ARAIS v. KALENSNIKOFF

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District Court of Appeal, Second District, Division 2, California.

ARAIS v. KALENSNIKOFF.†

Civ. 11290.

Decided: May 05, 1937

Roger Marchetti, of Los Angeles (Charles A. Winter, and Ed. S. Green, both of Los Angeles, of counsel), for appellant. M. C. Spicer, of Los Angeles, for respondent.

Defendant appeals from a judgment entered after trial before a court without a jury, finding him to be the father of plaintiff's illegitimate child.

The material facts are these:

Plaintiff, who is Spanish, testified through an interpreter that she had been married twice, was separated from her second husband, had not had sexual intercourse subsequent to her separation from her husband with any other man than defendant, and that he was the father of Elsie Arais, born November 22, 1932. Defendant, a Russian 70 years of age, who testified through an interpreter, denied that he had ever had sexual intercourse with plaintiff, and both he and his wife averred that he had been impotent for a number of years.

Dr. Roy W. Hammack, an eminent physician and surgeon of the city of Los Angeles, who had been appointed by the trial court with plaintiff's consent to make a Landsteiner blood–grouping test of plaintiff, defendant, and Elsie Arais, reported that Elsie Arais could not be the issue of plaintiff and defendant. The Landsteiner blood–grouping test placed the plaintiff and defendant in group O and Elsie Arais in group B. It is unquestioned that the test was fairly taken and correctly reported.

This is the question presented for determination:

Is there substantial evidence in the record to sustain the finding of the trial court that defendant is the father of Elsie Arais?

This question must be answered in the negative. The law is settled that courts will take judicial notice of all matters of science and common knowledge. People v. Associated Oil Co., 211 Cal. 93, 105, 294 P. 717; People v. Garcia, 1 Cal.App.(2d) Supp. 761, 765, 32 P.(2d) 445; section 1875, subd. 8, Code of Civ.Proc. Also, the court may resort for its aid in determining matters of science to appropriate books and documents of reference. Section 1875, Code of Civ.Proc.

It is likewise settled that it is not the province of this court to decide disputed questions of fact, and we are bound to give plaintiff the benefit of all favorable inferences which may be drawn from her testimony and that of other witnesses; yet we are not required to believe what physical facts demonstrate to be untrue or that which is contrary to immutable physical laws. Neilson v. Houle, 200 Cal. 726, 729, 254 P. 891; Austin v. Newton, 46 Cal.App. 493, 497, 189 P. 471; Miller v. Pennsylvania R. Co., 299 Pa. 63, 149 a. 85, 86; 4 Corpus Juris 857. Hence a finding of fact based solely upon testimony of a witness contrary to a scientific fact will be set aside by this court on appeal as not supported by substantial evidence. Coughlin v. Great Western Power Co., 183 Cal. 548, 551, 191 P. 920.

Applying the foregoing rules to the instant case, we take judicial notice of the Landsteiner Blood Groupings and the results derived therefrom upon test.

The Landsteiner Blood Groupings in parents and children are as follows:

Briefly the Landsteiner blood–grouping test operates in the following manner: There are three allelomorphic genes, A, B, and O, which determine blood groups. There is one locus for these genes in each single pair of chromosomes and at this locus only one of the three genes can occur. A and B determine the presence of the agglutinogens A and B, and O the absence of agglutinogen. In the formation of the germ cells the pairs of chromosomes separate and each germ cell contains only one of each pair and therefore only one of the three genes. From combinations of the three possible kinds of sperms with the three possible kinds of ova six different genotypes result. Genes A or B, accordingly, are dominant over O; which means that if gene A or B is present even though combined with gene O, then the individual will possess agglutinogen A or B.

The agglutinogens A and B cannot appear in the blood of a child unless present in the blood of one or both parents, since they are inherited as mendelian dominants. If either parent belongs to group AB, his or her genotype is AB, so half the germ cells will contain gene A and half gene B. Every child will therefore possess at least one A or B gene and cannot belong to genotype OO or group O. On the other hand, if either parent belongs to group O or genotype OO, all the children must possess at least one O gene, so that children of group AB are impossible.

The medical profession accepts the results of the Landsteiner blood–grouping test as conclusive evidence in cases where it shows nonpaternity; that is, when the mother of the child is known and an examination of the blood of the mother, child, and putative father discloses that a union of the mother and putative father could not have given rise to the blood grouping of the child, it is conceded that the putative father is not a parent of the child. Commonwealth v. Zammarelli, 17 Pa.Dist. & Co R. 229; Wigmore on Evidence, Supp. to Second Ed. (1923) 150; “Blood Groups and Blood Transfusion” by Alexander S. Wiener, M. D., 190 et seq.; “The Medicolegal Aspects of Blood Grouping” by I. Zieve, M. A. (Cape), M. R. C. S., L. R. C. P. (London) (Department of Social Biology, University of London, and Division of Genetics and Biometrics of Jewish Hospital in Brooklyn), American Journal of Obstetrics and Gynocology, vol. 32, 1069, 1071; “Determining Parentage” by Dr. Alexander S. Wiener, Scientific Monthly (April, 1935) 323, 329; “Forensic Application of Serologic Individuality Tests” by Karl Landsteiner, M. D., the Journal of the American Medical Association, vol. 103, No. 14,1041.

Professor Wigmore in an exhaustive dissertation on the subject says:

“But at this point comes into play the great discovery of science (emerging after many years of patient research by numerous scientists, but now accepted as correct by all), viz.: that no particular gene A, B or O, will appear in the progeny unless it was present in one of the parents.” Wigmore on Evidence, Supp. to Second Ed.(1923) 152.

In the case before this court Dr. Hammack, a prominent physician and surgeon of Los Angeles with wide experience in blood grouping, who was appointed by the trial court with the consent of the parties to make a blood–grouping test, reported that the result of his tests showed the following blood groups for the respective parties:

It was established that the factors A and B cannot appear in the blood of a child unless present in one or both parents. This conforms with a universal, negative truth of heredity accepted as correct by all scientists, viz., that no particular gene A, B, or O will appear in the progeny unless it was present in one of the parents. Wigmore on Evidence, Supp. to Second Ed. (1923) 152.

It was conceded that plaintiff was the mother of Elsie Arais, who came in the gene B blood group. However, as neither plaintiff nor defendant had gene B in their blood, Elsie Arais' father could not be defendant, but must be some one else falling in the gene B blood grouping.

It therefore appears that the finding that defendant was the father of Elsie Arais was not supported by substantial evidence, since plaintiff's testimony was contrary to an immutable law of nature, of which this court takes judicial notice. Our conclusions conform to those of other appellate courts that have passed upon this question. Judge Campbell of the Supreme Court of South Dakota, in State v. Damm, 266 N.W. 667, 671, in discussing the subject says at page 671:

“We recapitulate the views hereinbefore set forth by saying that we think (1) the reliability of the blood test is universally conceded by competent scientific authorities.” See, also, Commonwealth v. Zam marelli, 17 Pa.Dist. and Co.R. 229.

In passing, our research discloses that the blood–grouping test requires only a few drops of blood, is painless and in no way is prejudicial to health. Therefore, since the charge of paternity is one easy to make and very difficult to disprove, it would tend to simplify this problem, when it is presented to our courts for determination, and would be a distinct advance in the science of jurisprudence, if our state Legislature should see fit to adopt as part of our Code of Civil Procedure an amendment similar to that now existing in the states of Wisconsin and New York. The pertinent section of the Wisconsin statute is as follows:

“Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court, by order, may direct that the complainant, her child, and the defendant submit to one or more blood tests to determine whether or not the defendant can be excluded as being the father of the child. The result of the test shall be receivable in evidence, but only in cases where definite exclusion is established. The tests shall be made by duly qualified physicians, or other duly qualified persons, not to exceed three, to be appointed by the court and to be paid by the county. 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. Whenever the court orders such blood tests to be taken and one of the parties shall refuse to submit to such test, such fact shall be disclosed upon the trial unless good cause is shown to the contrary.” Chapter 351, Laws of Wis. (1935) (Approved Aug. 9, 1935; Section 166.105, Wis.Stats.(13th Ed., 1935).

For the reasons hereinbefore set forth, the judgment is reversed.

McCOMB, Justice.

We concur: CRAIL, P. J.; WOOD, J.