(concurring and dissenting).
I concur in remanding the case, not for a new trial but only for the purpose of having the trial judge decide if he finds beyond a reasonable doubt that the plaintiff is not the father of the child.
As to the Lord Mansfield Rule to the effect that spouses may not testify to nonac-*397cess so as to bastardize offspring born during coverture, I hold a view somewhat at variance with that of the prevailing opinion.
In Old England the system of government was based upon land ownership, and there was, therefore, great concern as to heirship. It was necessary to know with certainty who was the owner of land. In the United States the overwhelming preponderance of the law has been to the effect that neither husband nor wife could testify to nonaccess so as to bastardize the children born or conceived during cover-ture. However, the reasons given therefor are not convincing. It is claimed that proof of nonaccess (although a fact) would be unseemly and scandalous. Now, that is a peculiar reason for hiding the fact of the matter from the truth seeker at trial. Testimony by the husband that his wife has had sexual relations with every man in town can be given, and that is not a scandal of sufficient magnitude to silence his voice, but he is not permitted to say that he was in the jungles of New Guinea during the two years prior to the birth of his wife’s child and that he never saw her during that period of time. That would be scandalous!
Another reason advanced is that to permit spouses to tell the truth would “shock our sense of right and decency,” and hence the law will not permit it.
While the parents may not testify so as to give the truth to the judge because the truth would shock our sense of right and decency, nevertheless a husband who knows may get out on the street corner and proclaim to all the world that he had no access to his wife during the time of conception. He may even bear his testimony to that fact to all members of his church, his club, and his political party, but he cannot tell it to the judge whose duty it is to find what the true fact of the matter is.
I could agree with the reasoning of the prevailing opinion as to the “effects it would have upon family solidarity to permit the spouses to scandalize each other by accusations of immoral conduct concerning the conception of children born in the family” if the findings of the court would convince the husband that he in fact is the father of the child. However, if the father was not even permitted to testify, he cannot respect a rule of law that saddles him with a burden which he knows to be undeserved. No amount of findings and judgment made by a judge who refuses to listen to the testimony of one in possession of facts will ever be conducive to the solidarity of a family when the husband is forced into a galling situation like that. If the husband were permitted to give his testimony and the judge could weigh it and then with all relevant evidence before him *398decide against the husband, the solidarity-might be enhanced because the judge would not rule against the husband unless there was contradictory evidence on the matter. The husband might then respect the judgment, for he could see that there was a reason for the ruling.
Besides the reasons above given, our Rules of Evidence (effective since July 1, 1971) have put the matter to rest. Rule 7 provides:
Except as otherwise provided in these rules or the statutes of this state, (a) every person is qualified to [be] a witness, and (b) no person has a privilege to refuse to be a witness, and (c) no person is disqualified to testify to any matter, and (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not produce any object to writing, and (f) all relevant evidence is admissible.
There is no statute which precludes the evidence received by the trial court in this matter, and there is no provision in the. Rules of Evidence to prevent it. Therefore, the evidence given by the parties to this lawsuit is competent and was properly received by the court. In my opinion there was no error in receiving the testimony of both parties.