For the petitioner-defendant, Hodes & Hodes (Irving L. Hodes and Joseph P. Rose).
For the respondent-prosecutor, Edwin Joseph O'Brien (Thomas J. Brett).
Before Brogan, Chief Justice, and Justices Bodine and Colie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. A writ of certiorari was allowed to review an award in a compensation case. The debated question is whether the petitioner, an infant, is a total dependent of the deceased employee who admittedly met his death by accident arising out of and in the course of his employment. The infant petitioner, born a matter of two weeks after the death of the employee, Jordan, is the natural child of the decedent and one Bessie Morgan who, during the interval from conception to the birth of the child, was the wife of Arthur Morgan, from whom she had been living separate and apart for a period of six years. While the inquiry is whether this posthumous, illegitimate child is a total dependent within the contemplation of the statute, R.S. 34:15-1, et seq., its solution in part depends on whether certain evidence questions were disposed of correctly. In the Bureau it was held that the infant was entitled to compensation as a total dependent; on appeal the Court of Common Pleas of Bergen County affirmed.
It is contended by the prosecutor that the judgment is erroneous for these reasons: first, that Arthur Morgan, the
husband, and Bessie Morgan, his wife, were not competent witnesses to testify to non-access; second, that even if their testimony was competent, it was insufficient to overcome the presumption of the infant's legitimacy; third, that it was error to hold that a posthumous, illegitimate child was contemplated as a dependent under the provisions of R.S. 34:15-13; and, fourth, that it was error to admit testimony concerning the declarations of the decedent, Jordan, admitting paternity of the infant.
Taking up the several points in the order stated: We consider that the testimony of the mother and the husband from whom she was living apart was properly admitted to show non-access. See Louden v. Louden, 114 N.J. Eq. 242. The argument of the prosecutor labors a point somewhat beside the issue. It is not a question of non-access but rather a denial of cohabitation. Opportunity for access was manifold. This couple -- Morgan and his wife -- had not lived together for six years. They had four children and the husband was paying the sum of $2.25 each week towards their support. For the rest they received a relief allotment from the municipality. Morgan was privileged by the order of the Domestic Relations Court of the City of Newark to visit the children and he did so. Mrs. Morgan testified: "He came to see the children * * * once or twice every other week." Mr. Morgan testified to the same fact. These visits had been constant for some years. Each denied that there had been cohabitation between them since their separation. This testimony was competent under our evidence statute, R.S. 2:97-1, which provides that "no person shall be excluded as a witness in any action, proceeding or matter of a civil or criminal nature for any of the following reasons: * * * (d) marital relationship." The rigid rule of the common law which prevented a husband or wife from being a witness in a litigation to which either was a party or in which either had an interest was modified by section 5 of an act concerning evidence (Rev. 1900, p. 363); and in the Revision of 1937 there is the clearest delimiting of instances where husband and wife may not testify against each other. In a criminal action or proceeding a husband or wife is competent to testify against
his or her wife or husband to prove the fact of marriage; upon the trial of an indictment a married woman shall be admitted to testify against her husband when she is the complainant against him if she shall offer herself as a witness (R.S. 2:97-4). The statute further confers a limited immunity on married persons as witnesses by reason of marital relationship as follows: No husband or wife in an action or proceeding for divorce on account of adultery shall be compelled to give evidence for the other except to prove the fact of marriage; nor shall either party be compelled to give evidence against the other in a criminal action or proceeding except to prove the fact of marriage; nor shall either party be compelled to give evidence for or against the other in any action for criminal conversation except to prove the fact of marriage, and neither party shall be compelled in any action, proceeding or matter to disclose any confidential communication made by one to the other during marriage (R.S. 2:97-9). Hence we conclude under the doctrine of the Louden case, supra, and our own statutory law, supra, there was no bar to the admission of this testimony. (Compare State v. Marriner, 93 N.J.L. 273.) The doctrine, characterized as the Lord Mansfield doctrine (Goodright v. Moss, 2 Cowp. 591), has no place in the discussion of this first point.
It is next said that the proof was insufficient to overcome the presumption of the legitimacy of the infant. The argument advanced by the prosecutor is based on cases of access of which a multitude is cited. The deputy commissioner in his findings gave cogent reasons for his fact determination on this point and stated as basis for his conclusion the manifest bitterness and hatred between the husband and wife. He took occasion further to describe the mother in no veiled terms. The deputy commissioner had complete opportunity to observe these witnesses and note their reactions as the hearing progressed; his own impressions and reactions, he stated emphatically and graphically in support of his finding and there was no dissent from his fact conclusions ...