The evidence heard by the jury showed, with overwhelming force, that appellant is in fact the natural father of respondent minor child. Blood test evidence establishes with scientific certainty that the man to whom the mother was married at the time of conception is not the father. Yet the judgment is to be reversed with directions to dismiss the action. To my mind, the result is grievously unjust; it deprives the child of his right to paternal support and allows appellant, the actual father, to escape his lawful obligation. Perhaps worse, the judgment which the trial court will be compelled to enter will be untrue; it is based only upon the presumption of legitimate parentage created by Evidence Code section 621—a presumption which in this case we know to be directly contrary to the facts.
We should be uneasy when the law appears to compel settlement of a litigant’s rights on the basis of a presumed fact which is manifestly fictitious and untrue. This case is the first in which the interrelationship of the applicable presumptions has been fully presented to an appellate court since the enactment of the Evidence Code. There is no statute declaring that the social policy in favor of legitimacy of children is always superior to the social policy in favor of allowing an illegitimate child to secure just paternal contribution to his support. It is therefore our opportunity and duty to analyze the effect of the new enactment to determine whether it has changed the doctrines laid down in the older authorities referred to by the majority.
Appellant contends that because the child’s mother was, at the time of conception, married to J.R.W. the ease is governed by the conclusive presumption of legitimacy set forth in Evidence Code section 621. Hence, it is argued, the court erred in admitting blood test evidence which excluded the possibility that the child was fathered by. the husband. A subsidiary contention is that because the conclusive presumption of legitimacy applied, it was error to admit testimony of the mother *319and J.R.W. that they did not have sexual relations during the time when conception must have occurred (citing Estate of Mills (1902) 137 Cal. 298 [70 P. 91, 92 Am.St.Rep. 175] ; Hill v. Johnson (1951) 102 Cal.App.2d 94 [226 P.2d 655], overruled on another ground, Kusior v. Silver (1960) 54 Cal.2d 603, 616 [7 Cal.Rptr. 129, 354 P.2d 657]). In admitting the evidence complained of, the trial court expressed the view that in Jackson v. Jackson (1967) 67 Cal. 2d 245 [60 Cal.Rptr. 649, 430 P.2d 289], the Supreme Court had “changed the law” and that the presumption set forth in Evidence Code section 621 no longer was conclusive as against blood test or. other evidence that legitimate parentage was impossible.
The Jackson ease does not so hold. The Supreme Court acknowledged the existence of the presumption and declared it to have the force of a “rule of substantive law” (Jackson v. Jackson, supra, 67 Cal.2d at p. 247) ; but blood test evidence was held to be admissible in that case because it was circumstantial evidence tending to prove that conception did not occur in the three- or four-day period during which the husband and wife involved in that case had cohabited. No such situation is presented here and Evidence Code section 621 was potentially applicable (Kusior v. Silver, supra, 54 Cal.2d 603 ; Hess v. Whitsitt (1967) 257 Cal.App.2d 552 [65 Cal.Rptr. 45] ; see Note, California’s Conclusive Presumption of Legitimacy (1968) 19 Hastings L.J. 963). But the trial court’s misunderstanding of the Jackson decision does not call for reversal of the judgment if an erroneous ruling does not appear from the record presented to us. In order for the presumption to come into play, it is not only necessary that the child be “the issue of a wife cohabiting with her husband”; it is also necessary that the husband be “not impotent.” (Evid. Code, § 621.) The record before us is absolutely silent as to the potency of the husband. The question of potency was not mentioned in counsel’s objections to the evidence now complained of; evidence on the point was not elicited from either the mother or the husband, both of whom testified.
Appellant’s attempt to invoke the conclusive presumption of legitimacy asserted a defense based upon a “rule of substantive law” (Jackson v. Jackson, supra, 67 Cal.2d 245, 247). This defense raised subsidiary questions of fact concerning cohabitation during the crucial period and the potency of the husband (cf., Hughes v. Hughes (1954) 125 Cal.App.2d 781 [271 P.2d 172], in which the court for present purposes *320equated impotence with sterility). Before the adoption of the Evidence Code, it was the rule that “the litigant attacking legitimacy may prove impotency of the husband” (McBaine, California Evidence Manual (2d ed. 1960) § 1273 [italics added]). But the Evidence Code now provides that ‘ ‘ a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the . . . defense that he is asserting.” Here the fact of J.RW.’s potency was essential to the defense that appellant was asserting. (Evid. Code, § 500.) Where nothing was presented to the trial court on the question of potency, appellant did not sustain the burden of proof which Evidence Code section 500 placed upon him as to that issue. So far as this record discloses, therefore, the presumption created by Evidence Code section 621 does not arise. All otherwise admissible evidence of the child’s paternity was properly to be received, and the issue of paternity was to be determined according to the jury’s appraisal of that evidence.
It could plausibly be contended that the burden of proof as to potency was shifted by the presumption that a child of a married woman is. legitimate (Evid. Code, § 661). It is true that the rebuttable presumption of legitimacy created by section 661 is designed to “implement some public policy” and hence it affects the burden of proof (Evid. Code, § 605). It is also true that the potency of the mother’s husband is a possible inference to be drawn from the presumed legitimacy of the child. But it is not the only possible inference; legitimacy could also result from adoption (Civ. Code, § 228) or from conception brought about by artificial insemination (People v. Sorensen (1968) 68 Cal.2d 280, 289 [66 Cal.Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093]). Where the status of legitimacy presumed to exist under section 661 does not logically depend upon the potency of the mother’s husband, the burden of proving cohabitation and potency for purposes of bringing the conclusive presumption into the case is not shifted: the party claiming the benefit of the conclusive presumption has the burden of proving that it is applicable.
I would affirm the judgment.