author: JONES, J.

text:
    CERTIFICATES OF BENEFICIAL INSURANCE.
    [Ross (4th) Circuit Court,
    December 8, 1906.]
    Jones, Walters and Cherrington, JJ.
    Brotherhood of Railroad Trainmen v. Jane Taylor, Admx., et al.
    Divorce of the Beneficiary of a Certificate of Beneficial Insurance Precludes her Recovery Thereunder.
    On February 23, 1901, T became a member of a fraternal beneficiary association organized under Rev. Stat. 3631-11 ef seq. (see La.n. 5809 et seq.), and secured a certificate payable at his death to Alice B. Taylor, his wife, if living; if not, to his executors or administrators in trust for his heirs at law. Subsequently, in 1903, his wife secured an absolute divorce and was restored to her maiden name. , On December 8, 1905, T died intestate, having paid all assessments up to his death and having failed to designate another beneficiary. T left surviving him the plaintiff who was his mother and only heir at law. In a suit to recover death benefits wherein the divorced, wife, the administratrix and the association each claimed the same: Held,

    (1) Certificates issued under Rev. Stat. 3631-11 et seq. (see Lan. 5809 et seq.) must be made payable to such of the classes named therein; any other designation is invalid.
    (2) Having secured a divorce subsequent to the issuance of the certificate, that fact precluded her from recovering benefits as wife or beneficiary.
    (3) Under the laws of Ohio beneficiary certificates are to be construed with reference to the status of the beneficiary at the time of payment. The words “Alice B. Taylor” in the certificate are descriptio personae and may be rejected as surplusage and the certificate is construed to mean that if there be no wife living, the benefits go to the administra-trix in trust for his heirs.
    (4) Under the laws of this state as well as by the construction made in proposition 3 hereof, said certificate neither lapses nor reverts to the association, but should be paid to the administratrix.
    [For other cases in point, see 1 Cyc. Dig., “Beneficial Associations,” §§ 47-64; 5 Cyc. Dig., “Insurance,” §§ 985-993. — Ed.]
    [Syllabus by the court.]
    Error to Ross common pleas court.
    E. J. Pinney, for plaintiff in error:
    Cited and commented on the following'1 authorities. Bacon, Ben. Soc. (Joyce) Secs, la, 2 and 3. Bacon, Ben. Soc. Secs. 51-78, 162, 243, 291a, 304, 307, 312; Joyce, Insurance Secs. 735, 741, 817, 818; Masonic Ben. Assn. v. Btinch, 109 Mo. 560 [19 S. W. Rep'. 25]; Tyler v. Belief Assn. 145 Mass. 134 [13 N. E. Rep. 360] ; Screuimen’s Ben. Assn. v. Wliitridge, 95 Texas 539 [68 S. W. Rep. 501] ; Halle v. Grand Lodge, 24 O. C. C. 717; Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408]; Arthur v. Beneficial Assn. 29 Ohio St. 557; Holland v. Taylor, 111 Ind. 121 [12 N. E. Rep. 116] ; De Silva v. Supreme Council, 109 Cal. 373 [42 Pac. Rep. 32]; American Legion v. Smith, 45 N. Y. Eq. 466'[17 Atl. Rep. 770] ; Schonfield v. Turner, 75 Tex. 324 [12 S. W. Rep. 626; 7 L. R. A. 189] ; Nieblack, Ben. Soe. & Aec. Ins. See. 164; Elsey v. Belief Assn. 142 Mass. 224 [7 N. E. Rep. 844] ; Eastman v. Belief Assn. 62 N. IT. 555; Rellenberg v. Independent Order of B. B. 94 N. Y-. 580; Order of Mut. Companions v. Griest, 76 Cal. 494 [18 Pac. Rep. 652] ; Supreme Council A. L. of II. v. Gehrenbeck, 124 Cal. 43 [56 Pac. Rep. 640] ; Warner v. Woodmen of America, 67 Neb. 233 [93 N. W. Rep. 233; 61 L. R. A. 603] ; Worley v. Masonic Aid Assn. 10 Fed. Rep. 227; Overhiser v. Overhiser, 63 Ohio St. 77 [57 N. E. Rep. 965; 50 L. R. A. 552; 81 Am. St. Rep. 612]; Knights of Golden Bule v. Ever ding, 11 Circ. Dec. 419 (20 R. 689) ; Connecticut Mut. Life Ins. Co. v. Schaefer, 4 O. F. D. 408 [94 U. S. 457; 24 L. Ed. 251] ; 97 O. L. 421 (Lan. 5809 et seq.); Brown v. Grand Lodge A. O. V. W. ,208 Pa. St. 101 [57 Atl. Rep. 176] ; Chartrand v. Brace, 16 Colo. 19 [26 Pac. Rep. 152; 12 L. R. A. 209; 25 Am. St. Rep. 235].
    W. D. Yaple, for Jane Taylor, Admix.:
    Cited and commented on the following authorities: Constitution of Brotherhood of Railrqad Trainmen, Secs. 60, 62, 63, 65, 66; Revised Statutes 630 (Lan. 1043) ; Rev. Stat. 3631-11 to 3631-23 (repealed 97 O. L. 421; see Lan.- 5809 et seq.) ; State v. Bailway, 68 Ohio St. 9 [67 N. E. Rep. 93; 96 Am. St. Rep. 635]; State v. Vorys, 69 Ohio St. 56 [68 N. E. Rep. 580] ; Thesing v. Supreme Lodge, 11 Dec. Re. 88 (24 Bull. 401) ; Earley v. Earley, 13-23 O. C., C. 618; State v. Protection Assn. 26 Ohio St. 19; Tafel v. Supreme Commandery K. of G. B. 9 Dec. Re. 279 (12 Bull. 35) ; Connecticut Mut. Life Ins. Co. v. Schaefer, 4 O. F. D. 408 [94 U. S. 457; 24 L. Ed. 251]; Overhiser v. Overhiser, 63 Ohio St. 77 [5-7 N. E. Rep. 965; 50 L. R. A. 552; 81 Am. St. Rep. 612] ; Brown v. Grand Lodge A. O. U. TP. 208 Pa. St. 101 [57 Atl. Rep. 176] ; Haskins v. Kendal, 158 Mass. 224 [33 N. E. Rep. 495; 35 Am. St. Rep, 490]; Thomas v. Grand Lodge A. O. TJ. W. 12 Wash. 500 [41 Pac. Rep. 882]; Heyman v. Meyerhoff, 16 W. N. C. 212;.Bacon, Ben. Soc. Sec. 253; Joyce, Insurance Sec. 818; Tyler v. Belief Assn. 145 Mass. 134 [13 N. E. Rep. 360] ; Sanger v. Bothschild, 123 N. Y. 577 [26 N. E. Rep. 3] ; Leaf v. Leaf, 92 Ky. 166 [‡7 S. W. Rep. 354]; Elsey v. Belief Assn. 142 Mass. 224 [7 N. E. Rep. 844] ; Schonfield v. Turner, 75 Tex. 324 [12 S. W. Rep. 626; 7 L. R. A. 189]; American Legion v. Smith, 45 N. J. Eq. 466 [17 Atl. Rep. 770]; Overhiser v. Overhiser, 14 Colo. App. 1 [59 Pac. Rep. 75]; Knights of Golden Bule v. Everding, 11 Circ. Dec. 419 (20 R. 689).
    W. W. Boulger, for Alice B. Taylor.
   JONES, J.

(Orally.)

This case [Brotherhood of Railroad Trainmen v. Jane Taylor, administratrix of Wm. Taylor, deceased, and Alice B. Taylor] came into this court on error from the court of common pleas. In that court the issues were decided upon various demurrers to the pleadings. The facts in the case were not in dispute but were all admitted by several demurrers. Briefly stated, the facts are these:

On February 18, 1901, William Taylor became a member of the Brotherhood of Railroad Trainmen, a beneficial organization organized under the laws of this state. At that time he was married-to Alice B. Taylor, and he obtained a benefit certificate payable at his death to Alice B. Taylor, his wife, if living, if not, then to his executors or administrators in trust for his heirs at law. Subsequently, in the year 1903, his wife secured an absolute divorce and was restored to her maiden name. Taylor, however, continued to pay his assessments and paid the same up until his death which occurred on December 8, 1905. He left surviving him the plaintiff in this ease, Jane Taylor, who was his mother aad his only heir at law. At no time did he make any other substitution or designation of the beneficiary other than the original one he designated when the certificate was issued to him.

Three claimants to the fund appear, each of whom claims the death benefit. The petitioner, who is the administratrix, his mother, Jane Tfcylor, is one of the claimants who has filed her petition claiming tlw fund in trust for herself as the sole heir at law. By the answer and «cross petition, Alice B. Taylor, the divorced wife, also claims the death benefit and by answer the association itself claims the death benefit by reason of the fact that the certificate is said to have lapsed or reverted to the association under one of the clauses of the constitution. The brotherhood and the plaintiff each demurred to the answer and cross petition of Alice B. Taylor and the plaintiff demurred to the answer of the brotherhood. The court of common pleas sustained each of these demurrers. The question before this court is, whether the action of the court of common pleas is right in that regard. Insofar as the determination of the questions in this case are concerned, I will briefly give so much of the sections of the constitution of the order as are necessary to determine the questions' at issue.

Section 65 provides that all beneficial certificates are to be interpreted and construed in accordance with the laws of this state.

Section 62 provides that all transfers of beneficiary certificates shall be made upon the books of the grand lodge, under the direction of the grand secretary and treasurer, and any and all transfers made in any other manner shall be null and void. Any member desiring to transfer his beneficiary certificate, shall fill out the printed transfer on the certificate and sign his name thereto, and send the same to the grand secretary and treasurer, through the secretary of his lodge. It shall be the duty of the grand secretary and treasurer, immediately upon its receipt, to certify to such transfer in the form provided therefor in the certificate, and until so certified by the grand secretary and treasurer the transfer will not be complete.

Section 63 provides that payment of death benefits shall only be made, or certificates transferred, to the family, heirs, blood relations, affianced wife of, or to persons dependent upon, the member and in case the member makes an unlawful designation in violation of this 'section, the benefits of his certificate shall revert and belong to this brotherhood.

Sections 66 and 67 provide that, upon the death of a brother in good standing, the person or persons named in the beneficiary certificate of the deceased brother, if living, shall be entitled to the benefits except as otherwise provided in Secs. 62 and 63.

' In the determination of this case it may be said at the outset that the various rules of law applicable to ordinary life insurance cases do not apply in this ease for the reason that under Rev. Stat. 3631-11 (see Lan. 5809) it is provided that such associations shall be exempted from provisions of the insurance laws of this state and no law hereafter passed shall apply to them unless they be expressly designated therein. It has been decided by two other authorities in the state of Ohio that the ordinary rules of construction and interpretation applying to ordinary life insurance companies, do not apply here. State v. Railway, 68 Ohio St. 9 [67 N. E. Rep. 93; 96 Am. St. Rep. 635] ; State v. Vorys, 69 Ohio St. 56, 65-68 [68 N. E. Rep. 580].

In ordinary life insurance companies it is well known that policies issued in that class of companies confer upon the beneficiaries a vested interest and that a member cannot transfer nor interfere in any wise with that vested interest without the consent of the beneficiary, but the entire weight of authority is, that in these beneficial associations, when the policy issues to the beneficiary, there is no vested interest and that the member at any time may change his beneficiary or make a new substitution without the consent of the beneficiary named. So that in determining this question we think that the principle may be gathered from Rev. Stat. 3631-11 (see Lan. 5809). That section provides that payments of death benefits shall be to the families, heirs, relatives by blood, affianced, wife of, or to persons dependent upon, the member. The certificate in question, as will be noticed, was made payable to Alice B. Taylor, his wife, if living, and if not living it was to be paid to the administratrix in trust for the heirs of the member.

The main question here is, whether or not this certificate shall be construed according to its terms at the date of issue or whether we shall construe this policy, and change in effect its character and meaning, by construing it, as of the date of the payment of the benefits. For if it be construed as at the date of issue, Alice B. Taylor was then his wife and under the contract terms of the certificate should be paid. And if it should be construed to take effect at the date of payment and to take effect only to one of the persons named in this section, of the statute, then it is very evident that Alice B. Taylor cannot take although the certificate in express terms provides that she may, and therein lies, we think, the great or seeming conflict of authority of the various eases that have been cited to us upon both sides of this question. It is our opinion that when the statute of Ohio provided that payment of death benefits shall be to one of the class named, this certificate should be construed as of the time of payment and payable only at that time to one of the classes named in the statute, if there be any such. In Tyler v. Relief Assn. 145 Mass. 134, 136 [13 N. E. Rep. 360], it was held that a wife by obtaining a divorce, lost her rights under the designation and that the attempted designation in that case, to the sister, was invalid and that the son was entitled to the fund. It does not seem from the reading of this ease that the statutes of Massachusetts controlled in any wise the determination of this case, but it was based upon the wording of one of the sections of the by-laws of the order. The judge in deciding the ease, however, says:

“Assuming then, but not deciding, that the validity of a designation is to be determined at the outset, with reference to the relation then existing between the member and his beneficiary, we think, to make it available after his death, there must then be a relation to the deceased such as is contemplated by the agreement of association and the by-laws relating to payment.”

As I say, this was not based'upon any constitutional requirement of payment but upon the requirement of the by-laws of the association, that payment at death be paid under the provisions of its constitution. In the case of Schonfield v. Turner, 75 Tex. 324 [12 S. W. Rep. 626; 7 L. R. A. 189], the second proposition of the syllabus is, that a divorced wife is entitled to no share of the benefit fund which, by the rules of the association, goes to the member’s heirs, no beneficiary having been appointed by it. Judge Henry uses the following language in the opinion:

“What the policy of the law forbids to be done must be treated by courts, when administering the law] as never having been done. * * * Upon the death of the member the beneficial interest vested in. his heirs. When the person designated to receive the insurance is held by the law incapable of taking it for his own use, on grounds of public policy, it will be entirely consistent with the manifest purposes of the order to make the same disposition of the money that would have been made if he had been dead.”

One of the strongest cases in support of the conclusion at which we have arrived probably is the case of Order of Ry. Conductors v. Koster, 55 Mo. App. 186, but I will read only from the syllabus in this case.

“1. A benefit certificate differs from an ordinary policy of life insurance, in that it speaks with reference to the conditions existing at the death of the member whose life has been insured by it.
“2. Accordingly, when the status of the beneficiary under such certificate is the mean, if not the sole, inducement to the insurance, # * * as where the certificate is in favor of the wife of the insured and she is designated mainly by that relationship * * * the rights of such beneficiary lapse, if that status does not exist at the time of the death of the insured.
“3. And when the laws of the benefit society stipulate thM the beneficiary must have an insurable interest in the life of the insured member that interest must exist at the death of such member. Accordingly, a divorced wife who remarried, and moreover has no living issue by the insured member, is not, under such laws, entitled to the benefit.”

Now, in this state especially, we think that these cases are applicable .to the case that we have at hand, but, if anything, Ohio has a more stringent law upon that subject. The majority of these cases are based simply upon the. constitution of the various orders whose evident policy .is, in each case, to give the death benefits of the deceased member to some member of the family or blood relative or other person who is dependent upon him, but here, in addition to the language employed in See., 63 of the constitution of this order, we have a provision of statute that payment of death benefits shall be to the families, heirs, blood relations, affianced wife of, or person dependent upon, the member. That was the purpose of the organization of beneficial associations of this character.

The persons who become members of the order are usually men of limited means who contribute from their earnings for the purpose of keeping up these certificates and who expect either, during life, payment for some physical disability, or, in case they die, that the benefit of the fund to which they have contributed shall be paid to some- person dependent upon them. That was the purpose for which this provision was placed in this statute. In some other states no provision is made for this, but are usually found, as we have stated, in the constitution of the order. To the same effect is 1 Bacon, Ben. Soc. Sec. 253; Lister v. Lister, 73 Mo. App. 99.

Now, then, we have come to the conclusion that, if a member of a beneficial organization of this character attempts to make any kind of a designation to any person other than to the class mentioned in Rev. Stat. 3631-11 (see Lan. 5809), such designation would be invalid and he has no power to make it, for the reason that I have stated, that that section requires that payment shall be made to the class mentioned. Since this certificate was issued and this organization was formed, this section has been changed to some extent, but that change has not touched the spirit of the section, and it now provides that payment shall be confined to this class but it has added one other subject to the class, viz., those related by marriage or adoption. That is the only change made in the statute since this certificate was issued. In. support of the proposition that it is impossible for a member to name any person as beneficiary except as provided in this statute: National Mutual Aid Assn. v. Gonser, 43 Ohio St. 1 [1 N. E. Rep. 11]; State v. Benefit Assn. 42 Ohio St. 579.

In the.latter case the first proposition of the syllabus is as follows and is very pertinent to the case at bar:

“Associations organized under the provisions of the law embodied in the Revised Statutes, Sec. 3630 [Lan. 5783], ‘for the mutual protection and relief of its members, and for the payment of stipulated sums of money to the families or heirs of deceased members, ’ are not authorized to issue certificates of membership, payable to the named beneficiary ‘or assigns,’ nor payable in case of death to others than the family or heirs of the insured member.”

It would seem that the policy and spirit of this statute, relating to these associations would be perverted if the members would be allowed to make what would originally be a valid designation to his wife, and that she would thereafter change her-status, and become a divorced Avife, and it Avould be doing indirectly what the policy of the law prohibits. The law provides only for the status of the beneficiary at the time the death benefits should be paid and we do not think that any of the cases cited by counsel upon the other side are in conflict with that clause unless it be possibly one or two, and those are based upon a state of facts which are not controlled by the laws of the states in which they were decided but rather by the constitution or by-law provisions of the order. The cases cited by the counsel who contends that Alice was entitled to this benefit fall within two classes.

First, they are that class of ordinary life insurance cases where the rules of ordinary insurance companies such as found in Overhiser v. Overhiser, 63 Ohio St. 77 [57 N. E. Rep. 965; 50 L. R. A. 552; 81 Am. St. Rep. 612] govern, because there is a vested interest there, and which do not apply in this case, and furthermore they do not apply because of the language of Rev. Stat. 3631-11 (see Lan. 5809), which limits the time of payment. And so also is the case of Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457 [24 L. Ed. 251]. That is also a case in which recovery is sought against an ordinary life insurance company.

2. All .the other cases are in the class where it appears from the opinion, that no statute controls and where the contract or certificate itself provides that the payment to the beneficiary shall be construed to be as of the date of issue of the policy and not of the date of the death. Brown v. Grand Lodge, 208 Pa. St. 101 [57 Atl. Rep. 176].

There it does not appear there was any statutory provisions controlling the case but in the third proposition of the syllabus this is found:

“The by-laws of a beneficial association provided that the beneficiary might be either a member of the family of the insured, or one related to him by blood, or one dependent upon him, but did not require that such beneficiary, at the time of the death of the insured, should belong to one of such classes. ”

We think here if the Ohio statute means anything that it requires the status to be fixed at the time of the death; but supra the judge says, page 177:

“It should be observed, and it is important to keep in view the fact, that the laws of this association do not require the beneficiary t.> belong to one'of the' specified classes at the death of the member, when the rights of the beneficiary become vested'.”

To the same effect is the case of American Legion v. Smith, 45 N. J. Eq. 466 [17 Atl. Rep. 770]. There the divorce Ivas a divorce a thorn cl mensa. It was not an absolute divorce from matrimony and the court there held that the divorced wife had a right to the benefit because her property rights were not destroyed. She had all the rights of a wife and therefore that case is not applicable.

In the Colorado case of Overhiser v. Overhiser, 14 Colo. App. 1 [59 Pac. Rep. 75], it does not appear there that any statute governed but that the by-laws governed there at the time of issue. On page 78 of that case, you will find this language of the judge delivering the opinion:

“In some of these voluntary associations, similar in character to this, it is provided that, in case the beneficiary named in the certificate shall die or shall become incapacitated to take, then, in either event, the fund shall go to certain other parties or heirs. There is not claimed to be any such provision in the by-laws of this association. Again, in some it is provided that no benefits shall be paid to any person unless such person comes within one of certain classes. There is no sueh provision here. In others, the statute laws of the jurisdiction under which they are organized or operate regulate the distribution of the fund, or impose restrictions upon the society in respect thereto. This is not the case here. The only requirement in this case, and that by the laws of the association, is, that no certificate shall issue unless the beneficiary be named, and that such beneficiary be within one of certain classes. It will be seen at .a glance that there is a wide distinction between a requirement that a certificate shall issue to only one of a certain class of persons, and one that payment can be made only to one of a certain class.’ ’

James v. Supreme Council, 130 Fed. Rep. 1014, was a case in which one, though not a legal wife (the member had a legal wife living and had committed bigamy and married another), in good faith, believed that she was his wife and had children by him who were supported by him. The member died and the court held that under the provisions of the statute that any person dependent Upon the deceased member shall receive payment of death benefits, the plaintiff could recover as one of the persons dependent.

In the case of Courtois v. Grand Lodge, 135 Cal. 552 [67 Pac. Rep. 970; 87 Am. St. Rep. 137], from the reading of that case it does not appear that there were any state laws controlling the disposition of. the fund or the payment of the fund at the death of the member. I read from the opinion of Judge Haynes:

“The evident policy of the order is, that the beneficiary named in the certificate when it issues shall be at that time of the class designated in said by-law, but beyond that it reserves no control, and makes no provision by which it may make .or compel a new designation of a beneficiary, or by which it may itself appoint a beneficiary or cancel the certificate.”

Nó statute controlling, the by-laws controlling only, insofar as it appears from the opinion it was the policy to make the certificate control only at the time of issue. So that we have come to the conclusion that Alice, the divorced wife, has no right to the death benefits in question.

The question then arises whether or not, under the provision of the constitution, Sec. 63, this certificate has lapsed or reverted to the society itself. That provision provides in case the member makes an unlawful designation in violation of this section the benefits shall revert and belong to the brotherhood.

In the first place the member did not make an unlawful designation. When the designation was made it was a láwful one. There was no act upon the part of the member making an unlawful designation. However, under our view of the case, even if the member had made an unlawful designation and there were certain members of the family dependent upon him under Eev. Stat. 3631-11 (see Lan. 5809), then the proceeds would yet go to the one of the class therein named. It is said by some of the text-books, viz., Bacon, Ben. Soc. & Life Ins. Sec. 243-A, that in cases of this character when there is a statute controlling and there is a lapse of the designation the benefit generally will not revert to the society, but, as a matter of fact, a trust accrues in favor of the classes named in the statute. This certificate provides as follows:

‘ ‘ That at the' death of the member the death benefits shall be paid to Alice B. Taylor, his wife, if living; if not, to the executors or administrators in trust for his heirs at law.”

We think that in the construction of the contract here the words “Alice B. Taylor” should be taken as descriptio personae, as designating merely her status at the time of issue and for the purpose of construing the contract should be treated as surplusage; if that be the case, this certificate would read that the death benefits should be paid to his wifé, if living; if there was no living wife, then to the administrator in trust and we are supported in this conclusion by the language of the judge in Order of Ry. Conductors v. Koster, 55 Mo. App. 186, supra, when he says in the course of his opinion:

“The rule of the law of insurance, that, if one have an insurable interest at the date of the policy, the policy is not vitiated by termination of that interest, does not apply in a case like this: This act is testamentary in its character in the respect that it speaks at the death of the member. As long as the lady who is now Mrs. Lally filled the description given in the- certificate she was under its protection, but, when she ceased to fill that description, her interest in the certificate ceased. On the death of H. A. Koster the certificate, speaking for the first time, called for his wife and there was none-to answer.”

And to the same effect we think; is the text in Joyce, Insurance Sec. 818, where he says:

“The effect of divorce seems to be to terminate the relation of ‘wife’ under a mutual benefit certificate, so that if a wife is designated and she obtains a divorce, she loses her right to claim any part of the fund. This rule rests on the ground that the status of the beneficiary, being the sole inducement for the insurance, the object of the benefit is and always remains in the person filling that particular status, and the name, when given, is a mere descriptive designation. And this rule has been supported where the payment of the fund is limited to the ‘heirs or members of his family.’ ”

So that in view of the authorities cited and especially of the limitation placed upon these contracts by the statute of Ohio above referred to, we think that neither the divorced wife nor the association itself is entitled to the benefits arising from this certificate, but that they accrue to the administratrix in trust for the heirs at law.

Walters and Cherrington, JJ., concur.


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    DISMISSAL AND NONSUIT.
    [Cuyahoga (8th) Circuit Court,
    December 21, 1906.]
    Marvin, Henry and Wildman, JJ.
    (Judge Wildman of the sixth circuit, sitting in'place of Judge Winch.)
    Charles A. Turner v. Pope Motor Car Co. et al.
    1. Right to Dismissal without Pbejudice after Submission, Denied.
    A motion by defendant to direct a verdict in his favor, subihitted after plaintiff has rested, is in the nature of a demurrer to the evidence, and calls for a decision vital to the controversy; and, the court having sustained the motion, the case is finally submitted within the meaning of Rev. Stat. 5314 (Lan. 8830), and plaintiff cannot then ask for a dismissal without prejudice.
    [For other cases in point, see 1 Cyc. Dig., “Dismissal and Nonsuit,” §§ 1-11.— Ed.]
    2. Bill of Exceptions not Puepoeting to Contain all the Evidence does not Authorize Review as to Whether Issue of Fact was Made.
    A bill of exceptions not purporting to contain all of the evidence offered by the plaintiff before resting, a reviewing court cannot determine, even under the scintilla rule, that there was an issue of fact proper to be submitted to the jury.
    [For other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 19-47.— Ed.]
    [Syllabus approved by the court.]

      Error to Cuyahoga common pleas court.
    W. C. Ong and Hurlbut & Hurlbut, for plaintiff in error.
    J. N. Stockwell, for defendants in error.
   WILDMAN, J.

The plaintiff in error was plaintiff in the court of common pleas of this county, suing the Pope Motor Car Company and the Baker Motor Vehicle Company. He asserts, in substance, that on or about September 5, 1903, said defendants- entered into a contest of speed of automobiles on grounds leased by the Cleveland Automobile Club, and while engaged in said contest they so negligently operated their respective automobiles and drove them at so high a rate of speed that they lost control of them, with the result that they collided, whereupon the ear owned by the Baker Motor Vehicle Company was hurled with frightful force and velocity across the track, which it left and crashed through a fence bounding said track and into a crowd of spectators. The plaintiff was one of these, and while in a proper place and one which under ordinary circumstances was safe, he was struck by the car so leaving the track and received severe injuries. He alleged damages and asked judgment for the same against both defendants.

Issue - was taken on these claims and the case proceeded to trial. After the introduction of evidence by the plaintiff he rested his ease, whereupon both defendants moved for a verdict. These motions were considered by the court and passed upon, as disclosed by the bill of exceptions, as follows: — I quote the language of the trial judge:

“This motion is sustained as to the Pope Motor Car Company for default of proof of its having entered a car. That must be .sustained. There is nothing to show that this car was operated by anybody in the employ of the Pope Motor Car Company, and that it owned the car. I find there is no negligence shown against either of these companies, and the motion as to both will be sustained.”

Thereupon counsel for plaintiff, after some indulgence for consultation, said to the court:

“I am perfectly satisfied from this deposition and from the claim made here that the Pope Motor Car Company did not enter this car and did not control it. I think there is no doubt about that, but it now develops that a local company, unknown to us, until we.appeared in this trial, did enter it and control it.
“I have no objection to the granting of this motion as to the Pope Motor Car Company, because they did not enter and did not control it, but I do not want that motion granted as to the Baker Company, because this plaintiff has a right to bring his action against the party that did enter and control jointly with the Baker. And I am asking that as to the Baker this action may be dismissed without prejudice.”

After some discussion the court took the matter under advisement until the following morning. At that time, on the convening of the court, counsel for the plaintiff said:

“The plaintiff now, before any other order is made or found, dismisses this case as to the defendants without prejudice;” and the jury having been called by the court, counsel for plaintiff renewed his attempt to dismiss1 in the following words:
“If the court pleases, before any direction to the jury is given in this case, the plaintiff dismisses the same as to both the defendants without prejudice. ’ ’

The court thereupon refused to enter the dismissal and directed a verdict for the defendants, which was at once returned by the jury.

To the refusal of the court to enter the dismissal of the ease without prejudice and to the direction given to the jury plaintiff excepted,v and filed his motion for a new trial, asserting as ground therefor not only the refusal to enter the dismissal of the action, but. also the instruction to the jury to find for the defendants.

While, as appears from the foregoing statement, the plaintiff expressly conceded the correctness of the court’s ruling on the motion to instruct the jury to find for the Pope Motor Car Company, his attempt to dismiss his action without prejudice to another was made to apply to both defendants. I will not spend time in discussion whether any distinction is now to be drawn between their relative rights as to such dismissal. It is very clear, however, that the court’s action in charging the jury to find for the Pope Company cannot now be relied on as ground for new trial, if the case was still in court for any charge at all.

And as to both defendants, we need not tarry long to consider the court’s action in sustaining their motions, as far as it is affected by the sufficiency or insufficiency of the evidence. The bill of exceptions, as we read it, does not purport to contain all the evidence which had been offered by the plaintiff before resting; and, as I- am informed by my present associates, this court has repeatedly held that it will not presume error of the court below under such circumstances; in other words, that even under the scintilla rule the reviewing court cannot determine that there was an issue of fact proper to be submitted to the jury where such court has not before it the evidence and all of it bearing on such issue.

The remaining question and that on which most emphasis has been placed in argument is that raised by plaintiff’s effort to dismiss his action against the defendants without prejudice.

Referring to Rev. Stat. 5314 (Lan. 8830), we find the provision relied on by,the plaintiff as sustaining his contention of error, as follows:

“An action may be dismissed without prejudice to a future action.
“1. By the plaintiff, before the final submission of the case to the jury, or to the court, when the trial is by the court.”

It is urged that the trial here was to the jury and that there was no “final submission of the case” until the jury had been charged by •the court. On the other hand it is contended that when the plaintiff had -rested his case and a motion was addressed to the court by the defendants, raising an issue vital to the determination of the action, the case was thereby submitted to the court, and -that an effort by the plaintiff to dismiss after the court had announced its opinion and had sustained the motions, was too late.

It cannot be denied that the plaintiff’s contention has the support of respectable authority outside of the state; but it should not be adopted unless it is in harmony with the spirit as well as the letter of our statute.

An aid to the proper construction of the law may be found in the evident purpose of its enactment and its limitations. That justice should not fail because of technical defects in the preparation and presentation of an action,.the right is given to the plaintiff to dismiss and begin anew; but the exercise of this right is limited to a period prior to the final submission of the case. Why this limitation ? . If the plaintiff has failed in his action by reason of lack of evidence on its first trial, why may he not have, repeated retrials at his discretion until he obtains his due? Manifestly because the rights of defendants are involved. They cannot justly be subjected to unnecessary loss of time and expense of litigation, to enable the plaintiff to readjudicate his claims after.a competent tribunal has once decided them. The motion in this case, presented by the defendants, called for a decision of. the court which was vital to the controversy. It was in’ the nature of a demurrer to the evidence, and we see no reason, when we look to the spirit and purpose of this statute, why it should not be treated much as a demurrer to a petition would be; a submission to the court of the question whether the case presented by the plaintiff in evidence as in the other case by petition, would warrant a judgment.

Reference in this connection 'should be made to the case of Beaumont v. Herrick, 24 Ohio St. 446, furnishing a consideration of the question in but a slightly different aspect. I quote from the syllabus:

“Where a case is submitted to the court on a demurrer to the answer, the ground of the demurrer being that the answer does not contain a defense, and the demurrer is overruled, the plaintiff cannot, without the leave of the court, dismiss his action without prejudice. The submission of the case on the demurrer is a final submission of the case within the meaning of Sec. 372 of the code [now Rev. Stat. 5314; Lan. 8830] unless leave is obtained to reply or amend.”

It may be noted in passing that no appeal was made to the court in the ease at bar to withdraw a juror and permit the plaintiff on a retrial to fortify his case by additional evidence. Such a procedure would seem somewhat analogous to the amending of a pleading, after demurrer, for insufficiency; a procedure altogether discretionary with the court to grant or refuse.

On' page 457 of the opinion in Beaumont v. Herrick, supra, it is said as a ground for the holding which I have quoted:

“The legal consequence of the overruling of the demurrer was a judgment of dismissal.”

So, in this case, the legal consequence of the court’s ruling on defendant’s motion was a judgment.of dismissal; but,, as in the case cited, without preservation of a right to prosecute another suit.

The case of Crowley v. Chamberlain, 6 Dec. Re. 982 (9 Am. L. Rec. 376), decided by the Hamilton district court in 1880 and undisturbed and unquestioned so far as we are informed by any subsequent Ohio decisions, is more directly in point. The facts were substantially as in the ease at bar, and the court, sustaining the superior court of Cincinnati, held that there was no error in refusing permission to the plaintiff to dismiss his action without prejudice.

The case of Huntt v. McNamee, 141 Fed. Rep. 293, decided by the United States circuit court of appeals, fourth circuit, is to similar effect.

Without further discussion, it is sufficient to say that our view sustains the opinion and judgment of the trial court, and the judgment will be affirmed.

Marvin and Henry, JJ., concur.


author: PER CURIAM.

text:
    DEFAULT — EXECUTION.
    [Knox (5th) Circuit Court,
    October 12, 1906.]
    Donabue, McCarty and Taggart, JJ.
    Edwin W. Howard v. E. T. Kinney Co.
    INJUNCTION WILL NOT LlE TO RESTRAIN EXECUTION OR DEFAULT JUDGMENT ON Cognovit Note.
    Execution on a judgment, rendered on a cognovit note, will not be restrained by injunction on tbe ground that defendant did not bave an opportunity to appear and make, defense, as sucb judgment implies appearance of tbe defendant.
    [For other cases in point, see 5 Cyc. Dig., “Judgments and Decrees,” §§ 379-386. — Ed.]
    [Syllabus approved by tbe court.]
    Error to Knox common pleas court.
    Hugh Neal and L. B. Houck, for plaintiff in error.
    F. V. Owen, for defendant in error.
   PER CURIAM.

In this case the petition shows that judgment was rendered against the plaintiff in the common pleas court of Fulton county on a cognovit note. The allegation that he did not have opportunity to appear and make a defense is not important, because the averment that it was rendered on a cognovit, implies.that his appearance was there entered under the terms of that cognovit, and that being true he was in court to all intents and purposes, and if he has a defense to that action, that is the court in which he must make application for relief. It is only where a judgment is void for want of jurisdiction that an injunction will lie to restrain a levy of an execution issued upon that judgment.. Finding and decree for defendant; petition of plaintiff dismissed at the costs of plaintiff. Remanded for execution. Motion for new trial overruled and exceptions noted.


text:
    DAMAGES — SALES—WARRANTY.
    [Lucas (6th) Circuit Court,
    November 7, 1906.]
    Haynes, Parker and Wildman, JJ,
    Frank J. Manton et al. v. John Perry.
    Implied Warranty of Goods does not Survive Acceptance by the Buyer.
    Under an implied warranty of fitness, it is the duty of the buyer of goods to notify the seller of any defective condition immediately upon discovery. Hence, where the buyer of a car-load of cabbages accepts the same, pays the price, and later, on discovering the cabbages to be frozen, stops payment of his check but sells a large part of the cabbages, he cannot afterwards set up an implied warranty that the cabbages should be marketable, as a basis for an action for the return of the purchase price, as by his retaining and selling part he waived his rights under the warranty.
    [For other cases in point, see 7 Cyc. Dig., “Sales,” §§ 286-326. — Ed.]
    [Syllabus approved by the .court.]
    Error to Lucas common pleas court.
    J. P. Mantón, for plaintiffs in error.
    H. W. Lloyd and G. F. Wells, for defendant in error.
   WILDMAN, J.

This is a case in which the original action was brought before a justice of the peace, by the present plaintiffs in error, for damages resulting from what is claimed to be a breach of an implied warranty that certain cabbages purchased by Mantón Brothers from Perry, defendant in error, were merchantable.

The case was tried before a jury, apd after the introduction of the plaintiff’s testimony, was arrested from the jury and a verdict directed to be given for the defendant. The cabbages had been received by the Mantón Brothers and paid for by them, — as they claim, — without an opportunity to make an inspection of them when received; and it was not until after they had made payment by drawing a check upon a bank that they were suffered to take the .cabbages from the car and inspect them; and it was then that they discovered that they were frozen and bought suit for a return of the purchase price.

In the case of Bowman Lumber Co. v. Anderson, 70 Ohio St. 16 [70 N. E. Rep. 503], the syllabus is as follows:

“By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warranty no obligation is imposed upon him which survives the acceptance by the purchaser of an article delivered by the seller in good faith as in the performance of the contract, if the acceptance is with full knowledge of all the conditions affecting the character and quality of the article.”

The issues and the evidence in support thereof all cluster about the main question as to whether the plaintiffs, in the receiving the cabbages and in their subsequent holding and treatment of them, waived any claim which they might have for damages, by reason of their, impaired value in their frozen condition. The court below, in arresting the case from the jury, relied upon the ease which I have just cited, Bowman Lumber Co. v. Anderson, supra; and we think the court was justified in so doing.

The Mantón Brothers received these cabbages, and perhaps at the time when they took them out of the ear, had no opportunity for such inspection as to enable them to guard themselves against any mistakes.-

It may be that they were not then compelled to determine.whether they would or would not waive any claims by reason o-f the defective condition of the cabbages. But it appears that after they discovered the defective condition of the cabbages, they stopped payment upon their check and^ subsequently made sale of a large part of the cabbages, without stopping to claim as upon an express warranty against the seller, for the difference between the agreed price and the actual value of the cabbages when. received, treating that as the measuré of their damage. This we think they could not do. We think that before their disposition of the cabbages or any part of them, they should have notified the seller of their claim that the cabbages were defective. They had then made full inspection and if they retained the possession of the property and sold and made disposition of it, they waived any claim which they might have had for damages. It was their duty at that time to notify the seller of the condition of the cabbages so that he might reclaim them and restore the purchase price and himself sell them in his own market, if he saw fit, and for such price as he might obtain therefor. We think that the reasoning of the trial judge which has been handed up to us in his reported opinion is sound, and that the judgment which he rendered thereon, after instructing the jury to return a verdict for the defendant, should be affirmed, and it is so ordered.

Haynes and Parker, JJ., concur.


author: HURIN, J,

text:
    BIGAMY.
    [Allen (3rd) Circuit Court,
    December, 1906.]
    Norris, Hurin and Donnelly, JJ.

      David F. Bates v. State of Ohio.
    Common-law Makriage, So-called, Invalid in Ohio as a Basis fob the Charge . oi' Bigamy.
    Cohabitation and acknowledgment of the marriage relation by a man and woman, but without statutory marriage, do not, in Ohio, constitute a valid marriage, on which an indictment for bigamy can be founded.
    [For other cases in point, see 1 Cyc. Dig., “Bigamy,” §§ 1-3. — Ed.]
    LSyllabus by the court.]
    ERROR to Allen common pleas court.
    Klinger & Secrest, .for plaintiff in error.
    B. F. Welty,'prosecuting attorney, for defendant in error.

       Reversing State v. Bates, 17 Dec. 301.

   HURIN, J,

The plaintiff in error was indicted by the grand jury of Allen county for bigamy.

The indictment is based on his marriage to one Isie Dora Miller, while he had an alleged wife living, — one Hazel Ginter Bates.

The State, at the trial of the case, relied upon evidence of what is designated as a common-law marriage of the accused with Hazel Ginter.

This evidence tended to prove that from about December 17, 1904, to some time in 1906, the accused and Hazel Ginter lived together at intervals, cohabiting together as man and wife; that a child was born to them as a result of this relationship; that their relationship as husband and wife was frequently acknowledged by the accused, who introduced her as his wife to various people; that at his mother’s home she, in his presence, stated that they had been married and he did not deny it, but thereafter, at his mother’s home, occupied the same bed with Hazel Ginter and otherwise assumed the position of husband; that he rented rooms for housekeeping and bought furniture for housekeeping, stating to the. landlord and to the furniture dealer that she was his wife; that when their child was about to be born, he called on several physicians and endeavored to procure their services, stating to at least one of them that it was his wife who was about to be confined; that he was present, comforting the woman when the child was born; and it not being born alive, he called in an undertaker and had the child buried, stating to the undertaker that the child was his child and that Hazel was his wife.

Many letters addressed by him to the woman were introduced, in all of which he used terms of affection and in one of which, dated December 12, 1904, he declares that he hopes that when they meet again they will not have to part until death parts them, and calls upon God to witness his love for her. His letters written after December 17, 1904, the date of his alleged marriage to her, uniformly refer to her parents as “Pa” and “Ma.”

Most of this evidence is not denied by the accused, who frankly admits the essential parts of it.

There is no claim by the state that a formal marriage ever occurred between David F. Bates and Hazel Ginter. Nor is there any denial by the accused that shortly after the breaking off of this relationship, David F. Bates was formally married by a minister of the gospel to Isie Dora Miller, Hazel Ginter, or Hazel Ginter Bates, being still alive; and she was still alive at the time of the trial.

On this evidence the accused was found guilty of bigamy and sentenced to the reformatory. From this judgment he prosecutes error to this court.

While an examination of the bill of exceptions discloses much that ivas irregular and probably erroneous, and while the motion for a new trial and the petition in error save these questions, we are explicitly asked by the counsel for the plaintiff in error to disregard all technicalities and to confine our attention to the one question as to whether an indictment for bigamy can be based upon a so-called common-law marriage followed by a marriage to another person in accordance with the statutes of the state.

On account of the importance of the principle involved in this ease and in the hope that our Supreme Court may once for all establish a rule as to the standing of a so-called common-law marriage in Ohio, we have concluded to confine our attention as requested by counsel to this one question.

The crime of bigamy is defined by Rev. Stat. 7018 (Lan. 10730) as follows: “Whoever, having a husband or wife, marries another, is guilty of bigamy.”

The statutes of this state, Rev. Stat. 6384 to 6394 (Lan. 9960 to 9970) inclusive, define with great precision the requirements of the law as to marriage.

These statutes definitely prescribe certain rules and formalities con-neeted with marriage, and limit the persons who may lawfully marry. The persons and officers who may lawfully perform the marriage ceremony, and the limits of their authority are definitely specified; the publication of banns or the obtaining of a license to marry are declared to be prerequisites to marriage, and a rigid form of oath is prescribed before such license can be obtained, which oath includes explicit statements as to age, occupation, residence, place of birth, parentage, previous condition as to marriage and other matters connected with the history of each of the parties to the contemplated marriage.

Certificates of the fact of marriage are required to be filed and recorded and each step thus required to be taken is to be enforced by severe punishments of from $50 to $1,000 fine and imprisonment, not exceeding six months, which punishments are extended not only to the parties to the proposed marriage but to the person who performs the ceremony and the judge who attempts to issue a license not in strict accordance with law.

It thus appears that the legislature has by. most stringent rules provided for marriage in accordance with law.

These requirements are in form mandatory. There is an evident purpose of the legislature to strictly guard the institution of marriage with such legal requirements as shall effectually protect the contracting parties and all others interested, and shall at the same "time safeguard the interest of the state and provide reliable records for future reference.

But notwithstanding these strict requirements of statute, it is claimed by counsel' for the state that there is another form of marriage equally legal; that a marriage consummated in total disregard of the statutes will be equally valid; that a private arrangement called a common-law marriage entered into by the parties, without a license from the state, without the publication of banns, without the services of minister or magistrate, without any ceremony whatever, without witnesses to the marriage itself, without any record of the existence of the marriage, without any definite promise of marriage, is just as effectual,- just as legal and confers just the same rights upon the parties as a marriage in strict conformity to the statutory requirements, which in positive terms, specify the exact course of procedure requisite to a legal marriage, and impose severe penalties for any violation of the rules pi-e-scribed. .

The proposition is a startling one. If this be true, of what use are the statutory requirements? Why punish with fine and imprisonment the minister or magistrate or probate judge who inadvertently omits to do any one of a dozen formal things required by statute to be done, when none of these things are essential to a valid marriage? Why impose upon the contracting parties the expense and labor of filing-statements, under oath, regarding all sorts of statistical matters, and the procuring of a license, and the securing of the services of minister or magistrate, when all these things add nothing to the validity of a contract which they themselves may enter into without any of these formalities and without the embarrassment of witnesses? Why require statistics to be compiled or provided for, when, if all these formalities are unnecessary, they will certainly be neglected and the statistics will certainly be incomplete and inaccurate?

But an examination of the question discloses the fact that from very early times in England, and for many years in certain states of this union, such marriages without legal formality have for some purposes, been upheld. A common-law marriage, as it is called, is a well-known institution and in certain jurisdictions, has a definite standing in law.

In Ohio such marriages have been, by some courts, sustained for certain purposes, and, by other courts, their validity has been denied. No definite rule seems so far to have been laid down by the Supreme Court fixing the limits of their legality or invalidity, except possibly in one case to which I will allude later; and it appears by no means easy to discover a rule which will be consistent with all the decisions so far rendered.

The importance of the subject demands for it the most careful consideration, for upon its decision depends not only the stability of the home and family which are the very foundation of the state, but the legitimacy of children, the property rights of husband and wife, of children and heirs, as well as the reputation of citizens and their immunity from, or liability to, arrest and imprisonment.

At the very outset of the discussion we must clearly distinguish between a common-law marriage in the loose, popular use of that term, and a marriage which at common law was actually a marriage, for certain purposes.

The mere fact of a man and woman living together in a state of fornication has never constituted a marriage recognized at common law, nor has a public acknowledgment of the relation of husband and wife, a holding of themselves out as husband and wife, accompanied by cohabitation, been ever deemed in itself a valid marriage at common law, although there seems to be a widespread popular notion that this constitutes a valid common-law marriage, and in this country the courts of some states have gone to. great lengths in sustaining such acts as proofs of an actual marriage.

At all periods of the law of England, so far as we have been able to ascertain, there was required to be an actual contract of marriage, an actual agreement of the parties to live together as husband and wife, and this, too, not as a merely temporary arrangement, but for life. And this contract was required to be actually expressed in words of mutual promise.

Much controversy has arisen as to whether such promise must, at common law, have been per verija de futuro, or per verba de praesenti.

This question was fully discussed by Judge Brinkerhoif in his opinion in the case of Duncan v. Duncan, 10 Ohio St. 181, and he there, after a review of the authorities, concludes that, notwithstanding dicta by judges in many cases and even though such authorities as Kent and Greenleaf may be quoted to the contrary, no real authority can be found for the doctrine that cohabitation, following words of future promise merely, will constitute a marriage. And he shows that the authorities cited by Kent and Greenleaf to the contrary do not in fact sustain the doctrine of the text. He quotes 1 Blackstone’s Commentaries, 439, to show that such a contract was deemed a valid marriage for many purposes and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae.

Such a promise, i. e., per verba de futuro, under the common-law of England, just as under our law to-day, was a sufficient basis for an action for breach of promise of marriage and it seems that in England it was also a recognized basis for an action for specific performance of marriage.

But as to a promise per verba de praesenti there has been much more diversity of judicial opinion.

In the case just cited Judge Brinkerhoif maintains that in England even such a promise in the leading case of the Queen v. Millis, 10 Clark & Fin. 534, was held (though by a divided court) not to have sustained the claim of a valid marriage, and that that ease declares the rule of the common law.

That celebrated case arose over a marriage in due form before a Presbyterian clergyman in Ireland and a subsequent marriage by the husband to another woman, while his first wife still lived, the second marriage being performed by a clergyman of the church of England, it being then the law that only clergyman of the established church could perform the marriage ceremony. The first marriage, not having been performed by a clergyman of the established church but by a dissenter, was held invalid although the parties actually pledged themselves to each other by words of present promise in good faith, believing that this was a valid marriage.

But in the case of Carmichael v. State, 12 Ohio St. 553, which was apparently a case exactly parallel to the case of the Queen v. Millis, supra, the authority of that celebrated case is repudiated by our Supreme Court although, its authority in England is fully recognized as finally stating the common law.

Regarding the conclusions of Judge Gholson who read the opinion in Carmichael v. State, supra, it must be said with all due deference:

• First. That the opinion thus enunciated was an obiter dictum, not necessarily involved in the case then at issue, which only related to the question whether the absence of authority in the officiating clergyman or magistrate, to solemnize a marriage, otherwise legal, renders such marriage void. The broad question of the validity of a marriage in total disregard of the statutory law was not involved in that case.

Second. That as that case was decided before the adoption of the rule making the syllabus the law of the case, we are permitted to look to the actual facts of that ease and to disregard the strict rule of its syllabus except insofar as it applies to the case then decided.

Third. That an examination of the reasoning of the learned judge, who rendered that opinion, makes it plain that his opinion is based not on any authority in England or elsewhere, but upon his conception of what ought to be the law applicable to such a ease. In fact, he reaches his conclusions after a somewhat painstaking effort to show that the English authorities support an exactly contrary view.

In a careful review of the history of the ease of the Queen v. Millis, supra, and of the law of England prior to the rendering of that opinion, he shows conclusively that' not only in that case was it declared that a mere private contract of marriage “never constituted a full and complete marriage in itself unless made in the presence and with the intervention of a minister in holy orders; and that by the common law of England it was essential, to the constitution of a full and complete marriage, that there must be some religious solemnity; that both modes of obligation should exist together, the civil and religious;” but ,that such was and had always been the law of England, not only at common law but by the ecclesiastical law, which had remained unchanged from the time of the council of Winchester in 1076, which had, by its decree, declared that a marriage, without the benediction of the priest, should not be a legitimate marriage and that other marriages should be deemed fornication.

He shows also that by the civil and canon law since the council of Trent in 1545, though as he says, the authority of that council was never admitted in England, such marriages have not been valid. Having thus shown that neither by the common law of England nor by the ecclesiastical law were such private marriages valid, he proceeds to disregard these precedents and bases his opinion on the fact that in this country church and state are separated.

“The legislature,” he says, “must have proceeded on the idea of the entire inapplicability of any such rule of the common law in this state where ecclesiastical authority binds only those who render a voluntary submission, or, as is more probable, the rule of the common law in the mind of the legislature was that shown by the certainly prevalent,opinion in England prior to the decision in Queen v. Millis, supra, and almost universally accepted in this country,” and he concludes by saying, “We cannot construe our statute as restrictive and prohibitory, as invalidating what by natural law, the general law of society, independent of statutory prohibition, would be regarded as a valid marriage.”

If the concluding sentence had been confined by the learned judge to the case which he was then discussing, a marriage duly performed in good faith by a person supposed by the contracting parties to be duly authorized' to perform the ceremony, we would heartily concur; but if intended, as the syllabus apparently indicates, to apply to all private and secret marriages made in total disregard of the statutory law, the far reaching consequences of such a holding ■ demand for it the most careful consideration.

Nor does his last reason for disregarding the English authorities appear valid in view of the fact that the legislature, by expressly authorizing a marriage to be performed by a civil magistrate as well as by a clergyman, plainly recognizes the separation of church and state in this country and by statute prescribes rules applicable to both magistrate and clergyman, to both a civil and religious ceremony, merely requiring that one or the other shall be used.

Ordinarily this court would feel bound, of course, to follow a decision of the Supreme Court but a dictum of that court in a case not involving the exact question before us and especially when avowedly opposed to the recognized authorities of common law, seems at least to require careful consideration before it can be applied to the case at bar, where the facts present no analogy to those of the case in which such dictum was expressed.

Carmichael v. State, supra, was decided forty five years ago. In that time there has been a vast change in the condition of society.

It is a matter of common knowledge that in these latter days the stability of the family is threatened as never before by loose ideas as to marriage.

The family is the foundation of the state. Marriage is the basis upon which the family rests. It seems to ns that the importance of the question is such as to demand an independent consideration, and in the hope that the Supreme Court will have an opportunity of finally passing upon this question and settling the law of the state, we venture to disregard the decision of Carmichael v. State, in so far as it seems to us to extend beyond the actual facts of that case and to lay down a rule on matters not involved therein.

In the case at bar there was no attempt on the part of David F. Bates and Hazel Ginter to comply with the law. It is plain from the evidence that they ignored the law, deliberately ignored it. Nor was there any promise of marriage, either present or future, proven by, the state.

Apparently the parties did not rely upon any promise of marriage. The defendant admits a promise to marry her in the future, though this appears not to have been given as a prior inducement to the relations sustained by them, but nowhere in the bill of exceptions is there any evidence of an actual promise in praesenti. The state relies absolutely upon evidence as to their living together, claiming to be husband and wife- and acknowledgments of that relation by both parties, and upon this testimony is based the claim of a common-law marriage and consequent bigamy.

And here we are met with numerous decisions to the effect that such evidence is admissible to prove a marriage.

In divorce proceedings the statute, ftev. Stat. 5698 (Lan. 9232), provides that,

“Proof of cohabitation and reputation of the marriage of the párties, shall be competent testimony to prove such marriage, and may be, within the discretion of the court, sufficient evidence thereof.”

But this was held in Houpt v. Houpt, 5 Ohio 539, to refer only to the marriage «sought to be dissolved in the divorce proceeding and not .applicable to evidence of a former marriage assigned as a ground for the divorce.

In the early case of Wolverton v. State, 16 Ohio 173, testimony as to the admissions of a former marriage were offered to convict the accused of bigamy and the court admitted such testimony and was sustained by the Supreme Court, but that court took occasion to say that such admissions should not be relied on, and held by the jury, when unsupported, sufficient to work a conviction. See also, Stanglein v. State, 17 Ohio 453.

In civil cases such admissions may often establish a prima facie case and are always admissible in evidence as tending to prove the fact of a disputed marriage, and they have been held in some civil cases to establish an estoppel where undenied (see Edgar v. Richardson, 33 Ohio St. 581, 593 [31 Am. Rep. 571]; Bruner v. Briggs, 39 Ohio St. 478) ; and such evidence is generally admitted in other states in civil cases. See Taylor v. Swett, 3 La. 33 [22 Am. Dec. 156].

In New York prior to the passage of Chap. 339 of the laws of 1901, marriage in civil cases could be entirely proved by cohabitation of the parties, acknowledgment, declarations, conduct, repute and the like. Gall v. Gall, 114 N. Y. 109 [21 N. E. Rep. 106] ; Tracy v. Frey, 95 App. Div. 579 [88 N. Y. Supp. 874] ; Schmidt, In re, 42 Misc. 463 [87 N. Y. Supp. 428]. See also 15 N. Y. Ann. Ca., and extended note.

In criminal cases it was apparently necessary to have direct proof of some marriage ceremony or agreement but evidence of reputation in the community and of holding out or introducing as man and wife could be introduced to corroborate direct proof of a ceremonial marriage. Hayes v. People, 25 N. Y. 390 [82 Am. Dec. 364] ; People v. Wentworth, 4 N. Y. Cr. Rep. 207.

The New York law of 1901 added an additional way of solemnizing marriage by permitting a written contract to be signed by both parties and subscribed by two witnesses in the same manner provided for the acknowledgment of a conveyance of real estate, which was to be recorded; and that such contract should be filed' with the clerk of the town or city in which the marriage is solemnized within six months.

In Massachusetts and Connecticut it seems that in bigamy cases there must be proof of an actual marriage. Commonwealth v. Littlejohn, 15 Mass. 163; State v. Roswell, 6 Conn. 446.

In Michigan, no civil or religious ceremony is required provided the parties actually agree together to take each other as husband and wife and do so live together, yet in an action for criminal conversation an actual marriage (of some kind) must be proved and it was said by Judge Cooley in Hutchins v. Kimmell, 31 Mich. 126, 130 [18 Am. Rep. 164]:

“Such evidence of cohabitation and reputation as would be sufficient in other civil cases will not suffice where it is «sought to fix upon the woman a charge of adultery.”

From all of these cases and from many more which we have examined, the rule seems to be well established that in both civil and criminal cases evidence of admissions by the accused, of the fact of a marriage having been performed and evidence that the parties have lived together as husband and wife will always be admissible and its weight is a matter to be determined by the jury from the circumstances of the case under proper instructions from the court, but that, in a criminal case, such evidence when unsupported by direct, evidence of an actual marriage is not,, in Ohio at least, nor in most other states, sufficient to support a conviction.

•There must be in a criminal case direct evidence sufficient to establish beyond a reasonable doubt the fact that a marriage — an actual, legal marriage — has been in fact consummated or at least, as in the Carmichael case, has been attempted to be performed.

The authorities therefore that are cited by counsel to sustain the contention of the state that marriage may be proved by evidence of cohabitation and admissions of marriage by the accused, do not sustain this contention but only go so far as to hold such evidence competent to corroborate direct evidence of an actual legal marriage.

But the question still remains, What is this actual marriage in Ohio of which direct evidence must be given? The statutes determine one form of legal marriage. The state claims that another form - a so-called common-law marriage — is legal. Our statutes are silent as to any authority for such a marriage. Our Supreme Court has not, as we have found, authoritatively sanctioned such a marriage. In other states the rule varies. Such marriages are sustained by statutes in some of the states, notably so in Nebraska. In some states the courts have upheld such marriages even when statutes positively prescribe the forms of legal marriage.

In the case of Cartwright v. McGown, 121 Ill. 388 [12 N. E. Rep. 737; 2 Am. St. Rep. 105], it is held' that,

“Marriage is a civil contract, made in due form, by which a man and woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge towards eách other the duties imposed by law upon such relation. No solemnization or other formality, apart from the agreement itself, is necessary; nor need there be any witnesses.”

And in the case of Dyer v. Brannock, 66 Mo. 391 [27 Am. Rep. 359], it is held that,

“In the absence of statutory provisions pronouncing such an agreement void, an agreement between parties to live together as husband and 'wife, followed by an 'actual cohabitation, is valid, without any magisterial or clerical solemnization.”

And such it seems is the rule in Utah.

While some states, e. g. New Hampshire (see Dumbarton v. Franklin, 19 N. H. 256) hold the contrary doctrine, there seems to be a decided tendency toward the theory that a soealled common-law marriage is legal. But in nearly all of these states, the marriage thus recognized as a common-law marriage is not mere cohabitation but an actual agreement per verba de presentí to live together — followed by an actual living together — as husband and wife; and this, too, not as a temporary arrangement, but for life.

One reason assigned by Judge Gholson for upholding marriages in apparent violation of the statutes is, that, notwithstanding any statute on the subject, a common-law marriage is good, unless the statute contains express words of nullity.

But if our understanding of the common-law rule as to marriage is correct, such marriage was never good in England, except for limited purposes and has never been adopted in Ohio and therefore the supposed historic reason for this rule as to the interpretation of statutes fails.

The marriage statutes of Ohio are in form mandatory. We have found no rule of common law or ecclesiastical law that would justify us in supposing that the legislature meant anything else than what the statute so expressly declares. We know no rule of statutory construction that justifies us in reading into the statute a negation of its express terms.

The repeated provisions for severe penalties on all those who neglect or fail to follow the precise formalities of the law as to marriage, seem.to negative any idea that the legislature ever intended or had in mind any other legal form of marriage. It would seem a strange anomaly, if a civil contract leasing real estate, or agreeing to answer for the debt of another, or an agreement made upon consideration of marriage, is to be held void unless in writing signed by the parties to the agreement, yet marriage itself, the most sacred and momentous contract, in its consequences, which it is possible for man to enter into, may be made by merely verbal promises or even without such promises.

It is strange if our laws, in order to insure the stability of land titles, require a record.of every deed and instrument conveying title, yet require (by implication) no record of the title on which the family name and honor, the property rights of wife and children, and the very legitimacy of the children themselves depends.

It is said that if common-law marriages are not upheld innocent girls will suffer in the loss of their good name, and the case at bar is cited in proof of this proposition. We do not so view.it.

Hazel Ginter, by all the evidence in this case, knew that she was not- legally married and proved it by her repeated statements to David Bates’ mother, as an excuse for living with him, that she had been married at Celina, at Lima and in Indiana, (her stories varying from time to time) and that she had a license to verify her statements. There can be no doubt that she regarded a license and some form of official action as essential to a legal marriage and pretended to have such license in order to support a claim which she knew to be false..

But common-law marriages, however we are to understand that term, are not yet so common as to be recognized anywhere as anything but exceptional. Our marriage laws are, and have always been, well known and understood, and a legitimate ceremonial marriage, either civil or religious, is the universal desire of all decent people contemplating matrimony.

To break down the bars established by the statute, to make possible the substitution of loose and uncertain requirements for the time-honored, fixed forms of the law is to open the way to all the forms of fraud and crime with which designing men may seek to destroy womanly virtue and with w'hieh unscrupulous women may seek to appropriate the good name and wealth of men to whom in life they were perhaps perfect strangers.

If a private arrangement without any formalities and without any writing or any record or any witnesses, is to be upheld as a civil contract; if secret marriages, known only to the parties themselves and participated in by none other are to be authorized; if the state is to have no right to protect its own interests, it is but one step further to the practice, now publicly advocated by certain notorious criminals and others, of having marriages on probation, the relation to cease at the will of either of the parties. If such is to be the law of Ohio, some other court must be the first to proclaim it.

The judgment of the court of common pleas will be reversed, and the cause remanded for further proceedings.


author: JELKE, J.

text:
    ASSESSMENTS — INTEREST.
    [Hamilton (1st) Circuit Court,
    December 19, 1905.]
    Jelke, Swing and Giffen, JJ.
    William C. Mudge v. Evanston (Vil.) et al.
    Interest on Municipal Assessments Levied Before Passage op Rev. Stat. 1536-292 (Lan. 4017) should be Reduced by Amount of Premium on Sale op Bonds.
    Before the passage of Rev. Stat. 1536-292 (Lan. 4017), the premium obtained by the sale of bonds for municipal improvements should go to reduce the interest charged against property holders on their deferred assessment installments, and should not be applied to reduce the amount of such installments.
    [Por other cases in point, see 1 Cye. Dig., “Assessments,” § 299. — Ed.]
    [Syllabus approved by the court.]
   JELKE, J.

We adhere to the law as laid down in the case of Fridman v. Norwood (Vil.), 25 O. C. C. 258, where this court said, page 262.

“To even things up, whatever of a premium or surplus is yielded should be credited back on the assessments of those who have the principal and interest of the debt to pay.”

This case was affirmed by the Supreme Court in Norwood (Vil.) v. Fridman, 70 Ohio St. 431 [72 N. E. Rep. 1166]. The error of counsel for William C. Mudge lies in seeking to have the premium produced go to a reduction of the cost of the improvement. This it does not. The cost of the improvement is made by the actual expenditure of money in paying therefor. The premium goes to and affects the cost of borrowing the money for the deferred payments. If the municipal council, by some financial thermometer could exactly know the rate of interest which would yield par for the bonds, it would be their theoretical duty to issue and offer for sale bonds at that rate of interest. The premium bid and paid is the capitalization (with provision for its own absorption) of the margin of excess between the market price of the money and that engaged to be paid in the bonds. To carry out the theory of Fridman v. Norwood (Vil.), supra, the municipality and the assessment-paying property owners in this deal should carry the burden evenly and without profit to either; hence, the premium produced should be credited back upon the interest payable by the property owners on the deferred assessment installments. The property owner, William C. Mudge, could have paid the cash assessment and the whole question of interest as to him would have been eliminated. So far as anything is shown herein, he never had the right to pay anything less than the face total of the cash assessment. It is a mere matter of mathematical determination to ascertain what it cost the village of Evanston to borrow this money, be it on a 3, 3y2, 4, 4y2 or 5 per cent basis. The fair thing then is for the property owner to pay the amount of the cash assessment plus interest at the rate it cost the village to borrow the money. The principal of the obligation has at all times been liquidated and fixed; hence Stephens v. Bridge Co. 139 Fed. Rep. 248, is not applicable.

The only uncertain thing has been the rate of interest, and that was ascertainable immediately upon the sale of the bonds. The plainr tiff, William C. Mudge, has, ever since the assessment was levied, had the use of this liquidated sum, which at law is deemed a valuable thing usually estimated at 6 per cent, and said plaintiff should not complain if the municipal credit is substituted for his personal credit to his profit and advantage.

We are therefore of the opinion that the plaintiff should pay the amount of the assessment with interest from the date thereof at the rate to be determined'as above indicated, to date, without compounding; or, he may, at his election, adopt the ten annual installments plan, by paying the past installments with their interest calculated as above, without penalty, and without further interest on the defaulted payments, and continue the installments into the future to the end of the ten years period, all with interest fixed as we have found proper herein.

This question cannot arise as to assessments levied since the passage of the new municipal code. Fortunately, the legislature in Rev. Stat. 1536-292 (Lan. 4017), has eliminated this complication as to the future.

Swing and Giffen, JJ., concur.