author: Skeel, J.

text:
    Morrow, Appellant, v. City of Cleveland, Appellee.

      (No. 19419
    Decided November 8, 1943.)

      Mr. Malvern Schultz, for appellant.

      Mr. Thomas A. Burke, Jr., director of law, and Mr. J. M. McSiveeney, for appellee.
   Skeel, J.

The plaintiff, appellant herein, comes to this court upon appeal on questions of law from a ruling of the Common Pleas Court. The trial court sustained defendant’s demurrer to plaintiff’s petition and thereafter, the plaintiff not desiring to plead further, final judgment for the defendant was entered.

• The plaintiff’s petition, in substance, alleges that he brings the action as a taxpayer, being the owner of real estate within the boundaries of the city of Cleveland, a municipal corporation legally organized under the Constitution and laws of the state of Ohio. It is alleged that the city of Cleveland is governed by a charter adopted by a vote of the people in 1931. By the terms of the charter of 1931 the legislative branch of the city government is vested in a council. The charter provides that the members of the council are to be elected from wards, each ward electing one councilman.

It is further alleged that the charter of 1931 provided that the city should be divided into wards on the 'basis of one ward for each 30,000 inhabitants, and that to determine the number and location of the several wards, the total population as shown by the federal census of 1930 should be divided by 30,000, the result being the number of wards. It then provided that the city council shall proceed to divide the city by natural boundaries into the proper number of wards so that each will have as near as practicable a population of 30,000. No such wards have been thus established. The census of 1940 shows the population of the city of Cleveland to be 878,336 which when divided by 30,000, the number of ■ inhabitants which the charter provides as the basis for determining the number of wards, would entitle the city to 29 wards and therefore a council of 29- members.

It is further alleged by the plaintiff that the provisions of the charter relating to the method of dividing the city into wards have been violated; that the city has never been divided into wards; that 33 councilman have been illegally elected and are serving the city unlawfully and without warrant of authority; and that the city is paying $3,000 per year to each of the councilmen except the president of the council .who is receiving $5,000 per year. The petition further alleges that all other functions of the legislative branch of the city government are in jeopardy because the council which seeks to perform the duties imposed upon it by law is an illegal body and therefore devoid of lawful authority. The plaintiff alleges that the director of law was requested to bring this action but that such request was refused. The plaintiff then asks that the defendant be enjoined from the payment of the salaries of the alleged councilmen.

The defendant filed a demurrer to the plaintiff’s petition on two grounds:

1. That the court is without jurisdiction of the subject matter of the action.

2. That the petition does not state facts sufficient to constitute a cause of action.

Before considering the sufficiency of the allegations of the petition to constitute a cause of action, it will be necessary to consider to what extent the court must assume as true the allegations therein contained. In the first place, the court should disregard all legal conclusions pleaded. The petition alleges that “33 councilmen were illegally elected to the city council.” Such an allegation is a legal conclusion, and therefore cannot be considered as admitted by the defendant’s demurrer.

It is equally true that the court will disregard allegations which are in direct conflict with facts of which the court takes judicial notice.

In Jones’ Commentaries on Evidence (2 Ed.j, 647 Paragraph 370, the rule is stated as follows:

“Pacts judicially noticed are not ordinarily required to be pleaded, and if pleaded matter conflicts with the judicial knowledge of the court, it plainly follows that the latter controls * * *. A majestic, though somewhat hazy, background to the entire field of evidence, the doctrine stands as a collection of facts, the truth of which, once the application of the doctrine is determined, may be sought by.reference to such sources as the court deems fit and proper, but which are, in the last analysis, ultimate and predominant truths uncontrollable by litigants or by authorities brought forward to refresh the memory of the court.”

In considering the effect of judicial notice in “aiding or combatting general demurrer” the same author on pages 839, 840 and 841, says:

“There is an apparent conflict on the question of whether, on general demurrer, judicial notice of facts opposed to the averments of the pleadings demurred to can be used. ’ ’

The author then cites and comments on People v. Oakland Waterfront Co., 118 Cal., 234, 50 P., 305, and, Griffing v. Gibb, 67 U. S. (2 Black), 519, 17 L. Ed., 353, and concludes in paragraph 476 that:

“From the authorities cited and quoted in the preceding section we are forced to the conclusion that a demurrer is not aided by facts of which the court might be required to take judicial notice upon trial of the cause to the extent of requiring the court to find against direct averments admitted by the demurrer. When it is remembered that judicial notice may always be combated by evidence from the opponent when invoked by a party litigant, it appeals persuasively that the result of a trial should not be anticipated on demurrer. True it is that there can be no combat as to the court taking ' judicial notice of laws of the jurisdiction and the apparently conflicting cases may well be reconciled by considering that the judge must exercise such knowledge of the laws of his jurisdiction as may be necessary in dealing with a demurrer. But where, in order to defeat a claim, it would be necessary to take notice of facts not alleged, wholly extraneous to what has been presented to the court in formal mode, there is, at least, no compulsory notice of such facts.” (Italics ours.)

In the case of French v. Senate of State of California, 146 Cal., 604, 80 P., 1031, the court had this identical question for consideration. The action was in mandamus seeking to compel the Senate of the state of California to admit the petitioners to the privilege of the office of senator to which they had each been elected. The petitioners had been expelled by a vote of the Senate for malfeasance in office, after charges had been filed against them in which it was alleged that they had taken bribes for the purpose of influencing their conduct as senators. ' The petition alleged that they had not been given a hearing nor afforded a trial, nor permitted to make a defense and that the charges were false. The official proceedings of the Senate showed, that charges had been preferred, that a subcommittee had made a full investigation and report thereon, and that petitioners had been given notice of the proceedings and allowed to participate therein. The Senate demurred to the petition. The court, in sustaining the demurrer, on the ground that it did not have jurisdiction, in the fourth and fifth paragraphs of the syllabus said:

“Allegations of the petition, made contrary to facts judicially noticed by the court, are not admitted by the demurrer.

' ‘ The court takes judicial notice of the proceedings had in the Senate, and entered upon its journal, by which petitioners were expelled, showing that charges were preferred against them and referred to a committee for investigation, which, after investigation, reported to the Senate, finding that the charges were true, and recommending expulsion, which report was acted upon by the Senate. In the absence of a contrary allegation it must be presumed that petitioners had notice of these proceedings, and were allowed to participate therein. ’ ’

In 15 Ruling Case Law, 1062, Section 5, the rule is stated as follows:

‘ ‘ Since judicial notice is not generally dependent on the pleadings, it has been held that matters properly subject thereto are not affected by a demurrer. In such case the demurrer is not taken to admit anything that is contrary to the judicial knowledge of the court.”

In the instant case the subject of the plaintiff’s action is founded upon the provisions of the charter of the city of Cleveland which charter was adopted by a vote of the people at the November election of 1931. Is the fact of the adoption of such charter and its provisions a subject of which the Common Pleas Court may take judicial notice? Almost without exception, except where a state statute requires it, courts of general jurisdiction do not take judicial notice of municipal ordinances. Jones’ Commentaries on Evidence (2 Ed.), 702, Paragraph 400; 17 Ohio Jurisprudence, 51, Section 26. Is there any distinction to be found between ordinances passed by a city council and a charter which, under Sections-3 and 7 of Article XVIII of the Constitution of Ohio, can become effective only when adopted by a vote of the people?

Jones’ Commentaries on Evidence (2 Ed.), 699, paragraph 399, in presenting the question as to whether a court of general jurisdiction will take judicial notice of municipal charters, said:

“There is practically a consensus of opinion that judicial notice should be taken of the acts incorporating municipalities, for the reason that acts incorporating cities, villages and other municipal corporations may be regarded as inherently public, or, if local in their general character, as containing certain provisions which may affect the general public. Whatever may be the grounds of the rule, the courts have generally taken judicial notice of such acts, whether declared to be public or not. By the great weight of authority, it is accordingly held that neither the corporate existence nor the charter powers of such bodies need be alleged or proved. * * *” '

It must be remembered that the right of an Ohio city to adopt a home rule charter is provided for by the Constitution of the state of Ohio and its adoption can be accomplished only by a vote of the people. In presenting a proposed charter or an amendment to an existing charter its provisions are given great notoriety and are the subject of much public discussion. The proponents of such charter or amendment see to it that the public is fully advised as to its provisions.

In the case of Stange v. City of Cleveland, 25 C. C. (N. S.), 599, 26 C. D., 186, the court had for consideration a prosecution of a contractor for employing his help longer than eight hours a day upon public work when there was no emergency requiring longer'hours. The power of the city to regulate by ordinance the hours of work on public projects when the state had already passed statutes to govern this question was challenged. The court in passing on this question said, on page 601 of the opinion:

“The court will take judicial notice that on July 1, 1913, in pursuance of the authority given by the latter section (Section 7, Article XVIII of the Constitution of Ohio) the city of Cleveland, by a vote of its people, adopted a. charter for its government. Section 196 of this charter provides as follows: * # * (then follows a copy of the section regulating the hours of labor on public work).”

It might be well to note here that the plaintiff’s brief and reply refer frequently to the history of the Cleveland charter, its amendments and some of the provisious thereof, when they are not set forth either in his pleading or in the record. He must have concluded, therefore, that such matters were the subject of judicial notice.

The plaintiff’s petition alleges that the charter of 1931 “requires the city of Cleveland to be divided into wards upon the basis of one ward for each thirty thousand inhabitants, or major portion thereof, as determined by the federal census taken in the year 1930 and 'every tenth year thereafter.”

The charter provision on this subject is Section 2ó. It does not refer to the census of 1930. It provides in part:

“Immediately after the proclamation by the Secretary of State, stating the population of the cities of Ohio, as determined by the federal census decennially taken, the council shall redivide the city into wards upon the basis of one ward for each thirty thousand (30,000) population or major portion thereof. * * *”

The next decennial census after the adoption of this charter was in 1940.

The charter provided that the members of council elected at the election of 1931 should serve out their terms so that the first election of councilmen under the charter of 1931 did not take place until the municipal elections in the Fall of 1933.

Prior to the adoption of the charter of 1914, the city was divided into 26 wards by an ordinance of the council acting under the authority of Section 4212 of the General Code. Section 28 of the charter of 1914 provided that the wards as defined prior to the adoption of the charter should continue until the next census. In 1921, the census of 1920 having shown the population to be 796,841, the city was then divided into 32 wards which were increased to 33 wards when West Park was annexed. The people of Cleveland adopted the manager plan of government in.1921, which provided for a council of 25 to bo elected from four districts. These districts were defined in the charter. But the charter of 1921 did not have the effect of disturbing the wards as previously defined, except that they no longer were the basis upon which membership in the city council was to be determined. It is a matter of common knowledge that ward organizations retained their identity and continued as integral parts of our major political parties as provided by law and that the wards as created under the authority of the charter of 1914, after the census of 1920, were used in the conduct of all elections, local, state and national, except for that of council-manic candidates. So that when the people adopted Section 25 as a part of the charter of 1931, which contained the following sentence, “the division of the city into wards existing at the time of the adoption of this amendment, shall continue until changed by the council as provided herein” they intended to re-establish the ward boundaries as created under the charter of 1914 and (defined by ordinance passed as to 32 wards in 1921) as to the 33rd ward in 1922, as the basis for the election of councilmen until such time as the wards were changed by the council in the manner provided in Section 25 after the next proclamation of the Secretary of State of the population in Cleveland determined by the 1940 census.

Taking into consideration, therefore, only those allegations that are well pleaded and not in direct conflict with facts of which the court takes judicial notice, the petition does not state sufficient facts to constitute a cause of action.

It remains to consider whether the court has jurisdiction of the plaintiff’s complaint in the form in which it is presented in plaintiff’s petition. The action, as stated above, is one seeking to enjoin the payment of the salaries of the thirty-three councilmen elected to office by the voters at the regular municipal election, held according to law in November, 1941. The sole basis upon which plaintiff seeks to enjoin the payment of salaries is the failure of the council to carry out the provisions of Section 25 of the charter of the city of Cleveland to redivide the city into wards so that each ward would have a population of about 30,000 persons, after the proclamation of the Secretary of State stating the population of Cleveland as a result of the census of 1940. It is claimed by the plaintiff that if this had been done it would have reduced the number of wards from thirty-three to twenty-nine. Whether this conclusion is true is open to considerable doubt. It might be that the subdividing of the city into wards by the council in the exercise of its sound discretion, due to the irregularities of the natural and street boundary lines on the basis of 30,000 population, or major portion thereof, “as nearly equal in population as may be, composed of contiguous and compact territory and bounded by natural boundaries or street lines, ’ ’ would result in the creation of thirty or even thirty-one wards. But, regardless of what might be the result, it is contended that the failure of the council to carry out the provisions of this section, after the census of 1940, has invalidated the offices of all the councilmen in Cleveland. Therefore, it is claimed there being no valid office there cannot be even a de facto officer. Certainly no such result will obtain. The charter of 1931 declares in Section 25 that the “wards existing at the time of the adoption of this amendment, shall continue until changed by the council as provided herein.” Having concluded that the wards as they existed prior to the charter of 1921 and continued to exist thereafter for all other purposes except the election of councilmen,. were, by the adoption of the charter of 1931, reestablished as the basis for the election of councilmen, the legality of the office is thereby determined, and the only way to test the rights of incumbents to the public office which they occupy is by a quo warranto proceeding and not by injunction in equity to enjoin the payment of such officers’ salaries or fees.

Under the title “Proceedings to Try Title” in 32 Ohio Jurisprudence, 1083, Section 229, the rule is stated as follows:

“The title of a de facto officer cannot be inquired into in a collateral way between third parties, but it may be inquired into where he is suing in his own right as an officer. Every issue questioning the authority or rights of an officer is collateral, unless the officer himself is in some way a party to the action. If a de facto officer sues for his salary, the question may be raised by the answer. The only way is to challenge in a quo warranto proceeding.” Molitor v. State. 6 C. C., 263, 3 C. D., 445.

The case law, not Qnly in Ohio but in all other jurisdictions, almost without exception supports the rule as thus stated. In the case of Greene v. Knox, 175 N. Y., 432, 67 N. E., 910, in determining the sufficiency of pleading of a taxpayer seeking to enjoin the payment of the salary of one holding public office where the officer was not a party to the suit, the court said:

“ * * * in our view of the case, the sufficiency of the pleading depends upon the single question whether the title to office, complete and regular on its face, can be tried in a taxpayer’s action brought to restrain the payment of salaries. * * *

“Wehave here, then, three defendants holding regular and presumptively valid appointments in the civil service, the payment of whose salaries is sought to be enjoined on the ground that, although their appointments are valid in form, they are invalid in fact. * * *

“These suggestions, we think, suffice to show the untenability of the claim that the defendants’ right to their salaries can be adjudicated without passing upon the question of their titles to office; hut, even if such a thing were possible, it would be contrary to the orderly and just methods of judicial procedure to relegate public officers first to an equity forum for the determination of their rights to salaries, and then to a legal forum for the trial of titles to office, with the incongruous possibility that in the former the court might decide that the payment of salaries should be enjoined, and in the latter a jury might affirm the validity of the titles to office upon which the rights to salaries depend. * * * The whole case may therefore be summed up in the statement that, whenever there is an actual contest over a title to office that is regular on its face and presumptively valid, the incumbent is entitled to his day in court on the main question before the payment of his salary can be interdicted; and, aá' a general rule that can only be «done properly in the action of quo warranto in a court of law, where the issues of fact can be decided by a jury.”

Paragraph two of the syllabus reads:

“The salary of an officer is property, which cannot be taken away until the office is destroyed; and, when the’question of title to office is the main question, the proper remedy is by quo warranto, and not by an action by a taxpayer to restrain payment of the salary. ’ ’

It is claimed by the plaintiff that the case is also authority for the proposition that if the claimed officer’s right to the office is invalid as a matter of law, or if there is no legal office, a suit in equity to enjoin the payment of salary is proper. Whether this be true or not true does not affect the instant case. There are no facts properly alleged in the petition that would even colorably be said to present either of these claims.

In the case of Burgess v. Davis, County Treas., 138 Ill., 578, 28 N. E., 817, the court, in passing on the use of the injunctive remedy to stop the payment of the salary of a judicial officer who had been elected to office but bad thereafter disqualified himself from holding the office, said:

“Equity will not interfere to enjoin the payment of fees, salaries, or emoluments to a cle facto incumbent of an office. 2 High Inj. 3rd Ed. Sec. 1314. Public policy will prevent the courts from interfering to disturb the de facto officer in the receipt of the fees. Stone v. Wetmore, 42 Ga., 601. The enjoyment of the fees, profits, and advantages of the office are so. connected with the proper discharge of the duties of the office itself that they cannot- be separated.”

See, also, Ake v. Bookhammer, 13 Del. Ch., 320, 119 A., 238; Stiess v. State, 103 Ohio St., 33, 132 N. E., 85; State, ex rel., v. Brough, 94 Ohio St., 115, 113 N. E., 683; Babbitt v. Shade, 60 Ohio App., 100, 19 N. E. (2d), 778.

It is clear, therefore, that the court did not have jurisdiction of the cause of action as presented by the plaintiff and for that reason the plaintiff’s petition was properly dismissed.

The problem of procuring the redistricting of the city into wards, under Section 25 of the charter of 1931, is not one for judicial determination. The duty is one that rests squarely upon the legislative branch of the city government and in carrying out the mandate of the charter there is placed upon the council the duty of exercising its sound judgment and discretion.

For the reasons, therefore, that the facts which are well pleaded in the petition do not constitute a cause of action and that the court is without jurisdiction to grant the relief asked by the plaintiff, under the circumstances of the case, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Lieghley, J., concurs.

Morgan, P. J., concurs in judgment.


source: Caselaw Access Project

author: Stuart, J.

license: Public Domain

text:
    In re Estate of Potter.
    (No. 695
    Decided June 21, 1943.)

      Messrs. Bowman, Hanna dfr Middleton, for appellants, Union Central Life Insurance Company and Daniel W. Searles.

      Mr. Elmer McClain, for appellee.
   Stuart, J.

Although this case is docketed and was argued by counsel as an appeal on questions of law and fact by Union Central Life Insurance Company of Cincinnati, Ohio, and Daniel W. Searles, mortgage lien creditors of the estate of Dudley Potter, deceased, it is patently an appeal on questions of law from an order of the Probate Court of Wood county authorizing and directing the administratrix of that estate to revive a certain cause and appeal now pending in the United States courts and known as “In the Matter of Dudley Potter, Farmer-Debtor, Cause No. 13919,” in farmer-debtor proceedings in the United States District Court for the Northern District of Ohio, Western Division, at Toledo, upon appeal to the United States Sixth Circuit Court of Appeals upon notice of appeal filed on January 13, 1943.

The sole question presented is whether in a farmer-debtor proceeding pending in the courts of the United States pursuant to a petition filed by a farmer-debtor under Section 75 of the Bankruptcy Act (Title 11, Section 203, U. S. Code) wherein the farmer-debtor has appealed to-the United States Circuit Court of Appeals from an order of the bankruptcy court and thereafter dies during the pendency of such proceeding and appeal, the Probate Court which appointed the administratrix has the power to authorize and direct the administratrix of such deceased farmer-debtor, as personal representative, upon her own application and the application of the surviving spouse and all the heirs and next of kin of the deceased, to make application to such federal courts for an order substituting such administratrix in such federal proceeding and' appeal in place of the farmer-debtor.

While the term “personal representative” as used in subsection (r) of Section 75 of the Bankruptcy Act may be broad enough to include all executors and administrators of estates of deceased farmers, it does not' follow that all executors and administrators may lawfully enter into bankruptcy. It was not the purpose of Congress through this legislation to attempt to add to or remove limits from the power and authority conferred by the laws of a state upon a personal representative created solely by virtue of such laws. Rather it would seem that the sole purpose of Congress was to make Sections 74 and 75 of the Bankruptcy Act (Title 11, Sections 202 and 203, U. S. Code) available to those personal representatives of deceased farmer-debtors who by statute, will, or other creating means are given sufficiently broad powers to enable them, within the confines of such powers, to take advantage, depending on the extent of such power, of all or part of the provisions of the section.

The Constitution of Ohio provides, in Section 8 of Article IV:

“The probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators, and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses and for the sale of land by executors, administrators, and guardians, and such other jurisdiction, in any county or counties, as may be provided by law.”

A personal representative of a deceased person is created under and derives his power from this section of the Constitution and the provisions of the Probate Code. Under the law of Ohio he takes title to the personal property in the estate, but takes no interest in realty save a naked power to sell the same upon the order of the court in case the personal estate is insufficient to pay the debts of the deceased. His right and the method he must pursue to sell real estate to pay debts is carefully and in minute detail prescribed by statute. In no other circumstance or manner may he deal with it.

The settlement and distribution of decedents’ estates, and the right to succeed to the ownership of realty and personalty are peculiarly matters of state law. The federal courts have no probate jurisdiction and have sedulously refrained, even in diversity cases, from interfering with the operations of state tribunals vested with that jurisdiction. Harris v. Zion Savings Bank & T. Co., 317 U. S., 447, 87 L. Ed., 390, 63 S. Ct., 354.

The only instance in which the Probate Court may order an estate relieved from administration is in accordance with the provisions of Section 10509-5, General Code, when the assets of the estate are of less value than $500.

In Chapman v. Federal Land Bank of Louisville. Ky., 117 F. (2d), 321, the court held that the administrator, having attached to his original petition, filed under Section 75 of the Bankruptcy Act, “a copy of an order of the Probate Court authorizing him to file this potion,” had, therefore, state authority to proceed to obtain the benefits of the federal act, and such court did not decide this question as to whether the Probate Court had the power to make such an order.

To permit the administratrix to be substituted for the deceased farmer-debtor in the bankruptcy proceeding would be to transfer the administration of this estate, so far as the real estate is concerned, in which the administratrix has no right or interest and the title of which is in the heirs, from the Probate Court to the federal courts.

In Pennsylvania, an administrator can deal with the decedent’s real estate only for the purpose of paying decedent’s debts promptly, and under Pennsylvania law an administrator does not have the authority to file a petition under Section 75 of the Bankruptcy Act to extend and postpone the decedent’s debts; therefore under the rule of Harris v. Zion Savings Bank & Trust Co., supra, the term ‘farmer’ does not include an administrator of a deceased farmer acting under the authority of a state whose laws do not authorize him to file such a petition, In re Stoner, 133 F. (2d), 696.

The Probate Court is without power to authorize a personal representative to invoké these provisions of the Bankruptcy Act.

The order is reversed and the cause is remanded to the Probate Court with instructions to deny the application.

Order reversed and cause remanded-.

Lloyd and Carpenter, JJ., concur.


author: Overmyer, J.

text:
    In re Estate of Redman: Hiland, Appellant, v. The State of Ohio, Appellee.
    (No. 3555
    Decided January 9, 1939.)

      Mr. Wm. Oats, for appellant.

      Mr. Thomas J. O’Connor, prosecuting attorney, and Mrs. Geraldine F. Macelwane, for appellee. ■
   Overmyer, J.

.This matter originated in the Probate Court of this county, where Harry Hiland, appellant, filed proceedings to have himself found and declared to have been the common-law husband of one designated in such court as Anna Redman, deceased, and, as such husband, to have himself found and declared to be her only heir at law and distributee, she having died intestate.

His claim having been denied in the Probate Court and, on appeal, in tlie Common Pleas Court, he prosecutes an appeal to this court, claiming that the finding* and judgment below are against the weight of the evidence and contrary to law. The matter is here submitted on a bill of exceptions, setting forth the evidence taken in the Common Pleas Court, oral argument and briefs.

In the Probate Court, the prosecuting attorney of this county filed a motion stating that there are no known heirs of Anna Redman, deceased, and asking* for an order requiring The Ohio Citizens Trust Company, trustee of her estate, to show cause why the estate should not escheat to the state of Ohio, and for an order escheating the estate.

We have read the record in this case and are of the opinion that the finding and judgment of the court below are clearly against the weight of the evidence; in fact, there is no evidence to sustain the finding and judgment, but ample evidence to have sustained a finding and judgment for the appellant. The evidence shows, not only by the testimony of appellant but by other witnesses, the elements necessary to constitute a valid common-law marriage in Ohio, as clearly as such contracts usually can be shown. 26 Ohio Jurisprudence, 23, Section 10 et seq., and cases cited.

The undisputed evidence in the record, showing these essential elements, is that in June 1926, the parties, who were illiterate negroes, agreed to live together as common-law husband and wife, without securing a license and engaging in a ceremonial marriage; that both parties were then legally capable of making such a contract; that they at once began to live and cohabit together as husband and wife and continued to live, and were publicly recognized, as husband and wife for five years until the wife died in 1931; that the appellant was working and paid the rent and other expenses of the home; that roomers and neighbors in the various places where the parties lived regarded them as husband and wife and so treated them; that there is no evidence that, in the five years this common-law relationship of husband and wife existed, it was ever interrupted or that either party breached' the contract in any way; and that in the wife’s last illness, the only illness shown to have been suffered by her, the husband was by her side to the end. All of this appears of record and is not disputed, and, since common-law marriages have been and still are recognized in Ohio, we know of no other way by which the validity of such marriage could have been proven.

The judgment of the lower court must be and is reversed and final judgment entered for appellant, granting to him the relief prayed for.

Judgment reversed.

Lloyd and Carpenter, JJ., concur.


author: Doyle, J.

text:
    Montalto et al., Appellants, v. Yeckley et al., Appellees.
    (No. 962
    Decided April 23, 1943.)

      Messrs. Levin & Levin and Messrs. Provenza <& Friedman, for appellants.

      Messrs. O’Toole & Pincura, for appellee Edgar G. Yeckley and others.

      Mr. G. A. Reseh, for appellee The Lorain Banking Company.
   Doyle, J.

There has been presented from time to time certain aspects of this case, which was appealed on questions of law and fact from the Court of Common Pleas of Lorain county and which appeal invoked the chancery jurisdiction of this court. Our record of unreported decisions treats of the various questions then presented.

The question for'determination in this final hearing on the merits is whether a judgment now owned by the defendant Edgar B. Yeckley should be allowed in satisfaction of the judgment which the plaintiffs, Lorenzo and Carmelina Montalto, hold against the said Edgar B. Yeckley. And if it is found that the judgment may be so set off, that conclusion is dispositive of all remaining questions in the action.

The record discloses that the Montaltos (plaintiffs) have a valid, subsisting judgment against Yeckley (one of the defendants), and that, after the process of the court was invoked for the collection thereof, Yeckley purchased, from a third party, a judgment which said third party had against the Montaltos, and which judgment had been rendered in the same action in which the judgment in favor of the Montaltos and against Yeckley was rendered. Yeckley prays this court that the judgment which he so purchased be allowed in satisfaction of the judgment which the Montaltos have against him; Yeckley’s judgment being the larger in amount of the two judgments. In other words, it is prayed that the one judgment be allowed as an offset against the other.

We determine from the evidence the facts to be that the defendant Yeekley purchased the judgment in good faith, for a valuable consideration, and became and now is the absolute and unconditional owner thereof; that the judgment so purchased is greater in amount than the judgment against him.

The general rule in equity applicable to such an involvement may be tersely stated in the following language : The assignee of a judgment against his judgment creditor, procured-by such assignee subsequent to the rendition of the judgment against him, may have such judgment set off against the judgment against him, where a set-off would have been allowed if the judgment had been recovered directly by him against his judgment creditor. The fact that a judgment debtor purchases a judgment for the purpose of using it as a set-off does not prevent it from being so used, if the purchase is bona fide. 31 American Jurisprudence, Judgments, Section 905.

On the general subject of set-off, it is held in this state, in equity, that, as between judgments, it is a matter within the sound discretion of the court to which the application for a set-off is made. Diehl v. Friester, 37 Ohio St., 473; Barbour v. National Exchange Bank, 50 Ohio St., 90, 33 N. E., 542, 20 L. R. A., 192; 121 A. L. R., 478, annotation.

This court therefore determines that the after-acquired judgment of the defendant Yeekley may be allowed in full satisfaction of the judgment of the plaintiffs Montalto against the said defendant Yeckley; and a final decree for said defendant may be entered, at the costs of plaintiffs.

Decree accordingly.

Stevens, P. J., and Washburn, J., concur.


author: Hornbeck, J. Geiger, J.,

text:
    The State, ex rel. Herbert, Atty. Genl., Appellee, v. The Hocking Valley Mining Co., Appellant.
    (No. 3494
    Decided February 23, 1943.)

      Mr. Thomas J. Herbert, attorney general, and Mr. Ansel H. Wilson, for appellee.

      Mr. H. C. Allreacl, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court in the sum of $390.70, with costs, on behalf of the plaintiff and against the defendant.

The facts essential to an appreciation of .the legal question presented are that on or about January 10, 1929, Floyd Bolin died as the result of an accidental injury, at which time he was an employee of the defendant company, a self-insurer under the Workmen’s Compensation Act of Ohio. Among other dependents, Floyd Bolin left surviving him Meskil Bolin, an illegitimate child, born within a year prior to the death of Floyd Bolin. The mother of Meskil .Bolin, and the child, who was a babe in arms, did not at the time of the injury or death of Floyd Bolin, or at any other time, live with him nor did the father and mother of the child intermarry.

On October 1, 1928, Louisa Ellen Six filed complaint in the Probate Court of Athens county, Ohio, against Floyd Bolin, charging him with being the father of her illegitimate child, Meskil Bolin. Thereafter, Floyd Bolin plead guilty to the charge, was adjudged the putative father of Meskil Bolin, and ordered to pay the sum of $2.50 per week for the support of the child. Such order was in full force and effect at the time of the injury to, and death of, Floyd Bolin. Later, the Industrial Commission found that, among other dependents of decedent, “the illegitimate child known as Meskil Bolin was wholly dependent upon the deceased” and awarded the child a share of the total sum awarded by reason of the accidental death of Floyd Bolin.

Subsequent to the order of the commission the defendant employer and the guardian of Meskil Bolin executed a paper designated “Agreement as to compensation on account of death,” on a form prescribed by the Industrial Commission, in which the defendant agreed to pay the award in favor of Meskil Bolin in semi-monthly instalments of $4.50 each. The payments were thereafter made by the defendant pursuant to the order of the commission, and its agreement aforesaid, in the sum of $558, but on or about June 7, 1933, it discontinued further payments, and on July 16, 1941, there had accrued a balance of $376.61 of the amount awarded to Meskil Bolin, which, on that date, the commission ordered paid to Meskil Bolin in a lump sum.

The question presented is whether Meskil Bolin is entitled to share in the award made by reason of the death of his father, Floyd Bolin, the answer to which requires determination whether the child is a dependent within the contemplation of the Workmen’s Compensation Act.

The Ohio Constitution, Section 35, Article II, authorizes the passage of laws establishing a state fund to be created by compulsory contributions thereto by employers, for the purpose of providing compensation to workmen and their dependents, for death, injuries, or occupational disease occasioned in. the course of such workmen’s employment. Pursuant thereto, among other sections, there was enacted Section 1465-68, General Code, reading in part:

“Every employee mentioned in Section 1465-61, who is injured, and the dependents of such as are killed in the course of employment, * * * shall be entitled to receive, * * * such compensation for loss sustained on account of such injury or death, * * (Italics ours.)

At the outset it should be noted that Section 1465-68, General Code, is the basic statute which broadly states who are entitled to compensation under the workmen’s compensation fund. Meskil Bolin was in fact, as appears from the statement heretofore and which we will demonstrate hereinafter, the dependent of Floyd Bolin at the time of his injury and as such came within the express provisions of the general section defining who are entitled to compensation, namely, Section 1465-68, General Code. Section 1465-82, General Code, as effective upon the date of the injury of Floyd Bolin, in the first four paragraphs thereof, defined the amount of benefits to be awarded in the event of the death of the injured employee, if no dependents, or to those who are wholly dependent or to those who are partly dependent, and following these four provisions was paragraph five, now carried in the statute as paragraph four, which letter numbering we adopt. It reads as follows:

“4. The following persons shall be presumed to be wholly dependent for the support upon a deceased employee:

“ (A) A wife upon a husband with whom she lives at the time of his death.

“(B) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent, or for whose maintenance such parent was legally liable at the time of his death'. # * #

“In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in -each particular case existing at the time of the injury resulting in the death of such employee, but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband, or widow, lineal descendant, ancestor or brother or sister. The word ‘child’ as used in this act shall include a posthumous child, and a child legally adopted prior to the injury. * * *” (Italics ours.)

It is the claim of defendant that the illegitimate child, Meskil Bolin, is not a child of Floyd Bolin as the term is employed in paragraph 4 (B) of Section 1465-82,' General Code, upon the authority of Staker, Gdn., v. Industrial Commission, 127 Ohio St., 13, 186 N. E., 616, and further, that the child does not bear the relation of lineal descendant to its father, Floyd Bolin, and therefore, because of the last part of paragraph 4 of the section, could not be found to be a dependent of its father.

Judge Leach of the' Common Pleas Court in a strong opinion held that the second proposition of the syllabus in the Stoker case was not stare decisis of the question presented here, and that, giving full consideration to the broad purposes of the Workmen’s Compensation Act, and to all of the language of Section 1465-82, General Code, the illegitimate child, Meskil Bolin, was a dependent of his father and entitled to share in the benefits of the act.

The second proposition of the syllabus in the Staker case is:

“The word ‘child,’ used in that section [Section-1465-82, General Code] is to be construed in its usual and ordinary sense, and applies to legitimate children and to children legally adopted prior to the employee’s injury.”

If this syllabus was essential to the proposition presented and decided we would readily accede to its binding force on us, but obviously it was not responsive to the narrow issue presented to the court for determination. We do not concede, on the contrary we do not believe the proposition supported, that the “usual and ordinary sense” in which the word “child” is used requires that it be given application to legitimate children only. We grant that the general rule of legal construction of the meaning of the word “child” when employed in wills or statutes includes legitimate children only, but the humanitarian purpose of the Workmen’s Compensation Act, the constitutional and statutory provisions that its benefits shall be enjoyed by injured employees and the dependents of such employees who have died, and the trend of enlightened public opinion on the rights that should be accorded an illegitimate child, require the holding that “child” as used in paragraph 4 (B) of Section 1465-82, General Code, includes'an illegitimate, as well as a legitimate, child.

Schneider’s Workmen’s Compensation Law, at page 1324, in discussing particularly the federal Workmen’s Compensation Act, but also the subject of illegitimate children as affected by such acts generally, has this to say:

“Notwithstanding, then, the generally accepted view7, and the numerous decisions, in support of it, referred to at the outset, it is believed that the secretary would be amply justified in holding that the children of a deceased employee, whether legitimate or illegitimate, at least if there is no reason to question the relationship, are entitled to the benefits of the compensation act. This would be no more than giving to the word ‘child’ its natural import. It would likewise give effect to the tendency noticeable in modern legislation, toward recognizing in illegitimates the same claims to parental care and support that belong, by natural right, to the young of any species. It would be sustained, moreover, by those authorities above cited, few in number but none the less persuasive, which announce what seems to be the more rational doctrine; and it would follow a principle of public policy wrhich does not depend for its sanction upon the infliction of vicarious punishment on the innocent and the helpless. On the other hand, to hold, as many courts have done, that the use of the word ‘child’ in a statute, without any qualification indicating a restricted sense, always implies the issue of lawful wedlock, because in generations past the law regarded a bastard as nullius films and heir to no one, is to adhere to a rule long after the reason for it has ceased to have point. Such an adherence to mere technicality, based on a legal fiction no longer operative, would be still less reasonable when dealing with a statute which, like the compensation act, is intended for a beneficial purpose and is expressly designed to relieve ordinary laborers and those dependent on them of the necessity of bearing the whole burden resulting from the inevitable accidents incident to the industry in which they are employed. ’ ’

We are not certain from which one of the citations this quotation is taken, probably from In re Claim of J. Harding, Op. Sol. C. & L. (1915), 553, which reference is not available to us, and may be but a report of a referee. In any event, it comports with our concept of the law. Other cases are cited to support the-text.

No unnecessary or improper drain on the workmen’s-compensation fund will result by the inclusion of an illegitimate child under 4 (B) of the section, for the-reason of the prerequisite to the determination of the-presumption of dependency that it further appear that the parent of such child was legally liable for its maintenance at the time of his death.

We are in accord with the opinion of Judge Leach that the question decided in the Staher case is essentially different from that which is before us in this-case. The distinguishing differences are obvious. As a matter of fact, the Staher case parallels this case in one particular only, namely, that the child was an illegitimate offspring of the deceased employee, and may be supported upon the last part of Section 1465-82, General Code, if applicable, which we hereinafter discuss. It differs in these essentials: In the Staher case the child was posthumously born; it was unacknowledged by its putative father; it was not a child for whose maintenance its parent was legally liable at the-time of his death. All of these essentials clearly appear here: The illegitimate child was born before the-death of its father; it was acknowledged by the father; and he not only was legally liable for the maintenance-of such child at the time of his death (Section 13008,. General Code), but had been adjudged to be so liable.

The first paragraph of the syllabus in Williamson Heater Co. v. Radich, 128 Ohio St., 124, 190 N. E., 403, is:

“The syllabus of. a decision of the Supreme Court of Ohio states the law of Ohio, but such pronouncement must be interpreted with reference to the facts upon which it is predicated and the questions presented to and considered by the court.”

And to like effect the second paragraph of the syllabus in B. & O. Bd. Co. v. Baillie, 112 Ohio St., 567, 148 N. E., 233, reads:

“The syllabus of a decision of the Supreme Court of Ohio definitely states the law of Ohio with reference to the facts upon which it is predicated, and must be read in view of the'facts found in such case.”

Judge Jones, in his characteristic manner, wrote a learned and strong opinion in the Staker case, and it is obvious that the opinion dominated the language of the syllabus. Judge Robinson has characterized the effect of the language of the writer of an opinion, as it relates to the doctrine of stare decisis, in Thackery v. Helfrich, 123 Ohio St., 334, 175 N. E., 449, wherein he says (p. 336) :

“Individual opinions speak the conclusions of their writer. What useful purpose they serve is an open question.”

We do not purpose to prolong this opinion or to restate at length all the reasons for our conclusion that the judgment on review should be affirmed, and are satisfied in the main to adopt the opinion of Judge Leach, having some doubt only as to his interpretation of the term “lineal descendant” as found in the last part of Section 1465-82, General Code.

We approach the question here presented upon an entirely different interpretation of Section 1465-82, General Code, than heretofore considered or employed in any reported case.

Recently, in the ease of Hertz v. Industrial Commission, 37 Ohio Law Abs., 53 (motion to certify overruled by the Supreme Court on June 3, 1942), we held that illegitimate children, living with their father at the time of his death, were his dependents and entitled to participate in the workmen’s compensation fund. We relied in part upon the last paragraph of the section beginning, “In all other cases,” etc., and determined that the illegitimate children were, members of the family of the deceased employee. This conclusion could safely be reached by giving full consideration to all of the section and without any conflict in interpretation of its terms. In the Hertz case, we said:

“If the plaintiffs were restricted in their right to recover to the language of paragraph 4 (B), G. C. 1465-82, we would have a nice question * *

We now have a case in which the rights of the plaintiff are dependent upon and restricted to the presumption of dependency arising from the application of paragraph 4 (B) of Section 1465-82, General Code, which presumption, unless wiped out by the last paragraph of the section, is not lessened or affected. The facts presented in this case, if determined in favor of defendant, require either a determination that “child” as employed in paragraph 4 (B) of Section 1465-82, General Code, means a legitimate child only, or, if it be held that “child” includes an illegitimate child, then, that the presumption attending such child under 4 (B) is removed by the last paragraph of the section.

It is our judgment, first, that the word “child” as employed in 4 (B) is not limited to a legitimate child; and, secondly, that the last paragraph of the section has no application whatever to the presumptions set out in 4 (A) and (B), but, as the plain language of the paragraph states, applies only “in all other cases.” It will be noted that the language which in part it is claimed precludes the child in this case from sharing, namely, “lineal descendant,” is found in the same sentence beginning “In all other cases.” If the section be given the interpretation here adopted, then ■every word therein can be given full force and effect; ■otherwise, there must be read into 4 (B) the word “legitimate ’ ’ modifying ‘ child, ’ ’ which is done by judicial fiat, or the term “lineal descendant” must be given priority over the language of 4 (B), thereby completely annulling it.

As we stated in the Herts case, 4 (A) and (B) of the •section deal with presumptions of dependency only, but ■every intendment of 4 (B) is met by the facts in this ■case, namely, the child, Meslri.1 Bolin, was under the .age of 16 years at the date of the death of its parent, .and the parent was, at the time of his death, legally liable for the maintenance of such child. This child comes under the class of cases mentioned in 4 (B), and ■such class is not affected in any particular by the last paragraph of the section beginning, “In all other cases.” This is true though “lineal descendant” as used therein be restricted to legitimate children.

The application of Section 1465-82, General Code, .as we have interpreted it, may be illustrated in the instant case as it relates to another illegitimate child of ■decedent by Annabelle Heightland, born posthumously to her father and for whom a claim was filed with the Industrial Commission and eventually disallowed. Such child, being a posthumous, illegitimate child for whose maintenance her parent was not legally liable at the time of his death, could not come under that class of cases included in 4 (B) of the section. Therefore, dependency in Annabelle Heightland’s case must come under the latter part of the section beginning, “In all ■other cases,” and upon the Staler case she could not qualify upon any of the provisions thereof.

Let us take a suppositional case where a deceased employee at the time of his death had a wife with whom he was not then living. She would not be entitled to the presumption appearing in 4 (A) of the section, and if entitled to any award, would be relegated to that part of the section beginning, “In aTE other cases.” The question of her dependency would? be determined -in accordance with the facts and, if at strict interpretation be given to the term “lineal do scendant,” she could not take, unless it be found that she was a member of her husband’s family.

Three cases in Ohio, among many others, Industrial Commission v. Dell, 104 Ohio St., 389, 135 N. E., 669, 34 A. L. R., 422; State, ex rel. Person, v. Industrial Commission, 126 Ohio St., 85, 183 N. E., 920; and Musselli v. Industrial Commission, 8 Ohio App., 407, illustrate the antithesis of strict construction adopted by our courts and the length to which they have gone in giving a liberal and a humanitarian interpretation favorable to injured employees and their dependents under the Workmen’s Compensation Act.

In the Dell case, supra, the Supreme Court in an opinion written by Marshall, C. J., held that Sarah Plumsteel, the first wife of Hiram Plumsteel, the deceased employee, who survived him but died before the determination of the case, was entitled to an award. Sarah Plumsteel, at the time of the death of her husband, was not living with him and, although they were married in 1875, and seven children were born of the marriage, he had left his wife in 1904, did not again return to her and in 1915 married another woman, Maggie Berg. Plumsteel in his lifetime had made contributions to the family by his first wife, which had terminated in the year 1912 or 1913 and were not again resumed. Plumsteel not only left surviving him his widow, Sarah Plumsteel, and three surviving children, but also left Maggie Berg to whom he had been married. Chief Justice Marshall, in discussing paragraph (A) of Section 1465-82, General Code, set forth the presumption there found that a wife is presumed to be wholly dependent for support upon a deceased employee with whom she lives at the time of his death and points out that Sarah Plumsteel was not living with her husband at the time of his death, nor for fourteen years prior thereto, that she had been receiving no support from him for four or five years, and that, in accord with our theory of the section, the question of her dependency would have to be determined by the latter part of the section beginning, “In all other cases,” etc. The Chief Justice then determined that, under the facts appearing, Sarah Plumsteel was a member of the family of Hiram Plumsteel, as of the date of the injury resulting in his death, and stresses the fact that she was dependent upon him though in fact she had received no support whatever from him for. years prior to his death.

In State, ex rel., Person, v. Industrial Commission, supra, Edmond Person, an injured employee, was granted an award for total disability resulting from an injury suffered on November 3, 1925. The award made in November 1927, covered a period from January 4, 1927, to December 31, 1927, but Person before receiving the award died and Charlotte Person, his widow, filed her application for compensation with the commission which was denied upon the ground that proof failed to show any dependency. The claim of the commission was that, at the time relator married Edmond Person, in January, 1927, he was totally disabled and then, and at all times thereafter, was unable to and did not provide any support whatever for his wife. In the trial in the Common Pleas Court, jury being waived, judgment was entered for the plaintiff and no error proceedings were prosecuted by the commission. Thereafter, an action, to mandamus the commission, was instituted in the Supreme Court and there the court, Judge Allen writing the opinion, granted the writ. Judge Allen sets forth and discusses paragraph (A) of Section 1465-82, General Code, and the latter part of the' section and attention is directed to the fact that the relator falls specifically within the provisions of the presumption of the statute. At page 89 of the opinion it is said:

“It is true that this case presents an extreme illustration of the application of the law as to dependency in these cases. The wife was not supported by her husband, who was totally disabled during the entire time of the marriage. However, under the Workmen’s Compensation Act, dependency is based upon the right to support, rather than upon the actual fact of support.” Citing Industrial Commission v. Drake, 103 Ohio St., 628, 134 N. E., 465.

The foregoing authorities are also especially applicable to the instant case because of the fact.that the record here does not disclose whether Floyd Bolin complied with the order of the court that he pay $2.50 per week for the support of Meskil Bolin. It is also doubtful if the court had any right to make such an award, if the proceedings were had under the bastardy statute, but the obligation of a father to support an illegitimate child with necessary or proper home care, food and clothing, clearly appears by Section 13008, General Code, which makes it an offense for the parent to fail to observe this obligation.

In Musselli v. Industrial Commission, supra, the court held that a legal wife of a deceased employee, living in Italy at the time of the injury and death of the employee, was entitled to an award under the Workmen’s Compensation Act. It is obvious that in no one of the aforesaid cited cases could the widow of the deceased employee have been found to be a lineal descendant, in the strict sense of the term, of her husband. If a wife, living permanently in Italy, may be said to be a member of the family of her husband, living in the United States, it would be no perversion to hold that Mesld.1 Bolin was a member of the family of his father.

In the Dell case and the Musselli case the court resorted to that part of Section 1465-82, General Code, ibeginning, “In all other cases,” etc. It is inferable that if, in either of them, the wife had come squarely mnder (A) of the section the court would have gone mo further and would not have denied the right to an award because the wife was not a lineal descendant. This latter provision of the section has application only in cases other than those especially covered by (A) and (B).

We have not discussed the effect of the failure of defendant to prosecute error from the award to Mesial Bolin, nor the effect of the subsequent agreement to which it was a party, because the parties have not mentioned it.

The judgment will be affirmed.

Judgment affirmed,.

Barnes, P. J., concurs.

Geiger, J., dissents.

Geiger, J.,

dissenting. I am unable to concur in the opinion of my associates.

Hornbeck, J., speaking for the majority, has correctly set out the facts involved in this matter.

The sole question in this court is whether the court below erred in requiring the defendant to pay a part •of the award to Meskil, an illegitimate child, after the decedent had admitted in open court his paternity, and .after the court before whom the proceedings had been brought had ordered the decedent to pay $2.50 per week for the support of the child.

In Staker, Gdn., v. Industrial Commission, 127 Ohio St., 13, 186 N. E., 616, it is held:

“1. An illegitimate, posthumous child, unacknowledged by its putative father, is not a dependent child, within the purview of Section 1465-82, General Code.

“2. The word ‘child,’ used in that section, is to be. construed in its usual and ordinary sense, and applies to legitimate children and to children legally adopted prior to the employee’s injury.”

The court below, as well as the majority of this court, considered Staker v. Industrial Commission of Ohio, supra, and point to the fact that the Supreme Court has held that the syllabus states the law of Ohio only with reference to facts upon which it is predicated and must be read in view of the facts found in such case.

There are numerous cases asserting this principle, but I refer to only three. B. & O. Rd. Co.v. Baillie, 112 Ohio St., 567, 148 N. E., 233; Thackery v. Helfrich, 123 Ohio St., 334, 175 N. E., 449; and Williamson Heater Co. v. Radich, 128 Ohio St., 124, 190 N. E., 403.

None of those cases is very instructive as to just when and under what circumstances the syllabi of the Supreme Court may be disregarded. It is true that they state in effect that the syllabus states the law with reference to the facts upon which it is predicated, and must be read in view of the facts found. While this is undoubtedly true, I am loath to resort to this device, for it seems to me that the Supreme Court in the Stalcer case has definitely considered facts upon which the syllabus is predicated. It seems to be conceded, both by the trial court and the majority, that unless the syllabus of the decision in the Stalcer case is not predicated upon the facts considered and unless such syllabus is, therefore, not the law of Ohio, the decision is controlling in this case.

To determine whether Staker, Gdn., v. Industrial Commission, definitely states the law of Ohio with reference to the facts upon which it is predicated, I need but refer to the statement by Judge Jones of the matter then before the court. The facts stated by .Judge Jones are identical with the facts in this case in reference to illegitimate child No. 2, even to the number of days such illegitimate child was conceived before the death of the father.

Jones, J., after stating the facts, says:

“The sole question to be determined is whether an illegitimate, posthumous child, unacknowledged by its father, should be construed to be a dependent and entitled to compensation under the Ohio Workmen’s Compensation Law.”

It is asserted by the majority that the question there under consideration was whether a posthumous child, unacknowledged by the father should be construed to be a dependent under the compensation law, whereas the case here to be determined is whether a child born before the death of its parent and acknowledged by him is entitled to compensation, irrespective of the fact that it is an admitted illegitimate child whose parents have not married and acknowledged the child, and who has not lived with the father.

I am of the opinion that the facts that the child in the Stoker case was not born at the time of the death of the father and was not acknowledged by him do not so distinguish it from the case at bar as to require us to discard the principles laid down in the Stoker case. That case is of such vital importance that it must be read carefully, and there are certain high spots that may be alluded to.

Jones, J., examined cases from other states on the same subject matter and pointed out with approval that in Illinois the Supreme Court held the word “child” or “children” means legitimate children and will not be extended by implication to embrace illegitimate children unless such construction is necessary to carry into effect the manifest purpose of the Legislature.

He also referred to Creisar v. State, 97 Ohio St., 16, 119 N. E., 128, and alluded to a Maryland case in which the word “child” as used in the Workmen’s Compensation Act is held to mean legitimate child or legitimate children of the employee.

See Bell v. Terry & Tench Co., 163 N. Y. Supp., 733, 177 App. Div., 123. The compensation law of that state providing that a “ ‘child’ shall include a posthumous child and a child legally adopted prior to the injury of the employee,” must be understood to have excluded illegitimate children.

Jones, J., in Staker, Gdn. v. Industrial Commission, stated at page 16:

“We have searched in vain for a case, and counsel for plaintiff in error have pointed out none, where an illegitimate child has received compensation under the Workmen’s Compensation Act under circumstances similar to those detailed in the amended petition.”

“Since the term ‘illegitimate’ is not found in Section 1465-82, General Code, the word ‘child’ used therein connotes legitimate children; and the term ‘lineal descendant’ implies a descendible relation that is legitimate.”

The court alluded to Section 8591, General Code, and said at page 17:

“Considering these statutes pertaining to legitimacy and adoption we think it is obvious that in Section 1465-82, General Code, the Legislature intended to use the word ‘child’ in its usual and ordinary sense, and that so used it applies to children of an employee who are legitimate and to children who -have been legaily adopted prior to the injury; it certainly does not apply to an illegitimate, posthumous child, who has not been legitimized in the manner provided by Section-8591, General Code.”

In Creisar v. State, supra, it is held that the term "minor” found in former Section 1655, General Code, should receive its ordinary legal significance and so construed embraces only minor children who are legitimate. The Juvenile Court has no authority to punish the father of an illegitimate child unless its paternity has been acknowledged after intermarriage in conformity with Section 8591, General Code.

On page 18, it is stated: "Unless such terms have been so enlarged as to include illegitimate offspring, they have invariably been held as applicable only to children born in lawrful wedlock.” While the syllabus of this case refers only to Section 1655, General Code, in the body of the opinion it discusses Sections 13008 and 13009, General Code.

The majority has alluded to the fact that the general purpose of the Legislature should be regarded and that inasmuch as the object of the legislation was the protection of dependent children, there should be a broad interpretation of the statute in order to bring within its terms illegitimate children. I admit that there are certain principles that may invite concurrence in the majority view.

This argument based upon the legislative intent is a fair one, but evidently must be controlled not only by the terms of the statute itself, but by decisions of the court touching such matters. In Welsh v. Industrial Commission, 136 Ohio St., 387, 26 N. E. (2d), 198, the court holds that compensation authorized by the Constitution and provided by the laws enacted in pursuance thereto, is for injured employees and their dependents. The compensation fund is created for such purpose and its disbursement to other than injured employees and their dependents is unauthorized.

In Industrial Commission v. Drake, 103 Ohio St., 628, 134 N. E., 465, the court through Marshall, C. J., at page 636, says:

“It is not a pension ox a bounty or charity, but in the strictest sense a mutual insurance in which benefits are payable out of a fund created by contributions from a large number of possible beneficiaries. * * *

“It is therefore very necessary that trial courts and juries, as well as the Industrial Commission, shall exercise the utmost caution and care in making awards of compensation.”

I may sum up, in conclusion, to the effect that I feel that the majority has gone far astray to search for reasons why they should not follow either the statute or the decisions of our Supreme Court in interpretation thereof, apparently because they are not satisfied that the Supreme Court is right. The majority is at great length in quoting certain cases showing the length to which the court has gone in giving a liberal and humanitarian construction favorable to injured employees and their dependents under the Workmen’s Compensation Act, quoting Industrial Commission v. Dell, 104 Ohio St., 389, 135 N. E., 669, 34 A. L. R., 422; State, ex rel., v. Industrial Commission, 126 Ohio St., 85, 183 N. E., 920, and Musselli v. Industrial Commission, 8 Ohio App., 407.

I have examined those cases and am unable to see their force in grounding a decision upon inferences rather remote from the case at bar, instead of upon the statute and decisions of the Supreme Court which I hold are directly in point. The majority has also indulged in the alluring but not convincing device of attempting to illustrate by suppositional cases which would lead to favorable support of the position taken by them. I do not feel that in a case where we have the statute and a plain decision of the Supreme Court we have any right to indulge in illustrations and suppositious cases that seem rather far afield from the case at bar.

This matter does not involve great sums of money. I am in sympathy with the young person who needs the money, but I do not feel that we should go to the point of disregarding the plain import of decisions of the highest court on the ground that, as stated by Weygandt, C. J., in Williamson Heater Co. v. Radich, supra, at page 126, “when obiter creeps into a syllabus it must be so recognized and so considered.” It does not occur to me that there had been any “creeping” in the case of Staker, Gdn., v. Industrial Commission. When that case was . decided the judges were alert as to what was being said and no claim was asserted that Judge Jones was going outside of the record in the determination of the case.

Much has been made of the argument addressed to our sympathies that an innocent bastard child should not be deprived of compensation, especially so long as he has been acknowledged by his father, and the court has made a ruling requiring the father to pay. There is no claim made for or defense of bastard No. 2 who was en ventre sa mere. It was just as innocent as was its co-bastard and I see no reason for making a distinction between them as to the right to compensation for the father’s death, simply due to the accident that bastard No. 1 was born a year before the death of the father, while bastard No. 2 was born nearly nine months after the death. If there is any concession to be made in the case of bastard No. 1, then there should be a like concession in case of bastard No. 2. The distinction between the two as made by the majority is is that one was acknowledged by the father during his lifetime but without intermarriage with the mother, and the other, of course, was not acknowledged.

Since the decision of the court in the Staker case there have been two other cases decided which may throw light upon the proper interpretation of the Staker case insofar as it relates to the case at bar.

Welsh v. Industrial Commission, supra, involved a dependency claim based upon the accidental death of one Jack Welsh.

This case possibly does not closely approach the facts of the case at bar, but is worthy of reading.

Garner, Gdn., v. B. F. Goodrich Co., 136 Ohio St., 397, 26 N. E. (2d), 203, relates to a claim of dependency on behalf of an alleged posthumous, illegitimate child of the decedent.- The claim was disallowed by the commission for failure to show that the claimant was a person dependent under the provisions of the Workmen’s Compensation Act.

The court refers to the Staker case, stating that it involved a claim for compensation for a posthumous child which was concededly an illegitimate child unacknowledged by its father, and says that the court in that case found that the word “child” applies to legitimate children and to children legally adopted prior to the employee’s injury. The.court then quotes Section 10503-15, General Code, to the effect that when a man by a woman has one or more children and afterwards intermarries with her, such issue if acknowledged by him as his child or children will be legitimate. The issue of parents whose marriage is null in law shall nevertheless be legitimate; The court also quotes from Judge Jones in the Staker case and approves the conclusion of the Court of Appeals that the claimant is entitled to participate in the workmen’s compensation fund. The decision of the Supreme Court in that case was clearly based upon the fact that the man and woman were married, and the unborn child was acknowledged by him and the “stamp of illegitimacy” was thus removed from the child, and it thereupon became a dependent entitled to participate. In the case at bar there was no marriage of the parents and the “stamp of illegitimacy” still remained and under the statute the child is not a dependent and is not entitled to participate.

None of the dissenting or concurring judges in the last two cases gave any hint that in their judgment the syllabus in the Staker case was not based upon facts presented to that court.

Inasmuch as I have relied upon the Staker case 1 cite these later cases, which, in my judgment, strengthen its authority.


author: Guernsey, P. J.

text:
    Reichert, Appellant, v. Mikesell et al., Appellees.
    (No. 164
    Decided December 9, 1943.)

      Mr. O. E. Drury, for appellant.

      Mr. J. F. Beam, for appellees.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Van Wert county, Ohio, in an action therein wherein the appellant, Adolph Reichert, was plaintiff, and the appellees, Jerry Mikesell, Maxine Mikesell, Frances Leitner, Stephen S. Beard, as executor of the last will and testament of Lula L. Evans, deceased, and The Van Wert Humane Society were defendants.

The action is one for the appointment of a trustee or trustees to administer certain dispositions of property made by Lula L. Evans, deceased, in item 9 of her will; for an order to transfer the title to certain real estate included in such dispositions, to such trustee or trustees, for the purposes set forth in the will, subject to the reversionary provisions therein prescribed; for the recovery by plaintiff, from the recipient of the shares of stock included in such dispositions, of the sum of six dollars per week from the death of Lula L. Evans, for the performance of his work as attendant for a dog pound and shelter for animals located on such real estate; and for such other and further relief as may be proper. -

Whatever right the plaintiff may have to relief in this action is based on the averments contained in bis amended petition.

Stephen S. Beard, as executor of the last will and testament of Lula L. Evans, deceased, filed his answer to plaintiff’s amended petition, which answer, for the purposes of this appeal, may be and is considered as amounting, to a general denial of the averments in the amended petition. None of the other defendants filed an answer to the amended petition, and, following the filing of the answer of the executor, all the defendants joined in a motion for judgment on the pleadings, and the Court of Common Pleas, finding that the defendants were entitled to a judgment upon the statements in the pleadings for the reason that the amended petition did not contain sufficient facts to constitute a cause of action, granted the motion and rendered judgment accordingly, which is the judgment from which this appeal is taken.

Plaintiff makes a number of assignments of error all of which are based on the contention that the judgment appealed from is contrary to law.

In substance, the facts averred in the amended petition are as follows:

1. Lula L. Evans died testate on the 15th day of March, 1941, and her last will and testament was admitted to probate in the Probate Court of Van Wert county, Ohio, on the 19th day of March, 1941.

2. Stephen S. Beard is the duly appointed and qualified executor of such last will and testament, and defendants Jerry Mikesell, Maxine Mikesell and Frances Leitner are the residuary devisees and legatees.

3. The decedent, at the time of her death, owned certain real estate which for approximately six years prior to her death, and continually since, was and is being used as a dog pound and shelter for animals, open to public use, and to which the county dog warden and agents of The Van Wert County Humane Society, employed jointly by the county of Van Wert, the city of Van Wert, and The Van Wert County Humane Society, have brought numerous stray, injured, diseased, unwanted and dangerous dogs and animals, where they have received care, shelter, and humane "disposition when necessary.

4. The Van Wert County Humane Society is a society incorporated and existing under the statutes of Ohio, and is amenable to the provisions of the General Code of Ohio relating to humane societies, and, as such society, receives financial assistance from public funds for the employment of agents representing it.

5. Lula L. Evans died seized in fee simple of the real estate described in plaintiff’s petition.

6. This animal shelter has the only suitable adequate buildings and equipment in the city of Van Wert and Van Wert county for the maintenance of a dog pound and shelter, and is also used by the general public as a refuge for diseased, injured, dangerous and unwanted dogs and cats. Use is also made of the shelter by the general public, in leaving their pets during temporary absences.

7. In her last will and testament, Lula L. Evans provided, concerning plaintiff, defendant The Van Wert County Humane Society, and defendants Jerry Mikesell, Maxine Mikesell and Frances Leitner as residuary legatees and devisees named in the will, as follows:

“Item 9.

“I devise to The Van Wert County Humane Society, the following described real estate situate in the city of Van Wert, county of Van Wert and state of Ohio: [Legal description of premises.] To he held by said society as long as said premises are used and occupied as a dog pound and shelter for animals. All expenses of the maintenance of said dog pound and shelter shall be paid by The Van Wert County Humane Society.

“I request that if at the time of my death, the present attendant Adolph Reichert is residing on said premises and taking care of said animals and shelter that he continue in such capacity and be permitted to reside thereon without rent. If at any time the said, ■ The Van Wert County Humane Society shall not use said premises as a dog pound or shelter or fail to comply with any of the other provisions of this devise, then the said, The Van Wert County Humane Society shall forfeit said premises and the same shall revert to my estate and shall be disposed of as provided in the residuary clause hereinafter contained.

“I also give and bequeath to The Van Wert County Humane Society, one hundred and twenty (120) shares of stock in the E. J. Evans & Company, upon the condition that the income thereof to the amount of six dollars ($6.00) per week, shall be paid to Adolph Reichert so long he as remains as the attendant of said dog pound and shelter for animals and the balance of said income to be used for maintenance and upkeep of said premises. In the event The Van Wert County Humane Society shall fail at any time to use the income for said purposes, then it shall forfeit its rights to said stock and the same shall become a part of the property disposed of in the residuary clause of this, my last will and testament.

“Item 11.

“The remainder of my estate I give, devise and bequeath absolutely and in fee simple, to Jerry Mikesell, Maxine Mikesell and Frances Leitner, share and share alike.”

8. Plaintiff was residing on such premises as an attendant and taking care of the animals at the time of the death of testator, and still is. He also, for approximately ten years, had attended testator as a chauffeur and handyman for a sum of money inadedequate for the value of his services.

9. The Van Wert County Humane Society refused to accept the devise and bequest made to it.

The sole question presented by this appeal is: Do the provisions of item 9 of the will of Lula Evans, for the benefit of the plaintiff, fail and become of no effect by reason of the refusal of The Van Wert County Humane Society to accept the devise and bequest to it therein made?

Section 10063, General Code, makes provision for the vesting of title to and the management of property acquired by gift, devise or bequest for siiecial purposes by a county humane society. It is applicable only when property is acquired in the manner mentioned, and does not purport to and does not make it mandatory for a .county humane society to accept property which may be given, devised or bequeathed to it for special purposes.

The devise of the real estate described in item 9 was made upon the express condition that all expenses of the maintenance of the dog pound and shelter should be paid by The Van Wert County Humane Society. It is within the range of probability that compliance with this condition might require more money than available from the trust fund and thereby prove unduly burdensome to the society and render it unable to carry out the major purposes for which it is organized.

‘ ‘ There is no duty imposed upon one named as trustee in a trust to accept the duties imposed by the office. He may decline to accept.” 40 Ohio Jurisprudence, 204, Section 59.

Furthermore, there is no duty imposed upon any one to accept a devise or bequest or to act as trustee of a trust where the terms thereof are such that the duties imposed are or may become burdensome.

For the reasons mentioned, The Van Wert County Humane Society had the right to refuse to accept the devise and bequest to it prescribed in item 9 of the will.

From the will creating the trust it is evident that the settlor, Lula L. Evans, intended that only The Van 'Wert County. Humane Society, the trustee named, should carry out the trust, particularly in view of the fact that such spciety, under the terms of the trust; was required to pay all expenses of the maintenance of the dog pound and shelter, which was the subject matter of the trust, and in view of the further fact that the settlor of the trust provided for a reversion of the corpus of the trust if the society should at any time not use the premises as a dog pound or shelter, or should fail to comply with any of the other provisions of the devise and bequest.

These facts bring the trust within the general rule that where by the trust instrument it is evident that the settlor manifested the intention that only the trustee named could carry out the trust, or where personal discretion is imposed, the disclaimer of the trustee will defeat the trust. 40 Ohio Jurisprudence, 206, Section 59.

As the trust instrument in the instant case provided for the reversion of the corpus of the trust upon the failure of The Van Wert County Humane.Society, the sole fiduciary, to accept the trust, the court was without authority, under the provisions of Section 10506-55 of the General Code, to issue letters of appointment as fiduciary to any other person.

Upon the nonacceptance by The Van Wert County Humane Society of the devise and bequest, the trust failed and the corpus of the proposed trust, pursuant to the terms of the instrument creating the trust, reverted to the estate of the testator for disposal in the manner provided in the residuary clause of the will.

The provisions of item 9 of the will, for the benefit of the plaintiff are not independent and separate from the trust attempted to be created by the will, of which The Van Wert County Humane Society was designated as trustee, but are wholly contingent upon the trust becoming effective through the acceptance of the devise and bequest, by The Van Wert County Humane Society as trustee.

The trust having failed through the refusal of the designated trustee to accept the same, the provisions for the benefit of plaintiff did not become effective, and the property comprising the trust reverted to the estate, as prescribed in the will, free of any claim of plaintiff therein or thereon.

For the reasons mentioned, the amended petition of the plaintiff does not state a cause of action and the court did not err in sustaining the motion of defendants for judgment in their favor on the pleadings, and in rendering judgment accordingly. The judgment will therefore be affirmed at costs of plaintiff.

Judgment affirmed.

Jackson and Middleton, JJ., concur.


author: Matthews, J.

text:
    Blumenthal, Appellee, v. Metropolitan Life Ins. Co., Appellant.
    (No. 863
    Decided November 1, 1943.)

      Mr. John D. Andrews and Mr. Theodor I. Weiss, for appellee.

      Mr. Harry 8. Wonnell, for appellant.
   Matthews, J.

This is an action to recover upon a rider, attached to a regular life insurance policy, providing for waiver of premiums and payment of monthly benefits during total and permanent disability. The action was begun in the Municipal Court of Hamilton, and a verdict was returned in plaintiff’s favor for the sum of $250 plus interest at 6 per cent, upon which .verdict judgment was rendered. On appeal to the Court of Common Pleas, the judgment was affirmed, and the action is in this court on appeal from that judgment of affirmance.

The provision of the policy sued upon is in the following language:

“In consideration of the application for this contract, as contained in the application for said policy, the latter being the basis for the issuance hereof, and in consideration of ten dollars and five cents, payable annually as an additional premium herefor, such payment being simultaneous with, and under the same conditions as, the regular premium under the said policy, except as hereinafter provided, hereby agrees, that upon receipt by the company at its home office in the city of New York of due proof, on forms which will be furnished by the company, on request, that the insured has, while said policy and this supplementary contract are in full force and prior to the anniversary date of said policy nearest to the sixtieth birthday of the insured, become totally and permanently disabled, as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will, during the continuance of such disability,

“1.- Waive the payment of each premium falling due under said policy and this supplementary contract, and,

“2. Pay to the insured, or a person designated by him for the purpose, or if such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record under said policy, a monthly income of $10 for each $1,000 of insurance, or of commuted value of instalments, if any, under said policy.”

The policy also gave the insurer, notwithstanding it had accepted proof as satisfactory, the right to require further proof from time to time.

On November 22, 1935, the plaintiff prepared a “notice of total and permanent disability” on a form provided by the defendant at the top of which it was recited that “This is not a proof of claim upon which payment is to be expected but is merely .notice of a claim.” In this notice plaintiff recited that she became totally disabled on August 16, 1935, as a result of “iritis & tumor and cyst operation,” and that she expected total disability would continue for “2 or 3 months (perhaps).”

On December 7, 1935, the attending physician signed a certificate which was filed with the defendant in which he stated it was his opinion that the plaintiff’s total disability would be temporary, but that the date when she would be able to return to work was indefinite.

On December 17, 1935, another physician signed a certificate which was also filed with the defendant in which he stated that his opinion was that the plaintiff’s total disability was temporary, but gave no answer to the question as to the approximate date when she would be able to resume work.

The surgeon who performed the operation certified on December 7,1935, that, in his opinion, the plaintiff’s total disability would continue “probably 10 weeks from date of this report.”

There were other certificates filed by the same physicians, but they do not add to the proof.

The defendant refused to recognize'any liability and on February 17, 1936, the plaintiff filed this action. The trial did not take place until January 21, 1941. It was stipulated at the trial that the plaintiff recovered some time in March 1936, and had not been totally disabled since then, and that at the time of the trial was well and doing her customary work.

At the trial the plaintiff introduced evidence tending to show that she had been totally disabled from August 16,1935, to March 1936, and that, viewing her condition prospectively, it might reasonably have been inferred that her total disability was incurable.

Many specific errors have been assigned as a basis for the reversal of this judgment, but in the view that we take of the principal contention, it is unnecessary to consider them. That principal contention is, that the plaintiff failed to comply with the provisions of the policy as to due proof of total and permanent disability. It will be observed that neither the plaintiff, in her notice of claim, nor any of the physicians, in the certificates which she filed as proof, stated that the total disability would be permanent. On the contrary, they all affirmatively stated the contrary. Now can that be said to be due proof of permanent disability?

Counsel rely chiefly on three Ohio cases for an affirmative answer to this question.

The first of these cases is Equitable Life Ins. Co. of Iowa v. Gerwick, 50 Ohio App., 277, 197 Ñ. E., 923, but in that case the insured filed a proof of claim in which she asserted that she was totally and permanently disabled and this was followed by two statements by her attending physician in which he stated that her total disability would continue indefinitely, and in no wise did he imply that the disability would be temporary. This is in marked contrast to the information furnished by the plaintiff in this- case in her notice of claim in which she set a limit, and a short one, to the duration of her disability, ánd the physicians certified directly that it would be temporary. The only circumstance that indicated that she intended to present a claim for total permanent disability is that she asked for, received and used a blank form furnished by the defendant for use in total permanent disability cases, but as already noted the notice carried the statement that it was not to be considered as proof of claim, but that its effect was limited to a notice of claim only.

The next case relied on is Gibbons v. Metropolitan Life Ins. Co., 62 Ohio App., 280, 23 N. E. (2d), 662, affirmed in 135 Ohio St., 481, 21 N. E. (2d), 588, but in that case the issue was not whether the insured had complied with the provisions of the policy as to the furnishing of due proof to the insurer, but rather, whether the court at the trial properly instructed the jury on the subject of total and permanent disability, as that phrase was used in the policy.

The other case relied on is Wright v. Metropolitan Life Ins. Co., 58 Ohio App., 83, 15 N. E. (2d), 970. The court in that case expressly states that proof of claim was duly filed “in compliance with the terms of the policy.” Due proof was not in issue. It is thus seen that the case is irrelevant to the inquiry here.

A case more nearly analogous, but not identical, is that of Rose v. New York Life Ins. Co., 127 Ohio St., 265, 187 N. E., 859, in which the court held that the insured could not recover because he had not filed his proof during disability, as required by the policy, and that this requirement had not been waived. In the proof, filed the insured had given a negative answer to the' question whether he was wholly disabled at the time. Thereafter the insurer proceeded to investigate and it was claimed that by so doing it had waived the provision as to proof; and it was this claim that the court denied. The court then proceeded to construe the phrase, total and permanent disability, as used in that policy, in- which it was expressly provided that total disability for three months raised a presumption of permanency, and held that such presumption could be rebutted and that when the insured filed the proof for the first time and recited therein that he was not totally disabled at that time, it excluded entirely the conception of the permanency of the total disability. While much of the reasoning of that case supports the position of the defendant in the case at bar, and we believe it is dispositive of this case, still differences in the facts, which we think immaterial, can be pointed out.

In 29 American Jurisprudence, 841, Section 1120, it is said:

“For proofs to be due or satisfactory, they should be such as to make out a prima facie case against the insurer, but they need not be of a higher grade than would be sufficient to establish a claim on the policy in court, nor need the information furnished be that of an eye-witness; any form of information which is substantial and trustworthy enough to enable the insurer to form an intelligent estimate of its rights is sufficient. ’ ’

In Metropolitan Life Ins. Co. v. Wann, 130 Tex., 400, 405, 109 S. W. (2d), 470, 115 A. L. R., 1301, the court says:

“By the terms of the policy the filing of proof showing that the insured was totally and permanently disabled was a condition precedent to recovery. When a policy contains such provision and the proof fails to establish that the insured has complied therewith no right of recovery is shown.”

In 7 Couch Cyclopedia of Insurance Law, 5492, Section 1540, the law on the subject of notice and proof is stated in this language:

“The question then arises, what is ‘due notice and proof I’ It does not rest with the insurers alone to decide this question; rather, the provision requires such notice and proof as may appear to a court to be in accordance with the rules of evidence, and, if such notice and proof have been given, then there has been a compliance with the provision. The question, then, as to what is due proof, is to be determined by the courts according to the rules of evidence, and, not by the insurers. And due proof of a claim of loss under a policy means such a statement of facts, reasonably verified, as, if established in court, would prima facie require payment of the claim, and does not mean some particular form of proof which the insurer arbitrarily demands; nor does the statement of one adequate fact in the proofs exclude others omitted through mistake or ignorance.”

If the documents furnished the insurer in this case were submitted to a trier of facts in a judicial inquiry as proof of total and permanent disability, the decision would necessarily be that they had no reasonable tendency to so prove. If the burden rested on a plaintiff to prove total and permanent disability and that was all he offered in support of it, the court would sustain a motion for an instructed verdict and for judgment because of failure of proof. When proof is required by the terms of a. policy it surely means some data having some probative value to support the conclusion of total and permanent disability. Surely it is not satisfied by data, the only tendency of which is to prove the contrary. To hold otherwise would reduce the requirement of due proof of total and permanent disability to less than mere notice of a claim of such disability.

We think this quotation from McKinnie v. Metropolitan Life Ins. Co., 37 F. Supp., 992, 994, is pertinent here:

“To extend the coverage of an insurance contract beyond its express language is just as illegal and wrong as it would be to increase the amount or to extend the term. * * * We should not belie honest words nor attempt by legal rationalization to justify a good but misplaced sentiment.”

For these, reasons, the judgments of the Common Pleas Court and the Municipal Court are reversed, and, it appearing that the trial court should have sustained the defendant’s motion for judgment, final judgment may be entered in this court for defendant.

Judgment reversed.

Ross, P. J., and Hildebrant, J., concur.