DocketNumber： No. 7120DC64
Citation Numbers： 11 N.C. App. 190, 180 S.E.2d 369, 1971 N.C. App. LEXIS 1482
Judges： Brock, Morris, Vaughn
Filed Date： 4/28/1971
Status： Precedential
Modified Date： 10/18/2024
G.S. 8-50.1 has been in its present form since 1965 and the second paragraph thereof reads as follows:
“In the trial of any civil action, the court before whom the matter may be brought, upon motion of either party, shall direct and order that the defendant, the plaintiff, the mother and the child shall submit to a blood grouping test; provided, that the court, in its discretion, may require the person requesting the blood grouping test to pay the cost thereof. The results of such blood grouping tests shall be admitted in evidence when offered by a duly licensed practicing physician or other duly qualified person.”
Upon its face this statute seems broad in its application, and is undoubtedly the purported authority under which Judge Webb entered his order requiring plaintiff to present herself and the minor child at the Diagnostic Laboratories and submit to a blood-grouping test. However, in 1968 our Supreme Court held:
“When a child is born in wedlock, the law presumes it to legitimate, and this presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access to his wife, [citations]. To render the child of a married woman illegitimate, unless impotency be established, proof of the nonaccess of her husband is required, and neither the wife nor the husband is a competent witness to prove such nonaccess, [citations]. ‘The evidence of nonaccess, if there be such, must come from third persons.’ [citation]. If there was access, there is a*192 conclusive presumption that the child was lawfully begotten in wedlock, [citations].” (Emphasis added). Eubanks v. Eubanks, 273 N.C. 189, 159 S.E. 2d 562, (1968).
Under the clear holding of Eubanks the results of a blood-grouping test cannot be used to establish nonpaternity if there was access; and if nonaccess is established the results of the blood-grouping test would be superfluous. Therefore, since the results of the blood-grouping test are incompetent or immaterial evidence, the order requiring the test was error.
Reversed.