Thursday, November 13, 2008
Page 11
REMINISCING (Column)
Appeals Court Affirms Finding That Chaplin Fathered Child
By ROGER M. GRACE
Through piercing cross examination and forceful summation, attorney Joseph Scott hoodwinked a jury in 1945 into adjudging film star Charlie Chaplin to be the progenitor of a child he could not possibly have fathered. Blood tests proved that.
The judge, Clarence L. Kincaid, knew Chaplin was not the father—which is probably why he ordered support payments in the paltry amount of $75 a week. But the jurist had been obliged to allow Scott to dismiss the opinions of three physicians as mere opinion in light of a 1937 holding of the California Supreme Court in Arais v. Kalensnikoff. Blood tests were not determinative, the high court said, because Code of Civil Procedure 1978 provided that “no evidence is by law made conclusive or unanswerable, unless so declared by this code”—and the code did not mention blood tests.
Chaplin appealed—but the Court of Appeal, like Kincaid, was bound by Arais, and affirmed.
Justice Marshall F. McComb—later a member of the California Supreme Court—wrote a concurring opinion in which he acknowledged that Arais was controlling, but ventured the view that the high court “was in error in its determination of the case.”
McComb quoted Wigmore on Evidence as saying that it was “now accepted as correct by all”...that no particular gene A, B, or O, will appear in the progeny unless it was present in one of the parents.” The child had type “B” blood; the mother’s blood type was “A” and Chaplin’s was “O.”
The concurring justice observed:
“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 authoriship of documents, or 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.”
McComb’s view won out. The Legislature in 1953 adopted that portion of the Uniform Act on Blood Tests to Determine Paternity which rendered blood tests conclusive on the issue of non-paternity where the experts were all in agreement. That remains the law today.
The child, through her guardian ad litem, also appealed, contending that Chaplin, a man of wealth, should be ordered to pay support in a heftier amount. The Court of Appeal affirmed the award. Justice Emmet H. Wilson explained that there was no evidence in the record as to Chaplin’s wealth, commenting:
“The trial court could not, nor can we, either indulge a presumption as to the style of living of defendant or of any other person or group of persons, or take judicial notice thereof. The scope of judicial notice has been amplified by the courts far beyond the matters enumerated [by statute]..., but its frontiers have not been so expanded as to encompass night club gossip and stories appearing in newspapers and magazines within the domain of proof of wealth or of any other necessary fact.”
Scott took on the case with no agreement on the part of the mother to make recompense for his services. However, in awarding child support, Kincaid also ordered Chaplin to pay Scott and his associates $5,000—a sum contained in a pre-trial stipulation.
That stipulation—which provided that the blood test evidence would be conclusive—was thrown out on Scott’s motion when the lawyer entered the case (which was after the blood test results were in). The Court of Appeal, acting on Chaplin’s appeal, agreed with the trial court that the stipulation was impermissible because it contravened the minor’s interests. In acting on the minor’s appeal, Wilson said that since the stipulation was “void,” attorney fees could not be set pursuant to it.
On remand, Kincaid ordered Chaplin to pay $42,706 in attorneys’ fees to Scott and his associates.
Copyright 2008, Metropolitan News Company