Madden v. Madden

This is an action for divorce. In the interlocutory decree the court adjudged that defendant is not the father of a minor child named Charles. Plaintiff appeals from that part of the decree adjudging that defendant is not the father of the child and from an order denying her motion for á new trial with respect to that issue. The order denying a new trial is not appealable and the appeal therefrom must be dismissed.

Plaintiff asserts the court erred in admitting evidence of a blood test. Dr. Madeline Fallon testified a technician in her office drew blood samples from plaintiff, defendant, and the child Charles; she was not present when the blood was drawn. Over plaintiff’s objection Dr. Fallon was then permitted to testify that a test was made and she found that “The blood group, Mr. Madden, Group 0; Florence Madden, Group 0; Baby Charles, Group A”; that the children of plaintiff and defendant “would have to be 0”; none of their offspring “could have any A or B group in their tests”; defendant could not possibly be the father of Charles.

It is first argued it was error to admit the evidence because under section 1962, subdivision 5, of the Code of Civil

“The following presumptions, and no others, are deemed conclusive: . . .

“5. 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.”

Section 193 of the Civil Code reads:

“All children born in wedlock are presumed to be legitimate. ’ ’

Section 1963, subdivision 31, of the Code of Civil Procedure is to the same effect.

The word “cohabiting” as used in section 1962, subdivision 5 of the Code of Civil Procedure means the living together of a man and woman ostensibly as husband and wife, in which case the parties are not permitted to rebut the conclusive presumption created by the statute. (Estate of Mills, 137 Cal. 298 , 301 [ 70 P. 91 , 92 Am.St.Rep. 175 ]; Daniels v. Daniels, 156 Cal.App.2d 371 , 373 [ 319 P.2d 662 ].) Testimony of nonintercourse is not precluded where the husband and wife have not cohabited or lived together at the time and during the period of conception and gestation. (Hilton v. Hilton, 54 Cal.App. 142 , 150-151 [ 201 P. 337 ]; Estate of Young, 132 Cal.App.2d 25 , 28 [ 281 P.2d 368 ]; McGillis v. Hofeditz, 101 Cal.App.2d 760 , 762 [ 226 P.2d 372 ]; Mathews v. Hornbeck, 80 Cal.App. 704 , 708-709 [ 252 P. 667 ].) “Estate of Walker, 180 Cal. 478 [ 181 P. 792 ], Dazey v. Dazey, 50 Cal.App.2d 15 [ 122 P.2d 308 ], and other eases, lay down the rule that a conclusive presumption may be removed by proper and sufficient evidence showing that the husband, though not impotent, was ‘entirely absent at the period during which the child must in the course of nature have been begotten.’ ” (Estate of Young, 132 Cal.App.2d 25 , 28 [ 281 P.2d 368 ].)

The complaint alleged the date of last separation of the parties was July 15, 1955. The answer admitted the allegation. Charles was conceived in October 1955 and born July 22, 1956. Thus the parties were not cohabiting or living together at the time- of conception and section 1962 did not preclude admission of the blood tests.

What we have said disposes of plaintiff’s contention that the court erred in permitting defendant to testify he did not have sexual intercourse with his wife after the parties separated in July 1955.

In McGowan v. City of Los Angeles, 100 Cal.App.2d 386 [ 223 P.2d 862 , 21 A.L.R.2d 1206 ], on similar facts this court held that testimony as to the results of the blood analysis was inadmissible. Here there is complete lack of identification of the blood tested by Dr. Fallon. In fact she was not asked if she made the tests, although perhaps that fact may be inferred. There was no evidence that any blood was ever drawn from plaintiff, or from defendant, or from Charles. Dr. Fallon had no personal knowledge on the subject. If any blood was drawn, there was no evidence as to the identity of the person who drew it, or how long after it was drawn tests were made. “It is rudimentary that a specimen taken from a human body for the purpose of analysis must be identified before such specimen or any analysis made from it attains standing as evidence of the condition of the person whose conduct is questioned. Without identification, there is no connection between the two. Reason dictates that the testimony of a witness that a blood sample contains alcohol without some evidence to show that the blood is that of the person charged amounts to no proof at all.” (American Mut. etc. Co. v. Industrial Acc. Com., 78 Cal.App.2d 493 , 496 [ 178 P.2d 40 ].) The court erred in admitting the testimony of Dr. Fallon. The failure to identify the blood tested as that of plaintiff, defendant, and Charles renders the testimony of Dr. Fallon of no evidentiary value at all.

The question remains whether the error in admitting the testimony was prejudicial. Plaintiff testified she and defendant had sexual intercourse the second or third week of October 1955 “and also before that a couple of times”; it took place in the front room of her home; “ Q. . . . When was this sexual intercourse in October—what day?

. The appeal from the order denying a new trial is dismissed. The part of the judgment appealed from is reversed.

Shinn, P. J., and Wood (Parker), J., concurred.