Terry HUNTINGDON and Baby Crowley, a being in esse by and through its Guardian ad Litem, Terry Huntingdon, Plaintiffs and Appellants, v. Arthur CROWLEY, Defendant and Respondent.
This is a filiation proceeding initiated by plaintiff Terry Huntingdon on her own behalf and on behalf of her then unborn child named in the complaint as Baby Crowley and for whom she appeared as guardian ad litem.1
Statement of the Case
Plaintiffs' first amended complaint filed on October 18, 1961, alleged inter alia that plaintiff Terry Huntingdon and defendant Arthur Crowley were unmarried persons; that ‘there will be born to plaintiff TERRY HUNTINGDON, a minor child, plaintiff BABY CROWLEY, in the month of April 1962, or thereabouts. * * * That defendant is the father of plaintiff, BABY CROWLEY * * *’
The prayer of the complaint sought a judgment declaring defendant Arthur Crowley to be the father of said child and requiring said defendant to pay a reasonable amount for the support of the expected child, together with expenses incident to the birth, costs incurred, and other relief. By his answer, defendant denied that he was the father.
On May 15, 1963, after a lengthy jury trial, a 9 to 3 verdict was returned finding ‘that the Defendant, Arthur Crowley is not the father of the minor child, Elizabeth Paige.’ On the same day the judgment of the court was entered in favor of defendant in conformity with the verdict. The present appeal has required our review of this judgment and the proceedings upon which it is based.
One of the dominant motivating purposes of our inquiry has been to ascertain whether or not the minor child was accorded a fair and lawful trial of the issue as to her parentage. With respect to the two adults who have played the leading roles in this modern American tragedy, first as intimates and later as bitter adversaries, our purpose is to deal objectively with the legal issues which we deem determinative of this appeal and to minimize as far as possible the damaging effects of the tarnishing brushes which have been so greatly overused by some of the active and responsible participants in this unfortunate portrayal.
Having completed the not inconsiderable task of reviewing the significant parts of the testimony and the proceedings as recorded in a shelf of 13 volumes of transcript, and having considered the arguments made and the legal authorities cited by counsel in their extensive briefs, we have reached the definite conclusion that we must reverse the judgment under review and remand the cause for a new trial.
In our endeavor to state as clearly as possible the reasons which have compelled this conclusion, we shall try to limit our statement of the facts to those reasonably necessary to an understanding of the setting in which the issues are tendered and which have been operative in the course of our reasoning. Thus we hope to minimize the burden imposed upon the readers of law who may find it necessary or desirable to read what we write.
Statement of the Facts
The mother's last menstrual period commenced on or about July 22, 1961. According to the medical testimony, the child was conceived some time between July 26, 1961 and August 7, 1961. The mother testified that she had intercourse with respondent on August 2, 3 and 5, 1961. The infant appellant, Elizabeth Paige Crowley, was born on May 14, 1962.
Appellant Huntingdon testified that she and respondent Crowley engaged in sexual intercourse on numerous occasions during the period commencing on or about May 1, 1961, and ending on August 30, 1961, and that during this period she was ‘going steady'2 with respondent. Respondent himself testified that he had intercourse with the mother during the month of May 1961, but never thereafter, and that he had never ‘gone steady’ with the mother as she had described their relationship in her testimony.
Respondent introduced evidence for the purpose of proving the existence of intimate relationships between the mother and two other men whose names were Wright and Ganzer, respectively. On the basis of this evidence, the jury could have inferred that either or both of these two men had had intercourse with the mother during the probable period of conception.
Error in the Exclusion of Expert Testimony
Appellants' primary assignment of error relates to the refusal of the trial court to permit its own expert, and an expert called by appellants, to testify concerning blood tests given to the two men whose potential paternity constituted the heart of respondent's defense. The basic issue to be determined in this case, of course, is the paternity of the minor child.
After respondent had been allowed to introduce evidence tending to establish that the mother had had sexual relations with two other designated men during the conception period, it was reversible error to refuse to allow appellants to prove that according to the laws of heredity it was impossible that either of these men could have been the child's father, regardless of any relations they may have had with the mother. Appellants properly sought to lay a foundation upon which to introduce the testimony of an expert witness to prove that these men were excluded by reason of blood tests taken of them, the mother and the child. The trial court first stated that it would not allow such evidence for the reason that the expert had not been appointed by the court.
Nothing in the provisions of the Uniform Act on Blood Tests to Determine Paternity as adopted in California in 1953 (Code Civ. Proc., §§ 1980.1–1980.7) would appear to imply that the testimony of such a witness is inadmissible, particularly in a case such as this where the issues regarding these other named men whose potential status as fathers were brought into the proceedings by reason of the fact that respondent himself pointed an accusatory finger at them. Indeed, the act appears to contemplate this very possibility for section 1980.5 provides, in part, that ‘The fee of an expert witness called by a party but not appointed by the court shall be paid by the party calling him but shall not be taxed as costs in the action.’ (And see Lyons v. Scott, 181 Cal.App.2d 787, 788, 5 Cal.Rptr. 529.)
However, faced with this ruling, appellants then proceeded as follows:
‘MR. REDLICH [counsel for appellants]: Well, at this time, your Honor, then, we would make a motion that the blood tests of Mr. Crowley, Miss Huntingdon, the baby, Mr. Brett Wright and Mr. Alvin Ganzer be made. THE COURT: Denied. MR. REDLICH: Then, at this time, your Honor, I make a motion for a mistrial on the basis that the Court has committed highly prejudicial error against the interest of the minor plaintiff on the grounds that this particular action is to establish the paternity of Mr. Crowley, that Mr. Crowley has indicated the possibility that Mr. Ganzer and Mr. Wright may be the father of the child and as a result thereof, your Honor, I think that not for me to rebut—THE COURT: I think it is for the jury to determine whether they are or not. MR. REDLICH: But to let the jury hear the evidence with respect to the expert witness—THE COURT: Are you through making your argument? MR. REDLICH: I would like to make my offer of proof. THE COURT: Well, you go ahead, but I am going to deny the mistrial first. Now, make your offer of proof.
Appellants' Offer of Proof re Blood Tests
‘MR. REDLICH: We would offer to prove that Dr. Harry Sacks, who is a most competent and qualified pathologist, who is associate director of the Cedars of Lebanon Hospital, blood testing facilities, he is in charge of their laboratories—THE COURT: Just make your offer of proof, counsel. MR. REDLICH: Well, I am just qualifying the expert. THE COURT: That's your conclusion, counsel. You proceed. MR. REDLICH:—will testify to the effect that Mr. Alvin Ganzer has been excluded on one of the three tests that Mr. Crowley is talking about, to wit, the Rh test, and that additionally, both Mr. Ganzer and Mr. Brett Wright are excluded of the possibility of paternity on the grounds that they neither one of them possessed a large K factor, that the infant plaintiff in this case possesses a type of blood known as large K, large K; that the mother Terry Huntingdon possesses a type of blood known as large K, small k, and that she could only transmit one large K to the infant plaintiff and that by the laws of heredity, the father would have to have transmitted the other large K that the infant plaintiff possesses, the infant plaintiff possessing two large K's.
‘That as a result of blood tests taken, the Kell-Cellano tests, by Dr. Sacks on several occasions of Mr. Wright, of Miss Huntingdon and of the baby, he has determined that the blood type of Mr. Brett Wright is small k, small k, and that as a result thereof, Mr. Wright could not have transmitted to the infant plaintiff the large K factor and according to the laws of heredity, Mr. Brett Wright, not being possessed of said factor——
‘THE COURT: You are arguing your point. All I want you to do is present your offer of proof. MR. REDLICH: I am telling you what this doctor will testify to. THE COURT: No, you are not. Say what he is going to testify to, period.
‘MR. REDLICH: He will testify that according to the laws of heredity, for this reason, Mr. Brett Wright is excluded of the possibility of paternity. Dr. Sacks will further testify that the blood of Mr. Alvin Ganzer was drawn by him and that as a result of the Rh test that was performed on the baby, on Miss Huntingdon and on Mr. Ganzer, that he determined that the Rh phenotype of Mr. Ganzer being Rh 2, Rh, or under other nomenclature, large D, small c, small c, large E and small d, that the blood type of Mr. Ganzer was such as according to the laws of heredity, it was impossible for him to have parented the infant plaintiff, Elizabeth Crowley.
‘MR. CROWLEY [respondent]: Your Honor, I am going to object to this on several grounds. * * * THE COURT: The objection will be sustained and the offer will be denied.’
Subsequently, however, the court changed its ruling and appointed its own expert to examine all the material parties, i e., the two other identified men, respondent, the mother and the minor child. This expert, Dr. Elmer R. Jennings, Director of Pathology at the Memorial Hospital of Long Beach, reported to the court that on the basis of the Kell-Cellano blood tests, the man Wright was excluded and could not have been the father of the infant appellant.
The theory and application of blood tests in paternity cases have been succinctly set forth in The California Family Lawyer, of the California Continuing Education of the Bar Series, Vol. 1, pp. 754–756, as follows:
‘Blood tests have a positive and clear scientific basis in the Mendelian laws of genetic inheritance. When simplified, these laws state that a child's hereditary makeup is directly traceable to one or both of his parents. If the child has a factor which is absent in the mother, the child must have acquired that factor from the father. Since these general laws specifically apply to the transmission of blood types, a defendant cannot be the father if he lacks a particular blood factor that the child has and could not have obtained from the known mother.
‘The presence or absence of these blood factors is determined by laboratory tests based on known groupings of human blood. Of these groupings, the most common is the A-B-O system, followed by the M-N system, the Rh system and, less frequently used, the Kell, Lutheran, Secretion, Duffy, Kidd, and other systems. These are successive, rather than exclusive, systems; an individual's blood is characterized by separate values in each of the categories. So, for example, an acceused father may have A type, M type, and Rh-positive type blood, each factor of which can be compared with the equivalent factor in the child. * * *
‘When all the scientifically reliable blood tests (approximately eight in number) are used in combination, an innocent person has a 71% statistical probability of being exonerated on the basis of the test results. If only A-B-O, M-N, and Rh tests are used, the probability drops to 52%; if only the A-B-O test is used, the probability becomes 16%. See Sussman, HUMAN BLOOD GROUPINGS, 2 TRAUMA (No. 6) 50–74 (April 1961); 2 AM.JUR. PROOF OF FACTS 607 (‘Blood Types'); Mourant, Kopec, and Domaniewska-Sobczak, THE ABO BLOOD GROUPS (1958); Annos., 46 A.L.R.2d 1000 (1956), 163 A.L.R. 939 (1946); Comment, 2 S.D.L.REV. 125 (1958); Note, 21 U.PITT.L.REV. 85 (1959); and articles in the JOURNAL OF FORENSIC SCIENCES (from 1958 to 1960.)’ (Emphasis added in part.)
Upon examination outside the presence of the jury, Dr. Jennings, the court's expert witness, testified that the Kell-cellano tests were of more recent development than certain of the other tests and that for a time they were less certain than the older tests. However, he stated that with the development of newer and more accurate and reliable serums, these tests were as accurate as the older tests and no more difficult for a trained technician to administer.
Dr. Jennings testified that he had performed ‘a few hundred’ Kell-Cellano tests and that in his opinion ‘if the Kell-Cellano tests, including the entire system [supplemental tests now developed to eliminate earlier weaknesses noted in original publications dealing with the subject], are properly performed and adequately controlled, we can have—and with good diagnostic reactions and done by people who are competent in the field and who do this work every day, that under these circumstances the tests are reliable and the results can be depended upon. I think further that we now know enough about the heredity * * * of this blood group system to apply the results in a situation similar to that in the MN System.’ (Emphasis added.)3
Dr. Jennings testified further that he had conducted such tests in this case, using several different serums to validate and cross-check the results, and could therefore give his opinion as to which of the parties whose blood he had examined would be excluded from the possibility of paternity.
Immediately following a voir dire examination and cross-examination of Dr. Jennings, the trial court properly ruled that this testimony was admissible and that it would be presented to the jury. However, at this point an objection was interposed by respondent, whereupon the court stated that it would withhold its ruling until respondent's expert had testified on the subject.
Respondent's expert, Dr. Sturgeon, testified that he had ‘not personally performed any Cellano tests.’ His opinion was based on some unspecified ‘personal experience’ and earlier literature on the subject. In this connection, the following questions and answers on his direct examination are recorded:
‘Q. Isn't it true, Doctor, that medical science does not know whether or not there may be unknown factors in the Kell-Cellano systems which factors would not react no matter what type of sera you used? * * *4
‘A. Yes. Q. So it is possible, then, is it not, Doctor, to have this little-k factor in a person's blood which could not be detected by any known serum? * * * A. Well, this gets, I think, to the heart of the whole situation, what constitutes a reasonable medical certainty and I with respect to that particular question, talking about the Kell-Cellano systems, I do not feel qualified to answer it.
‘Q. Let me put it to you this way, Doctor: With comparison, say, to the standard tests, the ABO, MN and Rh tests, would you have much greater doubts as to the reliability of the Kell-Cellano test as compared to these standard tests? A. Yes.
Q. And the reason that you'd have these greater doubts is that you feel that medical science has not progressed far enough with these particular systems to remove these doubts, isn't that true? * * * A. Yes, I understand the question and it comes back to the same thing as the previous question, what constitutes sufficient progress, and again I don't feel qualified to say.' (Emphasis added.)
This commendable honesty continued throughout Dr. Sturgeon's testimony and he stated that, although the results of his tests were consistent with those of Dr. Jennings (he, however, had tested only respondent and not the other two men), he would ‘not have offered an opinion’ based on the Kell-Cellano tests. On cross-examination he conceded that the ‘silent factors' referred to in connection with the Kell-Cellano tests also exist and are the same in the ABO, MN and Rh systems. He further admitted that the weaknesses in the earlier tests he had mentioned had since been corrected and that Dr. Jennings' report showed that he had performed all these further verifying tests.
Trial Court's Rulings re Evidence of Blood Tests
At this point the trial court advised counsel for appellants that his cross-examination of respondent's witness was ‘taking up the Court's time unnecessarily.’ The court further declined to hear any additional testimony from appellants' expert, Dr. Sacks, who was present, stating, ‘I do not think it is necessary to present any other doctor at this time. I think there is enough evidence before the Court with the doctors who have already testified for this Court to determine as to the admissibility——’ He stated that all doctors were to return for the afternoon session and that he would ‘do a little research before that time.’
At the opening of the afternoon session, the court ruled that it would not permit the introduction of any evidence based upon the blood tests. We hold that this ruling was both erroneous and seriously prejudicial. It was immediately followed by a series of rulings which unduly restricted and interfered with appellants' offer of proof with respect to these tests and the results of their use in this case.
It bears repetition (a) that respondent had designated two named men as the most likely fathers of this child; (b) that, according to the rejected evidence, one of these two men was positively eliminated as a possible father of said child by the results of the Kell-Cellano tests which had been utilized by Dr. Sacks and by Dr. Jennings, the court-appointed expert; and (c) that the other of the two named men would be excluded by the NMS and Rh systems as well as the Kell-Cellano system of tests.
Established Reliability of Blood Test Results
In essence, the expert opinions were unanimously in favor of the validity and reliability of the Kell-Cellano tests. Dr. Jennings testified most positively on the subject and Dr. Sacks presumably was in accord as indicated by appellants' offer of proof. Respondent's expert had testified only that because he had never performed the test and did not consider himself qualified therein, he would not give an opinion based thereon. Furthermore, the former weaknesses in the tests, as noted in the earlier medical works on the subject and referred to by the court in its post-judgment declarations, had been eliminated and were adequately explained and disposed of by all three experts.
Furthermore, in addition to the offer of proof made in reference to the testimony of appellant's expert witness, Dr. Sacks, heretofore quoted, the court also had before it the written report of its own expert, Dr. Jennings. This report, in the form of a letter to the trial judge personally and dated May 9, 1963, of course, was not formally received into evidence by reason of the court's rulings, but was before the court for its consideration at that time. This report set forth Dr. Jennings' conclusions as follows:
‘1. On the basis of the tests done, Mr. Crowley cannot be excluded as the father of Elizabeth Crowley. 2. Alvin Ganzer most certainly is not the father of Elizabeth Crowley. His exclusion is based on three independent observations in the Rh system, the MNS system, and the Kell system. 3. William D. Brett Wright can be excluded on the basis of the Kell reactions.’ (Emphasis by Dr. Jennings.)
Further, even if we were to assume that the unwillingness of respondent's expert to express an opinion for the reasons he stated properly could be construed as creating a ‘disagreement’ in the findings or conclusions of the experts, the evidence, nevertheless, should have been admitted. Section 1980.6 of the Code of Civil Procedure expressly provides:
‘If the court finds that the conclusion of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.’ (Emphasis added.)
In addition, it would appear that, as to Mr. Ganzer, if the evidence had been received in accord with appellants' offer of proof based on tests whose validity was not even challenged, the jury should have been instructed that he was excluded from possible paternity.
Error in the Instructions
In the light of this erroneous ruling, appellants' assignments of error relating to the instructions given by the court and its failure to answer correctly a question propounded by the jury take on even greater significance. In developing this aspect of the case, we must reiterate the facts (1) that respondent had introduced evidence tending to show the possibility that two other men had had sexual intercourse with Miss Huntingdon during the period of conception; and (2) that the court had rejected evidence which appellants had offered to prove that neither of these two men could possibly be the father of this child. The paternity of the child, of course, was the only issue in the case and not morality, or lack thereof, on the part of either the mother or the respondent.
In this posture of the case, the court, apparently to appellants' surprise, proceeded to give one patently erroneous instruction and three ‘formula’ instructions submitted by respondent.5
Of argumentative, ‘formula’ instructions, reciting evidential details and ending with the mandate: ‘your verdict must be for the defendant [or plaintiff],’ Mr. Justice Bray, in Taha v. Finegold, 81 Cal.App.2d 536, 543, 184 P.2d 533, 536, said that they ‘are not calculated best to serve most successfully the administration of justice. Their final disappearance will improve the conduct of court trials.’
The basic impropriety of instructions of the kind hereinafter quoted is aptly analyzed under the caption ‘Fair Play’ in the introduction to California Jury Instructions, Civil, Vol. 1, pp. 3–4:
‘It is possible for the trial judge to lend himself to the doing of substantial injustice through the very existence of this project designed to promote the giving of fair, impartial and correct jury instructions on the law. One lawyer in a case, let us assume, is willing wholeheartedly to cooperate in the purpose of the project. With the possible exception of a few special instructions which he believes the case requires, he requests only BAJI instructions. The other lawyer, however, clings to the ancient practice of arguing his case through the judge's instructions. He submits numerous argumentative (‘formula’) instructions, announcing no principle of law not fully covered in BAJI instructions, but making specific factual applications (which he has full opportunity to make in his own argument) and always ending thus: ‘your verdict must be for the * * *.’
‘If the judge uses such argumentative instructions for one side, without giving the trusting counsel of the other side opportunity to match his adversary's array of them, a striking lack of fair play can be the result.
‘The statutory requirement is that the judge instruct the jury on ‘matters of law,’ that he gave instructions ‘covering the law’ as disclosed by the pleadings and upon ‘questions of law developed by the evidence.’ (Code of Civil Procedure, §§ 607a and 608.)
‘Although to thus instruct the jury and to do so clearly may require the assuming of possible findings of fact or the statement of hypothetical situations * * *, it does not require for either side argumentative instructions dealing with specific details of evidence. If such argumentative instructions are not evenly balanced, a real danger of prejudicial effect always exists.’
The challenged instructions given in the instant case were as follows:
‘27. You are instructed that if you find that the defendant did not have sexual intercourse with the TERRY HUNTINGDON at the time when, according to laws of nature, the child was conceived, you must return a verdict for the defendant. Requested by Defendant (X) Given as Requested (X)’ (Emphasis added.)
‘28. You are instructed that if you find from the evidence that it is just as probable, or more probable, that someone other than the defendant is the father of the child of TERRY HUNTINGDON, or if the evidence leaves it for your conjecture, or is evenly balanced, plaintiff has not met her burden of proof, and in such case, you must find for the defendant. Requested by Defendant (X) Given as Modified (X)’ (Emphasis added.)
‘29. You are instructed that in determining whether or not it has been proven that the defendant is the father of the child, you shall take into consideration whether or not TERRY HUNTINGDON had sexual intercourse with any man or men other than the defendant at or about the probable time when, according to the usual laws of nature, the child was conceived.
‘You shall also take into consideration whether or not TERRY HUNTINGDON had an association with some man or men other than the defendant, and an opportunity to have sexual intercourse with such other man or men, at or about the probable time when, according to the laws of nature, the child was conceived. Requested by Defendant (X) Given as Requested (X)’
‘30. You are instructed that the burden of proof is upon the Guardian ad Litem TERRY HUNTINGDON to prove that the defendant is the father of TERRY HUNTINGDON's child. Therefore, should you find from the evidence that at, near or about the time when, according to the laws of nature, the child was conceived, both the defendant and some man or men other than defendant had sexual intercourse with TERRY HUNTINGDON and you are unable to tell which of them is the father of the child your verdict must be in favor of the defendant. Requested by Defendant (X) Given as Requested (X)’ (Emphasis added.)
Instructions substantially identical to Nos. 28, 29 and 30 were given in Dastagir v. Dastagir, 109 Cal.App.2d 809, 821–822, 241 P.2d 656, and were quite properly described in the cited opinion as ‘palpably erroneous and prejudicial.’ To instruct the jury that mere ‘association’ and ‘opportunity’ to have sexual intercourse with another man were guiding factors herein was directly contrary to the law as spelled out in the Dastagir case, supra, at pages 813 and 821, 241 P.2d 656. (See also Mensing v. Croter, 209 Cal. 318, 320, 287 P. 336, 280 P. 1026, and Berry v. Chaplin, 74 Cal.App.2d 652, 662, 169 P.2d 442.)
Respondent argues that the instant case is distinguishable because here there was evidence that tended to show that in addition to ‘association’ and ‘opportunity,’ Miss Huntingdon also had ‘a disposition’ to have illicit relations with the men involved. This may well be true, but it in no way tends to correct the fundamental error contained in the instructions. The fact that there may have been evidence which would have supported such an inference, if the jury had chosen to draw it after proper instructions on the subject, does not mitigate the damage done by an instruction that dispenses with the need for any evidence or any inference to that effect.
After some period of deliberation, the jury requested a rereading of the instructions ‘as to evidence and what is rebuttable.’ The court thereupon reread all the instructions, so that the jury was once more exposed to these erroneous instructions, including the thrice repeated admonition at the end of the formula instructions ‘that you must find for the defendant.’ The effect of these instructions, particularly when combined with the inability of the appellants to offer proof to the jury that the men with whom she concededly had an association and an opportunity for sexual intercourse could not be the father of the child, was practically equivalent to a directed verdict for respondent.
That the jury so construed the instructions is unmistakable. After further deliberations, they presented the following note to the court:
‘Your Honor. Our interpretation of a part of your instruction to the jury is:—— ‘If association and opportunity for intercourse was available to another male at or about the same time as the probable period of conception, we (the Jury) cannot find for the plaintiff.’ If this is a correct interpretation, regardless of the conclusions reached after hearing and weighing all the other testimony, do we have any other choice but to find for the defendant? H W T Foreman.'
Although the court recognized the obvious truth that the jury wanted a ‘yes' or ‘no’ answer to this question, instead of giving it the direct answer desired together with any clarifying further instruction that might have been deemed necessary, he reread the four objectionable instructions above quoted and only these four instructions.
Of course, realistically viewed, this repetition of the instructions did supply an answer, albeit the wrong answer, to the jury's question. They were thrice more admonished that on the basis of facts which were not disputed, they ‘must find for the defendant.’ This was done over appellants' objections. Nevertheless the jury returned a defense verdict by only a 9 to 3 majority.
Appellant Terry Huntingdon complains that despite the order accepting her voluntary request to be dismissed as a party plaintiff made at the commencement of the trial on April 15, 1963, nevertheless the judgment entered on May 17, 1963, decreed that respondent ‘have and recover from said Plaintiff, Terry Huntingdon, costs and disbursements amounting to the sum of $5,242.74.’
This sum is the total of two cost bills filed by respondent and appears to represent his total costs expended in the defense of this action. That is to say, costs in the amount of $2,592.93 apparently were assessed against Miss Huntingdon personally as the result of the voluntary dismissal of her individual cause of action herein, and the further sum of $2,649.81 was assessed against her as guardian ad litem of the minor plaintiff.
Although the parties pose interesting questions regarding the personal liability of a guardian ad litem, and the propriety of the court's refusal to set aside the original default of appellant Huntingdon which resulted from her attorney's failure to object to respondent's cost bill filed during the trial following her dismissal as party plaintiff within the five days allowed by section 1033 of the Code of Civil Procedure, we need not reach these questions, since it is apparent that the totality of the judgment for costs must fall with the judgment on the merits.
That is to say, since it is indisputable that all these costs were uncurred as the direct result of respondent's defense to the paternity action itself, it would be clearly unreasonable to impose approximately one-half of the totality of these costs upon appellant Huntingdon personally solely because she abandoned her incidental claim for medical expenses, pre- and postnatal care.
Numerous other assignments of error are presented and argued by appellants as grounds for a reversal of the judgment. However, these other assignments relate to problems which are not likely to involve any substantial difficulty upon a retrial. The general assignments made in regard to the admissibility of evidence are well taken only in part.
It is true that respondent was allowed too great a latitude in examining into Miss Huntingdon's contacts with other men at times not relevant to the issue of paternity of the infant child (Dastagir v. Dastagir, supra, 109 Cal.App.2d 809, 815, 241 P.2d 656), but, by reason of the other and more serious errors discussed above, we need not now decide whether or not such overextended inquiry as was here permitted would have been sufficiently prejudicial in and of itself to require reversal.
Since there was evidence from which the jury might reasonably have inferred that Miss Huntingdon had had sexual relations with two men other than respondent at or about the date that the child must have been conceived in due course of nature, it was proper to allow reasonable inquiry into her relationships with these men both before and after this period, particularly where she had testified that she was ‘going steady’ with respondent throughout a several month period. This is true because ‘illicit relations are neither proved, nor permitted to be inferred, unless evidence is introduced, * * which shows (1) a disposition to have such relations on the part of the party charged and (2) an opportunity to gratify it. Mensing v. Croter, 209 Cal. 318, 320, 287 P. 336, 280 P. 1026; Berry v. Chaplin, 74 Cal.App.2d 652, 662, 169 P.2d 442.’ (Emphasis added.) (Dastagir v. Dastagir, supra, 109 Cal.App.2d at p. 813, 241 P.2d at p. 659.)
The judgment is reversed.
1. Such proceedings are specifically authorized by the provisions of Sections 196a and 231 of the Civil Code.
2. Although respondent made Miss Huntingdon's use of this expression the basis for most of the damaging ‘impeachment’ evidence which he introduced against her, the trial court refused to allow her to explain what she meant by this term.
3. In addition to the Kell-Cellano tests being of more recent discovery, they can be of value less frequently because the large K factor in the blood of the general population exists only in approximately 8 per cent of that population. However, when the child whose paternity is in question is known to have a large K factor that must have been derived from its father, it then becomes possible to exclude 92 per cent of all males from consideration as being possible fathers of such child. Appellants stated that they were not offering the results of Dr. Jennings' blood tests for the affirmative purpose of proving that respondent was the father although he was within the 8 per cent of the population having the large K factor in his blood and therefore was a member of the relatively select group of persons that were genetically capable of paternity in this instance. We need not, and cannot from the limited record before us, determine whether such evidence would have been admissible for this purpose. Generally the results of blood tests have been admitted in paternity cases only where exclusion of paternity is possible. (46 A.L.R.2d 1000, § 10[c], p. 1022, and § 16, pp. 1036–1037.) However, such evidence has been admitted in criminal cases, including the California case of People v. Mummert, 57 Cal.App. 2d 849, 854, 135 p.2d 665, as evidence tending to establish identity. When the usual tests that permit exclusion of only 40 to 50 per cent of the population are involved, the potential prejudicial effect of admitting such ‘scientific proof’ affirmatively, quite clearly would outweigh weigh its probative value. However, when the percentage of persons excluded from possible paternity is very great, in appropriate cases, and subject to careful limiting instructions, such evidence might be admissible by reason of its increased probative value.
4. Appellants' objections to this and the following question on the ground that they called for the purest conjecture beyond the realm of human knowledge and experience were overruled. Although we incline to think the objections should have been sustained, we need not now so decide.
5. Although it appears that copies of the offered instructions were submitted and served some time before the jury was instructed, no specific time had been designated or allowed for presenting objections or arguments in relation thereto.
ROTH, P. J., and FLEMING, J., concur.