use the plural form and refers to 'all the experts' (Section 1980.6, Code of Civil Procedure), obviously contemplating the use of more than one expert in a given case. This indicates that it must have occurred to the legislature that there was room for error in blood testing, scientific as it might be; thus, it allowed for the use of more than one expert or experts to prove or disprove the accuracy of the test in question. This may well account for the attitude of both the legislature and our courts in refusing to make the results of a blood test showing nonpaternity conclusive to overcome the presumption of legitimacy. This view is shared by various medical and legal authorities. Ross v. Marx, 24 N.J.Super. 25, 93 A.2d 597, citing 149 Journal American Medical Association 699 (June 14, 1952); State v. Dantonio, 18 N.J. 570, 115 A.2d 35, 39, 49 A.L. R.2d 460; See also 5 U.C.L.A. Law Review 629, 635, 643.
There is yet another phase of the problem which establishes the supremacy of the presumption. Section 1962, subd. 5 was amended in 1955 after the passage of the California Blood Test Act, by the addition of the following italicized words: 'Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate.' Relative to such legislative action it has been said: 'The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.' Cole v. Rush, 45 Cal.2d 345, 355, 289 P.2d 450, 456, 54 A.L.R.2d 1137. Also, the failure to make any alterations when reenacting a statute may be taken as a legislative confirmation of judicial constructions placed on the former provisions (Bertozzi v. Swisher, 27 Cal.App.2d 739, 744-745, 81 P.2d 1016). Too, Section 1962, subd. 5 and the pertinent sections of the Blood Test Act may or may not be antagonistic; but if one must yield, the statute last enacted should control (Coker v. Superior Court, 70 Cal.App.2d 199, 201, 160 P.2d 885)--particularly since it relates to a particular subject and constitutes the latest utterance of the legislature with respect Pierce v. Riley,
We say in summary that '(t)o admit of the contentions argued by appellant would * * * destroy the very purpose of the legislature in enacting Section 1962, subdivision 5 of the Code of Civil Procedure. Should any change in that law so definitely stated, be desired, such a change must come from the legislative, not the judicial branch of the government.' Daniels v. Daniels, 156 Cal.App.2d 371, 374, 319 P.2d 662, 664. Therefore, regardless of our personal feelings with respect to the present form of our Blood Test Act (it has been suggested that it permits the husband's fate to hinge on his living arrangements when the child was conceived)--(7 Stanf.L.Rev. 388, 393), it is the declared public policy of this state to support the presumption of legitimacy when it can reasonably be done. Here the husband admitted that he was 'not impotent' and, as will be demonstrated, evidence indicative of 'cohabiting' was also present. We think, under those circumstances, the court did not err in giving the instruction complained of.
Next it is contended that the facts show an absence of any cohabitation within the purview of Section 1962, subd. 5, and for this additional reason it was error to read the instruction based on that statute. Cohabitation, according to appellant, implies a dwelling together 'in a manner customary to married people with a mutual assumption of conjugal rights and duties.' She cites such cases as Sharon v. Sharon, 1888, 75 Cal. 1, 16 P. 345 and 79 Cal. 633, 22 P. 26, 131; Kilburn v. Kilburn, 1891, 89 Cal. 46, 26 P. 636; and Miller v. Sutherland, 131 Mont. 175, 309 P.2d 322. The Sharon and Kilburn decisions, it appears, involved a determination as to whether there was a common law marriage within the meaning of Section 55, Civil Code, which then provided that consent to a marriage 'must be followed by * * * a mutual assumption of marital rights, duties or obligations.' [75 Cal. 1, 16 P. 348.] The words just quoted were eliminated by statute in 1895; hence it may not be said that such cases, dealing as they do with the construction of the requirements of a common law marriage, are good authority for the interpretation of the word 'cohabit' as a requirement for invoking the conclusive presumption of legitimacy. On the other hand, the accepted test usually applied is the reasonable opportunity of access by the husband to the wife. In Williams v. Moon, supra, 98 Cal.App.2d 214, 219 P.2d 902, the court stated: 'Thus, the key question is whether the husband did or did not have access to his wife during the period that the child must have been conceived. If he had the opportunity for such access, the presumption of legitimacy is conclusive inasmuch as the child was admittedly conceived while respondent was married * * * 'Separation' is not the test. To prevent the strong conclusive presumption from arising where the child is conceived during marriage, the evidence must be clear and convincing that there was in fact no access, not simply that the parties were separated. If there is the reasonable possibility of access the conclusive presumption arises * * *' (98 Cal.App.2d at page 219, 219 P.2d at page 905). In Hill v. Johnson, supra, 102 Cal.App.2d 94, 226 P.2d 655, the court declared: 'When there is opportunity of access * * * by the husband during the period conception would normally occur, the presumption of legitimacy (with exceptions not here applicable) is conclusive (Citations)' (102 Cal.App.2d at pages 95-96, 226 P.2d at page 656). Parker v. Parker, 107 Cal.App.2d 215, 236 P.2d 828, affirmed a finding of illegitimacy on proof of the complete absence of the husband during the period of possible conception. At page 216 of 107 Cal.App.2d, at page 829 of 236 P.2d the court said: 'Resolving the conflicting testimony in favor of plaintiff the court was entitled to find that there was no possibility of access between the parties during the In re Estate of Marshall,
In re Estate of Young, Daniels v. Daniels,Three cases cited by appellant are not to the contrary. Thus, in Cinders v. Lewis, 93 Cal.App.2d 90, 208 P.2d 687, the husband and wife had been separated but remained friendly, living in the same neighborhood. Defendant-paramour admitted that he might have had sexual relations a month prior to the date of conception. While the finding of illegitimacy was upheld, the court stating that the conclusive presumption did not apply (there being no proof that plaintiff was 'cohabiting' with her husband), it must be kept in mind that the court was obliged to view the evidence most favorably to plaintiff--and, in this connection, the paramour admitted (unlike respondent here) the fact of intercourse with the child's mother. Furthermore, Williams v. Moon, supra, 98 Cal.App.2d 214, 219 P.2d 902, followed the Cinders case; and its unequivocal holding on opportunity of access has been approvingly cited in Hill v. Johnson, supra, 102 Cal.App.2d 94, 226 P.2d 655; Waters v. Spratt, 166 Cal.App.2d 80, 332 P.2d 754 and Bonsall v. Bonsall, 169 Cal.App.2d 753, 337 P.2d 843. Appellant's next case, McGillis v. Hofeditz, 101 Cal.App.2d 760, 226 P.2d 372, affirmed the trial court's judgment in favor of illegitimacy--there being evidence that defendant visited the child's mother 'almost every night' and remained with her alone for several hours. The mother and her husband were 'seen together on several occasions after their separation, but there was no testimony that they were living together as man and wife.' Nothing appears in the statement of the case to indicate under what circumstances the couple was 'seen together'; specifically, whether such circumstances (as in the present case) would give rise to a 'reasonable possibility of access' (Williams v. Moon, supra, 98 Cal.App.2d 214, 219, 219 P.2d 902). Finally, appellant relies on Waters v. Spratt, 166 Cal.App.2d 80, 332 P.2d 754. In that case, however, there was an affirmance since the evidence (although conflicting) supported findings by the trial court that the husband was entirely absent so as to have no intercourse or communication with the mother during the period of possible conception.
But brief mention need be made of appellant's claim that certain terminology found in Instruction 'A' (heretofore quoted) and in another instruction (being a revision of BAJI 22) was misleading. The criticized portion of 'A' reads as follows: 'Hence to invoke the conclusive presumption just read you, you need only find that Mr. and Mrs. Kusior cohabitated * * *' (Emphasis added.) Read with the rest of the instruction, the propriety of the word 'only' cannot be questioned. The pertinent part of BAJI 22 (as revised by the court) reads: 'There are some presumptions that are not rebuttable. They are conclusive presumptions and I will refar to one that applies in this case later on.' (Emphasis added.) Any seeming emphasis on the applicability of the conclusive presumption is dissipated by the fact that the court used the same terminology in a preceding instruction which pertained to rebuttable presumptions; thus: 'This presumption which is rebuttable applies in this instance.' (Instruction 'F', supra.) Neither contention has merit.
Appellant's final point likewise justifies little discussion. Assuming, she argues, that the jury decided that Section 1962, subd. 5, Code of Civil Procedure, was not applicable, and instead had recourse to the rebuttable presumptions of legitimacy, it was 'mandatory' that the effect of the blood tests contradict such rebuttable presumptions. A similar argument was rejected in McKee v. McKee, 156 Cal.App.2d 764, 320 P.2d 510. At page 766, of 156 Cal.App.2d, at page 512 of 320 P.2d, the court therein stated: 'Defendant further contends that the evidence of the blood In re Estate of McMurray,
Napoli v. Hunt, Trancoso v. Trancoso, Baines v. Zuieback,For the reasons stated the judgment is affirmed.
WOOD, P.J., and FOURTH, J., concur.
'There is no question that Mrs. Kusior was married to Mr. Kusior, so she is a wife, but you must find that she cohabited with him during the period of conception involved in this case.
'You must also find that Mr. Kusior is not impotent. From the uncontradicted evidence in this case, you may accept as a fact that Mr. Kusior is not impotent; that is to say, he could father a child.
'So, then, the only question remaining for you to determine from the preliminary facts, is whether Mr, and Mrs. Kusior cohabited at any time and for any time during the period that conception must have taken place according to the laws of nature in this case.
'Hence, to invoke the conclusive presumption just read you, you need only find that Mr. and Mrs. Kusior cohabited, that is, at any time and for any time, lived together as husband and wife during the period when conception normally would have occurred in this case, or if you find from the evidence that Mr. Kusior, the husband, had access to his wife, Mrs. Kusior, during that period of conception involved here.
'There is evidence that the Kusiors had separated and had no sexual relations since or during the separation, but separation alone is not the test.
'To prevent this strong conclusive presumption from arising, where the child is conceived during marriage, which is the case here, the evidence must be clear and convincing that there in fact was no access; not simply that the parties were separated. If there was reasonable possibility of access, the conclusive presumption arises, and no evidence can be considered by you to contradict it.
'In that situation, the child is conclusively presumed to be legitimate and your verdict would have to be for the defendant, Dr. Silver.
'But, on the other hand, should you find that there was in fact no cohabitation by Mr. and Mrs. Kusior during the period in which conception normally would have occurred in this case, the conclusive presumption would not apply, but only the rebuttable presumption which was the one to the effect that a child born of a married woman within ten months after the dissolution of her marriage is presumed legitimate.' (Court's Instruction 'A')
'You should bear in mind that if you find the fact of cohabitation existing between Mr. and Mrs. Kusior during the period of conception in this case the conclusive presumption applies and you may not consider any of the evidence in the case for the purpose of contradicting that presumption.
'But, if you find that it does not apply, and only the rebuttable presumption applies, then you may consider all the evidence in accordance with these instructions. (Court's Instruction 'B')
'There is another presumption which applies, depending as to whether you find certain preliminary facts to exist. That presumption says: 'The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate.' That presumption cannot be contradicted, if it applies.' (Court's Instruction 'C')
'This would be a simpler problem for you were it not for the fact that the mother, Mrs. Kusior, was a married woman at the time the child was conceived. The child was born nine days after her mother's marriage was dissolved. In California, a marriage does not terminate except by a final decree of divorce which, in this case, was entered July 20, 1954, and the child was born nine days later; namely, July 29, 1954.' (Court's Instruction 'D').
'There is a presumption established by law which says that all children of a woman who has been married, born within ten months of the dissolution of the marriage, are presumed to be legitimate children of that marriage.
'This presumption, which is rebuttable, applies in this instance.
'The child was born of a woman who had been married, born nine days after the dissolution of the marriage.
'As I say, the presumption is rebuttable, and you may apply, either in support of or contradiction of this presumption, any of the evidence that has been received in this case, including the two blood tests.' (Court's Instruction 'F')