# Berry v. Chaplin

> California Court of Appeal · May 27, 1946 · 74 Cal. App. 2d 652

URL: https://www.frixlaw.com/law-library/cases/9794020

## Case

- **Full name:** CAROL ANN BERRY, a Minor, Etc., Respondent, v. CHARLES SPENCER CHAPLIN, Appellant
- **Court:** California Court of Appeal
- **Decided:** May 27, 1946
- **Citations:** 74 Cal. App. 2d 652; 169 P.2d 442; 1946 Cal. App. LEXIS 1013
- **Precedential status:** Published
- **Opinion:** Concurrence by McCOMB
- **Judges:** Wilson, McComb
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9794020

## Opinion text

McCOMB, J.
I concur in the judgment because of the fact that this court is bound by the decision of the Supreme Court in Aráis v. Kalensnikoff, 10 Cal.2d 428 * [ 74 P.2d 1043 , 115 A.L.R. 163 ], I believe, however, that that court was in error in its determination of the ease. (See Arais v. Kalensnikoff, [Cal.App.] 67 P.2d 1059 .) This view is concurred in, as pointed out in the opinion of Mr. Justice Wilson, by writers in a number of the leading law journals in the United States. Sidney B. Schatkin in a recent work, Disputed Paternity Proceedings, (1944) at page 135, thus referred to the Supreme Court’s opinion in Arais v. Kalensnikoff, supra:
“It remained, however, for the Supreme Court, highest judicial tribunal in the State, to render a decision that has evoked the most bitter and critical comment. It has been called ‘a striking miscarriage of justice. ’ The facts in that case have been described as ‘standing in a niche all of their own in the judicial hall of fame. ’ ” .
It is possible that in view of the advances made in the medical profession since the decision by the Supreme Court in the Aráis ease, the present court may see fit to review the rule announced in the previous decision and establish a rule of jurisprudence on this subject consonant with the principle uniformly recognized without question by the medical profession of the United States and Europe.
*668 In discussing blood-groupings analogous to those disclosed by the evidence in the instant ease Professor Wigmore, commenting upon the subject in his monumental work on Evidence, volume 1, third edition (1940), section 165b, page 615, 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 0, will appear in the progeny unless it was present in one of the parents. This universal negative truth of heredity is the basis of the inferences to be examined later.”
Ascertainment of the factual truth in the adjudication of any controversy is a consummation devoutly to be wished. Time was when the courts could rely only upon human testimony. But modern science brought new aids. The microscope, electricity, X-ray, psychology, psychiatry, chemistry and many other scientific means and instrumentalities have revised the judicial guessing game of the past into an institution approaching accuracy in portraying the truth as to the actual fact where, in the pursuit of which, scientific devices may be applied. The chemical tests for learning the presence of poisons in the blood stream, application of the Roentgen ray in defining the fracture of a bone, the use of the microscope in acquiring exact knowledge of the authorship of documents, of the presence of bacteria or of the prevalence of white corpuscles,—all argue eloquently for a reliance upon scientific devices for ascertaining the truth. If the courts do not utilize these unimpeachable methods for acquiring accurate knowledge of pertinent facts they will neglect the employment of available, potent agencies which serve to avoid miscarriages of justice.
In the case at bar a widely accepted scientific method of determining parentage was applied. Its results were definite. To reject the new and certain for the old and uncertain does not tend to promote improvement in the administration of justice.
Appellant’s petition for a hearing by the Supreme Court was denied July 24, 1946. Traynor, J., and Sehauer, J., voted for a hearing.
In the cited case the evidence upon which defendant was adjudged to be the father of the child in question, although excluded by the blood test, showed that:
(1) Defendant was twice married;
(2) The mother had named a man other than defendant as the father in the child’s birth certificate; and
(3) Defendant was seventy years of age, and, according to his wife, had been impotent for a number of years.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794020. Public record. Not legal advice.