author: Miller, J. Miller, J.

text:
    McLaughlin, Appellant, v. Massachusetts Indemnity Ins. Co., Appellee.
    (No. 4158
    Decided November 12, 1948.)

      Messrs. Burr, Porter, Stanley & Trejjinger and Mr. Bruce G. Lynn, for appellant.

      Mr. W. B. McLeskey and Mr. Mark F. McChesney, for appellee.
   Miller, J.

This is an appeal on questions of law from the Court of Common Pleas, Franklin county. The action was one seeking to enforce the terms of a contract of insurance entered into with the defendant, Massachusetts Indemnity Insurance Company, wherein the defendant agreed to indemnify the plaintiff against loss resulting from accidental bodily injury or sickness.

The answer consisted of two defenses, the first of which was a general denial, which denied that the injury complained of was the result of an accident. The second defense set forth a provision of the contract that, “Indemnity shall not be payable for any disability which results from, is contributed to, or caused by intentional injuries or any attempt at suicide (sane or insane) * *

The second defense alleged furthei that if plaintiff- is suffering from the disability set forth in the petition, which fact defendant expressly denies, the disability resulted from, was contributed to, or caused by, intentional injuries or an attempt at suicide on the part of the plaintiff.

On the issues joined, the jury returned a verdict in favor of the defendant. The judgment was duly entered and the motion for new trial was overruled. The appeal is from the judgment so rendered.

The first assignment of error alleges that counsel for the defendant were guilty of misconduct during the trial, which misconduct was prejudicial to the plaintiff. The record so far as pertinent to the issues raised by this assignment discloses that the plaintiff testified that while he was alone in the apartment of a friend he noticed a rifle hanging on the wall, five feet ten and one-half inches from the floor; that since he had never seen it before he removed it from the wall, examined it and then attempted to replace it on the rack; and that he recalled nothing further after this and did not regain consciousness until he was in the hospital. He had been shot with the rifle, the bullet entering the skull just back of the right eye and passing out approximately in the same location just back of the left eye. Both eyes were destroyed, which necessitated their removal. A portion of the brain was also injured. The plaintiff was a doctor of medicine, had served in the Medical Corps of the United States Army and was given a medical discharge in November 1943. Upon cross-examination of plaintiff, the defendant attempted to show that plaintiff had been in ill health and was suffering from an incurable disease which was the reason for the medical discharge, all of which was denied by the plaintiff. The examination disclosed that his medical service record was in the possession of the Veterans’ Administration Regional Office at Cincinnati, Ohio. The defendant desired to have this record produced and offered in evidence. The Veterans’ Administration Bureau had refused to honor a subpoena duces tecum. The only source from which it could, therefore, have been obtained was through the plaintiff himself by waiving the privilege accorded him by Section 456, Title 38, U. S. Code, which in part reads as follows:

“All files, records, reports, and other papers and documents pertaining to any claim for the benefits of the provisions of this chapter, whether pending or adjudicated, shall be deemed confidential and privileged and no disclosure thereof shall be made except as follows:
“ (a) To a claimant or his duly authorized representative, as to matters concerning himself alone, when in the judgment of the administrator of veterans’ affairs such disclosure would not be injurious to the phvsical or mental health of the claimant * *

That section made these records privileged from disclosure and they could not properly have been made a part of the record without the consent of the plaintiff. By counsel’s own admission plaintiff’s medical service record was in the hands of the Veterans’ Administration Bureau.

We have been referred to no case in Ohio which construes that section of the United States Code and have been cited to only the case of McGlothan v. Pennsylvania Rd. Co., 72 F. Supp., 176. In that case the plaintiff’s induction record, which was in the hands of the Veterans’ Administration Bureau, was held to be within the protection of Section 456. Here the defendant sought to have the plaintiff’s induction record introduced merely to show prior inconsistent statements made by the plaintiff. The court held that such a record was inadmissible because “attacking a witness’ credibility cannot be done by showing inconsistencies on collateral matters.” However, the court added:

“In addition, though not decisive of the question, it should be noted that the induction report and the information contained in it are confidential. 38 U. S. Code, Section 456.”

The record shows further that upon cross-examination of plaintiff he was asked numerous questions concerning the reasons for refusing to- give his consent, whether it would be embarrassing to him, or there was something in it that he was ashamed of. This line of questioning was objected to by counsel for the plaintiff numerous times and the objections were overruled. The severity of the cross-examination, can be better illustrated by quoting some of the questions asked plaintiff — for example:

“Q. Do you know that we requested your counsel to give us an opportunity to inspect all documents relating to your army service?”
“Q. Did you know that fact — did you know, or were yon informed by your counsel that we requested them to let us inspect any and all documents relating to your army service?”
“Q. Well, now, you tell us that you got a series of certificates, medical certificates, and so forth, in connection with your service, we haven’t seen those.”
“Q. Now, Doctor, you have referred repeatedly to your medical service record, do you know that we have requested your counsel to permit us to inspect that record, did your counsel advise you of that fact?”
*‘Q. Did Mr. Stanley advise you that we had requested permission from you to examine that army service record?”
“Q. Did he advise you that we had requested permission to examine the records in the Veterans’ Administration Regional Office at Cincinnati, Ohio, in connection with the trial of this case?”
“Q. Did Mr. Stanley advise you that he had refused to permit us to see those records?”
“Q. Are you willing now for the defense to see the records, including the army service records, in the Regional Veterans’ Administration Office at Cincinnati?”
“Q. I am asking your client on the stand if he is objecting to our seeing his army service records.”
“Q. Are you willing, Doctor, to sign a consent that the defendant may see your service record now in the regional office in Cincinnati?”
“Q. We could not see it, Doctor, without your consent, I am asking you — .”
“Q. Well, do you know of any reason why we could not he permitted to see it?”
“Q. Is there anything in that record which you are ashamed of?”
”Q. Well, then, why the objection to our inspecting it then?”
“Q. Then are you willing to sign that consent regardless of what your counsel may say about it?”
‘‘Q. Do you concede, Mr. Stanley, that you have refused to give that consent?”
“Q. In other words, then, you are refusing to permit us to look at that record, aren’t you, yes or no?”
‘‘Q. No, I am asking you, as counsel, are you now willing to permit your client to sign a consent for us to examine that record?”
“Q. Then, you are not willing that he sign a paper permitting us to look at that record, is that it, Mr. Stanley ?’ ’
“Q. Now, Doctor, you do know, do you not, that this medical record at Cincinnati is available for your own personal inspection, you know that, don’t you?”
“Q. Will you secure that record and produce it in court Monday morning?”
“Q. I simply want the Doctor to say whether or not he is willing or not to produce this record in this courtroom?”
“Q. You say, Doctor, that you don’t know anything in that record that would in any way be embarrassing to you, is that correct?”
“Q. Do you know whether or not your counsel has looked at that record -since this case has been in progress?”
“Q. Have you looked at the record since this accident of July 26?”
“Q. Your medical record, your service record while you were in the army, your medical service record, the record that contains the notation ‘colitis — cause undetermined,’ you say, have you had anybody check that record for you since July 26, 1946, that is what I want you to answer.”
“Q. Now, let me ask you, Mr. Stanley, are you going to produce the records in the veterans’ bureau in Cincinnati for this court and jury? We are asking you now to produce the records that are in the veterans’ bureau at Cincinnati for this trial, are you going to do it or not?”

The record discloses also that the refusal of plaintiff to waive the privilege was made the subject of comment by counsel for the defendant in the closing argument to the jury, which argument was objected to and overruled, the argument referred to being as follows:

“Maybe if we had lie detectors, that might have been the answer, but we would have about as much chance of getting a lie detector test in this case as we did of getting the records in Cincinnati.”
“If Mr. Stanley had said to us here, ‘Mr. McLeskey, there is nothing in these records that would hurt us,’ no, he didn’t say that — ‘I will not give you any ammunition,’ in other words, I am not going to lay open to you anything that will help your case, isn’t that what he said? — If we saw the records, they would help our case. I am surprised at Mr. Stanley with the experience he has, I thought he would produce those records. I was surprised when he refused the first time to let us see them, at least the second time; there is just one inference that you can draw from it, that if these records were here, they wouldn’t do Mr. McLaughlin’s case any good at all, but we haven’t got them. I have always thought that a law suit was for the purpose of ascertaining the truth and I had always thought that if either side thought anything would reflect on the truth, it is their duty to give it to you. There is a measurement on that board over there, that I don’t know whether it goes to our side of the case or whether it doesn’t. We had a question of whether we should put that mark on the board or not, but we put it on because it is our duty. It is our duty and Mr. Stanley’s to bring here before you, ladies and gentlemen, all the evidence we have got, whether it be favorable to us or the other side; that is my theory of the determination of justice, I may be wrong.”

Now we are of the opinion that the court erred in permitting the cross-examination of the plaintiff concerning his reasons for refusing to give his consent to the introduction of his army service records, and also in permitting counsel to comment upon it in the final argument to the jury. There is a general rule that where a party refuses to produce evidence which he has in his power to produce, the jury may properly infer that such evidence if produced will be unfavorable to him. There is, however, an exception to this rule, that where such evidence is privileged and the party refusing to permit its production has a legal right to so refuse, then the protection of the privileged statute will not be allowed to be destroyed indirectly by permitting opposing counsel to repeatedly call for production of the evidence or to argue to the jury that the evidence must be unfavorable or it would have been produced. This rule, however, is not uniform, many states holding contra. In 116 A. L. R., 1171, the author says:

“There are conflicting views as to whether it is proper for counsel to comment on the exercise by the opposing party of a privilege with respect to testimony or the calling of a witness. By what seems to be the better rule, it is held improper for counsel to make such comments. People v. Terramorse (1916), 30 Cal. App., 267, 157 P., 1134; Brackney v. Fogle (1901), 156 Ind., 535, 60 N. E., 303; William Laurie Co. v. McCullough (1910), 174 Ind., 477, 90 N. E., 1014, 92 N. E., 337, Ann. Cas. 1913A, 49, overruling Warsaw v. Fisher (1899), 24 Ind. App., 46, 55 N. E., 42; Johnson v. State (1885), 63 Miss., 313; Fannie v. State (1912), 101 Miss., 378, 58 So., 2; Wilson v. Com. (1932), 157 Va., 962, 162 S. E., 15 (express statute; see case infra, II b, 2); Kiehlhoefer v. Washington Water Power Co. (1908), 49 Wash., 646, 96 P., 220; Sumpter v. National Grocery Co. (Wash.).”

One of the clearest statements on this proposition is contained in Penna. Rd. Co. v. Durkee, 147 F., 99, where comment was made by counsel on the exercise of a physician-patient privilege to the effect that the evidence if it had been admitted would have been unfavorable to the person exercising the privilege. The court there said:

“The prohibition against disclosure of professional secrets is manifestly an exercise of public policy. It secures a right to every individual which he is under no obligation to waive or abandon * * *.
“To hold that, because the patient does not waive or abandon the prohibition, inferences adverse to his side of the controversy may be drawn by the jury, would be to fritter away the protection it was intended to afford. When it is the legal right of a party not to have some specific piece of testimony marshaled against him, he may exercise that right without making it the subject of comment for the jury.”

In 5 Jones’ Commentaries on Evidence (2 Ed.), 4187, Section 2195, it is said:

“No unfavorable inference should be drawn from claiming the privilege. To hold that, because the patient does not waive or abandon the prohibition, inferences adverse to his side of the controversy may be drawn by the jury, would be to fritter away the protection which the privilege was intended to afford. When it is the legal right of a party not to have some specific piece of testimony marshaled against him, he may exercise that right without making it the subject of comment to the jury. ’ ’

Counsel for the defendant have referred to the cases of Katafiasz v. Toledo Consolidated Electric Co., 1 C. C. (N. S.), 129, 14 C. D., 127; State v. Champion, 109 Ohio St., 281, 142 N. E., 141; and Carney v. Krause, 6 Ohio Law Abs., 699. Those cases, however, are not in-point with the case at bar since they all deal with a somewhat different state of facts which involves a situation where a party fails to call a witness whose testimony may be claimed privileged as to a material issue in the case. However, here the comment was not upon the failure to call a witness to testify as to a material issue, but was upon the actual exercise of the privilege by the plaintiff. The plaintiff was called upon to waive the privilege so that opposing counsel might produce the evidence. Wigmore in his work on Evidence (3 Ed.), Vol. 8, pages 829 and 830, Section 2386, recognizes the distinction between those two situations:

“When the privilege is claimed by a patient who is also a party, no inference as to the facts suppressed can be drawn, — following here the analogy of the other privileges (ante, Secs. 2272, 2322). Perhaps it is sound to distinguish between failing to call the witness on one’s own behalf (which is open to inference; ante, Sec. 285) and claiming the privilege when the opponent calls him (which is not open to inference).”

It will be noted that Wigmore recognizes the existence of two rules which may exist side by side in any given jurisdiction. Failure to call a witness is open to inference but exercising the privilege on the stand is not.

Further misconduct of counsel is alleged in the argument to the jury because of the fact that reference was made to certain newspaper articles concerning four individuals who had recently committed suicide and which reference was not based upon any evidence in the record. This cannot be the basis for error, however, as no objection was made and the trial court was, therefore, given no opportunity to rule on the same.

The second assignment of error charges that the court erred in the admission of evidence to which objection was made by plaintiff’s counsel. The record discloses that upon cross-examination plaintiff was asked the question whether he had filed with the Veterans’ Administration Bureau a claim for disability. We think that this question was not improper as it furnishes the foundation for the service records of the plaintiff being in the possession of the Veterans’ Administration Bureau, and entitling the plaintiff to the privileges cited in Title 38, Section 456, U. S. Code. It is true the plaintiff testified to the amount of compensation he had been allowed, which of course was not material, but this was a voluntary statement and was not in response to a direct question. We find no prejudicial error in this assignment.

The third assignment of error charges that the court erred in giving defendant’s instruction No. 1 to the jury before argument, this charge being as follows :

“I charge you as a matter of law that the burden of proof is on the plaintiff, and that before he can recover, he must prove by a preponderance of the evidence that his injury was accidental. I further charge you as a matter of law that if the plaintiff intentionally followed a course of conduct which resulted in his own injury, such injury was not accidental, and your verdict should accordingly, be for the defendant.”

We find that such a charge has been approved in two recent cases, to wit, Hassay v. Metropolitan Life Ins. Co., 140 Ohio St., 266, 43 N. E. (2d), 229; and Hrybar v. Metropolitan Life Ins. Co., 140 Ohio St., 437, 45 N. E. (2d), 114.

We, therefore, hold that such assignment of error is not well grounded.

For the reasons heretofore indicated we find that there is prejudicial error in the record. The judgment is reversed and the cause is ordered remanded for further proceedings according to law.

Judgment reversed.

Wiseman, P. J., and Hornbeck, J., concur.

(Decided December 16, 1948.)

On Application for rehearing.

Miller, J.

This is an application for a rehearing for the alleged reason that even though we be correct in holding the record in the Veterans’ Administration Bureau to be confidential and privileged, the plaintiff waived any privilege afforded him by the statute when he testified that the final diagnosis by the army medical staff was “colitis — cause undetermined.” The record discloses that the plaintiff testified he acquired this information when it was announced in the court by the men that decided to give him a discharge. He also testified that he saw it on the record at the hospital but that he never saw it in the record at Washington, and which is now in the Veterans’ Administration Bureau. The plaintiff wqs not testifying from the records which are claimed to be privileged, and the privilege has not been waived.

It is also urged by counsel that at ho time during the trial did the plaintiff claim the right of privilege and that it is now too late to raise the question for the first time in a reviewing court. We are in full accord with this legal principle but do not think that the facts in the record support the charge. In the cross-examination of plaintiff, counsel for defendant clearly indicated that a request had been made of counsel for plaintiff to produce these records and the same had been refused. This was certainly an exercise of the privilege. Again, in the argument to the jury counsel for the defendant told the jury, “I am surprised at Mr. Stanley with the experience he has, I thought he would produce those records. I was surprised when he refused the first time to let us see them, at least the second time; there is just one inference that you can draw from it, that if these records were here, they wouldn’t do Mr. McLaughlin’s case any good at all, but we haven’t got them.” We think that the cross-examination which we quoted in our prior opinion clearly shows counsel for the plaintiff not only exercised the privilege but it also shows one of the bases of the cross-examination seemed to be an attempt to get the plaintiff to waive the privilege. Counsel for the defendant in their answer brief cited the case of McCool v. Dighton, Somerset & Swansea St. Ry. Co., 173 Mass., 117, 53 N. E., 133, wherein it was stated that the trial court required the client to make the waiver personally.

A motion to certify the record has also been filed alleging conflict with the cases of Katafiasz v. Toledo Consolidated Electric Co., 1 C. C. (N. S.), 129, 14 C. D., 127, and Carney v. Krause, 6 Ohio Law Abs., 699. In our opinion we endeavored to distinguish these two cases and we are still of the opinion that there is no conflict.

The application for a rehearing is denied and the motion to certify is overruled.

Judgment accordingly.

Wiseman, P. J., and Hornbeck, J., concur.


source: Caselaw Access Project

author: Conn, J.

license: Public Domain

text:
    Knox, Appellee, v. Covrett, Appellant.
    (No. 247
    Decided May 2, 1949.)

      Mr. J. D. Guernsey, for appellee.

      Mr. John Bender, for appellant.
   Conn, J.

This action was begun in the Juvenile Court of Ottawa County upon the filing of a complaint against the defendant, Charles J. Covrett, wherein he was charged by Augusta L. Knox as being the father of her child born March 30,1947.

On August 8,1947, a warrant was issued out of such court to the sheriff of Ottawa county for the arrest of the defendant and on August 9, 1947, the sheriff returned the writ unexecuted, he “being unable to find the defendant.”

On the day of the sheriff’s return “a complete transcript of all the docket entries of the proceedings of said court” was filed in the Common Pleas Court and on that day plaintiff also filed her petition together with transcript of the proceedings in the Juvenile Court in which she alleged that the defendant was the father of her child, and that he has wholly failed and refused to provide for her support and the support of the child and prayed for a judgment of $900.

On August 9, 1947, an affidavit for attachment was filed, an order of attachment issued to the sheriff of Ottawa county and a levy made on certain real estate of the defendant, located in that county.

On October 13, 1947, the defendant filed his motion to discharge the attachment, the material grounds alleged being that the order of attachment was not issued pursuant to law in that the proceedings purported to be founded upon Section 12129, General Code, which authorizes attachment when a transcript of bastardy proceedings before a justice of the peace is filed in the-Common Pleas Court; that if plaintiff elects to proceed in the Juvenile Court, that court shall have jurisdiction to fully hear and determine the matter as provided in Section 12115, General Code; and that there is no authority in law to take a case from the Juvenile Court to the Common Pleas Court.

From a judgment overruling the motion to discharge _the attachment, defendant appeals on questions of law.

The appeal is grounded on three assignments of error :

1. That the court had no jurisdiction of the subject matter and should have sustained the motion.

2. That the judgment overruling defendant’s motion was contrary to law.

3. That the judgment was against the manifest weight of the evidence.

As no bill of exceptions was tiled, the issue raised on the third assignment of error cannot be considered on the record before us and therefore is not sustained. The remaining assignments of error will be considered together.

The procedure in bastardy cases is set out in Sections 12110 to 12134, inclusive, General Code. The issues before us on this appeal are procedural in character and can be determined by the relevant or pertinent sections of the bastardy act.

In 1923 the bastardy act was amended (110 Ohio Laws, 296) and the purpose of bastardy proceedings materially changed. Under the amended act the proceedings are for the benefit of the mother of the child. Pummell v. State, ex rel. Hill, 22 Ohio App., 340, 154 N. E., 745.

Section 12123, General Code, was further amended in 1938 (117 Ohio Laws, 806, 808), provision being made for, among other things, the support of the child until 18 years of age.

The defendant contends that the attachment proceedings were void and that the Common Pleas Court did not acquire jurisdiction in the instant case by the filing therein of a transcript of the proceedings had in the Juvenile Court, as there is no provision in the bastardy act authorizing such procedure.

We first call attention to the pertinent provisions of Section 12115, General Code, which are as follows:

“If no such compromise is effected, and the complaint has been filed in the Juvenile Court, the judge thereof shall fix the time of the trial and in such cases the Juvenile Court shall have jurisdiction to hear fully and determine such matter * * *. If the complaint has been filed before a justice of the peace, the justice before whom the complaint was made shall bind the accused to appear before the Juvenile Court or at the next term of the Common Pleas Court * * *.’’

Under the provisions of this section, the complaint may be filed and the proceedings instituted in the Juvenile Court or before the justice of the peace. The alternative remedies thus provided for are given recognition in the preceding sections of-the act, to wit, Sections 12110 to 12114, inclusive, General Code, by the phrase, “judge or justice,” or, “justice or judge.”

There is a further alternative provision in Section 12115, General Code, that, where the complaint is filed before a justice of the peace, such justice shall bind the accused to appear before the Juvenile Court or before the Common Pleas Court.

It does not appear that further alternative jurisdictional procedure is provided for by the statute. Furthermore, the express provision of Section 12115, that if the complaint is filed in the Juvenile Court that “court shall have jurisdiction to hear fully and determine such matter,” is a clear expression of legislative intent and purpose. We call attention to the provisions, of the Juvenile Court Code, and particularly to Section 1639-16 (a) 3, General Code, which is as follows:

“(a) The court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code: * * *
“3. To determine the paternity of any child alleged to have been born out of wedlock and to provide for the support of such child, subject to the concurring jurisdiction of other courts as provided by law.”

In the application of the provisions of a statute, it is the invariable rule of the courts to give effect to the intent and purpose of the legislature. Where this intent and purpose is clearly expressed in the statute, the courts do not have the power to amplify the legislative provision by adopting rules of interpretation or by giving the statute a meaning contrary to its express provisions.

It is the opinion of this court that the Court of Common Pleas did not have jurisdiction of the parties or the subject matter of the action, and that the order of attachment was void and of no force or effect and should have been discharged. The judgment is reversed and the cause remanded to the Juvenile Court for further proceedings.

Judgment reversed and cause remanded.

Carpenter and Fess, J J., concur.


author: Wiseman, J.

text:
    The State of Ohio, Appellee, v. McDaniel, Appellant.
    (No. 1980
    Decided March 2, 1949.)

      Mr. Mathias B. Beck, prosecuting attorney, Mr. Wm. B. Wolff and Mr. Robert Schroeder, for appellee.

      Mr. G. E. Miller, for appellant.
   Wiseman, J.

This is an appeal on questions of law from the Common Pleas Court of Montgomery county. The defendant was indicted, tried and found guilty of violating Section 12412, General Code.

The defendant assigns as error that the verdict is not sustained by sufficient evidence and is contrary to law, that the court erred in the admission and exclusion of evidence, and other errors apparent on the face of the record. We have examined the record carefully and find no prejudicial error in the admission or exclusion of the evidence. The defendant strongly urges the claimed error that the verdict is not sustained by sufficient evidence. Under Section 12412, General Code, it was incumbent upon the state to prove that the defendant used an instrument or other means with the intent to procure the miscarriage, that a miscarriage took place, and that the procuring of the miscarriage was not necessary to preserve life and was not advised by two physicians to be necessary for that purpose. The defendant contends that the evidence adduced does not support a verdict of guilty beyond a reasonable doubt.

We have examined the record and reviewed the evidencé with considerable care and with special reference to the contention of the defendant on that ground of error. We find sufficient competent evidence of a substantial character in proof of all the essential elements of the crime charged in the indictment.

The rule is well established that a reviewing court will not reverse on the ground that the verdict of the jury is not sustained by sufficient evidence unless the court finds that the verdict is manifestly against the weight of the evidence. In the application of this rule to the evidence in this case, we conclude that the record does not present a case which requires this court to disturb the judgment of conviction.

In our opinion this case was fairly and thoroughly tried. The issue was one of fact which was properly submitted to the jury for its determination. The jury resolved this issue against the defendant. We can not say that the verdict is not sustained by sufficient evidence or is contrary to law.

There being no error in the record prejudicial to the defendant, the judgment is affirmed.

Judgment affirmed.

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


author: Putnam, J.

text:
    Seran, a Taxpayer, Appellant, v. Biddle et al., County Commrs., Appellees.
    (No. 2327
    — Decided February 11, 1949.)

      Mr. Ian Bruce Hart and Mr. William L. Hart, Jr., for appellant.

      Mr. D. Deane McLaughlin, prosecuting attorney, and Mr. Paul M. Perkins, for appellees.
   Putnam, J.

This action originated in the Common Pleas Court of Stark County and is one in equity to enjoin the county commissioners from selling a portion of the county-home farm which they deemed no longer needed for public purposes. Upon final hearing below the decree was for the defendants and the injunction was refused.

The appeal to this court is on questions of law and fact and was heard upon the transcript of the evidence given in the first trial.

One factual and two legal propositions are presented. The factual proposition is: Under the situation as shown by the evidence, was the action of the county commissioners in the attempted sale such an abuse of discretion as to warrant a court of equity in substituting its judgment for theirs?

The first legal proposition is: Did the county have legal title to this land in view of the fact that, in the deed to the defendants, “Stark County Ohio” was the grantee named, instead of the county commissioners and their successors in office?

The second legal proposition presents a problem of statutory construction. This is the phase strenuously argued by plaintiff, and the one to which we will direct our attention first.

Section 2447, General Code, provides in part as follows:

“If, in their opinion, the interests of the county so require, the commissioners may sell any real estate belonging to the county, and not needed for public use * * *.”

This section in its essential features has been in the statute books for nearly 100 years. It was amended in 116 Ohio Laws, pt. 2, 149, in 1936. It was last amended with additions in 122 Ohio Laws, 373, and effective September 17, 1947.

In 1929 (113 Ohio Laws, 528) the Legislature passed Sections 2557, 2557-1, 2557-2 and 2557-3. These sections provide for (2557) the closing of the county home under certain circumstances; (2557-1) the disposition of the inmates and future eligibility of others for county care; (2557-2) the sale or lease of county home-farm property; and (2557-3) the establishing of a “district home” in conjunction with other counties under certain conditions. It is with Section 2557-2, General Code, that we are here concerned. It reads:

“After a county home has been closed the county commissioners may sell all or parts of the county-home farm, or lease all or parts of it, or both, and all receipts from such sales or leases shall be paid to the county treasurer and credited to the general county fund and be subject to appropriation for such purposes as the commissioners may decide.”

Plaintiff maintains that the phrase, “after a county home has been closed the county commissioners may sell,” constitutes a condition precedent to the right to sell; and that the home in this case not having been closed, the right to sell does not exist. The question is: What was the intention of the Legislature? Does this section control or does Section 2447, General Code, apply?

Those two sections are in pari materia and must be construed together. Applying certain rules of statutory construction, one answer is obtained; other rules produce a different result. In support of plaintiff’s position is the rule that where there are two statutes concerning the same subject matter, one general and one particular or special, the special prevails. Plaintiff also contends that the phrase is not ambiguous; and that the plain meaning of “after a county home has been closed” is a mandatory condition precedent. It is argued also that historically a county home is located in the country to afford the inmates work and rural surrounding, and a sale would prejudice their rights; and, finally, that is the reasonable construction of the statutes.

The defendants argue and the lower court found that Section 2557-2, Genera] Code, was directory only, by applying the following rules and reasons: First, Sections 2557-1, 2557-2 and 2557-3, General Code, are all a part of one act which deals primarily not with the sale of county property or the county home but with providing a different setup for the care of indigent people of the county, and that this being so, the Legislature did not intend the incidental powers in Section 2557-2, General Code, to be a limitation on the general powers granted in Section 2447, General Code. Second, there are no negative words in Sections 2557-1, 2557-2 and 2557-3, General Code, denying the right to sell the property except under the condition named. Third, it is the duty of the- courts to harmonize these statutes if possible, which can clearly be done if Section 2557-2, General Code, is construed as directory only. Fourth, an interpretation which makes the words directory is the only way the statute can have a reasonable operation.

It is the court’s mature judgment that Section 2557-2, General Code, is directory only and we base that judgment not only upon the above arguments but up•on the following additional considerations which we deem important and ultimately controlling.

An important rule of statutory construction is that no construction should be adopted which would produce absurd or unreasonable results and that the Legislature cannot be presumed to have so intended.

We must recognize the fact that the method of taking care of indigent people has changed with the years. However, historically, as far as our search has revealed, it has never been the mandatory duty of a county to take care of its paupers in an infirmary or county home owned and maintained by it. It could make contracts with other infirmaries. Some counties. do not and never did operate infirmaries. Nor if a county home was established was it mandatory to place it in the country or to operate a farm in connection therewith, even though as a matter of fact most counties did both. During the rural era in Ohio, in most cases, it was more economical to raise part of the food for the inmates on a farm on which they could do some work than to buy everything. Neither was there ever a mandatory duty to purchase a farm when the site was purchased; nor if a farm was purchased later that it all had to be purchased in one tract or at the same time. There is some authority, the weight of which is open to question, that the various tracts had to be adjacent so as to touch one another.

Now if we give the section the interpretation which plaintiff claims, we would have to say that no matter what conditions arose and no matter when or in how many parcels or for what reasons the various tracts of a county home farm were purchased, not a square foot thereof could ever be sold without first closing the county home. Then, too, we would have to say that since this power undoubtedly did exist by virtue of Section 2447, General Code, prior to 1929, some particular condition arose about that time which impelled the Legislature to change the rule. If so, what could it be?

Certainly it is the duty of the county to feed the charges as economically as possible with the standard of ordinary subsistence. Certainly it is not economical to raise general farm produce or conduct general farming operations on $2,000-an-acre land; any farmer would so agree. That is the testimony in this case. It would be better to sell the farm and buy the food in the open market. Did. the Legislature in 1929, knowing of the urban shift of population, intend to perpetuate such a practice? Again, every farmer knows that conditions and farm operations change over the years. At one time a farmer might want to go in for milk production and accumulate a dairy herd — say a registered Brown Swiss herd. If Bang’s disease wipes out the herd, he might want to switch to a corn-hog program. In such a readjustment it would be desirable to eliminate some pasture land and acquire some corn ground. Did the Legislature intend that the county commissioners should be so hog-tied by statute that there never could be any readjustment of acreage on a county farm?

Take another illustration. Suppose a railroad would be located or a highway relocated or a dam built so as to cut off a portion of the farm and make it unavailable for practical use. Was it the intention to prevent a disposal of that acreage and the acquisition of something more suitable ? We do not think so.

Now let us inquire for a minute what, if any, conditions arose about 1929 which would cause the Legislature to change a policy and so restrict a thereto necessary and obviously sensible grant of power? We can think of none. We can, however, see why the power to close a county home would be expressly given. Some of the reasons are.:

1. The Department of Public Welfare was being expanded and new ideas as to treatment of indigents advocated.

2. Ohio was becoming more urban and real estate values were changing.

3. Farms were being mechanized.

4. The population of county homes was decreasing.

5. Doubt existed among officials, local and state, as to the right of the county commissioners absolutely to close a county home and participate fully in the state welfare program of consolidation and outside relief.

Those facts and others impel us to the conclusion that the main purpose of Sections 2557-1, 2557-2 and 2557-3, General Code, was to provide for the closing of a county home and to permit the making of more economical and elastic arrangements. The power of sale was only incidental to the main purpose. We do not think the Legislature contemplated that all county homes would be sold. We do not think the Legislature contemplated that all county homes in connection with which there were farms would always be maintained in whole or in part by such farms. We cannot believe that the Legislature intended that farming operations should be conducted upon land the value of which had outgrown farm values.

We hold that Section 2557-2, General Code, is directory and not mandatory.

The second legal proposition presented as to the ownership of the land is settled by the decision of the Supreme Court in the case of Carder v. Board of Commissioners of Fayette County, 16 Ohio St., 353, where it is held that a devise to the county is a devise to the board of commissioners of the county and vests title in it for the uses of the county.

This brings us to a consideration of the last problem presented, the factual one, as to whether the proposed sale is an abuse of discretion. The evidence in the case as to the value of the lands advertised for sale and the resulting effect of that sale on the remaining lands is somewhat in conflict. The difference of opinion, however, is not such as to impel this court to arrive at the conclusion that the decision of the county commissioners in acting in accordance with one set of witnesses was an abuse of discretion. After all, this land was put up for public sale in accordance with the statutes governing such sales and after due advertisement and notice. It presumely brought what it was worth. No fraud or irregularities are shown by the record. It might be true that at another time and under different conditions a better price could be obtained. However, this is a matter of judgment. It does not present such a situation where this court would be justified in substituting its judgment for that of the officials in whom, rightly, this discretion is imposed.

■ In view of the above considerations the decree must be for the defendants herein. It is so ordered.

Decree for defendants.

Montgomery and McClintock, JJ., concur.


author: Doyle, J.

text:
    Rinkes, Appellant, v. Tyler, Appellee.

      (No. 1105
    — Decided May 18, 1949.)

      Mr. John Rossetti, for appellant.

      Messrs. Weygandt é Ross, for appellee.
   Doyle, J.

This appeal is from a judgment for the defendant, rendered upon the verdict of a jury, in an action for damages growing out of the collision of two automobiles at a street intersection in the city of Wooster.

There is evidence tending to prove that the defendant drove his ear south on Bever street toward its intersection with Larwill street; that at the same time the plaintiff, a part of a three-vehicle funeral procession, approached the same intersection from the west on Larwill street; that the lead funeral car and the hearse passed safely through the intersection, but the third car, driven by the plaintiff and approximately 40 feet behind the hearse, was struck within the limits of the intersection by the car of the defendant as it proceeded south on Bever street into the said area.

The city of Wooster had designated, by ordinance, Bever street as a “main thoroughfare,” and had designated Larwill street, as it intersected Bever street, as a “stop” street. And, in compliance with the ordinance, there was duly erected ‘ ‘ stop signs ’ ’ on Larwill street at the said intersection. This ordinance is in compliance with the provisions of Section 6307-63 (b) and (c), General Code. Under paragraph (d) of the statute, it is provided that “every operator of a vehicle * * # shall stop at such sign * * * before entering an intersection except when directed to proceed by a police officer or traffic-control signal.”

The evidence shows that the plaintiff drove past the stop sign and into the intersection without stopping, with the excuse that she was in a funeral procession; the defendant testified that he saw the hearse in the intersection, but did not see the car ahead of the hearse, nor plaintiff’s car, following the hearse, until it was too late for him to avoid a collision.

“Q. How far were you away from the intersection * * * when you first noticed the hearse? A. I can’t say how far — I would say perhaps a little over a hundred feet * * *.

“Q. Did you see the car behind the hearse? A. No.

“Q. Did you see it at any time? A. When it came out in front of me. * * *

“Q. Did you see this car [plaintiff’s car]? A. I didn’t know this was a funeral car.

“Q. You knew it was a funeral ear? A. I didn’t: know at that time. No, I say this hearse was quite a little ways ahead of this car and this car came up to Bever street, it didn’t stop and it came on out and I could not get stopped.

“Q. Did you swerve your car either right or left? A. I swerved to the left to try to get past. * * *

“Q. Where was the Binkes [plaintiff’s] ear when yon first saw it? A. On Larwill street, just about the stop sign.

“Q. You could see it from around that house? A. From the north, I saw it there. I supposed it would stop and it didn’t, and it was too late for me to get stopped.”

The evidence indicates that the defendant drove his car at a reasonable and lawful rate of speed as he approached the intersection, and under the law had the right of way through the intersection unless, as is claimed by the appellant, an ordinance of the city of Wooster qualifies or supersedes the Uniform Traffic Act of the state and makes an exception in respect to funeral ears following one another in a procession, and, under such circumstances, qualifies the rights of persons proceeding into an intersection on a “main thoroughfare.” The ordinance in question is as follows :

“Sec. 441. Driving through processions. No person shall drive a vehicle through a procession, except with the permission of a police officer, provided, however, that this shall not apply to drivers of fire apparatus, police vehicles and ambulances.”

Error is directed to the refusal of the court to allow the jury to apply the ordinance to the facts presented.

1. Section 6307-7, General Code, a part of the Uniform Traffic Act, provides, in part:

“The provisions of this act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from — * * *
“3. Begulating or prohibiting processions or assemblages on the highways * *

This part of the traffic act must be read and applied in connection with another section of the Code (Section 6307-6), which is as follows:

“The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this act unless expressly authorized herein.”

These two Code sections are in pari materia, and, of course, must be construed to mean that it is unlawful for a municipality to enact an ordinance in conflict with general statutory laws unless such general statutory laws ‘ ‘ expressly authorize ’ ’ such conduct. Stated conversely, the police power of a municipality is expressly limited to the enactment of legislation which is not in contravention of the general statutory law of the state.

The statutes here under discussion must also be read in the light of Section 3, Article XVIII, Constitution of Ohio (Home Rule Amendment), which appears in the following language:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” (Italics ours.)

See 8 Ohio Jurisprudence, Constitutional Law, Section 247, and cases therein cited.

This Uniform Traffic Act, as adopted in this state, does not exempt, nor does it expressly authorize exemption by municipal ordinance of, a funeral procession, or vehicles used in such procession, from the traffic regulations applicable to the general public; and a municipal ordinance designed to create such exemption is in conflict with general laws, and is invalid.

We determine that the authority given by statute (Section 6307-7 3, General Code, supra), to a municipality to regulate or prohibit processions or assemblages on the highways, is not authority to legislate an. exemption to such groups from obeying the Uniform Traffic Act, nor is it authority for legislation prohibiting other travelers on the highway from the full enjoyment of the general statutory laws regulating-traffic.

In consideration of the ordinance under review, we indulge the presumption that the city council had no such intention when the law was enacted, and that it was intended to apply only to situations in which it did not come into conflict with the uniform law of the state.

We find no error in the refusal of the trial court to allow the ordinance to be used as a predicate for negligence, under the circumstances of this case.

We have been referred to the case of Otto v. Whearty, 63 Ohio App., 495, 27 N. E. (2d), 190. We agree with the conclusions therein reached.

We observe, however, that the case was decided pri- or to the adoption of the present Uniform Traffic Act, which act, of course, was in effect at the time the case here under consideration arose.

2. It is further claimed by the appellant that the court committed prejudicial error in the charge to the jury.

Our examination of the record reveals no error of a prejudicial character in the court’s charge on the claimed negligence of the defendant as a proximate cause of the collision and damage. We do, however, find an erroneous statement in the charge on the question of contributory negligence. Under these circumstances, we find it our duty to apply the two-issue rule. The rule, so far as applicable to this case, may be stated as follows: Where the issues of negligence of the defendant and proximate cause are correctly submitted, and error occurs only in the submission of the issue of contributory negligence, a verdict for defendant will stand, in the absence of a showing that the verdict was based upon the issue erroneously submitted, since otherwise the verdict may have rested on a finding on an issue correctly submitted. Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851, and cases therein cited.

We find none of the errors charged to be of a nature prejudicial to the rights of the appellant.

The judgment will therefore be affirmed.

Judgment affirmed.

Stevens, P. J., and Hunsicker, J., concur»


author: Montgomery, J.

text:
    Grossglaus, Appellee, v. Board of Elections of Stark County et al.; France, Appellant.
    (No. 2329
    — Decided February 8, 1949.)

      Messrs. Burt, Carson, Lynch é Vogelgescmg, for appellee.

      Mr. Ian Bruce Hart, Mr. William L. Hart, Jr., and Mr. L. Harrell Ahe, for appellant.
   Montgomery, J.

Following the general election held in November 1948, the Board of Elections of Stark County, after canvassing officially the votes cast in that county, certified, among other things, that the plaintiff, Harry W. Grossglaus, had been duly elected sheriff of such county.

On the fifth day after this certification, which under the statute was the last day on which a recount could be demanded, at about four p. m., the appellant, Richard R. France, filed with the board of elections a document which reads as follows:

“November 18, 1948.
“Honorable Board of Elections,
“Stark County,
“Canton, Ohio.
‘ ‘ Gentlemen:
“Enclosed please find check in the amount of $3,060, which represents my deposit for the purpose of a recount of votes for the three hundred and six (306) precincts in Stark county in the general election held Nov. 2, 1948.
“I understand this is in complete compliance with your ruling.
“Respectfully yours,
“ ‘Dick France’
“Dick France, Sheriff”

Accompanying this communication was the personal check of France for the sum of $3,060, not certified, .which was deposited with and accepted by the board of elections. The board then set the date for recount and notified both the theretofore candidates for the office, G-rossglaus and France, that the recount would proceed in accordance with the notice. Thereupon G-rossglaus filed a petition in the Court of Common Pleas attacking this application of France on three grounds, and asking for an injunction against any recount of ballots, as threatened by the board of elections. Issues having been made, the cause came on for trial before the Court of Common Pleas which, at the conclusion of the evidence, rendered judgment for Grossglaus and issued a permanent injunction against the board of elections proceeding with the recount, on two grounds, to wit, that the application for recount did not separately list each precinct as to which a recount of votes was requested, and that the applicant did not deposit in cash the sum of $10 for each precinct to be recounted.

From that judgment this appeal was perfected to this court.

There are a number of errors assigned which we have considered as they are specified, but they may be grouped under two real specifications, to wit, first, that a court of equity has no jurisdiction to interfere in this way with a matter purely political and Grossglaus had an adequate remedy at law and was not irreparably injured by the threatened action of the board, and, second, that the judgment of the Court of Common Pleas was contrary to law.

Upon the first proposition counsel for France have filed very elaborate briefs and argue their contention ably. However, it seems to us that that contention simply is not tenable.

The courts of Ohio have uniformly held that a court of equity may intervene in an election matter under certain conditions. There is no prohibition, and there manifestly conld not be, as to any action by a court of equity against an administrative body, if such body were proceeding to act without authority in derogation of the rights of a litigant.

For instance, in the much discussed case of State, ex rel. Fowler, v. Board of Elections, 45 Ohio App., 34, 40, 186 N. E., 17, where, discussing the facts, the court said, " * * * and the relator having failed to proceed in the manner therein prescribed, this court must of necessity sustain the demurrer.”

And the Supreme Court, in affirming the judgment in the Fowler case (126 Ohio St., 582, 186 N. E., 446), held that the Court of Appeals was right in sustaining the demurrer.

Of course, the situation is not exactly parallel, because the Fowler case was an action in mandamus, but, nevertheless, the court accepts and adheres to the proposition that under given conditions the powers of a court may be invoked. In the recent cases of State, ex rel. Burgstaller, v. Board of Elections, 149 Ohio St., 193, 197, 78 N. E. (2d), 352, and State, ex rel. Lemert, v. Board of Elections, 149 Ohio St., 211, 215, 78 N. E. (2d), 368, the same principle was recognized. Furthermore, in those cases there was asserted the same principle announced by Chief Justice Marshall in the case of Sullivan v. State, ex rel. O’Connor, 125 Ohio St., 387, 394, 181 N. E., 805, where, in discussing the absence of fraud' alleged or proved — and that is the situation in the instant case — he said:

" * # * the petition on the relation of 0 ’Connor does not allege fraud, neither is it necessary that it should do so, because it has an equally potent allegation that the action of the board was an abuse of discretion and without authority of law. ’ ’

We come, therefore, to a discussion of the second proposition advanced by France, that the judgment of tbe lower court was contrary to law. Upon such proposition the court rendered a very able opinion, upon which we might without impropriety rely without further observation.

Section 4785-162, General Code, in part, provides:

“Each application for recount shall separately list each precinct as to which a recount of the votes therein is requested, and the person or persons filing an application for a recount shall at the same time deposit with the board of elections ten dollars for each precinct so listed in such application as security for the payment of charges for making the recount therein applied for, which charges shall be fixed by the board as hereinafter provided.”

The fourth paragraph of the syllabus in the Fowler case (Court of Appeals), supra, is:

“Strict compliance with statute respecting application for recount and giving security by cash deposit or bond for cost thereof is mandatory and jurisdictional * * V’

And the affirmance of the judgment in that case by the Supreme Court is to the same effect.

Of course, the statute was amended and is different from what it was at the time of the decision in the Fowler case. At. that time the statute provided that there might be a recount, and there was coupled with that authorization the statement that it shall be under “the following terms and conditions.” That provision is not in the present statute, but, as we construe the present statute, its terms are mandatory, because throughout there appears the word, “shall.”

In the case of Koehler, Jr., v. Board of Elections, 125 Ohio St., 251, 257, 181 N. E., 107, the court said:

“Since the requirements were mandatory, the failure to comply with the requirements was not merely technical. The board of elections had no discretion as to whether it would or would not comply with the mandatory provisions of the statute.”

It may well seem that the discrepancies are technical and immaterial, and that there may be no point to a strict adherence to the statute, but as so often has been stated, the remedy in such a situation lies not with the courts but with the Legislature. And, certainly, the construction placed by the Common Pleas Court upon the statute as it affects this situation, which construction we place upon it, is no more technical than the position taken by the Supreme Court in the three recent cases in 149 Ohio State Reports, to wit, the Burgstaller and Lemert cases, supra, and State, ex rel. McGinley, v. Bliss et al., Board of Elections, 329. Those cases do more than set a precedent for us in the instant case. They seem to us to make it mandatory upon us to hold as we do.

It is true that the. quoted notice served by Prance should indicate to the board of elections that he desired a recount of all the precincts, and, offhand, it might seem unreasonable that the precincts be listed separately, but such is the only possible interpretation of the statute. Counsel for G-rossglaus advance the unique idea, which upon consideration shows some merit, that the purpose of the listing is to indicate the order in which the recount shall be had, particularly in view of the fact that there is vested in the applicant for a recount the right to withdraw his request during the progress of the count, if he sees fit; and, consequently, that the recount should proceed in the order in which the precincts are listed.

As to the deposit of this check: The quoted portion of the statute says the deposit shall be ten dollars for each precinct. That means cash. A check is nothing more than a direction upon the drawee to pay the same, which direction might or might not be honored. There might or might not be sufficient funds to make the check good. The duty is upon the one who makes the deposit to comply with the statute, and it is not upon the one with whom the deposit should be made to assume the burden and responsibility of making sure that the check will be honored and of procuring the cash represented by it.

We can come to no conclusion other than that the trial court was right in its judgment, and such judgment is affirmed.

Judgment affirmed.

Putnam, P. J., and McClintock, J., concur.


author: By the Court.

text:
    Hartman, Appellee, v. Tillett et al., Appellants, et al., Appellees.
    (No. 179
    — Decided October 25, 1948.)

      Messrs. Nichols, Speidel <& Nichols, for appellee Hartman.

      Mr. Ralph E. Cors and Mr. Gerritt J. Fredriks, for appellants William Tillett and Dolores Tillett.

      Mr. Ray Bradford, Messrs. Ely, White é Davidson and Messrs. Murphy, Murphy é Deddens, for appellees Joseph Vance, Lola Vance and The Milford Building, Loan & Savings Company.
   By the Court.

This is an action for reformation of a deed to certain farm land, and was appealed on questions of law and fact to this court. Three adjoining tracts are involved. • They are, however, separately described on the real estate records of the county, produced by a decree in partition entered in 1886. In that decree the tracts are numbered two, three and four respectively. Tracts two and three have a rather long common boundary line and near this line, on tract two, are located a dwelling house, barn and other structures usually found in the curtilage incident to a farm. There were no such improvements on tract three, and apparently two and three were treated and referred to as one farm. Tract four and tract three had a rather short common boundary line. On tract four were located a dwelling house and barn. These were located some distance from the dividing line between tracts three and four. Tract four had been treated as a distinct farm for 50 years. Tract two is described in the partition plat as containing 32.12 acres, tract three as containing 38.20 acres, and tract four as containing 35.10 acres.

The plaintiff owned all three tracts at the beginning of the transaction out of which this controversy arose.

In October 1945, the plaintiff and the defendant Joseph Yance entered into a written contract whereby the plaintiff agreed to sell to Yance “one of his farms containing seventy acres more or less” for $6,000. The testimony leaves no doubt whatever that the parties had in mind tracts two and three as the subject matter of this contract. In the deed conveying the property, tract four was included, but the testimony is equally clear that it was included because of mistake, and contrary to the intention of the parties.

The deed was prepared by the attorney of a building association that loaned the defendant Vance $5,000, which he used to pay the balance of the purchase price. The execution of the deed was hurried in order to get the title in shape so that the loan could be approved by the building association officials. The plaintiff thought defendant Vance had explained the transaction to the attorney, and so signed the deed without reading it.

Vance entered into possession of tracts two and three and made some improvements thereon at a cost of about $2,000.

In February 1948, while still in possession of tracts two and three Vance entered into a written contract to sell his farm and one-half of the livestock thereon to the defendant William D. Tillett. The farm was described' as “farm owned by Joseph Vance and Lola Vance about two miles east of Batavia, Ohio, and off Route No. 74 and with a five room house and barn and chicken house including all farming equipment, and one-half of all livestock now on property on an acreage of one hundred five (105) and one-eighth (1/8) acres more or less,” for $8,000. Prior to entering into this written contract Vance took Tillett on an inspection tour of tracts two and three and pointed out to him the boundary lines. While they did not go to the dividing line, they were within sight of it and its approximate location was pointed out to Tillett. There is no doubt whatever, however, from the testimony of Tillett himself that the parties had in mind only tracts two and three and that Tillett never supposed that he was negotiating for any part of tract four.

In the preparation of the deed from Vance to Tillett the description was taken from the deed from the plaintiff to Vance and thereby the mistake in the description was continued.

Later, Vance, in ignorance of the fact that his deed included tract four and knowing that there had been no intention to convey if to him, entered into a contract with the plaintiff to purchase tract four, and it was then discovered that this mistake had been made in the preparation of the prior deed from plaintiff to Vance. Shortly thereafter, this action was filed.

It is apparent from this recital that both the plaintiff and defendant Vance were mistaken as to the description in the deed from the plaintiff to Vance. It is clear that the only negligence of the plaintiff was in assuming that the attorney had prepared the deed correctly and in signing it without reading it and, perhaps, in furnishing the attorney with a prior deed containing a description of all three of the tracts. It is urged that this conduct characterized as negligence bars relief to the plaintiff, notwithstanding the effect is to leave the defendant William D. Tillett in the ownership of a farm that he never intended to buy and which he never paid for.

In 45 American Jurisprudence, 632, Section 78, it is stated:

“Although the term ‘mistake’ carries with it the idea of fault in him to whom the mistake is imputed, the mere fact that a mistake was made in an instrument does not show such negligence as to bar the right of reformation, for if that were so a court of equity never could interfere. It is not essential, therefore, that one seeking the aid of a court of equity to reform a contract show that he is wholly free from fault. Mere negligence not rising to the dignity of a violation of a positive legal duty, as negligence that is a mere, inadvertence, does not preclude relief. Nor will relief be denied where, in the circumstances, the negligence of the party seeking relief is excusable.”

The defendant William- D. Tillett calls attention to the fact that it was stated in his contract that the farm contained one hundred five (105) acres “more or less,” and that if tract four is excluded he will receive only 70 acres. However that may be, he will get tracts two and three which he knew was all he was to get. The mistake, if any, was not as to the identity of the subject matter. The mistake related only to an opinion of the acreage in the subject matter. That mistaken opinion as to the acreage of tracts two and three does not justify the inclusion of tract four, never intended by the parties.

Finally, the defendant William D. Tillett pleads that he is an innocent purchaser for value. If the facts placed him in that category he would be protected and plaintiff could obtain no relief. The difficulty with defendant Tillett here is that he never intended to buy tract four. It is true that his deed included tract four, but the uncontradicted evidence is he understood that he was not buying it. Three elements are required to give one the status of a purchaser for value without notice — (1) he must be a purchaser, (2) he must have paid value, and (3) he must have no notice of the equity. The defendant lacks the first element.

As we view this case, it presents the classic case of failure to carry out the clear intent of the parties through a mistake. Equity favors carrying out the intent of contracting parties and whenever a writing fails to conform to such intent equity will reform it to make it conform, unless there is some overruling equity. We find no such superior equity in this case.

For these reasons, the court finds in favor of the plaintiff. A decree granting reformation may be prepared.

Decree accordingly.

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


author: Wiseman, P. J.

text:
    Pace, Appellee, v. Buck, Appellant.
    (No. 4069
    — Decided February 7, 1949.)

      Mr. Lawrence A. Ramey, for appellee.

      Mr. Joseph L. Stanton, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from the Municipal Court of Columbus which rendered a judgment in favor of the plaintiff in an action in forcible entry and detainer.

On February 4, 1946, the plaintiff obtained an order from the Office of Price Administration, Division of Rent Control, stating that an action to evict the defendant shall not be commenced sooner than three months after February 4,1946. The three-month period expired on May 4, 1946. The defendant had paid her rent up to May 1, 1946. On April 29, 1946, the plaintiff received from the defendant a money order for $30 for the payment of rent for the month of May. On May 7,1946, the statutory legal notice to leave the premises was served on the defendant. The action was filed on May 20, 1946. The case was tried on June 10, 1946.

The defendant, appellant herein, has filed five separate grounds of error which raise two questions: First, whether the facts show an acceptance of rent by the plaintiff for the month of May; and, second, whether the court erred in refusing to allow the defendant to introduce evidence in regard to an oral contract of sale.

If the plaintiff accepted the money order for $30 for the payment of rent for the month of May, then, obviously, the action could not be maintained. The record shows that when the plaintiff received the money order she turned it over to her attorney who told her that he would mail it to the defendant stating that they could not accept the money order as rent. The plaintiff’s attorney retained it in his files and failed to notify the defendant that the order was not accepted in payment of rent. The retention of the money order by plaintiff’s attorney constituted a retention by the plaintiff. The evidence further shows that the defendant sent a second money order which was received by the plaintiff for the payment of rent for the month of June. The plaintiff returned this money order to the defendant by registered mail. The money order dated April 29, was not introduced into evidence. The plaintiff now contends that it was held for evidentiary purposes. However, the record does not support this contention. The plaintiff further contends that this money order was tendered to the defendant at the trial but, again, the record does not support this contention. During the cross-examination of the plaintiff she was questioned relative to the disposition of this money order. The record shows that at this point counsel for the plaintiff' stated:

“As to that matter, I have it here and I’ll tender it into court. I found it on Thursday when you and I were talking.”

At the conclusion of the evidence the court rendered judgment and stated, “$30 money order held in court pending litigation.”

The facts in this case do not show that the plaintiff or her attorney at any time notified the defendant that the money order would not be accepted in payment of rent; neither was the money order tendered to the defendant on the day of trial. A tender into court of the money order and an order of the court holding the money order m court pending litigation does not constitute a tender to the defendant. The defendant did not get possession or control of the money order and was not permitted to cash it, which she would be privileged to do had a sufficient tender been made to her.

Three cases in Ohio are cited: Pillot v. Moss, 72 Ohio App., 492, 53 N. E. (2d), 73; Booher v. Lowe, 82 Ohio App., 392, 73 N. E. (2d), 199; Hile v. Besecker, 82 Ohio App., 301, 79 N. E. (2d), 582. In the Pillot case the court found that the money orders were held for evidentiary purposes and that the landlord had notified the tenant that the money orders would not be and were not accepted in payment of rent. In the Booher case the court held that the retention of the money order by the landlord for less than one month and the tender back of it to the tenant on the day of trial did not operate as an acceptance by implication of law or by estoppel. In the Hile case the court held that the acceptance by the landlord of the money order ten dered by the tenant operates as payment of the rent in the absence of any showing that the landlord proposed to hold the money order for evidentiary purposes or that he informed the tenant that the money order would not be accepted in payment of the rent. The facts in the instant case are similar to the facts in the Hile case. The only distinguishable fact is that in the instant case the landlord tendered the money order into court. In neither case did the landlord tender the money order to the tenant.

We are of the opinion that where the landlord retains a money order received from the tenant in payment of rent and the landlord fails to notify the tenant that the money order was not accepted in payment of rent, or that it was retained for evidentiary purposes, and fails to tender the money order to the tenant on or before the day of trial, the retention of the money order constitutes an acceptance in payment of the rent. It follows that the defendant could not be legally evicted during the term for which rent was paid.

The defendant contends that the court erred in not permitting the defendant to present evidence in chief regarding an oral contract for the purchase of the real estate. The record shows an objection was sustained and exceptions noted, but no proffer of testimony was made. In the absence of a proffer of testimony, this assignment of error is not well founded.

Finding error in the record prejudicial to the defendant, the judgment is reversed.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


author: Hornbeck, J.

text:
    Gatterdam, Appellee, v. Gatterdam, Appellant.
    (No. 4242
    — Decided February 28, 1949.)

      Mr. J. Paul McNamara and Mr. R. A. Hawley, for appellee.

      Mr. Peter Albiets and Mr. John M. Scott, for appellant.
   Hornbeck, J.

The appeal is from a decree of divorce granted to the plaintiff from the defendant. Errors are not specifically assigned but from the briefs it may be stated that the claim is that the decree is against the weight of the evidence, unsupported by the evidence and contrary to law.

Plaintiff insists that we may not weigh the evidence because the motion for new trial was filed after the opinion of the trial court and before the judgment entry. Section 11578, General Code. The decretal entry was filed in the trial court on the 11th of December, 1948, and a separate entry of the same date, but apparently succeeding the judgment entry, recites the overruling of the motion for new trial.

A similar situation developed under the former Section 11578, General Code, in In re Estate of Lowry, 66 Ohio App., 437, 35 N. E. (2d), 154. This court held that although the filing of the motion was premature, the fact that the court took cognizance of and acted upon it required that we give it consideration as though it had been filed according to the terms of the statute. The Supreme Court affirmed our judgment but in an opinion, which, no doubt, resulted in the enactment of the new section, Section 11578, General Code, held that the motion was filed within time because the written opinion of the trial judge constituted a decision rendered.

Inasmuch as our holding has not been reversed, we will adhere to it and consider the assignment that the decree is against the weight of the evidence.

There is some question whether under the present provisions of Section 11576-1, General Code, the weight of the evidence may be considered without a motion for new trial. The somewhat indefinite language of the statute is:

“An application for a new trial shall not be necessary as a prerequisite to obtain appellate review as to matters specified in subdivisions 6 and 8 of Section 11576 of the General Code provided such matters have been submitted to the trial court and the evidence to be considered or the error claimed appears as part of the record, or as to any other matter which the record shows was called to the attention of the trial court by objection, motion or otherwise.’’ (Italics ours.)

Because of the factual development, we have little difficulty in disposing of the question of the weight of the evidence. The defendant by his denials, later admissions of subject matter which he had denied and by his improbable and unrealistic statements gave full support to the trial judge to disregard his testimony on material and determinative issues and to accept in full faith the testimony of the plaintiff.

We test the decree upon the claim that it is not supported by the evidence and is contrary to law.

The action was for divorce, the plaintiff alleging the marital relation between the parties, that two children were born of the marriage, and charging gross neglect of duty. Upon the averments of the petition, it was incumbent upon the plaintiff to prove the marital status of the parties and this she undertook to do by establishing a common-law marriage.

Upon two of the elements, which frequently are associated as essential to the establishment of common-law marriage, there is no difficulty in reconciling the proof, namely, the contract of marriage by words de praesenti, and the cohabitation of the parties as husband and wife thereafter. The third element which presents the difficulty is the reputation of the marriage or the sufficiency of the holding out by the parties of the marital relation.

An analysis of the adjudications on the subject of common-law marriage discloses some uncertainty whether, the contract being proven by words de praesenti, the marriage is established without further proof, of cohabitation and holding out. It is said in Herd v. Herd, 194 Ala., 613, 69 So., 885, L. R. A. 1916B, 1243, that:

“Mr. Chancellor Kent, in the fifth and subsequent editions of Ms Commentaries said: ‘If the contract be made per verba de praesenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulations to the contrary.’ ”

Thus, in the early consideration of the subject it was only when the parties contracted in words of future import that it was a further requisite to prove the cohabitation and holding out to establish the marriage. This distinction has been carried through the later authorities. In Hulett v. Carey, Admr., 66 Minn., 327, 69 N. W., 31, 61 Am. St. Rep., 419, 34 L. R. A., 384, it is said at page 336:

“The whole law on the subject is that, to render competent parties husband and wife, they must and need only agree in the present tense to be such, no time being contemplated to elapse before the assumption of the status. If cohabitation follows, it adds nothing in law, although it may be evidence of marriage. It is mutual, present consent, lawfully expressed, which makes the marriage.” Citing 1 Bishop, Marriage, Divorce & Separation, Sections 239, 313, 315, 317.

See Norrell v. Norrell, 220 Ind., 398, 44 N. E. (2d), 97, and particularly at pages 403, 404 and 405 of the opinion; likewise the texts.

35 American Jurisprudence, 199, Section 30, states:

“The view that cohabitation and reputation are not essential to a common-law marriage is based upon the premise that marriage is a contract relation, and hence that the fact of marriage may be established by proof of a contract only. This premise being admitted, cohabitation and reputation merely become evidential facts, from which the existence of the contract may be inferred.”

Citation is made to authorities from seven states to support the text; and 55 Corpus Juris Secundum, 852, Section 22.

• Some strength is lent to the theory underlying the authorities which we have discussed by our own statute, Section 11989, General Code, providing:

“Proof of cohabitation, and reputation of the marriage of the parties, is competent evidence to prove such marriage, and within the discretion of the court, may be sufficient therefor.” (Italics ours.)

That statute has been on the hooks in substantially the same language for many years — since January 7, 1824 (22 O. L., 341, Section 4). It is significant that it says nothing whatever about the obligation of proving a contract by words de praesenti and it is logical to hold that when the elements set out in the statute are established without respect to. any other proof of agreement between the parties, the marital relation has been established.

In Duncan v. Duncan, 10 Ohio St., 181, our Supreme Court determined that, “Mutual promises to marry in the future, though made between parties competent to contract, and followed by cohabitation as husband and wife, is not, in itself, a valid marriage,” and Judge Brinkerhoff takes issue with Greenleaf, Kent and other distinguished writers, as well as judges of many of the courts, on the proposition that an informal marriage ever could have been found to exist if predicated upon a contract to marry per verba de futuro. This decision was released, December term, 1859, after the enactment of Section 5698, Revised Statutes, now Section 11989, General Code.

Here, it is the contention of the defendant that the relations between the parties were meretricious in their inception and so continued at all times; that the 12 days during which they lived together at a tourist camp was but a continuation of the illicit relationship; and that the so-called holding out as husband and wife was a sham and used solely and knowingly for the purpose of creating a false impression as to the true relationship. This view, the trial judge could have taken, but refused to accept. The holding out was to the landlady at the tourist camp where the parties lived for about two weeks and to others who were in the camp at the time. There was no holding out by the parties as husband and wife in the immediate community in which they lived, although the plaintiff did register at the hospital where the twins were born as Mrs. Paul J. Gatterdam and the children were registered under the name of Gatterdam. The factual development is somewhat different than in some of the cases which we hereinafter cite in that, although it may be concluded that the parties in good faith agreed to become husband and wife and entered that status upon the common purpose and maintained it for a time, difficulty developed between them which may explain the failure to hold themselves out as husband and wife when they returned to Columbus. It also appears further that the defendant had led the plaintiff to believe that, in addition to the agreement between them, he would arrange for a ceremonial marriage and the plaintiff relied upon this promise until in September when the relationship between the parties was broken off by the defendant.

One of the early cases considered by our Supreme Court was Carmichael v. State, 12 Ohio St., 553, a review of a conviction of bigamy. There had been a solemnization of the marriage by one who had no such authority under the laws of the state. After the ceremony there had been cohabitation by the parties as husband and wife. It was held that these facts supported the conclusion that the marriage had been consummated. The trial judge had charged that, “It made no difference, whether the person so solemnizing said marriage was authorized to do so or not; that if solemnized by whomsoever, it was a marriage if followed by cohabitation as husband and wife.”

So far as the opinion discloses, there was no further elaboration of the meaning of cohabitation as employed in the charge. The opinion by the learned Judge Gholson is interesting reading. He quotes from Dalrymple v. Dalrymple, 2 Hagg. C. R., 54, to the effect that, “Marriage, in its origin, is a contract of natural law; * * * In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences.”

At page 559, this observation is made:

“But when it is stated, in general language, that a contract per verba de praesenti constitutes a valid marriage, the mind feels some hesitation in assenting to the naked proposition, and a desire, in language attributed to Lord Eldon, to have it clothed in circumstances. ’ ’

But at page 560, quoting from Lord Denman in Queen v. Millis, 10 Cl. & Fin. at page 821:

“A solemn contract of marriage executed per verba de praesenti, does in fact constitute a marriage.”

He concludes at page 560:

‘‘ The circumstances of publicity in entering into the contract, and of cohabitation thereafter as husband and wife, are most important to show the intent with which any words were used, and without circumstances, under the manifest policy of our laws on the subject, and the habits and feelings of our people, an intent to form the honorable relation of marriage could not be properly found.”

It will be noted that he does not define cohabitation specifically and we are not materially aided by the original quotations from the opinion, which are his own and not carried into the syllabus.

The leading case in Ohio is Umbenhower v. Labus, 85 Ohio St., 238, 97 N. E., 832, the syllabus of which is:

“An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law, and. a child of such marriage is legitimate and may inherit from the father.”

Substantially the same pronouncement is made in the first paragraph of the syllabus of Markley v. Hudson, 143 Ohio St., 163, 54 N. E. (2d), 304. The second paragraph of the syllabus of that case reads:

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

This statement lends strength to the theory that the sine qua non of common-law marriage is the agreement to marry and permits the interpretation that the other elements are evidential which, if strong enough, may establish the contract in the agreement to marry in praesenti without any direct proof on the subject.

It should be noted that in Umbenhower v. Labus, supra, the court was treating of facts which were developed to support the claim that the marriage had been established, and the syllabus, accepting these facts as established, announces that they are sufficient to support an adjudication of the existence of the common-law marriage. The situation developed is well presented in the opinion in Hulett v. Carey, Admr., supra, where, after saying that expressions of some courts had been made to the effect that in order to constitute a valid marriage, the agreement to marry should have been subsequently acted upon by the parties living together professedly as husband and wife, the judge makes this statement:

“In some cases, where such expressions were used, the court was merely stating a proven or admitted fact in that particular case, while in others the contract of marriage was sought to be proved by habit and repute, and the courts merely meant that the act of parties in holding themselves out as husband and wife is evidence of a marriage.”

In Lefkoff v. Sicro, Admx., 189 Ga., 554, 6 S. E. (2d), 687, 133 A. L. R., 738, and annotation at page 758, it was held that if a man and woman, competent to do so, voluntarily and in good faith contract to then assume the status of man and wife, they are considered by the common law as married.

It was held that the trial judge erred in charging the jury that there could be no common-law marriage if either or both of the parties concealed from the public generally such claimed relation of husband and wife. In Catlett v. Chestnut, Exr., 107 Fla., 498, 146 So., 241, 91 A. L. R., 212, it was determined that (quoting from the syllabus as reported in A. L. R.) :

“Something more than a secret or undisclosed private agreement between the parties must be shown to establish a common-law marriage.”
“Testimony as to a present express agreement to be husband and wife, of cohabitation and the conception of a child, and of an open reference by the man to the woman as his wife to a physician called to attend her, is sufficient to carry to the jury the question of existence of a common-law marriage.”
“A common-law marriage remains in full force until it is dissolved by law or death of one of the parties, and it is not destroyed by subsequent concealment of or maintenance of secrecy concerning the relationship between the parties.”

The most comprehensive authority on the immediate question is that of Peters, Admx., v. Peters, 73 Colo., 271, 215 P., 128, 33 A. L. R., 24, and the annotation at page 27. It is grounded upon the thesis that “General reputation in the community of the relationship of husband and wife is not essential to the validity of a common-law marriage.”

The annotation bears the heading, “Habit and Repute as Essential to Common-Law Marriage.” There are compiled the cases holding for and contra the view that habit and repute are essential to the establishment of common-law marriage. Formidable and extensive authority is cited both ways. Upon the question, it is said in Herd v. Herd, supra:

‘ ‘ There is not only lack of unanimity, but great conflict, and, in the language of the Supreme Court of the United States, the conflict amounts almost to a state of anarchy.”

One of the leading cases cited to the effect that habit and repute are essential is Grigsby v. Reib, 105 Tex., 597, 153 S. W., 1124, L. R. A., 1915E, 1, which holds it to be a fallacy that marriage is a civil contract and that the “truth is that civil government has grown out of marriage; marriage by cohabitation, not by contract * * *.”

This extended discussion is only indulged in an effort to determine whether both cohabitation and a holding out must be proven in addition to the bare proof of the contract to marry. There is both cohabitation and holding out in this record. Quaere, was the holding out sufficient to meet the requirement of the law?

The disturbing cases are those of In re Estate of Redman, 135 Ohio St., 554, 21 N. E. (2d), 659, and Markley v. Hudson, supra. The Redman authority is a per curiam in which the language of the opinion is presumed to be the expression of every member of the court. In the Redman case, the issue upon which the determination rested was whether there was any proof of a contract of marriage in terms of present tense. The court says that the essential requirements of marriage are stated in the syllabus of Umbenhower v. Labus, supra, which we have heretofore discussed.

Markley v. Hudson holds that the agreement to marry in praesenti may be proven by acts, declarations and conduct of the parties and their recognized status in the community in which they reside.- Second paragraph of the syllabus. But it does not determine that the repute of the marital relation in the community in which the parties live must be established if the requirements as to the contract are met by specific proof, followed by cohabitation as husband and wife.

We are convinced, as was the trial judge, that this marriage was, or was not, complete when the parties left the tourist camp. Had the parties gone back to Columbus and held themselves out there as husband and wife, it would have resulted in more evidence of the marriage but it could not have changed their status.

Every case must rest on its own factual development. It is permissible to conclude that upon this record the defendant changed his attitude toward the plaintiff, the agreement into which he had entered and the status which he had consummated, after he returned to Columbus. May the defendant, having prevailed upon the plaintiff to believe that in good faith they were entering into a marriage relationship, followed by cohabitation and holding out invalidate that status by changing attitude toward the whole matter when he returns to the community in which he lives? We do not believe that he should be permitted to do so in view of the fact that it involves the legitimacy of the children which clearly are the off-spring of the parties. The conduct of the defendant in securing medicine and using other devices to prevent the birth of the children is convincing under all the other circumstances that he recognized them as his own.

In the Umbenhower case the legitimacy of a child was involved and the court in the Redman case alludes to that fact, after it says:

“Such informal marriages are seldom recognized and are held valid by courts only to protect the rights of innocent persons.”

In Dirion v. Brewer, Admr., 20 Ohio App., 301, 151 N. E., 818, Judge Vickery comments on the fact that the law will indulge all presumptions favoring legitimacy.

We are mindful that we have here a borderline case of proof of common-law marriage. Its invalidity, if at all, is found in the fact that the mutual holding out of the parties as husband and wife was not in the community in which they reside. There was, however, proof of a holding out with those with whom they normally came in contact at the time of the marriage contract and of their living together as husband and wife.

This case differs from any that we have found in that the period of acquaintance of the parties was limited and the time from the date of the claimed marriage and the breaking up of the relationship covered a period of time only from June to September, 1948, and the application of the rule that there must be a holding out must be considered in the light of the circumstances attending. This case also is unlike many in the books in that it involves no immediate property rights. The plaintiff is not insisting upon sharing any estate and the marital relationship which she claims existed she has had dissolved.

The birth and presence of the twins may not be permitted to change the necessary proof essential to the common-law marriage, but their conception and birth is of probative effect, in the light of all the circumstances, because they lend strength to the claim of the plaintiff that the defendant, knowing of her probable pregnancy, acted upon it and that it was an inducement to the agreement of marriage.

Granting to the trial judge the right to weigh and resolve the facts in this case, we cannot say that the judgment is unsupported by the evidence or contrary to law.

The judgment is 'affirmed.

Judgment affirmed.

Miller, P. J., and Wiseman, J., concur.