author: JONES, (O. B.).

text:
    INSURANCE — WILLS.
    [Hamilton (1st) Court of Appeals,
    June, 1915.]
    Jones, Jones and Gorman, JJ.
    Henry Schlachter, Admr., etc. v. Al. H. Teepen.*
    Bequest by Wife of All Her Real and Personal Property to Husband Includes Insurance on His Life Payable to Her.
    A bequest by a wife of 'ajl lier property both real and personal to her husband, includes a policy of insurance on the life of her husband (who was still living) made payable to her, her executors, administrators and assigns.
    Error.

      Clore & Clayton, for plaintiff in error.

      Charles M. Leslie, for defendant in error.
   JONES, (O. B.).

The insurance policy, the proceeds of which is in controversy here, was written on the life of Herman Teepen, and made payable to Mary Teepen, his wife, “her executors, administrators or assigns. ’ ’ Mary Teepen died in 1898, leaving a last will in which the material clause was as follows: .

“Second: Subject to the payment of my debts, should there be any, I give, devise and bequeath all my property, both real and personal of which I may die seized, to my husband, Herman Teepen, to him and his heirs forever.”

Herman Teepen was appointed executor, and duly elected to take under this will. He settled the estate and filed his final account. Nothing was done by him in this administration or account in regard to this insurance policy. After the death of Herman Teepen in 1911, the plaintiff in error was appointed administrator de bonis non with the will annexed of Mary Teepen, and collected and now holds the proceeds of such insurance. Defendant in error was appointed administrator of Herman Teepen and filed a claim on behalf of his estate with said administrator de bonis non of Mary Teepen by virtue of the clause in her will above quoted, and demanded payment to him of the proceeds of said insurance, which being refused this action was brought in the court below.

A demurrer to the petition was overruled. An answer was then filed which alleged that Herman Teepen procured said insurance with the intention of himself and of his wife to make provision for his .wife and children, and if not, such proceeds would go to and become the property of their children to be exclusively for their benefit; that such insurance was taken out in contemplation of Sec. 9398 G. C., for the purpose of creating a fund and separate estate for said wife and children independent of said Herman Teepen and his creditors, and that it was not the intention of Mary Teepen by her will to invest any estate or interest in the proceeds of said insurance in her husband because it could not be collected until after her death. A demurrer to this answer was sustained.

The question to be determined is whether Mary Teepen had such a vested interest in the insurance policy that it would pass under the terms of her will to her husband, or whether by virtue of Sec. 9398 G. C., it was limited to her children.

There is no question but that the words of Mary Teepen’s will are sufficiently broad to include every interest in property vested in her at the time of her decease. As the beneficiary named in the policy she obtained a vested interest in it the moment it was issued, and it continued to be her property up to the time of her decease. Bliss, Life Insurance (2 Ed.) Sec. 318; Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 156 [5 N. E. 417; 58 Am. Rep. 806]; Union Central Life Ins. Co. v. Buxer, 62 Ohio St. 385, 390 [57 N. E. 66; 49 L. R. A. 737]; Washington Central Bank v. Hume, 128 U. S. 195 [32 L. Ed. 370; 9 Sup. Ct. 41] ; Marsh v. Supreme Council American Legion of Honor, 149 Mass. 512 [21 N. E. 1070 ; 4 L. R. A. 382].

After her death, as it was written to her and “her executors, administrators or assigns, ’ ’ her executor became the owner for the purpose of administration under the terms of her will. The fact that it had not then matured and that under the will it passed to her husband who was himself the insured, can make no difference. It would become his property for the benefit of his estate. Nor was it necessary for him as executor of her estate to make a formal assignment of the policy to himself in the settlement of her estate, although that might have properly been done.

It is true that under the terms of Secs. 9398 and 9399 G. C. this policy might have been made payable to and written for the benefit of the wife and children, instead of, as it was, to her and her executors, administrators or assigns. In that event, it would have gone to the children after her death. Or, she might have bequeathed it by her will to her children instead of to her husband. Either plan would have accomplished the intention for which plaintiff in error contends. But the policy was not solely to her, but to her “and her executors,” etc., and giving the broadest construction possible to the sections of the statute relied upon, they would not prevent her disposition of it by her will.

The history of the legislation now embodied in these sections shows that it was enacted before the married woman’s enabling act, for the purpose of permitting insurance for the separate estate of a married woman for her benefit and that of her children, free from the debts of her husband.

It is not necessary to say more as the questions involved have been fully considered in the opinion of the court below.

The judgment is affirmed.

Jones, E. H., and Gorman, JJ., concur.


source: Caselaw Access Project

author: POLLOCK, J.

license: Public Domain

text:
    VENDOR AND PURCHASER.
    [Mahoning (7th) Court of Appeals,
    October Term, 1917.]
    Pollock, Metcalfe and Parr, JJ.
    James L. Sause v. Catherine Ward.
    1. Holder of Equitable Title not Protected Against Prior Equities.
    A party having an equitable title to real estate, though not the legal title, is not protected as a bona fide purchaser without notice of prior equities. In order to be protected against prior equities he must have acquired the legal title and parted with the consideration therefor prior to notice.
    2. Specific Performance May Be Enforced by Holder of Senior Equitable Title, But not Against a Junior Holder of Such Title When Holder of an Option Acquires the Equitable Title.
    A senior equitable owner of real estate may enforce specific performance of a contract for conveyance of such property against both the party having the legal title and a party holding a like junior equitable title, notwithstanding the latter was acquired without notice of the prior, equitable title.
    S. Option to Purchase Real Estate not Sale nor Conveyance,of Title.
    A written optional contract for a nominal consideration given by the owner to sell his real estate is not a sale thereof, but only a standing offer to sell to the person and at the price named within the time stated in the contract, and the optionee does not acquire any title to the real estate unless'he accepts the offer prior to its expiration.

      4. Holder of Option Acquires Equitable Title on Acceptance of Contract.
    After the offer has been accepted by the optionee the contract Is binding upon both parties, and he has the equitable title thereto.
    Appeal.

      Henderson, Wickham & Maiden, for plaintiff.

      Fillius & Fillius, for defendant.
   POLLOCK, J.

The plaintiff claims that he entered into a contract with the defendant Catherine Ward, for the sale to him of a certain tract of real estate which is described in the petition; that upon demand she refused to convey this property to him as the contract required; that afterwards she conveyed the property to her eodefendants, said defendants accepting' said deed with full knowledge of the equities of plaintiff, and he asks that the defendants be required to reeonvey the property to him.

On November 15, 1916, it is alleged Catherine Ward was the owner of the tract of land described in the petition; that on that date she entered into a written contract with the plaintiff by which, for the consideration of one dollar, she gave to plaintiff the right to sell this property as her agent for the sum of $10,000. This contract was to continue for six months from its date, and for such further period as might elapse prior to a revocation in writing by said first party. The contract also contained the provision that Sause should have the option to purchase said property, at the price above stated, at any time during the life of the contract.

After entering into th's contract, Sause endeavored to sell the property until about February 13, 1917, on which date Catherine Ward, through her codefendant, G. B. Purdun, as her agent, sold the property to the other codefendant, Isaac B. Howells, and entered into a written agreement therefor; said Howells paying upon the purchase price $1,000.

The testimony shows that Purdun had knowledge of the contract with Sause, but there is no testimony showing that Pur-dun had any other interest in the sale of this property except to act as agent Por M:ss Ward; and the testimony does not show that Howells had any notice or knowledge of the contract with Sause at the time he entered into this written contract with Miss Ward.

Afterwards, on March 20, 1917, Miss Ward conveyed this property by warranty deed, in accordance with her contract, to Howells. After February 13, and before March 20, 1917, Sause elected to become the purchaser of this property under the option contained in his contract with Miss Ward, and notified her of that fact. She infused to convey the property to Sause.

The testimony shows that Sause at that time knew that she had entered into a contract for the sale of this property with 1 To wells. At that time he notified Miss Ward that he was ready and willing to comply with the conditions of the contract, and demanded that she convey the property to him by proper deed. Sause did not make any tender of the purchase money for the reason that Miss Ward positively refused to carry out the agreement.

After electing to purchase this property and notifying Miss Ward, and before the deed was made conveying the property to Howells, Sause notified Howells, of his interest in the property, by showing him his contract with Miss Ward, and informing him that he had elected to purchase the property under the option in the contract.

Under these facts the question arises whether Sause has a right to a decree of specific performance, and an order requiring Howells to convey this property to him, the purchase money to be used to protect the rights of Howells.

Howells, at the time he was notified of the optional contract of Sause, had a written contract of sale of this property, and had paid thereon $1,000, but did not have the legal title, only a written contract capable of being enforced in a court of equity compelling specific performance.

A party having only an equitable title to real estate, and not the legal title, is not protected as a bone -fide purchaser without notice of prior equities. In order to be protected against prior equities he must have acquired the legal title and parted with the consideration therefor prior to notice. Elstner v. Fife, 32 Ohio St. 358; Brinton v. Scull & Johnson, 55 N. J. Eq. 747 [35 Atl. 843]; Dean v. Anderson, 34 N. J. Eq. 496.

Between parties holding equitable titles to real estate, the one having the prior equity can enforce in a court of equity the specific performance of the contract by his grantor, against the party holding the junior equitable title. Woods v. Dille, 11 Ohio 455; Anketel v. Converse, 17 Ohio St. 11 [91 Am. Dec. 115].

"Whether Sause or Howells has the prior equity to this land depends upon when Sause first acquired an equitable interest.

The written contract entered into between Miss Ward and Sause is as follows, so far as it refers to the question now before us:

<<# * # £or ancj jn consideration of the sum of $1, the receipt of which is hereby acknowledged by said party, the said first party has this day placed in the hands of the said second party the property described in the reverse side hereof, and does hereby constitute and appoint the said second party, her agent, with the exclusive right to sell said property for the sum of $10,000, or such sums of money as may hereafter bq agreed upon, the purchase price to be paid as follows:
“* * * this agreement shall be in force for six months from its date and for such further period as may elapse prior to revocation in writing by said first party; the said second party shall have the option to purchase said property at the price above stated at any time during the life of this contract.”

This is a contract of agency with the further provision that the agent at his option may become the purchaser. Before Sause had made a sale of this property to anyone or had elected to become the purchaser himself, Howells acquired an equitable interest in the property. Whether Sause had a prior equitably title in this property depends upon the legal effect of his optional contract given by Miss Ward to him to purchase the real estate within the life of the contract at the price named therein.

A written optional contract for a nominal consideration given by the owner to sell his real estate, is not a sale thereof, but only a standing offer to sell to the person and at the price named therein, if accepted within the time stated in the optional contract. The option confers no right to the optionee in the real estate but it is only a sale of a right to him to become the purchaser upon the acceptance thereof within the time stated. Until the acceptance of the offer according to the terms thereof, it does not ripen into a sale of the real estate or become a completed contract for the sale thereof between the parties. It is only after the optionee has accepted the option that he becomes the equitable owner of the property, and can compel specific performance of the contract in a court of equity. Bostwick v. Hess, 80 Ill. 138; Willard v. Taylor, 75 U. S. (8 Wall.) 557 [19 L. Ed. 501]; Barnes v. Rea, 219 Pa. 279 [68 Atl. 836]; Hopwood v. McCausland, 120 Iowa 218 [94 N. W. 469]; Knott v. Thomas 180 S. W. 1114 (Tex. Civ. App.); Western Security Co. v. Atlee, 168 Iowa 650 [151 N. W. 56].

This contract gave Sause the right to convey the equitable title to some one else, or to become the equitable owner himself, but it did not convey any title to the land. The contract was not a sale of the land, but an agency to Sause to sell the property and an option to him to become the purchaser of it. After his election to become the purchaser under this option, he had the equitable title, and either he or Miss Ward could have asserted it against the other in an action for specific performance.

As Howells’ equitable ownership is prior to the time that Sause notified Miss ward of his election to purchase the property under the option, it follows that Sause is not entitled to specific performance in this action, and his petition is dismissed.

Exceptions noted.

Metcalfe and Farr, JJ., concur.


author: GORMAN, J.

text:
    HUSBAND AND WIFE.
    [Hamilton (1st) Court of Appeals,
    December 3, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Frank A. Dillingham v. Viola Dillingham et al.
    Order for Appointment of Receiver to Preserve Property of Married Woman as Against Her Husband not Authorized.
    Section 12001 G. C., providing for an injunction against a husband upon petition of his wife, restraining him from wasting or squandering or converting to his own use property held by her and him in his and her own right, has no application to women married since the passage of the married woman’s act of 1887. As to such women said actfis obsolete, and an order appointing a receiver to manage and control the separate property of a woman married since 1887 is without force or effect.
    Error.

      Dickerson, Black & Dickerson and J. W. Peck, for plaintiff in error.

      Littleford, James, Ballard t(; Frost, contra.
   GORMAN, J.

The defendant in error on April 25, 1917, commenced an action in the common pleas court of Hamilton county against the plaintiff in error, Frank A. Dillingham, her husband, making the Market National Bank, Louis G-. Pochat, the Security Savings Bank & Safe Deposit Company and Anna M. Maloney parties defendant. Her action was brought under Sec. 12001 G. C., under favor of which section she alleged in her petition that she and Frank A. Dillingham were married on November 10, 1908; that she is entitled in her own right and is the owner of a part of and share in the business carried on in the name of Frank A. Dillingham in the city of Cincinnati, which business is that of the manufacture and sale of a proprietary medicine called “Plant Juice,” which is now and has been widely and extensively sold in drug stores throughout the entire United States. She further says that her husband, from habitual intemperance and profligate habits is about to waste and squander Ihe said property and business and the profits thereof, to a part of and a share in which she is entitled in her own right; and that he is proceeding to and is about to proceed to fradulently convert the entire business and profits therefrom to his own use for the purpose of placing them beyond her reach and depriving her of their benefit. She further averred in her petition that the other defendants, the Market National Bank and others, have in their possession and under their control certain moneys and property belonging to said business, to a part of which she is entitled in her own right. She prays in her petition that a temporary restraining order issue restraining the defendant from disposing of or otherwise interfering with the said business, its moneys or credits, choses in action or property, and restraining the defendant from in any way transferring, delivering or turning over to any person whomsoever any money, property or security in their hands in the name of or being held for Frank A. Dillingham, or the Dillingham business, or the Plant Juice business. She further prays for a restraining order against the other defendants from permitting Dillingham or any other person from having access to any safe deposit box in the name of Frank A. Dillingham or the Dillingham business or the Plant Juice business, until further order of court. And she prays for a further restraining order restraining Anna M. Maloney from permitting Frank A. Dillingham to in any wise interfere with or dispose of the said business or any of the property, moneys, credits and choses in action of the said business, and from paying over or delivering to said Dillingham any moneys or the equivalent thereof arising from the proceeds or profits of the above described business. And she further prays that upon a final hearing the temporary restraining order asked for may be made permanent. She further prays the court to appoint a receiver to manage and control the above described business for the benefit of herself, and prays the court to make such other order in the premises as it deems just and proper.

Upon the filing of this petition the court made an order dispensing with the giving of notice to the defendant, as required by the rules of court upon the application for a restraining order, upon the grounds that the giving of the notice would defeat the purpose of the injunction. Defendant, Dillingham, was not in the jurisdiction of the court, and notice was published for him according to the law.

Upon the day of the filing of the petition a temporary restraining order was issued as prayed for in the petition, and the business carried on in the name of Frank A. Dillingham was thus prevented from being sold, disposed of or carried on.

Two days after the filing of the petition, without the presence of the defendant and without any service being made upon him, the court of common pleas appointed a receiver of the business described in the petition, and in the entry appointing the receiver it was recited that Messrs. W. W. Dickerson and Robert Black appeared in court as the attorneys of Frank A. Dillingham. The court fixed the amount of the receiver’s bond at $30,000 and ordered the entire business and assets of Dilling-ham to be placed in the hands of the receiver and directed the receiver to carry on the business and employ the necessary help and purchase the necessary material therefor, and to do all things necessary to prosecute the business. Publication of constructive notice for Dillingham was then made, as required by law-.

Counsel for Dillingham filed a petition in error in the court of appeals, from the judgment appointing the receiver, said cause being numbered on the docket of this court No. 1101. Upon application for a stay of execution in this court an order was made staying the appointment of the receiver upon the defendant Dillingham giving bond in the sum of $50,000, and further proceedings in the common pleas court were thereupon stayed.

Thereafter in the common pleas court a hearing was had at great length. A great mass of evidence was adduced before the court, and on July 31, 1917, the court reappointed Frank C. Zumstein receiver of all the business, property and assets of the Dillingham business and of Frank A. Dillingham, and the Plant Juice business. No other relief was asked in the petition except an injunction to restrain the defendant Dillingham from, disposing of the property and restraining the other defendants from permitting any of the property in their hands belonging to Dillingham to be taken and disposed of; and the further prayer for the receiver.

In the first appointment by the conrt of‘common pleas the receiver was designated as a temporary receiver; the last appointment merely provides for the appointment of a receiver without any limitation as to the time of the receivership, and without any reservation for any further order of court. The predicate upon which the court based this order for the appointment of the receiver was that Dillingham, plaintiff’s husband, had been wasting and squandering and was about to ■waste and squander the assets and profits of the said business, one-half of which belonged to the plaintiff, by reason of habitual intemperance and profligate habits, and was proceeding to and was about to proceed to fraudulently convert the half of the said business and profits aforesaid, belonging to the plaintiff as aforesaid, to his own use for the purpose of placing them beyond the reach of the plaintiff and depriving her of their benefit. And the court further found that all of the allegations of the plaintiff’s petition were true and that the plaintiff was entitled to the relief prayed for in her petition. The receiver was authorized and directed to carry on the business, employ all the necessary help, purchase all the necessary materials, and to do all things necessary to carry on and promote the business, and to take charge of all the property, and out of the profits thereof to pay one-half to the plaintiff Yiola Dillingham. And all persons having any property or choses in action in their possession belonging to said Frank A. Dill-ingham or to the business, were directed to turn over the same to the receiver. The order was quite a sweeping one, and dispossessed Dillingham entirely of any dominion or control over the property or business, and placed it in the hands of the receiver without limit as to time, and without limit as to authority to carry on the business.

Dillingham excepted to this order, and prosecutes error to this court in proceeding No. 1171 on the docket of this court.

We have, therefore, two error cases in this court growing out of the original litigation brought by the defendant in error.

It is unnecessary to state anything further with reference to the first case, No. 1101, inasmuch as the purpose of that proceeding was merely to stay the execution of the judgment entered in the common pleas court appointing a receiver temporarily. That proceeding having been stayed, all the matters necessary to be considered in this error proceeding will be considered in the l'ast proceeding brought herein, No. 1171.

It appears from the record in the ease that previous to the bringing of this action in the common pleas court for the appointment of a receiver and for an injunction to restrain Dillingham from disposing'of the property, the defendant in error, Viola Dillingham, brought an action in the common pleas court, in the division of the court of domestic relations, praying for alimony, against the defendant Frank A. Dilling-ham. This suit was filed in the court of domestic relations September 16, 1916, more than seven months before the commencement of this action for the appointment of a receiver. In her petition in the; common pleas court, division of domestic relations, plaintiff set out, inter alia: that the defendant had for many years been engaged in the manufacture in the city of Cincinnati of a proprietary medicine called “Plant Juice,” which is widely and extensively advertised and sold in drug stores throughout the entire United States. She averred that defendant was possessed also of large quantities of valuable stocks and bonds and also of a very large number of extremely valuable diamonds and other personal property. She also set out in this petition for alimony that defendant had been guilty of wrongdoing in many places throughout the United States, and that he had been guilty of gross neglect of duty and that he had remained away from the plaintiff for a long time and refused to communicate w'th her. She further alleged that he had been guilty of habitual drunkenness for a number of years past. She averred that he had an interest in the business of the manufacture and sale of said proprietary medicine known as Plant Juice, and that he was about to dispose of and encumber same so as to defeat her from obtaining alimony. She prayed for temporary alimony during the hearing of the cause, and for her expenses during the prosecution of this suit; and that upon a final hearing a reasonable alimony be allowed out of the property of said Frank A. Dillingham. She further asked that an injunction issue restraining Dillingham from disposing o£ any property or of the business known as “Plant Juice.”

A temporary restraining order was issued by the judge oE the court of domestic relations without bond.

In no place in the petition of the plaintiff for alimony did she aver that she had any interest in the business known as “Plant Juice,” but if she does not state specifically that the business and property belonged to the husband, Frank A. Dillingham, the averments of the petition would lead one to infer that she claimed he was the owner of this business and that she had no interest therein except as the wife of Frank A. Dilling-ham.

The question to be determined in this case turns upon the ■construction and application to the facts in this case of Sec. 12001 G. C. That section reads as follows :

“A married woman may file a petition in the common pleas court, setting forth that from habitual intemperance, or other cause, her husband is about to waste and squander the property, legal or equitable, money, credits or choses in action, to which she is entitled in .her own right, or a part thereof, or is proceeding, or about to proceed, fraudulently to convert them, or a part thereof, to his own use, for the purpose of placing them beyond her reach, and depriving her of their benefit, whereupon the court may enjoin him from disposing of, or otherwise interfering with, such property, money, credits or choses in action, appoint a receiver to manage and control them for the' benefit of the wife, and also make such other order in the premises as it deems just and proper. On filing the petition, a provisional injunction also may be allowed as in other cases, with or without bond at discretion. Such petition shall be filed in the county where the petitioner resides, and the husband made a party defendant, as in the case of a petition for a divorce.”

It is claimed by plaintiff in error that under this section the common pleas court has power and authority to appoint a receiver not only for the property owned by the wife in her own right, but also for the property of the husband if the same is in any way joined with that owned by the wife.

At the outset we may say that a careful consideration of the evidence in this case satisfies us that it is not sufficient to establish the ownership of Viola Dillingham to any of the property claimed by her in the petition filed in the court of common pleas. We think the evidence is insufficient to establish her ownership and title to any of the property. The business was established by Dillingham many years ago. She claims that in 1912, at Houston, Texas, her husband orally told her that he would give her a half interest in the business. It is claimed that this statement of the husband was heard by a man by the name of Briscoe, who was acting in the capacity of a private secretary for Mrs. Dillingham. Briscoe on the witness stand testified that he heard this conversation; but the facts and circumstances of his employment and service with the Dillinghams would lead us to believe that he was not present at the time the wife says this conversation took place. Furthermore, it was shown on the trial of the case that Briscoe had been convicted twice, at least, in the courts; and upon being questioned as to his conviction he denied it. But the proof adduced by counsel for Dillingham established his conviction. Pending the hearing of the case after this proof was adduced Briscoe fled the state and has not since been heard from. More than a year after the time when the wife claims that Dillingham gave her a half interest in this property, she wrote him a letter while he was in San Francisco. This letter is dated March 17, 1913. In this letter, among other things, she says:

“This is another holiday, but holidays come and holidays go and I never know anything about them. It is getting to be rather a treadmill sort of thing, not that I mind that in the least if I was getting anything out of it. I like to work and would not mind the daily grind, also evenings and Sundays, too, if I had any sort of share in it. Of course I do not know the workings of your brain, but it seems to me the many protestations of your love, etc., lack any convincing weight. I am giving every minute of my waking hours to the business; it seems only fair that I should share equally.”

The husband denied that he ever had such conversation with her as that testified to by her, and the evidence disclosed that she never drew any money from the business, except upon Dil-lingham’s order and Dillingham’s checks. She had nothing to do with establishing the business; none of her individual or private property or funds went into the business, and the conduct of Dillingham and the conduct of the business, the, testimony of numerous witnesses, the letters that passed between the parties, and the conduct of Mrs. Dillingham herself appear to us to conclusively rebut the claim that she was given an interest in this business.

But, assuming for the purposes of the ease that the facts in the ease do establish that she was given an interest in this business, then we are to consider whether or .not under Sec. 12001 the court of common pleas was authorized and warranted in appointing a receiver for this entire business because the wife was an owner of one-half interest therein.

It will be interesting to trace the history of See. 12001 G. O. This section appears under the subdivision of Divorce and-Alimony, Chapter 3, Div. 7, Title 4, of the General Code of Ohio, and it has been placed in this chapter and subdivision since the codification in 1880. It appears to have been considered by the codifier, and also by the legislature when it passed this enactment, as a proper proceeding under the chapter for divorce and alimony.

Under the constitution in 1802 there "was no provision made for divorce and alimony, and it was the practice during the early days of the legislature for that body to pass a special act providing for the divorce of married people. The Supreme Court in the ease of Bingham v. Miller, 17 Ohio 445, finally called a halt on this practice by holding that the granting of divorce by the legislature was a usurpation of judicial functions by that body.

On January 6, 1824 (22 O. L. 341), the general assembly passed on act concerning divorce and alimony and vested in the Supreme Court of the state sole jurisdiction of granting divorces when any cause existed for a divorce as mentioned in that act. There was also a provision made in the act for the custody and maintenance of children and the allowance of alimony in a proper ease. There was no provision for a suit for alimony independent of an action for divorce.

On March 6, 1840 (38 O. L.), the legislature passed another act concerning divorce and alimony, and repealed the act of January 6, 1824. In this latter aet of 1840 the Supreme Court was again given sole cognizance of granting divorces for the causes enumerated in the act; but there was no provision made for alimony independent of the action for divorce and alimony; Tn other words, alimony could be granted in a divorce proceeding but not in a separate proceeding.

On March 2, 1846, the legislature passed an aet to amend the act concerning divorce and alimony, passed March 6, 1840 (44 O. L. 115). This act was the original progenitor of Sec. 12001 G. C. It reads as follows:

“Be it Enacted by the General Assembly of the State of Ohio, That any married woman, by her next friend, may file her bill in chancery in the Supreme Court, or court of common pleas, setting forth that her husband, from habitual intemperance, or any other cause, is about to waste and squander the property to which he is entitled in her right” (italics by court), “or any part thereof, or is proceeding fraudulently to convert the same to his own use, for the purpose of placing it beyond her reach, and depriving her of the benefit thereof; and the court, upon the hearing of the case, may enjoin the husband from disposing of, or otherwise interfering with such property, and may appoint a receiver, to manage and control the same, for the benefit of the wife; and may also make such other order in the premises as they may deem just and proper. ’ ’

Some slight changes have been made in the verbiage of this act in the codification of 1880, the most important change being that whereas in the original act the property mentioned is that ‘'‘to which he is entitled in her right,” by the codification of 1880 that language is changed so as to read, “the property, legal or equitable, money, credits or ehoses in action, to which she is entitled in her own right.”

Manifestly the purpose of this aet of 1846 was to protect a married woman in the enjoyment of her own separate property. The rule of the common law at that time prevailed in Ohio, that a woman upon her marriage lost her entire entity; her existence and her life were merged in that of her husband. He was everything; she was nothing. She lost her name; all of the personal property which she had in her own right, and her own name became his except ehoses in action, and they became his whenever he saw fit to reduce them to his possession. She had no right to bring an action in her own name except as provided by statute. She could not enter into any contractual relations. She could not sell or dispose of her property without her husband’s consent and without him joining with her. Her personal earnings belonged to her husband and he could subject them to his possession.

But this had been the state of the law from time immemorial. Not only did her person belong to her husband, but all her property. She was as much a slave as though he had bought and paid for her and owned her absolutely, and all her belongings.

The legislature from time to time, during these middle and dark ages of Ohio, was endeavoring to ameliorate to some degree the condition of the married woman; and it is evident that the purpose of this legislation was to give her some benefit and enjoyment of her separate estate — the property that came to her either by inheritance or gift, or by her own earnings when she. was a femme sole — and to prevent an intemperate and wasteful husband of dissipating her property and depriving her and her children from the benefits thereof. She could not bring a suit in her own name at that time, as the act plainly shows, but it would have to be brought by her next friend; and it had to be brought in chancery, in the Supreme Court or the court of common pleas. No one will question the justice and equity of this humane provision of the legislature for the protection of the married woman. This act continued to be the law down to the present time, with the exception that now she may bring an action in her own name and is not obliged to resort to her next friend.

In March 24, 1851 (49 O. L. 102), jurisdiction was conferred upon the courts of common pleas of the state to grant alimony independent of divorce, for the several grounds set out in the act, and it is provided therein that the proceedings in an action for alimony shall be conducted in all respects as in cases for divorce. This is the first time courts of common pleas were given jurisdiction to hear and determine actions for alimony independent of actions for divorce.

On March 11, 1853 (51 O. L. 377), the legislature passed an act concerning divorce and alimony, which act was to take the place of all the previous acts relating to divorce and alimony. In this act, under Sec. 14, is set out the provision of the act relating to a married woman bringing an action for the appointment of a receiver for her separate property. The language of Sec. 14 is substantially the same as the language employed in the original act, passed March 2, 1846, with this exception: it relates to property, moneys and credits to which she is entitled in her own right. The legislature having changed the phraseology from the language employed in the original act as being property to which he was entitled in her right, recognized evidently that it was her property to which she was entitled in her own right, and related to her separate property. This act repealed all previous acts touching divorce and alimony and also the act providing for an action fór a receiver of the wife’s separate property; but the new act embraces not only all the matters covered by the previous legislation on the subject, but additional legislation also.

■ This act was again amended April 15, 1857 (54 0. L. 131). Section 14 of the original act — now See. 120.01 G. C. — was not changed or amended by this act.

From 1857 to 1880 there was no change made in the divorce and alimony statutes.

In 1880 the codifying commission collected all these previous provisions relating to divorce and alimony under Chapter 6, Title 1, Division 7 of the Revised Statutes, Secs. 5689 to 5706 inclusive. In this chapter is found Sec. 5705, which was originally Sec. 14 of the act of March 11, 1853, and is Sec. 12001 G. C., as it now exists.

No change was made in this section from 1880 down to the present time, and the codifying commission of 1910, and the legislature which adopted and ratified the acts of the commission, left it substantially as it was then in force.

In 1880 when the codifying commission collected all the laws relating to divorce and alimony, it was necessary to retain Sec. 12001 G. C., because at that time a married woman could not sue or be sued in her own name; she could not hold her own property in her own name, although the legislature at that time had made quite an advance in emancipating woman from the enthrallment of her husband.

In 1887, an act was passed which practically emancipated a woman from the control of her husband. She has since that time a right to contract and be contracted with as though unmarried; she has a right to hold in her own name and for her own use all her separate earnings acquired by her, or by inheritance, or by gift, or in any other legal manner, and is free from the rights of her husband and from his control and subjection as to all of her property. She has a right to enter into business as though unmanned, and in any manner to enter into any obligation she may desire, as though she were a femme sole; she can not by contract between herself and husband change the legal status of their married relations. See Secs. 7996 to 8004 G. C., Title 6, Chapter 1, Domestic Relations. The only interest he has in her property during her life is a contingent right of dower in her real estate.

The state of the law at the present time, therefore, is that the separate property of a married woman is not in possession or under control of the husband unless she sees fit to give it to him. We think the proper construction to place upon Sec. 12001 G. C., is that it was for the protection of married women at a time when they had no right to hold their own separate property and no right to bring an action in their own names, or to make contracts in their own names; but since the passage of the married woman’s act, in 1887, there is no occasion for the use of Sec. 12001, except for the purpose of preserving such property of a married woman as came to her husband by marriage prior to the passage of the married woman’s act of 1887. The codifying commission of 1880, and the commission of 1910, no doubt retained this section of the Revised Statutes in the Gen-oral Code because they realized that there was at those times and there still may be eases in which a woman was married prior to 1887 and brought to her husband personal property and choses in action which was her separate property and which by marriage passed to his dominion and his possession and control; and in order to protect her in the enjoyment of her rights in those properties this section is retained in the statute laws of the state.

It has no application, in our opinion, to the cases of women who have married since the passage of the married woman’s act in 1887, because since that time no condition can arise whereby an action could be brought in the court of common pleas under See. 12001 G. C., by a woman who has married since the passage of the act of 1887. So far as women who have been married since the passage of the married woman’s act in 1887 are concerned, this section is obsolete and can have no application to them or their affairs. It would be unnecessary for such a woman to bring such action. In fact, she could not set out a state of facts which would confer upon the court jurisdiction to bring an action, because her property would not pass to her husband by her marriage, as it did before the passage of the married woman’s act of 1887.

In the case before the court Mrs. Dillingham claims that she has separate property in a one-half interest in this business, and that this was acquired in 1912. It was not acquired by her prior to 1887, and therefore there appears to be no reason for the application of the rules laid down in Sec. 12001 G. C. If she has an interest in this property she may bring an action against her husband to secure this interest without having a receiver appointed. If she were a partner she could come into court and ask for a dissolution of the partnership, a winding up of the business and the appointment of a receiver to take charge of the business and sell it for the benefit of the partnership. The record does not disclose a state of facts which would warrant the court in the application of Sec. 12001 G. O.

We hold that this section can apply only to cases of married women whose property passed into possession of their husbands prior to the passage of the married woman’s act in 1887, and whose husbands took possession of their property by virtue of the rules of common law, before the wife was emancipated from the husband.

In any event the court of common pleas was not warranted in appointing a receiver for Frank A. Dillingham’s property under Sec. 12001 G. C. There is no warrant or authority under this section for taking the husband’s property out of his hands and placing it in the hands of a receiver’. The only warrant and authority under that section is for the appointment of a receiver for the wife’s property. Even if the court were authorized to appoint a receiver under See. 12001 it exceeded its authority in appointing a receiver for the entire property— the husband’s property as well as that claimed by the wife.

It appears from the record in this proceeding that while this ease was pending in the court of common pleas, and before the judge of the court of common pleas who heard the matter 1 ook up the consideration thereof, counsel for Dillingham, plaintiff in error, made application and motion to the court to send the cause to the judge presiding in the court of domestic relations for the reason, as he claimed, that there was at that time pending an action for alimony, and that all the relief prayed for in this ease could be granted by the judge of the court of domestic relations, in the alimony case. It appears from the record that the judge refused to send the cause to the judge presiding in the court of domestic relations; and it further appears from the record that the judge who presided in the court of domestic relations was of the opinion that he had no jurisdiction to hear and determine this action.

The view we take of this matter is that the judge of the court of common pleas presiding in the court of domestic relations should have taken this case and heard and determined it. This See. 12001 G. C. is a part of the chapter relating to divorce and alimony, and in view of the fact that the judge of the court of common pleas who presides in the court of domestic relations has jurisdiction and special authority from the legislature to hear and determine all matters relating to divorce and alimony, this case should have been sent to that particular judge.

We think it was error on the part of the common pleas court judge who heard this case not to have sent the cause to the judge presiding in the court of domestic relations; but we aré in doubt as to whether or not such error was so prejudicial as to warrant a reversal of the judgment, if there were no other errors in the record.

For the reasons above stated the judgment of the court of common pleas, will be reversed.

Jones and Hamilton, JJ., concur.


author: CHITTENDEN, J.

text:
    EVIDENCE — NEGLIGENCE.
    [Lucas (6th) Court of Appeals,
    February 5, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    Josiah B. Hartman v. Toledo Rys. & Light Co.
    Circumstantial Evidence of Habit of Person Rejected When Primary Evidence of Fact is Available.
    Evidence of the habit of a person being circumstantial and secondary in character, its admission is largely within the discretion of the court, and when there is primary evidence of a fact desired to be proven, there is ordinarily no necessity for resort to secondary evidence to establish the fact, and in the absence of some necessity for the introduction of such evidence to meet some exigency of proof, it will be rejected.
    [Syllabus by the court.]
    Error.

      C. H. Masters and Kohn, Norihrup & McMahon, for plaintiff in error.

      Tracy, Chapman <& Welles, for defendant in error.
   CHITTENDEN, J.

The plaintiff brought an action to recover damages because of personal injuries- claimed to have been sustained through the negligence of the defendant. The jury returned a verdict in favor of the defendant and- judgment was entered thereon. A reversal of this judgment is asked in this court on the ground that certain material evidence offered on behalf of the plaintiff was excluded by the trial court.

On November 8,1913, the plaintiff was a passenger upon one of the cars of the defendant company. The plaintiff claims that when he was within about a block from the place where he desired to alight, he step into the front vestibule of the car preparatory to leaving the ear when it should make a stop at the street where he desired to get off. He alleges that when he entered the vestibule of the car the motorman operating the car, “intentionally, negligently and carelessly struck and pushed him with great force so that he was violently thrown from said car upon the brick pavement and while the ear was still in motion,” and that as a result thereof he received the injuries for which he seeks to recover. It is shown by the evidence that the plaintiff was formerly an employe of the defendant and a friend of the motorman operating the car.

The plaintiff testifies, in substance, that when he went into the vestibule he was struck on the neck by the motorman and was thereby thrown from the car. The testimony of one other witness was to the effect that thereafter she heard the motorman say that he didn’t mean to push that man off and it was only an accident if he did push him off. Another witness testifies that he heard the motorman say, “I didn’t mean to hit him.” The defendant offered the evidence of the motorman who denied that he struck, slapped or pushed the plaintiff, and denied making the statements attributed to him, and said that he saw a shadow which caused him to believe that the plaintiff was falling, and that he attempted to reach him to prevent the fall but was unable to do so. The defendant also' offered the evidence of several eye-witnesses who testified that the motorman did not slap, strike or push the plaintiff, but that the plaintiff evidently lost his balance as the ear was passing through a curve of a switch, and that as he began to fall the motorman reached out with the evident intention of attempting to prevent him from falling.

The plaintiff when putting in his evidence in chief undertook to prove that the motorman had a general habit of slapping or striking liis friends and acquaintances when speaking to them. One witness who had known the motorman for several years was asked this question: “You may state what you have observed Humphries (the motorman) do while he was running the ear and you were conductor on it, in slapping persons upon the baek or other parts of their person when speaking to them.” The objection to this question was sustained. Counsel for the plaintiff stated to the court that he claimed the evidence was competent in corroboration of the act of the motorman complained of, and offered to prove by the witness and other Witnesses that this motorman’s general habit and custom, both while operating his car and at other times while off duty, was to slap or strike a man at times very hard when speaking to him. It is claimed that the exclusion of this evidence was erroneous and prejudicial to the rights of the plaintiff.

In support of this contention counsel for plaintiff quote from the opinion of the Supreme Court of Ohio in the case of Rumbaugh v. McCormick, 80 Ohio St. 211 [88 N. E. 410], found upon page 217. The language quoted and said to be applicable to this ease consists of a quotation from Wigmore on Evidence, See. 68, and is as follows:

“The character or disposition of an animal is no less relevant than that of a human being, as indicating his probable conduct on a particular occasion, and it is open to none of the objections of auxiliary policy which affect the use of a party’s character. It is therefore commonly conceded to be admissible. The hesitation sometimes observed in the rulings has been due to the time at which the disposition is predicated in the offer; but here, as with human character, the existence of a trait at a given time is evidence that it existed also for a reasonable time before and afterwards, and within liberal limits should therefore be received.”

An examination of the case cited discloses that the Supreme Court did not have under consideration and was not discussing the admissibility of evidence of the kind and character sought to be introduced by the plaintiff in this case. In the case under consideration by the Supreme Court the plaintiff sought to re,cover damages inflicted upon a flock of sheep alleged to have been caused by a dog owned and harbored by the defendant who lived upon an adjoining farm. It was there held competent to prove that the dog had acquired the habit of attacking sheep, in support of the disputed allegation that he attacked and injured sheep on the particular occasion.

It has become quite well settled that in certain actions evidence of character and disposition is competent, and this is especially true when applied to animals. It is not claimed in this case that the motorman was of a violent or dangerous disposition or character, and the evidence sought to be introduced was not for the purpose of making any such proof. The distinction between character and disposition of individuals, and of a habit, is apparent and is made by text writers treating the subject of evidence. The quotation from Wigmore on Evidence, above mentioned, is from a paragraph treating of the character of animals,- and in the course of the paragraph quoted Mr. Wigmore refers to See. 60 of the same work which also treats of character. That author’s treatment of the subject of habit is found in Sec. 92. He recognizes that under certain circumstances a person’s habit is of some probative value. Two of the eases cited by him have more to do with the subject of custom than of habit. The other ease cited by him, State v. Railway, 52 N. H. 528, 532, more definitely deals with the subject of habit. The New Hampshire ease has sometimes been taken as the basis for a statement that habit is competent evidence. We call attention, however, to the ease of Parkinson v. Nashua & L. Ry. 61 N. H. 416. The opinion in that case begins with this statement:

“Although it is quite generally held elsewhere in actions for negligence, that evidence of other specific instances of negligence on the part of either party is not competent, because raising a collateral issue, yet in this state a different rule prevails and has become established in eases where the evidence is conflicting; and it is here held to be competent to show that the party charged with negligence had performed or omitted the same act in the same way before, as tending to show that he did or omitted the act at the time in question, on the ground that a person is more likely to do a thing in a particular way, as he is in the habit of doing or not doing it. ’ ’

The court then cites State v. Railway, supra, from which Mr. Wigmore quotes, together with other New Hampshire cases. It wall be observed that the Supreme Court of New Hampshire recognizes that the rule laid down in that state is not in accord with the current of authority in this country. Mr. Wigmore further states in Sec. 92 that:

“There is, however, much room for difference of opinion in concrete eases owing chiefly to the indefiniteness of the motion of habit or custom. If we conceive it as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs'of life a habit or custom seldom has such an invariable regularity. Hence it is easy to see why in a given instance something that may be loosely called •habit or custom should be rejected because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in most cases. Whether or not such sufficient regularity exists must depend largely on the circumstances of each ease.”

He then calls attention to the difficulties that arise in connection with such evidence because of its close relation to that of character, and of its becoming obnoxious to the rule against the use of a party’s character in civil cases.

The entire subject now under consideration is learnedly discussed in 4 Chamberlayne Modern Law of Evidence, Chap. 46, Sec. 3150.

It is obvious that evidence of habit is circumstantial and secondary in character, and is within the rule that its admission is largely within the discretion of the presiding judge. When there is primary evidence of a fact desired to be shown, there is ordinarily no necessity for resort to secondary evidence to establish that fact. Under such circumstances the introduction of secondary evidence involves the danger of misleading or confusing the jury by the raising of collateral issues. The trial court will consider this danger, together with any other circumstances affecting his discretion, in passing upon the admissibility of such evidence. 4 Chamberlayne, Modern Law of Evidence, Secs. 3154 and 3159; 6 Thompson, Commentaries on the Law of Negligence, Sec. 7883. The introduction of evidence that involves collateral issues always involves the danger of trying out not what happened on the particular occasion that furnishes the basis for the suit, but what happened on other occasions. Therefore, in the absence of some necessity for the introduction of such evidence, it will be rejected. As said by Mr.- Chamberlayne, Sec. 3198:

“In other words, where there is direct evidence to the same effect, or in general when evidence of habit is not required to meet some exigency of proof, the propriety of rejecting the evidence seems an administrative common-place in most cases.”

After further discussion of this subject in the section last cited, quotation is made from the decision of the Court of Appeals of New York in the ease of Zucker v. Whitridge, 205 N. Y. 50 [98 N. E. 209], In that case evidence of the habit of the injured person was sought to be introduced; but we are unable to see any proper distinction to be made in the principle governing the admission of habit of the injured person and of the habit of the defendant or its employes. The Court of Appeals, after an exhaustive review of the cases upon the subject and of several text books, reached the conclusion that the “weight of authority seems to be against admitting evidence of general conduct under proven circumstances to show conduct of the same kind under similar circumstances on a particular occasion, when there were eye-witnesses of the occurrence, including the person injured if he survived the accident. ’ ’ They expressly declined to express an opinion as to the competency of such evidence when there are no eye-witnesses of the event. We think proper to quote at some length from the concluding statements in that opinion:

“A question of evidence, to some extent, is a question of sound policy in the administration of the law. Sometimes it is necessary to weigh the probative force of evidence offered, compare it with the practical inconvenience of enforcing a rule to admit it and decide whether, as matter of good policy, it should be admitted. Uniform conduct under the same circumstances on many prior occasions may be relevant as tending somewhat to show like conduct under like circumstances on the occasion in question. All relevant evidence, however, is not competent. Hearsay, although relevant, is held incompetent from public policy, because there is safer and better evidence to establish the fact. Parol evidence to vary a written agreement is relevant but incompetent, because sound policy requires that the writing should be presumed to express the final agreement of the parties. So, assuming the evidence in question to be relevant, I think it should be held incompetent under the circumstances, because its probative force does not outweigh the inconvenience of a multitude of collateral issues not suggested by the pleadings, the trial of which would take much time, tend to create confusion and do little good. As was said by Chief Justice Peters in Chase v. Maine Central Ry. (supra) : ‘In many litigations, under such a test, there would arise a wager of character which would as unfairly settle the dispute as did formerly the wager of battle.’ The rule of the average life is care, or else it would not long continue, yet the average man is conscious that he is not always careful, and, hence, habit on general occasions is uncertain evidence of care on a particular occasion. It is not enough of itself to establish the fact sought to be proved and at the most simply bears upon the probability. Habit is an inference from many acts each of which presents an issue to be tried and necessarily involves direct and naturally invites cross examination. The circumstances surrounding each act present another issue, and thus many collateral issues would be involved which would not only consume much time, but would tend to distract the jury and lead 1hcm away from the main issue to be decided. From the want of previous notice the other party would not be prepared to meet such evidence, and after all the testimony of this character was in, the fact would remain that, as no one is always careful, the subject of inquiry, although careful on many occasions, might have been careless on the occasion in question.”

The circuí i court of this district reached a similar conclusion in the case of W. & L. E. R. R. Co. v. Parker, Adm’r, 29 O. C. C. 1 (9N. S. 28), and a like result was arrived at by the circuit court of the seventh circuit in Pennsylvania Co. v. Trainer, Adm’r, 5 Circ. Dec. 519 (12 R. 66). See also, Baltimore & Ohio Ry. v. Van Horn, Adm’x, 12 Circ. Dec. 106 (21 R. 337).

Tbe bill of exceptions discloses tbe evidence of several eyewitnesses of tbe accident to tbe plaintiff. We are unable to say that tbe trial court was guilty of any abuse of discretion in excluding tbe evidence tendered, even were it conceded that such evidence of habit might under some circumstances be admissible. We are furthermore of opinion that in view of the direct evidence, the probative effect of such circumstantial evidence of habit would not have been sufficient to have justified the jury in returning a verdict in favor of the plaintiff.

After a careful review of the record, and a somewhat extensive examination of authorities, we are unable to find any prejudicial error in the record, and the judgment will therefore be affirmed.