author: Putnam, J.

text:
    Dibble, Appellant, v. Dibble, Admx., et al., Appellees.
    (No. 664
    Decided January 23, 1950.)

      Messrs. Spieth, Spring & Bell and Messrs. Beam & Beam, for appellant.

      Messrs. Anderson, Will & O’Donnell, for appellee Jewell G. Dibble.
   Putnam, J.

This is an appeal on questions of law from the Probate Court of Richland County. The action in that court was instituted by the plaintiff-appellant, Inez P. Dibble, to determine heirship in the settlement of the estate of Herbert L. Dibble, deceased, who died testate March 31, 1948, and whose will was admitted to probate in that court. The plaintiff claims to be the widow and surviving spouse of the decedent. The defendant Jewell G. Dibble also claims to be the widow and surviving spouse of the decedent. She, being named as wife in the will, was appointed administratrix with the will annexed and as such was also made a defendant. The other three defendants, Eunice Dibble O’Neil, Elaine Dibble Williams and Elvira Dibble Baker, filed a joint answer admitting the allegations of the petition.

The essential facts pleaded therein are that the plaintiff, Inez P. Dibble, and decedent Herbert L. Dibble were married June 15, 1909, and were still married at the time of decedent’s death; that Eunice Dibble O’Neil, Elaine Dibble Williams and Elvira Dibble Baker are the children of Inez and Herbert Dibble as a result of such marriage; and that the plaintiff was the widow and surviving spouse of Herbert L. Dibble.

The separate answer of Jewell G. Dibble, after admitting that Herbert L. Dibble died testate, that his will had been admitted to probate and made no provisions for plaintiff, Inez Dibble, and that Jewell G. Dibble was the duly appointed, qualified and acting administratrix with the will annexed, denied all the other allegations of the petition. She further answered and averred, in substance, that she and the deceased were married in a legal ceremonial marriage in Richland county, on January 6, 1948, and thereafter cohabited together as man and wife until his death March 31, 1948.

The ultimate question presented, the answer to which is decisive of who was the widow and surviving* spouse of the decedent, is whether plaintiff and decedent were ever legally married, either ceremonially or at common law. It may also be noted here that under the allegations of the petition and the denials in the answer of Jewell G-. Dibble, an issue of fact was presented as to whether the three defendants, Eunice, Elaine and Elvira, were the children of the plaintiff and decedent as a result of their marriage.

The case was tried to the court who found for the defendant Jewell GL Dibble and adjudged her to be the widow and surviving spouse of the decedent. The court made a separate finding of facts and conclusions of law upon which an opinion was based. In this appeal on questions of law the following assignments of error are made:

1. The court erred in refusing to permit plaintiff to testify.

2. The court erred in its findings of fact.

3. -The court erred in its conclusions of law.

4. The finding of the court and the judgment thereon in favor of the defendant Jewell Gr. Dibble is contrary to law, and the court should have found that the plaintiff, and not such defendant, is the widow and surviving spouse of the decedent.

5. The finding and judgment of the court is manifestly against the weight of the evidence.

6. The court erred in overruling the plaintiff’s motion for a new trial.

7. The court erred in failing to enter a final judgment in favor of the plaintiff.

The record shows that the evidence in this case is undisputed, leaving only questions of law for decision. The plaintiff offered herself as a witness, but the court, upon objection of Jewell G. Dibble, personally and as administratrix, ruled that she was incompetent to testify by reason of the inhibitions of Section 11495, General Code. Thereupon her testimony was proffered for the record in detail-and at length as to the circumstances of her marriage with the decedent. This action is the basis of the first assignment of error and it seems logical to conéider it now. No other evidence encompassed by the proffered testimony was produced as to a ceremonial marriage, it being claimed by counsel that none was available.

The case of Brawley v. Thomas, Admr., 82 Ohio App., 400, 81 N. E. (2d), 719, cited by appellee Jewell G. Dibble, is in direct point. The syllabus of that ease is as follows:

“1. In a proceeding for determination of heirship (Section 10509-95 et seq., General Code), the petitioner is not entitled to a jury trial.

“2. In such ¿ proceeding, where the petitioner claims to be the common-law wife of the decedent and the adverse parties defend as heirs and administrator of the estate of decedent, the petitioner is incompetent to testify, over objection, as to facts tending to establish the alleged common-law marriage.”

The facts are similar. A motion to certify the record of that case to the Supreme Court was made and overruled. Appellant contends that decision is wrong-under the rule of necessity and by virtue of the pronouncements of the Supreme Court in the case of Smith v. Barrick, 151 Ohio St., 201, 85 N. E. (2d), 101. We are not persuaded that the latter case is in direct point.

In the case of Markley v. Hudson, 143 Ohio St., 163, 54 N. E. (2d), 304, the court at page 169 used this language: “Unfortunately, neither of the parties concerned was able to testify, the voice of William T. Markley having been stilled in death and that of Mrs. Markley through mental incompetency.”

Possibly a fair inference from this language would be that if Mrs. Markley had not been mentally incompetent she could have testified. However, that question was neither raised nor directly determined by the .court.

In view of the fact that that question was directly raised and decided in the Bromley case, supra, which case the Supreme Court refused to admit, and since the facts in that ease are very similiar to the facts in the instant case, upon the reasoning contained in that case we are constrained to hold that the plaintiff’s testimony as to the alleged marriage was not competent, and that the trial court did not err in so determining.

•Thereafter the plaintiff produced four witnesses, the three daughters of herself and decedent, and one Gladys Baker, together with numerous exhibits. No objection was made to the testimony, of the daughters. From this evidence the following undisputed facts are shown.

The three daughters were all. born to plaintiff and decedent while they were living as husband and wife in Chicago, Illinois. Eunice was born on May 3, 1911; Elaine on February 8, 1915, and Elvira on July 25, 1916. The family moved to Clyde, Ohio, in September 1916, where decedent took a position as plant superintendent of the Universal Paper Products Company. Eunice, who was five years old when the move was made, remembers some but not much of Chicago. She remembered her mother getting her at ldndergarden, and the place where they lived, a flat over a store. The other girls had no recollection of Chicago. From the earliest recollection of all of the girls their parents were referred to by them as “daddy” and “mother.”

When the family moved to Clyde, Ohio, a village of 3,500 people, they came as man and wife, lived together there as such, and were known and reputed as such during the entire time of their residence there, viz., until 1921, a period of five years. All the girls remember their residence in Clyde although Elvira’s memory thereof is less pronounced. They knew about the household, who composed it, daddy and mother and the sisters, and that they were known in that village as man and wife and one family.

In 1918, the witness, Gladys Baker, obtained a posh tion in the office of the Universal Paper Products Company where decedent w§.s plant superintendent, and knew him well until his death — in fact thej? became business associates later. Her testimony is positive and to the same effect, viz., that plaintiff and the decedent were known as man and wife in the community; that they were referred to ate a family and as such introduced to others; that decedent always referred to plaintiff as his wife and the mother of the children and to the children as his children.

In 1921 the Universal Paper Products Company was purchased by another firm and decedent was transferred to Middletown, Ohio, a city of 40,000 population. Here he remained until 1925 as manager of its carton paper plant. He moved his family there. Gladys Baker Was transferred there at the same time and worked for the same company. In fact for one and one half years she roomed at the Dibble home, sharing a room part of the time with one of the daughters. Here again the testimony of all witnesses is that plaintiff and decedent lived as man and wife, were known, introduced and reputed as such; that the daughters were known as such and they so regarded the family relationship; and that decedent always referred to plaintiff as his wife.

On August 7, 1923, decedent entered into a contract for the purchase of real estate in Middletown, presumably a home, for some $12,000, with reference to which plaintiff was described as his wife.

In 1925 the decedent quit his job and went to Kalamazoo, Michigan, where he took a position as superintendent of the carton plant of the Standard Paper Products Company. The plaintiff and children remained in Middletown for a while and then moved to Jackson, Michigan. Here the plaintiff continued to live and make a home until the present time. The three daughters were with her, Eunice and Elaine until they were married and Elvira until she went to her father at Shelby in 1934. Elvira continued to stay with him until 1948, with the exception of 31 months he served in the armed forces during World War II.

About 1926 decedent went to Shelby, Ohio, in Rich-land county, and organized the Carton Service Company, of which he was president and continued to operate until his death. Gladys Baker went to work for this company, first as stenographer and shortly thereafter as secretary of the company. When Elvira came to Shelby, she went to work for the company and lived with her father at various hotels, and later in a home which he established there.

Decedent continued to support the family at Jackson, Michigan, at least until all the girls were through school and possibly until Eunice was married in 1930 and Blaine in 1939. He made frequent trips to Jackson to see the family. Elvira testified such trips occurred about once a month. Eunice testified they were made three or four times a year and always at Christmas. He was present at Elaine’s marriage. Plaintiff was known in Jackson as Mrs. Dibble, the wife of the decedent, and the girls were known as their children. To others he referred to plaintiff as his wife. From 1926 to January 1, 1948, decedent was known in Shelby as a married man, the husband of plaintiff who lived in Jackson, Michigan, and as Elvira’s father.

In 1921, while living at Clyde, Ohio, the decedent took out a life insurance policy for $10,000 with The Bankers Life Company and made Inez Dibble the beneficiary. (Plaintiff’s Exhibit 1.) The application was signed by the decedent and plaintiff was described both in the application and contract as his wife. The policy, however, was not in effect at the time of his death.

Plaintiff’s exhibits 3 to 10 inclusive are photographs of various family groups. Some of decedent and plaintiff, others of them and their children together. One, No. 3, is a large family group of decedent, plaintiff, their three children, decedent’s two brothers, their wives and children, and decedent’s father and mother. These photographs are all convincing as indicating a family relationship known and recognized and worthy of preservation for the future. Elaine testified that all members of the family group in exhibit 3 always referred to plaintiff as the wife of the decedent.

Elaine occasionally visited her father and sister at Shelby, Ohio, and late in 1947 she first met the defendant Jewell Ford Dibble at her father’s home in Shelby. Eunice also met Jewell at her father’s home in Shelby in October, 1947, when she went to see her father who was ill. On December 30,1947, Eunice and Elaine met their father at the Willard Hotel in Toledo, at which time he told them that he was going to marry defendant Jewell Ford. Eunice said she criticized her father for his intention, but in any event Jewell Ford was called at Mansfield, Ohio, and both girls talked to her and congratulated her. The next day Elaine told her mother, who was then making her home with Elaine at Jackson, what decedent was intending to do. Thereafter Elaine wrote Jewell Ford Dibble two letters, one before and one after her father’s death, both friendly.

On December 29,1947, the decedent and Jewell Ford presented themselves at the Probate Court in Mansfield, Ohio, where they made application for, and received a marriage license. In this sworn application decedent described himself as 58 years of age; stated that he was once previously married; that he had a wife living and that he was divorced. Jewell G. Ford is described as 33 years of age, twice previously married, and a divorced woman.

Plaintiff produced evidence to show that decedent had never secured a divorce in Richland county, Ohio. At the time of filing her petition to determine heir-ship, plaintiff also made an election to take under the law and not under the will.

The evidence for the defense consisted of detailed proof showing a ceremonial marriage of Herbert L. Dibble to Jewell Ford in accordance with the Ohio statutes, viz., the license, the marriage by a licensed minister, the witnesses thereto, the return thereof, and the certificate. The letters from Elaine to Jewell Ford Dibble were also placed in the record. On January 6, 1948, the day of the ceremonial marriage, decedent executed his will, leaving 25 shares of stock in his company to each of his daughters, naming them, and the balance of the estate to his wife, Jewell, naming her as such. This will, the application for probate thereof, and the journal entry of its admission to probate are defendant’s exhibits.

The defendant, Jewell G. Dibble, signed the application for probate and therein stated that she was the widow and surviving spouse of the decedent and that Elvira E. Baker, Eunice O’Neil and Elaine Williams were the daughters of the decedent and the persons who would be entitled to inherit from the decedent under the statutes of descent and distribution if decedent had died intestate. Defendant’s exhibit 11 is a mortgage given by the decedent to the Shelby Plate Glass Company in 1942, in which he described himself as a single man.

The foregoing constitutes the evidence' of record. From this the trial court made the following findings of fact and conclusions of law:

“Findings of fact.

“1. Herbert L. Dibble died, testate, in Richland county, Ohio, on March 31, 1948, seized of real and personal property.

‘ ‘ 2. The decedent, Herbert L. Dibble, under the provisions of his last will and testament, which was admitted to probate by this court on April 16, 1948, bequeathed twenty five (25) shares of common stock in Carton Service, Inc., to each of his three daughters, namely, the defendants, Elvira Dibble Baker, Elaine Dibble Williams and Eunice Dibble O’Neil, and bequeathed and devised the balance of his estate, cash, stocks, real estate and all personal possessions to his wife, Jewell.

“3. The defendant, Jewell G. Dibble, was appointed by this court and qualified as the administratrix with the will annexed of Herbert L. Dibble, deceased.

“4. The plaintiff, Inez F. Dibble, by a separate written instrument, filed contemporaneously with her petition herein, elected to reject the provisions of the last will and testament of Herbert L. Dibble, deceased, and to take under the statute of descent and distribution all of the rights, privileges and interests as the surviving spouse of the decedent, Herbert L. Dibble.

“5. The evidence shows that, the plaintiff, Inez F. Dibble, and the decedent, Herbert L. Dibble, lived together as husband and wife, with their three daughters, the defendants, Eunice Dibble O’Neil, Elaine Dibble Williams and Elvira Dibble Baker, who were then young children, from 1916 to 1926, in Clyde, Ohio, and in Middletown, Ohio, during which time the plaintiff and decedent treated each other as husband and wife and were reputed as such in those communities.

“6. In 1925, the plaintiff and the defendants, Eunice Dibble O’Neil, Elaine Dibble Williams, and Elvira Dibble Baker, removed to the state of Michigan, and the decedent to Richland county, Ohio.

“7. Thereafter and until his death, the decedent, Herbert L. Dibble, lived in Richland county, Ohio, and the plaintiff, Inez F. Dibble, lived in Jackson, Michigan, and the decedent and plaintiff did not live together or cohabit as husband and wife.

“8. The decedent, Herbert L. Dibble, and the defendant, Jewell O. Dibble, were married at Plymouth, Ohio, on January 6, 1948, by Reverend Melanchton Paetznick, a duly ordained and licensed minister of the Gospel, a license for such marriage having been issued to them by this court, and thereafter they cohabited together as husband and wife in this county until the death of the decedent.

“9. The plaintiff, Inez F. Dibble, had knowledge of the intended marriage between the decedent and the defendant, Jewell G. Dibble, before such marriage was consummated, and the plaintiff remained silent and passive until after the death of the decedent.

‘ ‘ Conclusions of law.

“1. The plaintiff, in order to maintain her action, offered herself as her own witness to give testimony in her own hehalf, to which counsel for the defendant, Jewell G. Dibble, objected, and the objection was sustained by the court.

“Under the provisions of Section 11495, General Code of Ohio, the plaintiff, Inez P. Dibble, was not a competent witness to testify to facts tending to establish her alleged marriage to the decedent, Herbert L. Dibble.

‘ ‘ 2. The plaintiff alleged in her petition that she and the decedent, Herbert L. Dibble, were married on Juñe 15, 1909. There is no evidence that the plaintiff and the' decedent entered into a statutory or ceremonial marriage, and, therefore, the court is required to determine whether or not they were married at common law.

“An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation, as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage.

“A common-law marriage, in Ohio, must be established by clear and convincing evidence. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.

“Every ease bearing upon the subject of common-law marriage must be decided upon its own peculiar facts. The competent evidence in this case does not establish a common-law marriage between the plaintiff and the decedent.

“3. If the testimony proffered by the plaintiff were admissible and considered by the court, together with the competent evidence in this case, all of such evidence would not establish a valid common-law marriage between the plaintiff and the decedent in Milwaukee, Wisconsin, on June 15, 1909, as claimed by the plaintiff. The plaintiff proffered testimony that she and the decedent were residents and citizens of the state of Illinois prior to and after June 15, 1909, the date of her alleged marriage. On that date, a common-law marriage by a citizen of the state of Illinois was invalid regardless of where it was contracted.

“4. The evidence is clear and undisputed that the defendant, Jewell Gf. Dibble, and the decedent, Herbert L. Dibble, were legally married on January 6, 1948, and that such marriage status continued until the death of the decedent.

“5. The plaintiff, Inez F. Dibble, having failed to establish her marriage to the decedent, Herbert L. Dibble, as alleged in her petition, by evidence as required by law, is not the surviving spouse of Herbert L. Dibble, deceased, and is not entitled to share in his estate.

“6. The defendant, Jewell G. Dibble, having established her marriage to the decedent by clear and undisputed evidence, is the surviving spouse of Herbert L. Dibble, deceased, and the person named and referred to in his last will and testament as ‘my wife, Jewell.’ As the surviving spouse of Herbert L. Dibble, deceased, the defendant, Jewell G. Dibble, is entitled to the property exempt from administration, and to the year’s allowance which were set off and allowed to the surviving spouse in the inventory and appraisement of the estate pf Herbert L. Dibble, deceased, and to all other rights, benefits and privileges provided for the surviving spouse by statute.

“7. Under the last will and testament of Herbert L. Dibble, deceased, the defendants, Eunice Dibble O’Neil, Elaine Dibble Williams and Elvira Dibble Baker, are each entitled to twenty-five (25) shares of the common stock of Carton Service, Inc., and the defendant, Jewell G. Dibble, is entitled to the balance of the estate of Herbert L. Dibble, deceased. ’ ’

The last six assignments of error can and will be discussed together as they involve the same propositions.

The first question presented is: Did the plaintiff and decedent contract or enter into a lawful marriage prior to January 6, 1948? Second: If so, was that marriage ever legally terminated prior to January 6, 1948?

Common-law marriages are legal in Ohio, and between parties competent to contract the following things are necessary to consúmate such a marriage, viz.: First, there must be a contract in words of present tense; second, such contract must be followed by cohabitation; and, third, according to some authorities, there must be a holding out and reputation as husband and wife in the community in which the parties reside. In as much as this third element is present in the instant ease a discussion as to its necessity under other circumstances is not warranted. Suffice it to say that this court has had the question of common-law marriages before it in two recent cases, to wit, Abbott v. Industrial Commission, 80 Ohio App., 7, 74 N. E. (2d), 625, and Ryan v. Ryan, 84 Ohio App., 139, 86 N. E. (2d), 44. Following the case of In re Estate of Redman, 135 Ohio St., 554, 21 N. E. (2d), 659, this court took the position that the agreement in praesenti must be shown by direct evidence and applied that theory in the case of Markley v. Hudson, supra. However, when the Supreme Court reviewed this case (143 Ohio St., 163), that court held, as shown by the syllabus:

“1. An agreement to marry in praesenti, made by parties competent to contract, accompanied apd followed by cohabitation, as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage.

“2. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside. ’ ’

On page 167 the court said:

“This court still adheres to the doctrine that it is essential to show an agreement between the parties in praesenti to become husband and wife in order to establish a common-law marriage, but this does not mean that such proof must establish an express agreement resulting in contract, or that such result may not be established by circumstances from which an agreement in praesenti may be inferred.” (Emphasis added.)

Construing this language, it is obvious that the antecedent of such result” is “common-law marriage. ’ ’

When the Supreme Court says that the proof of an agreement in praesenti need not be proof of “an express agreement resulting in contract,” it can mean only that the agreement can be implied and in accordance with the second paragraph of the syllabus it may be established by circumstantial evidence showing the conduct and status of the parties in the community in which they reside.

In the Marhley case, supra, there was neither proof of a ceremonial marriage nor of the time or place of any agreement in praesenti to marry. All this was established by circumstantial evidence of reputation and living in the community thereafter. As to when and where the marriage or agreement took place was not in the record. Whether it was in a state which did or did not recognize common-law marriages does not appear. Yet in the face of that situation the Supreme Court said that the marriage could be established by proof of reputation in the community in which they lived as establishing a previously implied contract of intention in praesenti, which if coupled with cohabitation would establish a valid marriage.

In the instant case it is our judgment that the evidence both from the witnesses and from the exhibits is not only clear and convincing but overwhelming that all the elements necessary to constitute a common-law marriage are present. The sworn statement of the decedent in his marriage license application that he had a wife living but was divorced, together with his' statements in the insurance application and policy that Inez Dibble was his wife, is most decisive.

The defendant argues that the' marriage of these parties, if it ever existed, must have occurred on June 15, 1909, as alleged in the petition and that of this there is no proof. It is to be noted that the petition does not allege where they were married or in what manner. Since we cannot consider the proffered testimony of the plaintiff, all we know is that this family consisting of a reputed husband and wife and three daughters moved from Chicago, Illinois, to Clyde, Ohio, in September 1916, and that the oldest daughter was born in 1911. Prom this, the argument proceeds that the presumption is that the marriage was contracted in the state of Illinois which did not recognize common-law marriages and consequently the relationship being initially meretricious could not become valid in Ohio. Under the state of the record we do not think that there is a more probable inference that these people were married in Illinois than anywhere else. But even if they did originally come together under a void contract or meretricious relation, when they moved to Ohio in 1916, and thereafter cohabited in Ohio as husband and wife, a common-law marriage could be established here. To this proposition this court is committed. In the case of Ryan v. Ryan, supra, the court quoted with approval the case of Dirion v. Brewer, 20 Ohio App., 298, 150 N. E., 818, the seventh paragraph of the syllabus of which reads as follows:

“If parties agreed to live together as husband and wife, and followed that by present cohabitation, irrespective of illicit relation which may have been starting of their relationship, it would constitute a common-law marriage.”

This position is supported further in 26 Ohio Jurisprudence, 83, Section 75, where it is stated:

“Marriage may be proved from acts of recognition, cohabitation, birth of children, and like circumstances, even where the parties originally came together under a void contract, and where the intercourse at the commencement was illicit.”

In Industrial Commission v. Miller, 18 Ohio Law Abs., 244, it is held, as shown by the second headnote:

“Illicit relations on the part of a man and woman in a foreign country will not prevent the consummation of a common-law marriage in Ohio after the woman has at the man’s request, come to this country to live with him as his wife and has lived with him for twenty-five years, during which time she has borne him two children, which were christened as the children of such man and wife. ’ ’

However, there is no evidence in this case that the relations of these parties were in the first instance illicit. On the contrary the presumption is that their relationship was legal. It is not necessary to invoke the doctrine above set forth. However, in this connection it is to be noted that in the Ryan case, supra, there had been a ceremonial marriage to which there had been an impediment in the existence of a living spouse not divorced. This court, following the case of Johnson v. Wolford, 117 Ohio St., 136, 157 N. E., 385, held that upon the removal of the impediment by the death of the previous husband a continued living together as husband and wife constituted a common-law marriage. We can see no reason why the same principle should not be applied where the initial marriage was a common-law marriage. Both are valid.

As is said in the case of Umbenhower v. Labus, 85 Ohio St., 243, 238, 97 N. E., 832:

‘ ‘ This method of matrimony is called a common law marriage as distinguished from that prescribed by statute. A contract of marriage is essential in either case. The performance of a mere ceremony does not constitute a marriage. It must follow and be founded on contract. In one case the consummation of the contract may be celebrated and observed with' or according to statutory ceremony. In the other, the evidence of the marriage, in part at least, consists in the immediate and continued course of conduct of the parties in reference to each other in their domestic and social life. The contract of marriage need not be in writing in either, but may exist in parol. If it is ceremonially solemnized, the evidence of its consummation may be made a matter of record, if authorized by statute, and may be proved by eye witnesses, admissions, cohabitation, etc., if the record evidence is not made, or if made, is lost or destroyed.”

In view of the above considerations it is consequently our judgment that the relationship of these parties prior to coming to Ohio, in 1916, is not decisive of the question liere presented, but that it is their relationship after 1916, in Ohio, which determines the question.

It is further argued by the defendant that the finding of facts by the trial court cannot be disturbed by this court unless they are manifestly against the weight of the evidence. We recognize the import of the question presented.

In the Markley case, supra, a special interrogatory was presented to the jury as follows:

“Did William T. Markley and Eleanor Hudson Markley enter into a mutual contract of present marriage accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they lived?”

This interrogatory was answered in the affirmative. The court then stated:

“This interrogatory was answered in the affirmative. It follows, of course, that if there was probative evidence in the record to sustain this verdict of the jury, the Court of Appeals erred in reversing the judgment of the Probate Court and in rendering final judgment for the plaintiffs. ’ ’

The instant case was tried to the court and since the court made certain findings of fact, these stand on the same footing as the findings of a jury in answer to interrogatories. They cannot be disturbed if the manifest weight of the evidence is not contrary thereto. However, inasmuch as the evidence in this case is not in dispute, the accuracy of the finding of facts can be determined from a careful reading of the record. We find that the finding of facts Nos. 1, 2, 3, 4, 5, 8 and 9 are correct. Finding of fact No. 6 is erroneous in that the decedent went to Kalamazoo to work prior to his going to Richland county, Ohio. Finding of fact No. 7 is incorrect in finding that after 1925 plaintiff and decedent did not cohabit as man and wife. It is true tliev were living separate and apart but the evidence of the daughters is that he was frequently at the home in Jackson, Michigan; that he remained there over the week ends and Christmas, and referred to and introduced plaintiff as his wife. There is no evidence that they did not cohabit and the inference from the above facts is that they did.

Although the finding of facts made by the court is correct within the above limitations, it is not complete. It is incomplete in that all the evidence, both testimony and documentary, shows that at least until January 30, 1942, when decedent referred to himself in a mortgage as a single man, he himself treated the plaintiff as his wife, and that his relatives and the people who knew them so considered her.

Consequently, it is our judgment that the entire evidence in this case shows clearly and convincingly that the plaintiff and the decedent did contract a valid marriage and that such conclusion is mandatory under finding of fact No. 5 and in the light of all the evidence in the case. It follows that the court erred in its conclusion of law that “the competent evidence in this case does not establish a common-law marriage between plaintiff and decedent. ’ ’

Only one other question remains and that is whether this marriage relation between plaintiff and decedent was legally terminated prior to the marriage of decedent to Jewell Ford Dibble on January 6, 1948. If it was not, that marriage was void and the plaintiff is the widow and surviving spouse of decedent and entitled to her statutory rights as such.

This presents the question as to where the burden of proof was placed. The defendant stood entirely upon the proposition that the plaintiff ánd decedent were never married. She neither pleaded, proved, nor claimed a divorce between the parties.

While the rule in some other states is to the contrary, it is stated in 26 Ohio Jurisprudence, 81, Section 72:

“But in Ohio it cannot be presumed that parties once married have been divorced, in the absence of proof, and there is no presumption of divorce in support of the legality of a later marriage. Even if there were such a presumption, it might be rebutted by proof to the contrary.”

This text statement is based upon the case of Industrial Commission v. Dell, Exrx., 104 Ohio St., 389, 135 N. E., 669, 34 A. L. R., 422. It is true that in that case both marriages were ceremonial, but Judge Marshall in the discussion went into detail as to why the court did not follow the contrary rule but announced the above rule for this state. These reasons which we need not repeat here are just as cogent when applied to a common-law marriage as to a ceremonial marriage. See, also, Smith v. Smith, 5 Ohio St., 32; Carmicheal v. State, 12 Ohio St., 553; Evans v. Reynolds, 32 Ohio St., 163.

Consequently, it is our judgment that when a valid marriage is proven it continues until legally dissolved by death or divorce and this is so whether it be a ceremonial or a common-law marriage. The burden of proof is then on the one who claims its dissolution to prove it. There is no such proof in this case. There are, however, three circumstances which are to be considered in the light of whether they overcome this presumption.

1. The designation by the decedent of himself as a single man in the mortgage which he gave in 1942.

2. His statement in his marriage license application that he was divorced.

3. The fact that the plaintiff knew of the impending marriage a few days before it took place and did nothing.

We do not think that these circumstances are sufficient to overcome the presumption. Nos. 1 and 2 are self-serving declarations, No. 1 perhaps for the purpose of avoiding the bother of having the wife sign. No. 2 was necessary in order that he could get a license to marry after he had made the statement that he had been once married and had a wife living. No. 3 is of very little probative force because we cannot have a divorce by estoppel or establish the validity of a marriage by estoppel and in any event there was little or nothing which • the plaintiff could do.

However, if we concede that these facts were sufficient to overcome the presumption, the plaintiff did produce the testimony of the clerk of courts who stated from an examination of the records of his office that there had never been a divorce between plaintiff and deceased in Richland county, Ohio. During the period of time in controversy the decedent was a resident of Richland county, with the exception of possibly two years, from 1943 to 1945, when, while maintaining his presidency of the Carton Service Company at Shelby, he divided his time between there and Middletown. There is no evidence, however, that he ever discontinued his residence at Shelby. Under the above facts this proof was sufficient to sustain the burden in the light of the presumptions and other facts in evidence above referred to. Consequently, it is our judgment that the marriage of the decedent to the plaintiff was valid and subsisting at the time of his death and that his ceremonial marriage to Jewell Ford was void. It follows that the plaintiff is the widow and surviving spouse of the decedent and entitled to her rights as such and that the conclusion of law of the trial court to the contrary is erroneous.

This result is not inequitable. The legitimacy of the plaintiff and the decedent’s three daughters is involved under the pleadings. They are parties to this case. The holding of the trial court that their mother and father were never married would place their legitimacy under a lasting cloud. It is difficult to see how the defendant Jewell Ford can assert the fact that the daughters could inherit as legitimate children and at the same time deny the validity of the marriage which made (hem legitimate. Plaintiff and decedent lived together about 15 years and raised this family. The will is not contested and Jewell Ford will still get a sizeable portion of the estate, having lived with the defendant less than three months. Plaintiff is entitled to her share.

Tt follows that the judgment of the trial court is reversed and final judgment entered for the plaintiff adjudging her to be the widow and surviving spouse of the decedent.

Judgment reversed.

Montgomery, P. J., and McClintock, J., concur.


source: Caselaw Access Project

author: Wiseman, J.

license: Public Domain

text:
    City of Dayton, Appellant, v. Swartzel, Appellee.

      (No. 2064
    Decided May 8, 1950.)

      Mr. Herbert 8. Beane, city attorney, Mr. Maurice J. Gilbert and Mr. Cecil E. E(hoards; for appellant.

      Mr. A. K. Mack, for appellee.
   Wiseman, J.

This cause is submitted on the motion of defendant, appellee, to dismiss the appeal on six separate grounds. This is a criminal proceeding which originated in the Municipal Court of Dayton, where the defendant was found guilty of violating a health ordinance. An appeal was taken to the Court of Common Pleas of Montgomery County, which reversed the judgment of the trial court. Prom that judgment an appeal was taken to this court by the city of Dayton.

The first ground of the motion is that the notice of appeal is defective in that it does not state to what court the appeal is taken. The appeal could be taken to this court and none other. In Capital Loan & Savings Co. v. Biery, 134 Ohio St., 333, 16 N. E. (2d), 450, the court held that a notice of appeal which stated that “defendants hereby give notice of appeal” was sufficient. The court there stated:

“There was only one judgment and only one court from which and to which an appeal could be taken.”,

The first ground of the motion is overruled.

The second ground is that the appeal is from “the decision of the Common Pleas Court” and the decision of the court is not a final order from which an appeal can be taken. . The written decision of the court was filed with the judgment entry. The appeal should be from the judgment rather than the decision. However, this error can be cured by amendment, on authority of Mosey v. Hiestand, Trustee, 138 Ohio St., 249, 34 N. E. (2d), 210; Couk v. Ocean Accident & Guarantee Corp., 138 Ohio St., 110, 33 N. E. (2d), 9; Williams v. Martin, 82 Ohio App., 395, 81 N. E. (2d), 806; State, ex rel. England, v. Trustees of Franklin Twp., 79 Ohio App., 476, 74 N. E. (2d), 402; Bank of Elmore Co. v. Damschroder, 69 Ohio App., 15, 42 N. E. (2d), 781; Loftus v. Palmer, 37 Ohio Law Abs., 177, 46 N. E. (2d), 312; Martin v. Coffman, 56 Ohio Law Abs., 152; Fifty West Broad, Inc., v. Poulson, 41 Ohio Law Abs., 212, 57 N. E. (2d), 687; Manhattan Terrazzo Brass Strip Co., Inc., v. Benzing, 35 Ohio Law Abs., 492, 41 N. E. (2d), 736. See, also, Section 12223-5, General Code. The second ground of the motion is overruled.

The third ground of the motion is that the notice of appeal was not filed within time. The record does not support this contention. The notice of appeal was filed within 30 days after the date of the judgment. This ground of the motion is overruled.

The fourth ground of the motion raises the question as to whether the transcript of the docket and journal entries was filed within time. The judgment was filed May 19, 1949, and the transcript on June 28,1949. Section 13459-3, General Code, does not fix a time within which the transcript shall be filed in the appellate court. The statute merely provides that “upon filing the notice of appeal there shall be filed in the appellate court the transcript prepared by the clerk and any original papers received by him.” The statute does not require the transcript to be filed in the appellate court at the same instant the notice of appeal is filed. Until the notice of appeal is filed the clerk is not advised that a transcript will be required. Obviously, some time must elapse between the date on which the notice of appeal is filed and the date the clerk files the transcript in the appellate court. The filing of the transcript is the administrative duty of the clerk and not counsel. State v. Jarcho, 65 Ohio App., 417, 420, 30 N. E. (2d), 444. The clerk should discharge this duty promptly. The fact that 40 days elapsed between the date of the filing of the notice of appeal and the date the clerk filed the transcript is not fatal. Any delay on the part of the clerk is not chargeable to the appellant. This ground of the motion is overruled.

The fifth and sixth grounds of the motion, respectively, are that no ■ assignments of error or briefs have been filed in this court. The record shows that the transcript of the docket and journal entries and original papers contained one copy of the brief of appellant and one copy of the brief of appellee, which were filed in the consideration of the appeal in the Common Pleas Court. The transcript was filed in this court on June 28, 1949. The briefs which were filed in the Common Pleas Court were stamped as filed in the Court of Appeals on the same day that the transcript was filed. Counsel for appellant in this court (city of Dayton) state, in their brief opposing the motion to dismiss, that it was orally agreed between counsel that the briefs which were used in the hearing of the appeal in the Common Pleas Court should be filed and considered as the briefs in this court. Counsel for appellee (the defendant) in his brief in support of the motion to dismiss states that no such agreement was made. No affidavits have been filed by either counsel on this factual matter. Assuming that counsel had made such an agreement, there still would remain the question as to whether there had been a sufficient compliance with the provisions of Section 13459-3, General Code, which in part provides:

“The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal. ’ ’

The brief of appellant, which was made a part of the transcript, does not contain assignments of error. Manifestly ihe brief used in the Common Pleas Court and filed with the transcript in this court could not contain assignments of error, as the appellant in this court was the appellee in the Common Pleas Court. The brief -which this court is requested to consider as Ihe appellant’s opening brief in this court was the answer brief in the Common Pleas Court. Likewise, the brief which appellant here contends this court should consider as the appellee’s answer brief in this court was the opening brief of appellant in the Common Pleas Court and contained his assignments of error. Obviously the assignments of error filed by the appellant (the defendant) in the Common Pleas Court are substantially different from the assignments of error filed by the appellant (the city of Dayton) in this court. The briefs, therefore, which this court is requested to consider as properly filed in this court do not brief the questions raised by the assignments of error of the appellant in this court. An examination of the assignments of error and briefs supports this conclusion.

The fact is that the city of Dayton, the appellant herein, has never filed assignments of error in this court. The record shows that a separate paper, designated as “assignments of error,” was filed in the Common Pleas Court on July 6, 1949, being eight days after the date of filing of the transcript. This paper is captioned as follows ■.

“In the Common Pleas Court of Montgomery County, Ohio.

“City of Dayton, :

“Plaintiff, :

“-vs- : Case No. 99758

“Winter Zero Swartzel, : Assignment of Errors

“Defendant.” :

Appellant claims the assignments of error were inadvertently captioned but were filed with the papers in the Court of Appeals. The record does not support this claim. On the contrary the record shows that the assignments of error were stamped as filed in the Common Pleas Court and docketed under case No. 99758 of the Common Pleas Court. The paper does not show it to be filed in the Court of Appeals; the docket in the Court of Appeals in case No. 2064 does not show it to be filed and it was not found among the papers in this case in the Court of Appeals.

This court has many times held that the provision in Section 13459-3, G-eneral Code, requiring the briefs and assignments of error to be filed with the transcript, is mandatory, and a motion to dismiss the.appeal will be sustained for failure to comply with this requirement. State, ex rel. Merrill, v. Moore, 84 Ohio App., 49, 82 N. E. (2d), 765; State v. Moore, 84 Ohio App., 91, 85 N. E. (2d), 595; State v. Trimmer, 80 Ohio App., 545, 547, 76 N. E. (2d), 896; State v. Jarcho, 65 Ohio App., 417, 421, 30 N. E. (2d), 444; State v. Davis, 47 Ohio Law Abs., 415, 69 N. E. (2d), 532; State v. Barber, 44 Ohio Law Abs., 381, 65 N. E. (2d), 669; Columbus v. Balzan, 38 Ohio Law Abs., 141, 49 N. E. (2d), 592; State v. Jones, 33 Ohio Law Abs., 330, 34 N. E. (2d), 990; State v. Smith, 33 Ohio Law Abs., 612, 35 N. E. (2d), 968; State v. Link, 28 Ohio Law Abs., 101. See, also, State v. Parnell, 56 Ohio App., 77, 10 N. E., 18 (Sixth Appellate District); State v. Bell, 52 Ohio App., 11, 2 N. E. (2d), 786 (Fifth Appellate District).

This court has never held, and does not now hold, that the provision requiring briefs and assignments of error to be filed with the transcript goes to the jurisdiction of the court. The determination of this question falls within the field of judicial discretion. This court has consistently held that in the exercise of a sound judicial discretion it will require a compliance with the statutory provisions. We realize that other courts have exercised their discretion differently. See State v. Brunswick, 69 Ohio App., 407, 44 N. E. (2d), 116; State v. Brunswick, 71 Ohio App., 101, 47 N. E. (2d), 916; City of Cincinnati v. Hawkins, 81 Ohio App., 459, 78 N. E. (2d), 61.

This court has held that rule YII of this court, prescribing the time within which assignments of error and briefs are required to be filed, applies only to civil eases and has no application to criminal cases. State v. Moore, supra; State v. Jarcho, supra.

We find no reported case deciding this precise question. If the appellant in this court had been the appellant in the Common Pleas Court we might be disposed to treat the filing in this court of the briefs prepared and filed in the Common Pleas Court as a sufficient compliance with the provisions of the statute. In that event, in all probability, the same questions would be raised in the assignments of error and also briefed. However, that is not the situation here. In this appeal the appellant was the appellee in the Common Pleas Court, and the appellee here was the appellant in the Common Pleas Court. The questions raised in the assignments of error are different. The answer brief filed in the Common Pleas Court does not properly treat the questions raised in the assignments of error filed by the appellant herein, which we have examined and which were filed in the Common Pleas Court instead of in the Court of Appeals.

The failure to file the assignments of error in this court, with the brief and transcript, falls squarely within the rule laid down by this court in the numerous cases cited above. The statutory requirement relative to the filing of briefs and assignments of error has not been met and the motion to dismiss the appeal on the fifth and sixth grounds will be sustained.

In State v. Jarcho, supra, Judge Hornbeck very convincingly set forth, as follows, the reasons for this strict enforcement of the provisions of Section 13459-3, General Code:

“This provision as to the time of filing appellant’s brief is mandatory. It is not controlled by a rule of the appellate court. We have without exception enforced the rule as to the time within which briefs shall be filed by the appellant in civil cases (Rule VII, Courts of Appeals), and there is every reason and more why a specific provision of statute shall be enforced. We find no sufficient reason appearing in the affidavits which would cause us to relax the mandatory provisions of the section as to the filing of appellant’s brief. The section gives precedence in reviewing-courts to the hearing of cases involving criminal appeals. This, no doubt, is done to expedite the final determination of the rights of defendants and the state in criminal cases and to avoid unnecessary delay. To ignore or relax the specific provisions of the section as to the time within which briefs should be filed will open the way for delays in judgments in criminal cases which should be kept at a minimum. State v. Parnell, 56 Ohio App., 77, 10 N. E. (2d), 18.”

In order to remove any possibility of doing an injustice by dismissing the appeal in the exercise of sound judicial discretion for failure to comply with the provisions of Section 13459-3, General Code, we have examined the entire record in this case to determine whether there was prejudicial error committed in the judgment from which this appeal is taken.

We have considered all errors assigned which were erroneously filed in the Common Pleas Court by the appellant herein. The Common Pleas Court found that the prosecution failed to comply with provisions of the health ordinances of the city of Dayton, which formed the predicate for the prosecution. We are of the opinion that the judgment of the Common Pleas Court was correct. Therefore, upon an examination of the whole record, we do not find that the Common Pleas Court committed prejudicial error in reversing the judgment of the Municipal Court of Dayton.

The motion is sustained.

Motion sustained.

Miller, P. J., and Hornbeck, J., concur.


author: Per Curiam.

text:
    Richland Builders, Inc., Appellee, v. Thome et al., Appellants.

      (No. 144
    Decided May 10, 1950.)

      Messrs. Shaw & Clemens and Mr. Robert Small, for appellee.

      Mr. Edwin S. Diehl, for appellants.
   Per Curiam.

This is an appeal on questions of law. The plaintiff, Richland Builders, Inc., an Ohio corporation, filed its petition against the defendants, Alex N. Thome and Erna N. Thome, husband and wife, in the Court of Common Pleas of Defiance County, alleging that it had furnished certain materials and labor to the defendants for tbe construction of a dwelling house upon certain described real estate owned by the defendants, situated in the city of Defiance, Defiance county, Ohio, under an agreement with the defendants providing for construction costs, to be computed upon actual costs for material and labor, plus ten per cent thereof. Attached to the petition is an itemized account of such materials and labor.

Plaintiff alleges further that the defendants had refused to pay for such materials and labor, and pursuant to law plaintiff had filed in the office of the recorder of Defiance county, Ohio, an affidavit in conformity with the provisions of Section 8314, General Code, for the purpose of obtaining a mechanic’s lien upon the real estate.

Plaintiff prays for judgment against the defendants in the sum of $6,918.11, for foreclosure of its mechanic’s lien, and for costs and other relief.

The allegations of the petition do not disclose whether the agreement between the parties mentioned is in writing.

To this petition the defendants filed an answer and cross-petition.

In the answer they deny the allegations of the petition and aver that plaintiff had entered into an agreement with them whereby plaintiff agreed to furnish all the labor and material for the construction of a. dwelling house upon the premises described in the petition, for a price not to exceed $13,000, and after proceeding with the construction under the agreement,, plaintiff informed the defendants that it would not complete the construction of the dwelling house for such price, and that the cost of construction thereof would exceed $15,000, and refused to further proceed with the construction of the dwelling house unless defendants agreed to pay an additional construction cost in excess of $13,000, and that by reason of such breach of contract by plaintiff, defendants have been damaged in the sum of $10,000.

Defendants, in their cross-petition, aver further that they purchased the real estate described in the petition, from the plaintiff on or about November 5, 1948, and thereupon entered into an agreement with plaintiff for the building and construction of a dwelling-house thereon in accordance with plans and specifications provided by plaintiff and approved by defendants, at a cost to defendants, fully completed, including the grading of the real estate, of not to exceed $13,000, the actual cost thereof to be determined upon estimated costs of material and labor, plus ten per cent, and that the plaintiff agreed to submit estimates to defendants as the construction of the dwelling house proceeded, and defendants agreed to pay plaintiff, as the construction proceeded, the estimated costs of labor and materials plus ten per cent thereof; and that thereafter plaintiff furnished defendants two estimates for certain specified amounts and, upon the submission of the second of such estimates, informed defendants that plaintiff would not complete the construction of the dwelling house for a sum not to exceed $13,000, and refused to proceed further with the construction thereof unless defendants would agree to pay any and all additional costs of material and labor then and there estimated by plaintiff to exceed $15,000.

Defendants allege further that by reason of plaintiff’s failure to complete construction of the dwelling house they were damaged in the sum of $10,000.

The prayer of the answer and cross-petition is for damages in the sum of $10,000 and costs.

These were the pleadings upon which the cause was submitted to the Common Pleas Court where it was tried to a jury.

Upon the trial, the plaintiff introduced in evidence a contract in writing bearing date of October 26, 1948, duly signed by the plaintiff and the defendant Alex Thome, in the presence of subscribing witnesses, but not signed by the defendant Erna N. Thome, providing for the construction of the dwelling house in question by plaintiff.

This contract stated that second party (Alex Thome) agrees to pay the first party (plaintiff) for the construction of the dwelling house, the net costs thereof, plus ten per cent, the net costs being the actual amounts paid by the first party for labor and materials.

The plaintiff introduced evidence also tending to prove the furnishing of the labor and materials by plaintiff to defendants, the cost of each item thereof, and the amounts due plaintiff from defendants therefor, as alleged in'the petition;

The defendant Alex Thome, called for cross-exami- . nation by plaintiff, identified this agreement as an agreement in writing entered into between him and the plaintiff for the construction of the dwelling house upon the premises described in the petition upon a cost-plus basis.

Plaintiff introduced evidence also tending to prove that the mechanic’s lien, as alleged in the petition, had been perfected according to law and constituted a lien on the premises described in the petition.

Defendants, through cross-examination of the officers of the plaintiff, sought to prove that in the negotiations between the parties leading up to the execution of the written contract above mentioned, the parties had contemplated inserting a clause in the agreement placing a limitation of $13,000 on the amount to be paid by defendants to plaintiff for the construction of the dwelling house, and sought to prove also that subsequent to the execution of the written agreement hereinbefore mentioned, the parties had orally agreed to a modification thereof whereby the defendants would not be required to pay in excess of $13,000 for the construction of the dwelling house, but such evidence so sought to be introduced by the defendants showed no consideration moving to the plaintiff for the proposed modification.

The court refused to admit this evidence, upon the ground that the negotiations of the parties had merged in the contract and the contract was not ambiguous, and defendants not having pleaded or charged that fraud or mistake had induced or attended the execution of the agreement, such evidence was not admissible to alter the terms of the written contract, and further, that defendants had not pleaded that the ■written contract had been modified, and that a written contract conld be modified by oral agreement only where there was a consideration for such oral agreement, and the evidence sought to be introduced did not show such consideration.

The defendants then proffered evidence tending to prove that subsequent to the execution of the written agreement, the plaintiff orally agreed with the defendants that the written contract should be modified so as to provide that there should be paid by the defendants to the plaintiff for the construction of such dwelling house a sum not to exceed $13,000, but the evidence so tendered failed to show that there was any consideration moving to the plaintiff for the suggested modification of the agreement.

The defendants did not offer or introduce any evidence tending to contradict or controvert any of the evidence introduced by plaintiff.

The defendants then rested, and the plaintiff moved for a directed verdict in its favor for the amount alleged in its petition to be due it from defendants, and shown by the evidence introduced by it to be due and payable to it from defendants, and for foreclosure of the mechanic’s lien, which motion the court granted and entered judgment accordingly, at the costs of defendants.

That is the judgment from which this appeal is taken.

The defendants, appellants, assign error in the following particulars:

1. The court erred in admitting testimony on cross-examination of appellant, Alex N. Thome, in particular, with reference to matters not raised by the issues in the petition and the answer.

2. The court erred in admitting exhibits “l'A” and “1 B” after refusing admission of testimony on cross-examination relative to the negotiations between the parties prior to and subsequent to October 26, 3948.

3. The court erred in sustaining objections to questions directed to appellants relative to negotiations between the parties and concerning inducements for an agreement for the construction of a dwelling house for the appellants.

4. The court erred in sustaining objections to questions directed to appellants with reference to conversations between the parties subsequent to October 26, 1948, and with reference to the payment of the first estimate for material, work and labor.

5. ' The court erred in directing a verdict for the appellee.

6. The court erred in overruling the appellants’ motion for a new trial.

7. For all other errors occurring at the trial to which exceptions were taken and manifest from the face of the record.

3. The plaintiff called the defendant, Alex Thome, as if for cross-examination only for the purpose of having him identify the agreement in writing entered into between him and the plaintiff. The court did not err in admitting the testimony of Thome on erossexamination, as the plaintiff, in its petition, based its claim for recovery upon an agreement it had entered into with defendants, and the testimony of Thome on cross-examination tended to prove the written contract entered into between plaintiff and Alex Thome as the contract upon which plaintiff’s action was predicated.

2. The court did not err in the admission of the exhibits “1 A” and “1 B” as such exhibits were identified as plans and specifications attached to the written agreement between the plaintiff and Alex Thome, and referred to in the agreement as being attached thereto.

3. The written agreement was not ambiguous and' its terms fully and completely covered its subject matter. The defendants did not plead or in any way charge that the agreement was induced by fraud or mistake. In this situation, all negotiations leading up to the formation of the written agreement are conclusively presumed to be merged in the instrument, and oral evidence of negotiations tending to alter the terms of the written agreement is inadmissible for that purpose. Hence, the court did not err in its refusal to admit such evidence. Howard v. Thomas, 32 Ohio St., 201; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Green, 126 Ohio St., 512, 186 N. E., 365, 87 A. L. R., 1268. See, also, 20 American Jurisprudence, 964, Sections 1101 and 1102.

4. The court did not err in sustaining objections to questions directed to appellants with reference to conversations between the parties subsequent to October 26, 1948, the date the written agreement was entered into, as such questions were designed to elicit testimony tending to prove oral consent to modification of the written agreement without any consideration moving to plaintiff for such modification. An oral agreement intended to modify a written agreement must itself have the essential ingredients of a binding contract. 9 Ohio Jurisprudence, 578, Section 326; Yin v. Amino Products Co., 141 Ohio St., 21, 46 N. E. (2d), 610.

An oral agreement, to have the effect to alter or modify the terms of a prior written contract, must be a valid and binding contract of itself, resting upon some new and distinct consideration. Thurston v. Ludwig, 6 Ohio St., 1, at page 6.

5. The court did not err in directing a verdict for plaintiff. All the evidence introduced by plaintiff tended to prove the allegations of plaintiff’s petition. No person testified to the contrary. The positive statements of plaintiff’s witnesses were not contradicted by any other witness or any other circumstances. Standing uncontroverted, they must be accepted as proof in the absence of any other testimony or circumstances from which a contrary inference can be drawn. The record discloses none. Hayes v. Kentucky Joint Stock Land Bank, 125 Ohio St., 359, 362, 181 N. E., 542.

Although Erna N. Thome, wife of the defendant Alex N. Thome, did not sign the agreement she had knowledge of the construction of the dwelling house, being done under contract with her husband, and pursuant to the provisions of Section 8318, General Code, is bound for the payment of the costs of construction to the same extent as if she had signed the agreement. 26 Ohio Jurisprudence, 776, Section 54; Kennett v. Rebholz & Carr, 8 Am. L. Rec., 354, 6 Dec. Rep., 824; Donahue v. Resting, 7 N. P., 377, 5 O. D. (N. P.), 153.

The verdict was directed only for the amount shown by the evidence to be due to plaintiff from defendants.

6. The motion for new trial was predicated upon the same grounds as the assignments of error we have discussed and found to be without merit. The court therefore did not err in overruling such motion.

7. As errors under assignment No. 7 are not specified or argued in appellants’ brief they will not be considered.

As we find no error in any of the particulars assigned and argued in appellants’ brief, the judgment of the Common Pleas Court is affirmed at the costs of appellants, and the cause remanded for execution.

Judgment affirmed.

Guernsey, P. J., Middleton and Jackson, JJ., concur.


text:
    Hiple, Admr., Appellee, v. Skolmutch et al., Appellants.
    (No. 2372
    Decided February 3, 1950.)

      Mr. M. H. Conrad and Messrs. Amerman, Mills, Mills & Jones, for appellee.

      Messrs. Hart & Hart, for appellants.
   Putnam, J.

This is an appeal on questions of law from a judgment of the Probate Court of Stark County. The plaintiff, appellee, is the administrator of the estate of Logan Hiple, deceased. The defendant, appellant, Maybelle Skolmutch, is one of the daughters of the decedent and is married to Seldon Skolmutch, another of the defendants. Paul Skolmutch is a minor son of Maybelle and Seldon Skolmutch.

This proceeding was instituted in the Probate Court by the administrator, by filing a complaint under the provisions of Section 10506-67, General Code, which provides for the recovery of assets in an estate where some person is concealing, embezzling or conveying away such assets, or is in possession thereof. By virtue of that section, the Probate Court is empowered to determine the title to such assets.

The particular question in the instant case relates to the ownership of a certain 1947 model Pontiac automobile, for which the decedent paid $1,600 in March 1949, prior to his death which occurred on May 10, 1949. Title to the car was taken in decedent’s name, but it is now claimed by the defendant, Paul Skolmutch, by reason of an alleged gift inter vivos. The trial court awarded the automobile to the plaintiff, administrator, and this appeal results.

The following assignments of error are made:

“1. The Probate Court erred in holding that the gift of the automobile from Logan Hiple to Paul Skolmutch was not a valid gift inter vivos.

“2. The Probate Court erred in holding that the Certificate of Title Act of Ohio prevented such gift, otherwise valid, from taking effect.

“3. The Probate Court erred in placing an unconstitutional interpretation upon Section 6290-4, General Code, rather than a constitutional interpretation thereon.

“4. The Probate Court erred in entering judgment against the defendant-appellant Paul Skolmutch, a minor, without the appointment of a guardian ad litem for such minor and by whom a defense on his behalf was not made.

“5. The judgment of the Probate Court was contrary to law.

“6. For other errors apparent from the record.”

Defendants claim the following two legal questions are presented:

‘ ‘ 1. Where the evidence is clear and uncontradicted that a valid gift inter vivos of an automobile has been made, does the failure of the donor and donee to comply with the Certificate of Title Act of Ohio prevent such gift from taking effect?

“2. Did the trial court’s construction of Section 6290-4, General Code, render that section unconstitutional and in violation of the ‘due process’ provisions of the state and federal constitutions?”

Plaintiff claims there are four propositions involved which are dispositive of the matter, to wit:

“1. Under the Ohio certificate of title law defendants could not acquire any interest, legal or equitable, in the automobile in the absence of a certificate of title in their names.

“2. Even aside from the certificate of title law there is no evidence in the record of a valid completed gift in praesenti from the decedent to his ■grandson.

“3. The certificate of title law is not in conflict with any provision of the Constitution of the United States or of the Constitution of the state of Ohio.

“4. This is a special proceeding and not an action and therefore Section 11252, General Code, is not applicable. ’ ’

It is to be noted that plaintiff’s propositions Nos. 3 and 4 coincide with assignments of error Nos. 3 and 4.

We believe that defendants’ assignments of error Nos. 1 and 2 make a restatement of his legal proposition No. 1 necessary, and it may be restated as follows:

Where the evidence is such that when applied to an ordinary chattel a valid gift inter vivos would be effectod, and the subject of the attempted gift is an automobile, does a failure by the donor to comply with the Ohio Certificate of Title Act (Sections 6290-2 to 6290-20, General Code), by not giving the purported donee a certificate of title in his own name, prevent the transaction from being a valid gift inter vivos, where the certificate of title remains in the alleged donor?

Assignments of error Nos. 5 and 6 do not need separate treatment. Assignment of error No. 4, that the judgment is void because of failure of the court to appoint a guardian ad litem for the minor defendant, Paul Skolmutch, is not tenable because this is a special proceeding and not a civil action so as to invoke the provisions of Section 11252, General Code. See Durst v. Griffith, 43 Ohio App., 44, 182 N. E., 519.

Likewise, it is our judgment that assignment of error No. 3 is not now an open question in this state. In the case of State, ex rel. City Loan & Savings Co., v. Taggart, 134 Ohio St., 374, 17 N. E. (2d), 758, the Supreme Court upheld the constitutionality of that ,aet on the grounds that it was a valid exercise of police power and attempted only .to regulate the manner and not the right to dispose of property.

We choose now to discuss defendants’ assignment of error No. 1 and plaintiff’s proposition No. 2, which are in substance the same, as to whether under the facts in the record there was a valid gift inter vivos of this automobile from the decedent to the defendant, Paul Skolmutch.

The record shows that the decedent was a 64-year-old railroad engineer who earned good wages and owned his own-home.

The decedent, his daughter, his son in law, his grandson, Paul Skolmutch, and another daughter of the decedent, Wilma, composed the household. The decedent was very fond of Paul, who was about 17 or 18 years of age, and on March 29, 1949, with his own money, decedent purchased the automobile in controversy from one Blair, taking title in his own name. He not only told Blair, but also told eight or nine other witnesses, that he was purchasing the automobile for Paul. To some he said it was a birthday present, to others a graduation present. Paul’s mother, Maybelle, said the decedent told her she was to be the boss of Paul concerning the car.

Blair said decedent told him that he, decedent, was buying the car for the boy, but he would have to take title in his own name, because Paul was not old enough. Decedent told Blair also that he would sign for it. He told a Mrs. Heckman that the car was Paul’s; that he bought it for Paul and he wanted to be taken around; and that Paul drove him any place he wanted to go. On the day he purchased the car he told a Mrs. Turner that he bought Paul a car and he also told her he wanted Paul to have the car and that he would keep the car in his own name until Paul became 21 years of age.

On the day the car was bought, decedent told Irene Studney that he bought it for Paul as a graduation gift, and for his birthday, with the understanding that Paul was to take him wherever he wanted to go; and that because Paul was a minor he did not put the car in Paul’s name. The decedent told Raymond Bowe that the person with whom he had been riding back and forth to work was placed on a different shift, and he, decedent, needed a car to go to work; that he could not drive; and that he bought the car with the understanding that Paul was to take him to and from work, otherwise it was Paul’s car.

Maybelle, Paul’s mother, testified, among other things, that the morning the car was bought the decedent called her on the phone and asked her if she would come up town and sign for the car. She told him, in substance, it would take her an hour to get ready and for him to sign for it, which he did. The other testimony is to the same effect and is uncontradicted.

Decedent gave . Paul possession of the certificate of title. Paul drove the car, bought gasoline, a spot light and a tire for it, and drove it for his own personal use as well as for the use of the decedent when the latter so desired. The insurance papers were in decedent's name and no assignment was executed on the certificate of title. This was the situation when decedent died on May 10, 1949.

Section 6290-4, General Code, a part of the Certificate of Title Act, provides as follows:

“No person acquiring a motor vehicle from the owner thereof, whether such owner be a manufacturer, importer, dealer or otherwise, hereafter shall acquire any right, title, claim, or interest in or to said motor vehicle until he shall have had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for the same; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or manufacturer’s or importer’s certificate for said motor vehicle for a valuable consideration. No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter. ’ ’

Under these circumstances, was there a valid gift inter vivos of this automobile? Under the facts we are constrained to hold that there was not. There is no direct authority in Ohio, bearing on the question, and, in other jurisdictions, under somewhat similar statutes, there is a division of authority.

Under the assignments of error the sole question as to the transfer, not otherwise herein disposed of, concerns a gift inter vivos. It is fundamental that in such a transfer of property, without consideration, no action in law or equity can be maintained to enforce it.

See 20 Ohio Jurisprudence, 16, Section 12, where we find the following language:

“A gift inter vivos has no reference to the future, but goes into immediate and absolute effect. It is essential to its validity that the transfer be executed, for the reason that there being no consideration therefor, no action will lie to enforce it . To execute a gift inter vivos, there must be a delivery of the subject thereof. ’ ’

Another prerequisite to the validity of such a transfer is that there must be a complete delivery of the chattel, where it is susceptible of delivery, and under such conditions that the donor irrevocably parted with all dominion and control thereover.

See 20 Ohio Jurisprudence, 19, Section 14, where we find the following language:

‘ ‘ The delivery must be complete and unconditional. Enough must be done to pass title. To constitute a good delivery of a gift inter vivos, there must be not only a parting with possession, but also a parting with the dominion and control of the property, and a vesting-of the donee with complete present and exclusive dominion and control. The delivery must be irrevocable ; a gift inter vivos cannot be made by words and acts which are revocable.”

This is the feature which is not present in this case. Under the facts herein the decedent at any time could have changed his mind if Paul had not driven him where he wanted to go, or for any other reason, and could have sold or mortgaged the automobile at any time. Had decedent executed an assignment to an innocent third party, Paul would have been without recourse. Herein lies the difference between the gift of an automobile, and say, a stove or bed. In this case the decedent did not irrevocably give up control and dominion over the chattel.

We choose to decide this case upon this proposition, rather than the absolute interdiction of Section 6290-4, General Code. The appellee relies upon the case of Kattwinkel v. Kattwinkel, 80 Ohio App., 397, 74 N. E. (2d), 418. However, the ultimate decisive factor in that case was that the rights of an innocent third party were involved and the facts did not warrant an inference of fraud. The court said at page 399: “Had the wife still had title to the automobile at the time the restraining order was made, there would be little difficulty with the plaintiff’s contention.”

We recognize the fact that there may be cases where property rights in an automobile may be established in a court of law or equity, without strict compliance with the Certificate of Title Act, and with this proposition we are in accord. However, that does not mean that a gift inter vivos of an automobile can be established where no certificate of title is given and thereby no final relinquishment of dominion and control shown or effected.

It follows that the judgment of the court below must be and is affirmed.

Judgment affirmed.

Montgomery, P. J., and McClintock, J., concur.


author: Hildebrant, J. Matthews, J.,

text:
    Baker, Appellee, v. The Norfolk & Western Ry. Co., Appellant.
    (No. 7294
    Decided January 29, 1951.)

      Mr. John M. Renner and Messrs. Lindhorst & Dreidame, for appellee.

      Messrs. Taft, Stettinius $ Hollister and Mr. John W. Hudson, for appellant.
   Hildebrant, J.

Plaintiff’s tractor-trailer outfit was struck by a westbound freight train of the defendant while such outfit was standing across the westbound tracks of the Court street crossing, in Circleville, Ohio. He recovered a verdict and judgment for the property damage. This appeal is from that judgment, on questions of law.

All the evidence on trial was adduced by the plaintiff, the defendant standing on its motion for judgment at the close of plaintiff’s case, which the trial court overruled.

The plaintiff testified in substance that on July 28, 1946, at about 12:20 a. m., he was driving his own tractor, hitched to a new trailer, second in line of a convoy of five such outfits, south on Court street in Circle-ville, Ohio; that as he approached the railroad crossing in a lawful manner the crossing gates were up and he looked in both directions and observed that no train was approaching as he entered onto the right of way; that after getting on the right of way, the outfit in front of him stopped-suddenly, so that he was forced to a sudden stop across the westbound tracks of the defendant, with the front of his outfit within two feet of the rear of that ahead; that the third outfit in the convoy line, immediately in his rear, stopped so close to his vehicle that he was unable to move backward, and thus was trapped upon the crossing; that the sudden stop choked his motor off and while trying to start it again he blew his horn for the outfits immediately in his front and rear to move so he could get off the track, when he looked up and saw a train approaching approximately three quarters of a mile away, which he estimated was traveling at 40 to 45 miles per hour; and that by the time his motor started the train was so near that he jumped from his cab to a place of safety, and the collision ensued. The other witnesses testified to substantially the same facts as plaintiff, without adding anything of probative value thereto.

Error is first assigned to the refusal to strike specifications of negligence 2 and 3 from the petition. They are:

“(2) Defendant negligently failed to warn of the approach of its train by bell or other signal.

"(3) Defendant negligently failed to lower a crossing gate which was erected and intended to be in operation so as to warn plaintiff and others of the approach of said train.”

The petition alleged “that when he approached the intersection of Court street and the right of way of the defendant company he was proceeding at a lawful rate of speed as the second tractor-trailer in a convoy of trailers; that the crossing gates operated by the defendant company at Said crossing were up and this plaintiff, with the trailer in front of him, proceeded to cross the railroad tracks of the defendant company after plaintiff looked to the east and west on the right of way of the defendant company and observed that no train was approaching; that while he was proceeding across the right of way of the defendant company the trailer-tractor which was immediately in front of him was brought to a stop causing him to stop his tractor-truck and the trailer attached to the tractor on the westbound rail of the defendant company and because of the tractor stopped in front of him and the tractor-trailer immediately behind him he was unable to move forward or backward.”

The other specifications of negligence have to do with failure to keep a proper lookout, failure to keep under proper control, excessive speed, and failure to stop after becoming aware of plaintiff’s position on the right of way.

It is obvious that specifications of negligence 2 and 3 are completely repugnant to and inconsistent with the allegations of entering the right of way when no train was in sight, and the circumstances of the subsequent entrapment. According to these allegations plaintiff observed at the time of entering upon the right of way that no train was approaching within view, and, on becoming trapped on the crossing, defendant was negligent in failing to see that situation and stop the train.

Plaintiff’s own pleading shows that no duty to warn existed at the time he entered the right of way, and that after becoming entrapped thereon, a warning at a later time conlcl not have been effective to relieve his situation.

One of the notable exceptions to the liberal construction of pleadings enjoined by Section 11345, General Code, is that inconsistent allegations in pleadings will be construed against the pleader. In Brook v. Columbus Ry. & Light Co., 13 N. P. (N. S.), 501, 30 O. D. (N. P.), 611, cited in the brief of defendant, the court so held with reference to allegations of negligence. See 31 Ohio Jurisprudence, 572 et seq., “Pleading,” Sections 35, 49, 62 and 160, and cases cited thereunder. It follows that objection lies to the introduction of any evidence to support a fatally defective pleading. 31 Ohio Jurisprudence, 908, “Pleading,” Section 313.

It was, therefore, prejudicial to defendant to refuse to strike the repugnant and inconsistent allegations of negligence Nos. 2 and 3.'

The plaintiff alleged defendant negligently operated the train at a high and excessive rate of speed, to wit, 50 miles per hour in violation of a city ordinance requiring 8 miles per hour. On objection, the ordinance was ruled out, so that the allegation of excessive speed stands alone at 50 miles per hour, which plaintiff himself testified was 40 to 45 miles per hour. The other claims of negligence are failure to keep a proper lookout, failure to bring the locomotive under control, and failure to stop when defendant saw or should have seen plaintiff’s position of peril.

From the pleadings and record, the doctrine of last clear chance is not in the case, and the court so charged.

The allegations and proof are limited to only what happened and there is absolutely no evidence in the record of any negligence on the part of the defendant.

No inference of negligence arises from the bare happening of the collision, and none may be presumed.

It has long been the law as stated as follows in Shaffer, Admx., v. N. Y. C. Rd. Co., 66 Ohio App., 417, 34 N. E. (2d), 792:

“It is not negligence on the part of a railroad company for its agents in charge of a train as it approaches such grade crossing, to operate it at a speed greater than will enable them to stop it and avoid a collision after they come in sight of the crossing and discover an automobile stalled upon it, the circumstances being such that the question of last clear chance does not arise.”

Again, it is stated in Woodworth, Admx., v. New York Central Rd. Co., 149 Ohio St., 543, at 549, 80 N. E. (2d), 142:

“The law recognizes the fact that ordinarily, because of unalterable circumstances, railroad companies in the operation of fast-moving trains cannot be responsible for grade-crossing collisions, and that the burden of avoiding such collisions rests, for the niost part, upon the operators of vehicles using such crossings. This rule is made necessary because railroad trains are, in their operation, confined to fixed tracks, and, because of their weight and momentum, cannot be readily stopped within a short distance or space of time. New York, Chicago & St. Louis Rd. Co. v. Kistler, 66 Ohio St., 326, 64 N. E., 130.”

There is no evidence in the record that the speed was unreasonable or that the control of the train was not in accordance with approved railroad practice under similar circumstances. The principles of burden of proof set out in White Oak Coal Co. v. Rivoux. Admx., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas. 1914C, 1082, Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634, and later cases apply herein and have not been met by the plaintiff.

It was, therefore, error prejudicial to defendant to overrule its motion for a directed verdict at the close of plaintiff’s case. No other error prejudicial to defendant appears upon the record.

The judgment is reversed and the cause remanded with instructions to enter .final judgment for the defendant.

Judgment reversed.

Ross, P. J., and Hildebiiant, J., concur in the syllabus, opinion and judgment.

Matthews, J.,

concurring. It does not appear when the defendant’s employees in charge of this locomotive saw this tractor-trailer standing on the track. It does appear that the track was straight for three quarters of a mile, and that the headlight was required by a rule, having the force of law, to have a penetration strong enough to enable the operators of the locomotive to see an object the size of a man at least 800 feet away. Now placing the operators in that position, I think a jury would be justified in finding that they actually saw this truck stationary on the track when it. was at least 800 feet away, and that they realized almost immediately that the truck was stalled there.

Just as soon as the operators realized that the truck was stalled and could not be moved off, the operators owed a duty to exercise reasonable care to avoid a collision to slow down and, if necessary and possible, to bring the train to a stop.

As I analyze this record, the only element necessary for submission to the trier of the facts that is missing is evidence from which an inference could be drawn that any possible action such as reducing the speed would have availed to avoid the collision. Failure of proof on that necessary element is the basis of my concurrence.