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SORINTHIA VARNELL, A MINOR, BY HER MOTHER AND NEXT FRIEND SONYA VARNELL, A MINOR, JOINED BY HER MOTHER AND NEXT FRIEND LORETTA SPANN v. ERMON GREEN

SEPTEMBER 09, 1987

SORINTHIA VARNELL, A MINOR, BY HER MOTHER AND NEXT FRIEND SONYA VARNELL, A MINOR, JOINED BY HER MOTHER AND NEXT FRIEND LORETTA SPANN
v.
ERMON GREEN, JR.



BEFORE HAWKINS, P. J., AND DAN LEE AND ANDERSON JJ.,

ANDERSON, JUSTICE, FOR THE COURT:

This is an appeal from the County Court of Rankin County wherein the County Judge, sitting without a jury, dismissed Sorinthia Varnell's complaint to determine paternity and for child support.

On January 14, 1985, plaintiff Sorinthia Varnell, a minor child, filed a complaint by her mother and next friend, Sonya Varnell, alleging that the defendant Ermon Green, Jr., was her natural father, and asking the court to enter an order of filiation and to require him to pay child support. Green answered with general denials. Both

 parties waived the right to a jury trial, and the cause was heard in a bench proceeding. After the evidence was heard, the trial judge announced his finding that it was physically impossible for Sonya Varnell to have become pregnant on the date she claimed, and that therefore she had failed to sustain the burden of proof. Her action was accordingly dismissed. As one might expect, the most important evidence was that of the child's mother, Sonya Varnell. She testified that she had had intercourse with Green twice, and that she was quite certain the child was conceived on December 31, 1982. She also said that her last period before intercourse had ended in the first week of December.

 In his opinion, the county judge focused on this testimony. It was his view that:

 On cross examination, the plaintiff indicated it would be impossible for the defendant to be the father of the child. She was emphatic that the latter part of November to the last part of the first week in December of 1982 she was on a menstrual cycle at that time; it was during a basketball tournament. She had specific recall ability about that and was emphatic that the conceiving of this child had to have been on December 31, 1982, and could not have been the January 6, 1983, incident and this Court, as did Mr. McLaurin, and the complainant herself readily recognized immediately that it was an impossibility for her to have conceived that child on the date and time within which she has indicated. . . . It's a medical impossibility for her to have been impregnated on December 31, 1982. . . .

 It seems obvious that, without saying so, the court took judicial notice of certain facts and theories about the human female menstrual cycle and made them the basis of his decision.

 The general rule is that courts may take judicial notice of well-known medical and other scientific facts relating to human life to the extent that they are commonly known. 31 C.J.S. Evidence 79. Mississippi follows this rule but it also follows the corollary that if any doubt exists as to whether a matter is a fact of general knowledge, it should be resolved in the negative. 31 C.J.S. Evidence

 9; Luckett v. Louisiana Oil Corp., 171 Miss. 570, 575 158 So. 199, 200 (1934); see also Eidt v. City of Natchez, 421 So. 2d 1225, 1230 (Miss. 1982).

 We found no case in which a court took judicial notice of the relation between the dates of a woman's menstrual cycle and her fertility. The few courts that have squarely confronted the issue have declined to take notice. Harris v. State, 28 Ala. App. 23, 177 So. 311, 312 (1937); Hassler v. District of Columbia, 122 A. 2d 827, 830-31 (D.C. 1956); Lambert v. Dally, 281 N.E.2d 859, 860 (Ohio App. 1972).

 The cases cited by the appellee's brief deal not with menstrual cycles as such but rather with the different question of the length of the gestation period.

 Linda W. W. v. William XX, 69 A. D. 2d 918, 415 N.Y.S. 2d 275, 276 (1979) was not a judicial notice case, but there, the court relied on expert testimony to the effect that 95 to 98% of women ovulate from 9 to 15 days after their period begins. The witness said there was a margin of error of five days. The Encyclopedia Britannica's treatment of the subject is noteworthy for the carefulness with which the assertions are hedged with qualifications.

 Ovulation occurs at [about] * the mid-point of each [normal] * cycle, and the ovum is [probably] * capable of fertilization for only [about] * two days after this. . . . [T]he date of ovulation may vary unexpectedly even in women whose menstrual cycles were previously regular. (Emphasis added) ...

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