Kowalski v. Wojtkowski

William J. Brennan, Jr., J.

(dissenting). I think the first count, pleading an alleged cause of action under the Florida bastardy statute, was properly dismissed. The generally accepted rule that no action is maintainable on a foreign bastardy statute applies. I dissent, however, from the conclusion reached by my colleagues that the action pleaded in the second count, grounded on N. J. 8. A. 9:16-1 et seq., is not maintainable by this plaintiff.

This is not a case concerning the legitimacy of children born to a couple whose form of marriage (a common law marriage, for example) is recognized where the children were born but not in the forum; in such case the considerations adverted to by my colleagues unquestionably apply. Here, however, we must accept as true, for the purpose of this appeal, the allegations that defendant and not plaintiff’s former husband is the father of the children and that the parties and the children are residents of this state. Plaintiff’s counsel informed us on the reargument that her proofs would show that her husband was a merchant seaman at sea at all times when the children could have been conceived. Under that state of facts N. J. 8. A. 9 :16-1 et seq. applies and the mother of the bastard children, though married to another when the children were conceived, may maintain an action to compel the putative father to provide for the support and education of the children. The mother is not required to show a “legal settlement” as defined in N. J. 8. A. 44:8A~3 to 6; her residence in Union County is enough. Proof of “legal settlement” is requisite only when an action is brought by the overseer of the poor or the director of welfare, to relieve the public purse of the burden of supporting the *263children. See State v. Weiss, 11 N. J. Super. 250 (App. Div. 1951); Hall v. Centolanza, 28 N. J. Super. 391 (App. Div. 1953); N. J. S. A. 9:17—1 et seq.

Defendant concedes that the fact that the plaintiff mother was married to some one other than the defendant when the children were conceived would not have barred her action under N. J. S. A. 9:16—1 et seq., if she and her husband and the defendant were residents of this State at that time and continued to be up to the time she brought this action. Although the mother and the defendant and the children were residents here when the action was instituted, thus satisfying the requirements of our statute according to its terms, defendant in an attempt to defeat plaintiff’s standing to maintain this suit seizes upon the fact that plaintiff and her husband were Elorida residents at the time of the children’s conception.

My difference with my colleagues is basically that I do not agree that Elorida law raises a conclusive presumption that these children are legitimate. England and America for centuries have interposed barriers against the attempts of wedded parties to bastardize issue conceived or born during the marriage, but never the barrier that children are conclusively presumed to be legitimate and that their illegitimacy cannot be established under any circumstances. The barriers actually erected still exist in most jurisdictions, but some have been removed in many. In this State, for example, we have rejected Lord Mansfield’s rule denying the competency of the wife to testify to non-access by her husband, Loudon v. Loudon, 114 N. J. Eq. 242, 89 A. L. R. 904 (E. & A. 1933), although we adhere to the requirement that a strong showing is necessary to rebut the presumption of the legitimacy of a child conceived while the mother is married, Cortese v. Cortese, 10 N. J. Super. 152 (App. Div. 1950); In re Rogers’ Estate, 30 N. J. Super. 479 (App. Div. 1954). But the authorities are in agreement that the barriers, to-day and historically, concerned the competency of the married person to testify as to non-access, or the standing, particularly of the mother, to maintain an action to question the *264legitimacy of the offspring. JSTo one has considered the barriers as based upon a conclusive presumption of the legitimacy of the child.

The earliest text writers and decisions recognized that this was the true nature of the obstacles put in the way of the married person attempting to dispute the husband’s paternity of children conceived or born during the marriage. Illegitimacy could always be established by “proof of the impotency of the husband, of his being separated from his wife by sentence of divorce, or of his being so considerable a distance from her when she became pregnant, that it was impossible for him to have begotten the child.” Nicolas, Adulterine Bastardy, 249 (1836). Blackstone in his Commentaries says:

“Birth during tvedloch.—As bastards may be born before the coverture or marriage state is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards. As if the husband be out of the kingdom of England, or as the law somewhat loosely phrases it, esotra quatuor maria (beyond the four seas), for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards. But, generally, during the coverture, access of the husband shall be presumed, unless the contrary can be shown; which is such a negative as can only be proved by showing him to be elsewhere: for the general rule is, praesumitur pro legitimations (the presumption is in favor of legitimacy). In a divorce a mensa et thoro, if the wife breeds children, they are bastards: for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved; but in a voluntary separation by agreement, the law will suppose access, unless the negative' be shewn. So also, if there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be bastards. Likewise, in case of divorce in the spiritual court, a mneulo matrimonii, all the issue born during coverture are bastards; because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning.” 1 Blachstone, (Commentaries, *457-458 (1765).

The “four seas” rule, that “If a husband, not physically incapable, was within the four seas of England during the period of gestation, the court would not listen to evidence casting doubt on his paternity,” Cardozo, J., In re Findlay, 253 N. Y. 1, 170 N. E. 471, 472 (Ct. App. 1930), so con*265trary to human experience, was ultimately exploded, see In re Findlay, supra, 170 N. E., at page 473, 1 Cooley’s Blade-stone (4th ed. 1899), 403, n. 1, by the decision in Pendrell v. Pendrell, 2 Stra. 925, 93 Eng. Rep. 945 (K. B. 1732), where it was held that even though the husband were in England proof of non-access could be shown. The child was presumed to be legitimate if the mother was married, and a very heavy burden of proof was cast upon anyone asserting the contrary, but legitimacy could always be questioned. Lord Mansfield’s dictum that a married woman was incompetent to testify to non-access by her husband, Goodright v. Moss, 2 Cowp. 591, 98 Eng. Rep. 1257 (K. B. 1777), was patently a rule of testimonial disability. The distinction between the presumption of legitimacy and the mother’s lack of capacity to testify was recognized by Yiscount Pindlay in Russell v. Russell [1924] A. C. 687, 705-706 (H. L.), where he said,

“There is a strong presumption that the child of a married woman was begotten by her husband. This, however, is not a presumption juris et de jure; it may be rebutted by evidence. The fact that the wife had immoral relations with other men is not of itself sufficient to displace the presumption of legitimacy; non-access by the husband at the time when the child must have been begotten must (unless there be incapacity) further be proved. Proof of non-access cannot be given for this purpose either by the husband or by the wife; neither of them can be asked any question tending to prove such non-access; it must be established entirely by the evidence of other witnesses.”

It has for centuries been, and is, the English rule that “The non-existence of access is a physical fact which may be proved by means of such legal evidence as is admissible in every other case in which it is necessary to prove a physical fact.” 2 Halsbury’s Laws of England (2d ed. 1931), 560-561; and see The Poulett Peerage [1903], A. C. 395, 398 (H. L.).

The different states vary as to the competency of the married person, particularly the mother, to rebut the presumption by giving testimony of non-access, see Annotations, 60 A. L. R. 380 (1929), 68 A. L. R. 421 (1930), 89 A. L. R. 911 (1934), and there is variation among the several states *266with respect to the degree of proof required to overcome the presumption of legitimacy, see Annotation, 128 A. L. R. 713 (1940). Some deny the mother any standing at all to maintain an action to establish illegitimacy. But my research has disclosed no jurisdiction which makes the presumption of legitimacy absolute. Chief Justice Marshall recognized that we had carried the English rule into our jurisprudence, Stegall v. Stegall, Fed. Cas. No. 13,351, 2 Brock. 256 (C. C. Va. 1825), and the decisions of 38 jurisdictions reveal common recognition that legitimacy is merely a rebuttable presumption. Lewis v. Crowell, 210 Ala. 199, 97 So. 691 (Sup. Ct. 1923); Jacobs v. Jacobs, 146 Ark. 45, 225 S. W. 22 (Sup. Ct. 1920); Murr v. Murr, 87 Cal. App. 2d 511, 197 P. 2d 369 (D. Ct. App. 3 1948); Peters v. District of Columbia, 84 A. 2d 115 (D. C. Mun. App. 1951); McLoud v. State, 122 Ga. 393, 50 S. E. 145 (Sup. Ct. 1905); Pursley v. Hisch, 119 Ind. App. 232, 85 N. E. 2d 270 (App. Ct. 1949); People v. Powers, 340 Ill. App. 201, 91 N. E. 2d 637 (App. Ct. 1950); Bowers v. Bailey, 237 Iowa 295, 21 N. W. 2d 773 (Sup. Ct. 1946); Bethany Hospital Co. v. Hale, 64 Kan. 367, 67 P. 848 (Sup. Ct. 1902); Copenhauer v. Hemphill, 314 Ky. 356, 235 S. W. 2d 778 (Ct. App. 1951); Evans v. Roberson, 176 La. 280, 145 So. 539 (Sup. Ct. 1933); Hubert v. Cloutier, 135 Me. 230, 194 A. 303 (Sup. Jud. Ct. 1937); Dayhoff v. State, 206 Md. 25, 109 A. 2d 760 (Ct. App. 1954); Commonwealth v. Kitchen, 299 Mass. 7, 11 N. E. 2d 482 (Sup. Jud. Ct. 1937); People v. Case, 171 Mich. 282, 137 N. W. 55 (Sup. Ct. 1912); State v. Soyka, 181 Minn. 533, 233 N. W. 300 (Sup. Ct. 1930); Boone v. State, 211 Miss. 318, 51 So. 2d 473 (Sup. Ct. 1951); Stripe v. Meffert, 287 Mo. 366, 229 S. W. 762 (Sup. Ct. 1921); In re Wray’s Estate, 93 Mont. 525, 19 P. 2d 1051 (Sup. Ct. 1933); Craig v. Shea, 102 Neb. 575, 168 N. W. 135 (Sup. Ct. 1918); Groulx v. Groulx, 98 N. H. 481, 103 A. 2d 188 (Sup. Ct. 1954); Salas v. Olmos, 47 N. M. 409, 143 P. 2d 871 (Sup. Ct. 1943); In re Findlay, 253 N. 7. 1, 170 N. E. 471 (Ct. App. 1930); Ray v. Ray, 219 N. C. 217, 13 S. E. 2d 224 (Sup. Ct. 1941); State v. Coliton, 73 N. D. 582, 17 N. W. *2672d 546, 156 A. L. R. 1403 (Sup. Ct. 1945); State ex rel. Sprungle v. Bard, 98 N. E. 2d 63 (Ohio App. 1950); Jackson v. Jackson, 183 Okl. 74, 76 P. 2d 1063 (Sup. Ct. 1938); In re Rowe’s Estate, 173 Or. 293, 141 P. 2d 832 (Sup. Ct. 1943); Commonwealth v. Boyer, 168 Pa. Super. 16, 76 A. 2d 230 (Super. Ct. 1950); Barr’s Next of Kin v. Cherokee, Inc., 220 S. C. 447, 68 S. E. 2d 440 (Sup. Ct. 1951); Smith v. Smith, 71 S. D. 305, 34 N. W. 2d 8 (Sup. Ct. 1946); Jackson v. Thornton, 133 Tenn. 36, 179 S. W. 384 (Sup. Ct. 1915); Marckley v. Marckley, 189 S. W. 2d 8 (Tex. Civ. App. 1945); In re Jones’ Estate, 110 Vt. 438, 8 A. 2d 631, 128 A. L. R. 704 (Sup. Ct. 1939); Scott v. Hillenberg, 85 Va. 245, 7 S. E. 377 (Sup. Ct. App. 1888); Carfa v. Albright, 39 Wash. 2d 697, 337 P. 2d 795, 31 A. L. R. 2d 983 (Sup. Ct. 1951); State v. Reed, 107 W. Va. 563, 149 S. E. 669 (Sup. Ct. App. 1939); In re Aronson, 263 Wis. 604, 58 N. W. 2d 553 (Sup. Ct. 1953).

I do not read the Florida decisions as laying down a different rule. Indeed the Florida Supreme Court decision in Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163 (Sup. Ct. 1944), established that the Florida rule also is that the child conceived by a married mother is merely presumptively legitimate. It was there held that the husband may prove that the child is not in fact his. Florida does make it very difficult for the mother to question the legitimacy of her offspring. But despite the strong language in that regard quoted by my colleagues from Ex parte Hayes, 25 Fla. 279, 6 So. 64 (Sup. Ct. 1889), and Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177 (Sup. Ct. 1934), the Florida rule refers to her competency to testify, or, to go the extreme limit, bars her any standing to maintain an action in the Florida courts. See In re Madalina, 174 Cal. 693, 164 P. 348, 1 A. L. R. 1629 (Sup. Ct. 1917), and Annotation, 1 A. L. R. 1632 (1919). Ex parte Hayes, supra, stands for no more in light of the citation with approval of 1 Blaclcstone, Commentaries, *454, which immediately precedes the excerpt from that work hereinabove quoted as stating the applicable English law. And I do not see that the Florida Divorce Act, Fla. *268Stat. Ann., sec. 65.05, providing that a decree of divorce shall not render illegitimate the children born during the marriage, bears on the question whether Florida law makes the presumption absolute or merely rebuttable. That statute simply provides that, of itself, a decree of divorce does not make illegitimate any children born during coverture.

Thus, Florida, like every other jurisdiction the law of which I can discover, allows proof of non-access of the husband to prove illegitimacy, and the only questions are whether the mother is a competent witness to the fact or is permitted a standing to maintain an action for the purpose. But those matters are governed by the law of the forum, Restatement, Conflict of Laws, sec. 588, p. 705, sec. 596, p. 713 (1934), and in New Jersey the mother is a competent witness and is permitted to maintain an action. The majority conclusion can be sound only if the full faith and credit clause of the Federal Constitution compels New Jersey to apply to this plaintiff the disabilities of the Florida law and to deny her a standing in our courts merely because the courts of Florida would not hear her if she and the children still resided there and she brought a like action in that state. Granted, as the majority says, it is “the sense and significance” of the Florida statute to deny her an action in the Florida courts. But plaintiff’s second count seeks to enforce a support obligation under the New Jersey statute and not under any Florida statute. Our statute establishes an obligation of the father at the suit of the mother where none existed at common law. Borawick v. Barba, 7 N. J. 393, 400 (1951). At best the Florida statutes may be viewed as a defense to the action on the New Jersey statute and “where a foreign statute has been set up as a defense to * * * proceedings under a local statute, the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause and thus compelling courts of each State to subordinate its own statutes to those of others, but by appraising the governmental interest of each jurisdiction and deciding accordingly.” Conoin, Constitution of the United States, 676 (1953).

*269This principle was reaffirmed by the United States Supreme Court in a decision handed down but a few days ago, on June 6, 1955, Carroll v. Lanza, 75 S. Ct. 804, 99 L. Ed. —. There a Missouri employee was injured in Arkansas. By statute in Missouri workmen’s compensation is the exclusive remedy of an employee of a subcontractor injured by the negligence of a prime contractor. Arkansas, on the other hand, allows a common law action against the prime contractor. The Supreme Court held that since Arkansas, the situs of the tort, had an interest in the consequences of the injury, it need not, under the full faith and credit clause, apply the Missouri law to deny the employee a recovery in its courts under its law. Mr. Justice Douglas, writing the majority opinion, noted that the full faith and credit clause does not make one state the “vassal” of the others, and that as to Arkansas,

“® * « Her interests are large and considerable and are to be weighed not only in the light of the facts of this ease but by the kind of situation presented. For we write not only for this case and this clay alone, but for this type of case. The State where the tort occurs certainly has a concern in the problems following in the wake of the injury. The problems of medical care and of possible dependents are among these, as Pacific Employers Insurance Co. v. Industrial Accident Commission [306 U. S. 493, 59 S. Ct. 629, 83 L. Ed. 940] emphasizes. Id. 306 U. S. 501, 59 S. Ct. 632. A State that legislates concerning them is exercising traditional powers of sovereignty. Cf. Watson v. Employers Liability Corp., 348 U. S. 66, 73, 75 S. Ct. 166. Arkansas therefore has a legitimate interest in opening her courts to suits of this nature, even though in this case Carroll’s injury may have cast no burden on her or on her institutions.” 75 S. Ct. 807, 99 L. Ed. -.

Similarly, can it be questioned but that New Jersey “certainly has a concern in the problems” of these children? If the mother cannot support and educate them, is the father to escape who by our statute is obliged to do so, and is the burden of their support then to be shifted to the public treasury? Our statute, N. J. S. A. 9:16-2, evinces a strong public policy that every father shall support his illegitimate children, even when born of his adultery with a married *270■woman. To apply Florida law which the Federal Constitution does not oblige us to apply subverts that policy when the parents and the children are residents of this state. While the Legislature could doubtless engraft that qualification upon the statute, it has not done so. I deem it to be outside the province of this court to put limitations upon the scope of a statute not compelled by applicable constitutional restrictions.

Mr. Justice Wacheneeld and Mr. Justice Jacobs join in this dissent.

For affirmance—Chief Justice Vanderbilt, and Justices Heiier, Oliphant and Burling—4.

For reversal in pari—Justices Wacheneeld, Jacobs and Brennan—3.