text:
    CASSELLA, Plaintiff-Appellant, v. TIBERIO, et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3173.
    Decided October 23, 1947.
    Schermer & Goldstein, P. A. Millstone, Youngstown, for plaintiff-appellant.
    Harold H. Hull, John R. Hooker, Youngstown, for defendantsappellees.
   OPINION

By PHILLIPS, J.

Plaintiff, Lena Cassella, assignee of Guiseppe Cassella, obtained judgment against defendants Lee Tiberio and Louis Tiberio, his son, by confession on a warrant of attorney contained in a promissory note dated April 20, 1933, evidencing a loan to Lee Tiberio.

Over defendants’ objection on January 23, 1945, a judge of the court of common pleas revived such judgment, which had become dormant.

Subsequently defendants filed separate petitions in the court of common pleas under the authority of §11631-9 GC, to vacate the judgment on the ground that the judgment was taken on warrant of attorney for more than was owing plaintiff, and that they were not notified that such judgment had been taken; and judgment against both defendants was vacated, and the cause proceeded to trial where a jury sitting in the court of common pleas returned á verdict for plaintiff against both defendants.

The trial judge overruled the motion of defendant Lee Tiberio for judgment in his favor notwithstanding the verdict of the jury against him and entered judgment thereon, sustained a similar motion made by Louis Tiberio and entered judgment in his favor notwithstanding the verdict of the jury against him; and it is from the judgment entered in favor of defendant Louis Tiberio that plaintiff appeals to us on questions of law.

Upon hearing on order to show cause why judgment against him should not be revived defendant Louis Tiberio claimed, upon a trial in the court of common pleas and in this court, that he was a minor when he signed the note and that he signed it as a witness only; and defendant Lee Tiberio claimed that he was discharged of his debts in bankruptcy.

It is conceded that “at the time of signing the note” Louis Tiberio “was nineteen years and eight months of age”.

In his opinion written to support the conclusion he reached on hearing “on motion of defendants for judgment notwithstanding verdict and for a new trial” the trial judge said “in vacating the judgment against Louis Tiberio I found under §11637 GC that he had a valid defense, i. e., that he was an infant when he signed the note and there was no evidence of ratification after he became of age,” and the journal entry he filed in the case supported the conclusion announced in his opinion.

Counsel for plaintiff state by brief that “the question presented in this appeal is whether a minor of the age of nineteen years and eight months who signs a note and then fails in any manner whatsoever to disaffirm this valid obligation upon attaining his majority and for some ten years thereafter may then disaffirm the obligation only after steps are taken by the plaintiff to hold him liable thereon;” and claim that a failure to* disaffirm within a reasonable time is equivalent to ratification.

The weight of authority supports the conclusion that execution by an infant of a promissory note is a voidable act. In the many cases we have examined, in all of which the minor received the benefit of the original consideration given by the promisee, it was held that an infant is liable on a promissory note he signs if he fails to disaffirm within a reasonable time after reaching his majority; but where, as in this case, he receives no direct benefit in the original transaction the result is otherwise.

“In Harner v. Dipple, 31 Oh St 72, an infant was held liable as surety on a bond to stay execution because of an affirmative ratification after arriving at majority. The court said, p. 77:
“ ‘The privilege of infancy is accorded for the protection of the infant from injury, resulting from imposition by others or his own indiscretion. That object being fully accomplished by conferring upon him the power to avoid his contracts, or, in other words, by giving him immunity until such contracts are ratified by himself after arriving at full age * * * . If, therefore * * * he ratifies and affirms them, being moved thereto by his own sense of right and duty, he should, in law, as in morals, be bound to their performance.’
“While this language does'not say in so many words that failure to disaffirm is not the same as affirmative ratification, it is clear to me that it says so by implication.”

I adopt the quoted language from the opinion of the trial judge as my own for the reason that it expresses my views in the situation.

Counsel for plaintiff have cited no Ohio case fixing the liability of an infant guarantor or surety maker. Cases in other states hold such a contract not binding upon such an infant unless he ratifies his act affirmatively, and that he does not become bound by mere inaction after attaining majority; and báse decisions squarely upon the absence of benefit to the minor in the original transaction. See J. G. Pierce Co. v. Wallace, 146 N. E. 658 (Mass.); Groesbeck v. Bell, 1 Utah 338; Walker v. Stokes Bros. & Co., 262 S. W. 158 (Texas); Brownell v. Adams, 236 N. W. 750 (Neb.). See also 43 Corpus Juris Secundum “Infants”, Section 76 d.

Like the trial judge, it seems to me that the decisions in these cases are “in harmony with the general underlying theory of the liability of an infant upon his contractual undertakings”.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    COX, Plaintiff-Appellant, v. STATE MEDICAL BOARD Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4151.
    Decided May 25, 1948.

      Lyman Brownfield, Sanborn and Brownfield, Columbus, for plaintiff-appellant.
    Hugh S. Jenkins, Atty. Geni., E. G. Schuessler, Chief Counsel, Joseph F. Ford, Asst. Atty. Geni., Columbus, for defendantappellee.
   OPINION

By MILLER, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas affirming an order of the State Medical Board denying the plaintiff-appellant a license to practice mechanotherapy, a limited branch of medicine. The grounds for the refusal were that the appellant failed to make the required grade.

The first error assigned is that the Court erred in holding that the appellant had not passed the examination required by statute. The record discloses that the appellant submitted to two examinations. One was given by four doctors of medicine and one doctor of osteopathy, all being members of the State Medical Board. This examination covered the subjects of anatomy, physiology, chemistry, diagnosis and pathology. The grade received in this examination was 55-4/5. The other examination was given by Harry F. Gleim, a mechanotherapist of established reputation and known ability, who was designated by the Board for that purpose. This examination resulted in a grade of 77%. The appellant was notified that he failed to pass the examination by reason of his grades in the “basic branches”, and that his application for a license was denied. The appellant is contending that the examination in the “basic branches” by the members of the State Board was not authorized by law and that since he passed the examination conducted by Harry F. Gleim, the mechanotherapist designated by the State Board, that the license should be granted to him. The statutes relating to the limited practice of medicine and surgery are found in §1274-1 to §1274-7 GC. Sec. 1274-1 GC provides that the State Medical Board shall establish rules and regulations governing mechanotherapy and shall examine persons desiring to practice in such limited branch of medicine.

Sec. 1274-2 GC provides as follows:

“For the purpose of establishing the practice of such limited branches the state medical board shall call to its aid the designated persons as provided in §1274-3 GC, and such designated persons shall examine any person who has practiced any such branch in Ohio for a period of at least one year prior to June first, 1915, and who makes application prior to October first, 1915, on a form prescribed by the board in those subjects only which are appropriate to the limited branch of medicine or surgery, for a certificate to practice which his application is made. * * * The examination of all applicants shall be conducted under rules prescribed by the board and at such times and places as the board may determine. Such examination shall be given in anatomy, physiology, chemistry, bacteriology, pathology, hygiene, diagnosis, and in such other subjects appropriate to the limited branches of medicine or surgery, certificate to practice which is applied for as the board may require.”

Sec. 1274-3 GC provides as follows:

“For the purpose of conducting such examination the state medical board shall call to its aid any person * * * of established reputation and known ability in the particular limited branch in which examination is being held, * * *.”

We are of the opinion that the purpose of the Legislature was to have the examination in the subjects appropriate to the limited practice conducted by a person of established reputation and known ability in the particular limited branch in which the examination is being held, and that the examination in the basic subjects shall be conducted by the Board under rules prescribed by it pursuant to the authority of §1274-1 GC, which provides:

“The State Medical Board shall also examine and register persons desiring to practice any limited branch or branches of medicine or surgery and shall establish rules and regulations governing such limited practice * *

The record discloses that the following rule was adopted by the Board:

“The applicant for a license to practice mechanotherapy shall after submission and approval of his preliminary and professional credentials pass a licensing examination conducted by the State Medical Board in the subjects of anatomy, physiology, chemistry, bacteriology, pathology, hygiene and diagnosis, and before a special committee of licensed mechanotherapists appointed by the State Medical Board an examination in practice, symptomatology, diagnosis and therapeutics as applied to the .practice of mechanotherapy * *

It seems to be the position of appellant that where the statute says that the Medical Board shall call the mechanotherapists to its aid this means that it shall turn the complete conduct of such examination to the person so called. With this contention we cannot agree. If the Legislature ever intended such a result it could easily have so stated, but that body used the phrase “called to its aid”, and it did not say that such person should be substituted for the Board. “Aid” is defined by Webster as follows:

“To help; to further. Syn.. — One who * * * promotes or helps in something done.”

It is a cardinal rule of statutory construction that where a word of common use is employed, and such word is not technical in nature, unless a contrary sense is specifically expressed, such word will be deemed to have been used in its ordinary sense. It is our conclusion that it was the intention of the Legislature that the examination in general subjects should be conducted by persons especially qualified therein and to have the examination in the special subjects also conducted by specially qualified persons. This is what the Board did and its acts met the legislative requirements.

The next error assigned is that the Court erred in sustaining the constitutionality of the appellee’s order. It is contended that the examination given to this appellant was not reasonably appropriate to the purpose; that it constituted an “over examination”. This question has been passed upon by our Supreme Court in the case of Williams v. Scudder, 102 Oh St 305. Syllabus 7 provides:

“The act of the general assembly, passed April 27, 1915 (106 O. L., 202-204), now §§1274-1 to 1274-7 GC, further regulating the practice of medicine and surgery by authorizing the examination and registration of practitioners in the limited branches thereof, is a constitutional and valid exercise of legislative power.”

We therefore hold that there was no error in this assignment.

The next error assigned is that the Board abused its discretion in grading the papers of the applicant, such contention being based on the statement that the Board had no “approved solution to the questions”. There is no evidence in the record of any nature showing that the questions were improperly, arbitrarily or capriciously graded. We cannot substitute our judgment on these questions and answers for that of the Medical Board. The principle is well stated in the case of People, ex rel. Jones v. New York Homeopathic Medical College, 20 N. Y. Supp., 379, wherein it was said:

“The Court cannot reexamine the relator as to his qualifications to practice medicine, nor to go over the studies in which he is said to be deficient. If it attempted to do so the relator’s road would be easy, for, with his experience, imperfect though it may be, he would no doubt pass a better medical examination than any court could be expected to give him. The law wisely intended no such result. It leaves the subject where it belongs, — with those qualified to master it.”

We find no prejudicial error in the record, and the judgment is affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


text:
    CHESTER, d. b. a., Appellant, v. C. EMORY GLANDER, Tax Commissioner, Appellee.
    Board of Tax Appeals.
    No. 14402.
    Decided March 10, 1949.
    Lawrence A. Kane, Albert V. Lerner, Cincinnati, for appellant.
   ENTRY

This cause came on to be heard upon the appeal of Sam E. Chester, d. b. a. Diamond Vending Machine Company, from a final order of the tax commissioner for the years 1945, 1946 and 1947 made against him in the sums of $202.95 for 1945; $177.20 for 1946 and $339.73 for 1947. Said matter was heard and submitted upon the notice of appeal, the transcript of the proceedings before the tax commissioner and the evidence taken before an attorney-examiner of the Board.

The appellant owns coin operated devices such as automatic phonographs, pinball machines and slot machines, and his business consists in placing these devices in restaurants and cafes and he shares the gross income therefrom with the proprietor on a percentage basis. During the above tax years he was the owner of certain coin operated devices used in his business, and, in listing them for taxation in his personal property tax returns, he used as the true value thereof the value as determined by him on a physical inventory of the property on hand on tax lien date in each year, to-wit, January 1st.

On September 10, 1947, the tax commissioner made an additional personal property tax assessment against appellant, for the reason that the tax commissioner was of the view that appellant had understated the true value of his property and had also failed to list the phonograph records used in his business, or give a value therefor.

The tax commissioner based his increased findings upon an audit of appellant’s records in which he determined that the taxpayers had taken an excessive amount of depreciation for said years and that he had not capitalized his purchases of phonograph records used in' his automatic phonographs. After a review and redetermination the commissioner sustained his assessment and from this final order the appellant filed his appeal with this Board.

The tax commissioner did not make a physical inventory of the equipment or property of the appellant but secured all his information for his audit from the appellant’s books and records.

The tax commissioner capitalized the phonograph records used by the appellant in the following manner to find their true value in money. He made an audit of appellant’s books and records covering a period of ten years and found that during that period the appellant had expended $13,988.28 for records, and the commissioner deducted $96.35 for loss by sale of assets, leaving a balance of $13,891.93 for purchases of records and he divided this amount by 12 instead of 10, which he explained was to take care of any discrepancies and errors he may have made in determining an average yearly value; this gave him $1157.67, for an average value of purchases of records for each year, and of this amount he deducted 50% for the reason that their market value would not be 100% throughout the year, which gave him $575 for the book value of these phonograph records, and this last amount was added to Schedule 4 of each year’s tax return.

The appellant did not report his phonograph records for taxation contending that they are a part of his expenses in 'operating his automatic phonographs and that the life of a phonograph record used in a public phonograph is only thirty days.

The Board can not agree with the contention of the appellant that these records should not be listed for taxation for if the appellant was to continue business it would certainly be necessary to have a number of these records on hand at all times, and the Board can not conceive of a going business concern disposing of all of its records; or that all’of them have been destroyed or are not in use on tax lien date and, therefore, the Board is of the opinion that the tax commissioner was correct in placing a value on these records for taxation and that the value so placed on them by the commissioner fairly represented their true book value.

The tax commissioner in order to find the true value of the remainder of the property of the appellant took the purchase price of each item so shown by the books and records of the appellant and from this he deducted a depreciation of 5% for the year of acquisition and a 10% depreciation for each of the years thereafter, allowing the same rate of depreciation as is set out in the tax commissioner’s department composite prima facie depreciation rates for park amusement equipment and also furniture and fixtures.

The appellant made a physical inventory of his property on hand on tax lien date and depreciated the automatic phonographs and slot machines at a rate of 20% each year after purchase and for the pinball machines he took a depreciation of 331/3% each year after purchase.

The appellant produced evidence to show that the mechanical life of an automatic phonograph and slot machine used in a public place is not more than five years and the mechanical life of a pinball machine similarly used is not more than three years. The appellant further testified that he based his finding of true value in money of his property not only on his experience of several years in purchasing and selling these used machines but that he consulted several trade journals which deal in similar machines which show their sale value as used machines.

The evidence shows that these automatic phonograph machines were constructed of many parts which were similar to those used in broadcasting equipment and that broadcasting equipment was depreciated by the tax commissioner as listed on his composite prima facie depreciation rates — at 20% per year after purchase.

The evidence shows further that new types of pinball and automatic phonograph machines are constantly being placed on the market and that the older models lose their “playing appeal” and that they become obsolete in a very short time, and although they may be in good physical condition they are of little value because they have lost their “playing appeal.” Obsolescence was one of the factors used by the appellant in arriving at the total amount of depreciation to be allowed in determining the values of these machines.

The evidence as to slot machines showed that they did not become obsolete as rapidly as did the pinball and phonograph machines because the “playing appeal” was not so great a factor in the playing of these machines. The person playing a slot machine is not interested in the type or newness of the machine but is interested in the amount of money he may win.

The Board is of the opinion that obsolescence should be taken into consideration in allowing depreciation especially in pinball and phonograph machines because, as the evidence shows, customers soon tire of playing the same type of a pinball machine or the same records on an automatic phonograph machine.

Taking into consideration all of the evidence in this matter, the Board is of the opinion that a depreciation of 33 1/3% per year taken by appellant for pinball machines is too great and that a 5% depreciation for the first year and a 10% per year depreciation thereafter allowed by the tax commissioner is not a sufficient amount of depreciation to be allowed in determining value. From all the evidence produced herein the Board of Tax Appeals is of the view that a depreciation rate of 10% of cost for the year of acquisition, and an annual yearly rate of 20% thereafter, up to a point where 80% of the cost has been written off, should be allowed by the tax commissioner in determining the true value of coin operated automatic phonographs and pinball and other similar machines. As to* coin operated “slot machines” where a money return is sometimes expected by players with gambling instincts, the Board is of the view that a depreciation rate of 5% of cost for the year of acquisition and 10% per year thereafter, up to a point where 80% of cost has been written off, should be allowed.

The action of the tax commissioner herein complained of is accordingly modified to the extent above set out and this cause is remanded to that official with instructions to change his records and issue proper assessment certificates in accordance with the views and opinions expressed herein.

I hereby certify the foregoing to be a true and correct copy of the action of the Board of Tax Appeals of the Department of Taxation of Ohio, this day taken, with respect to the above matter.

Joseph D. Bryan

Secretary.


author: By THE COURT:

text:
    STATE, ex EIKENBARY on BEHALF of HATHAWAY, Plaintiff-Appellant, v. SMITH, et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2026.
    Decided November 30, 1948.
    Herbert M. Eikenbary, Dayton, for plaintiff-appellant.
    Mathias M. Heck, Pros. Atty., Dayton, for defendant-appellee.
   OPINION

By THE COURT:

The record in this case discloses that one, Ernest Hathaway, a parolee from the State Penitentiary of the State of Illinois, was permitted to enter the State of Ohio under the terms of the “Uniform Act for Out-of-State Parole Supervision” (§108-1 GC), which is an interstate compact entered into with certain other states for out-of-state parole supervision. That while in this state, the said Ernest Hathaway, violated the terms and conditions of his parole resulting in a warrant for his arrest as a parole violator being issded in the State of Illinois. The warrant was served upon the alleged parole violator in Ohio, and he is now in the custody of Ben Smith, the sheriff of Montgomery County, who is the respondent in this action for a writ of habeas corpus. The action originated in the Court of Common Pleas which denied the writ and it is from this judgment that the appeal is prosecuted on .questions of law.

The question here presented is the constitutionality of §108-1 GC, although the appellant does not state in what respect the constitution is violated. The part of the “Uniform Act” applicable is found in Section 3 and reads as follows:

“* * * All legal requirements to obtain extradition of fugitives from justice are expressly waived on the part of the state, party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state: $ * $ »

The appellant has cited as his only authority 78 O. L. R. 419, and 22 Am. Jur. 264, neither of which is in point as they are both on the subject of extradition. They make no reference to the “Uniform Act for Out-of-State Supervision”, which defines the procedure in the case at bar. The State of Illinois is not seeking the return of the prisoner under the extradition statutes of this state. Counsel for the appellee has cited the case of In Re Tenner, 20 Cal. (2d) 671. Syllabus 4 of which provides:

“Since the Uniform Act for Out-of-State Parolee Supervision applies uniformly to all parolees from states which are party to the compact entered into pursuant thereto, a parolee may not complain that the statute deprives him of the equal protection of the laws.”

We are in full accord with the holding of the Tenner case, supra, and are, therefore, of the opinion that none of the prisoner’s constitutional rights have been infringed upon.

Judgment is affirmed.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


text:
    CLARY, Plaintiff-Appellant, v. CHRISTIANSEN, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7000.
    Decided November 22, 1948.

      Bauer & Dreyer, Cincinnati, for plaintiff-appellant.
    Brumleve, DeCamp & Wood, Cincinnati, for defendant-appellee.
   OPINION

By THE COURT:

This is an action against a surgeon for malpractice. The jury returned a verdict for defendant. The trial court overruled the plaintiff’s motion for a new trial and entered judgment on the verdict. The plaintiff appealed from that judgment. Various errors are assigned.

(1) The first assignment is that the verdict is manifestly against the weight of the evidence.

The record shows that the defendant operated upon the plaintiff to remove an abscess from the lung. To do this, it was necessary to pack the pleural cavity with paraffin to prevent the infection from spreading when the abscess was opened. A later operation was performed to drain the abscess and remove the paraffin. It was in connection with this second operation that it was asserted that the defendant was negligent.

In performing this operation either of two types of electrical machines could be used, requiring different technique. The operation was performed at a hospital. The defendant instructed the hospital attendants to prepare an operating room and supply a Davis Bovie machine. When he arrived at the assigned room, he found the Davis Bovie machine was there, and he proceeded to test it, and found that it was in good working condition. He then repaired to the scrub room to prepare to perform the operation. After rendering himself antiseptic, he immediately went back to the operating room, where he found the plaintiff draped for the operation and the electrical machine in position, but as usual hidden from view of the surgeon by a screen between it and the operating table, excepting the attachments used by him in performing the operation.

As a matter of fact while the defendant was in the scrub room, attendants of the hospital had removed the Davis Bovie machine and substituted therefor a Fisher machine. The defendant was not informed of this substitution and proceeded with the operation as though with a Davis Bovie machine. The result was that the plaintiff received a severe third-degree burn on the outer surface of the right thigh, where his leg rested on the electrode of the machine.

The defendant’s evidence was that he knew nothing of this substitution of machines until long after the operation and after this action was filed. The plaintiff introduced no evidence of actual knowledge, but points out differences in the two machines and particularly in the pedals, and asserts that these differences were sufficient to have caused a reasonably prudent surgeon, familiar with both types, to have noticed the differences. The evidence, however, of the screening of the machine and that certain machines of the two types have similar pedals certainly prevented the court from charging the defendant with personal knowledge as a matter of law, and required that the issue be submitted tc the jury.

It is asserted that if defendant could not be charged with personal knowledge that there had been a substitution of a Fisher machine for the Davis Bovie machines, the scrub nurse knew of the substitution and' her knowledge is attributable to the defendant as a matter of law. She was an employee of the hospital, charged with the duty of preparing the room and the instruments and of supplying the instruments to the surge'on during the progress of the operation. The defendant had no right to direct as to the mode or manner of preparing the room for the operation.

We are of the opinion that the scrub nurse was not in any sense"’ an employee of the defendant in the task of preparing the room preceding the actual beginning of the operation and that whatever negligence occurred in that connection cannot be attributed to him.

The court submitted to the jury the issue of whether under all the circumstances the defendant was negligent in using the Fisher machine instead of the Davis Bovie machine, and in the manner of its use, and in so submitting the issue to the jury we think no error was committed, prejudicial to the plaintiff.

We have examined the other assignments of error and find none of them well founded.

We find no prejudicial error in the record, and, therefore, affirm the judgment.

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur.


author: By McClelland, J.

text:
    HAMLIN, Estate of, In Re.
    Probate Court, Franklin County.
    No. 130118.
    Decided April 28, 1949.
    W. E. Knepper, Columbus, on behalf of Claimant Jess Robert Perkins.
    Thomas W. Applegate, on behalf of Executrix.
    Clifford L. Rose, Columbus, on behalf of the insurer of the deceased.
   OPINION

By McClelland, J.

This matter comes before the Court upon the Petition of Jess Robert Perkins for authority on behalf of this Court to present a claim against the Estate of M. R. Hamlin, deceased. The Petitioner recites that he is the owner and holder of a claim against the estate of the above named deeedent, to-wit: a claim for damages for personal injuries and property damages arising out of a collision between an automobile of said decedent, operated by him, and an automobile owned and operated by the said applicant, which accident occurred on or about the 4th day of August 1948, and that the claim is in the amount of $2,000.00. The petition contains the following language:

“The petitioner says that he did not present said claim to the administrator of said estate within the time prescribed by law for the reason that he did not have actual notice of the appointment of the executor of said estate in sufficient time to present his claim within the period prescribed by law; petitioner further says that said executor was appointed on August 24, 1948 and that said petitioner first had actual notice of said appointment on February 26, 1949.”

The petitioner seeks his. relief by virtue of the terms of §10509-134 GC, which contains the following language:

“A claimant who has failed to present his claim to the executor or administrator within the time prescribed by law may file a petition in the probate court for authority to present his claim after the expiration of such time. Such petition forthwith shall be assigned for hearing, and at least five days before the date of the hearing, the claimant shall give written notice thereof to the executor or administrator and to such other parties, if any, as the court may designate. If upon hearing the court finds (a) that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by law, or (b) that the claimant’s failure to present his claim was due to the absence of the executor or administrator from his usual place of residence or business during a substantial part of such period or wasa due to any wrongful act or statement on the part of the executor or administrator or his attorney, or (c) that the claimant was subject to any legal disability during such period or any part thereof, then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period; provided, however, that a claim which is not presented within nine months from the appointment of the executor or administrator shall be fore-ever barred as to all parties, including devisees, legatees and distributees, and no payment shall be made nor any action maintained thereon, except as otherwise provided in this chapter with reference to contingent claims.”

At the outset we must refer to the petition herein filed and especially to the fact that the claimant declares that he did not have actual notice of the appointment of an executor in sufficient time to present his claim within the period prescribed by law. It is significant that he did not avail himself of another provision of the statute which would permit him to file his claim if he did not have actual notice of the decedent’s death.

The claimant relies upon his own understanding of the construction of this statute by the Court of Appeals of the 2nd District in the case of in re: Estate of Erbaugh, reported in 73 Oh Ap page 533. We are not in disagreement with that Court in that particular case on the limited facts therein set forth. Counsel for the claimant in this case apparently takes the position that he may choose any one of the circumstances mentioned in the statute, and if he proves that his case comes under that particular phase of the statute he may have his claim reinstated. With this particular concept we do not agree. It is the opinion of this Court that the claimant is subject to any and all punitive provisions of the statute which may' be applicable to him. Under the construction claimed by the claimant he might know of the appointment of the administrator or executor, but come to the Court with a petition stating only that he did not have actual knowledge of the death of the decedent, and expect to have his claim reinstated, on the proof of his allegation. In such a case the Court would be compelled to find that the claimant knew that an administrator had been appointed but did not know that the decedent was dead, and then reinstate his claim.

The Court in the Erbaugh case reads into the statute the word “either”, before clause (a), and paraphrases the sentence thus: “if the Court finds either that the claimant did not have actual notice of the decedent’s death or finds — ” By inserting the word “either” in this position, the Court may allow the presentation of the claim. With this construction we do not agree. The Court may and should consider the entire statute and. all its provisions, and may subject the claimant to any one or any other provisions of the statute which the evidence justifies. Conversely stated the intent of the statute is that if the Court finds that the claimant had actual notice neither of death of the decedent nor the appointment of the administrator, his claim should be reinstated.

The Court has before it the transcript of the testimony taken at the hearing, but before we can consider the testimony, we must first determine, if possible, what is meant by the term “actual notice”. The Court has carefully examined the decisions of the various courts of Ohio, and has been unable so far to find a judicial definition of “Actual notice”, as it is used and contemplated in the statute hereinbefore referred to.

This Court has made an extensive investigation and finds that the most philosophical discussion of this subject is found in Vol. 2 of Pomeroy’s Equity Jurisprudence, 5th Edition, under the chapter entitled “Notice”. Owing to the learned discussion of the subject and the eminent authorities upon which the article is based, the Court is impelled to quote at length therefrom. At Section 592, page 603, of the volume above referred to, there is a discussion of the distinction between “knowledge” and “notice”, as follows:

“Before entering upon this examination, a few preliminary observations are necessary, to clear the ground and to explain the exact nature of the questions which are to be discussed, and of the conclusions to be reached by such discussion. In the first place, it is of the utmost importance to distinguish between the objects and purposes for which the fact of notice having been given may be invoked. One object of notice may be simply to affect the priority of a right which the one receiving it has acquired, and to subordinate such right to an interest in the same subject-matter held by another. On the other hand, notice MAY be regarded as an ingredient or badge of fraud, as a feature which renders the transaction entered into by the person who receives it fraudulent. A distinction clearly exists between these two purposes; and the rules which govern the nature and effect of notice in each must be different. That might easily be sufficient to subordinate a person’s right to another interest which would at the same time fall far short of stamping his conduct with actual fraud. In the second place, it should be most carefully borne in mind that the legal conception of “notice,” as contained in the settled doctrines and rules of equity, is somewhat artificial and even technical. In this purely legal artificial sense, notice is by no means synonymous with knowledge, ALTHOUGH THE EFFECTS PRODUCED BY IT ARE UNDOUBTEDLY THE SAME WHICH WOULD RESULT FROM ACTUAL KNOWLEDGE. In other words, while the doctrines of equity on the subject do not assume that notice IS knowledge, nor even that it is necessarily followed by knowledge, they still often impute to it the very same consequences which would flow from actual knowledge acquired- by the party. As the notice spoken of by the rules is not knowledge, there may be notice without knowledge, and knowledge without notice.” * * *

Owing to the length of that section the Court will refrain from reproducing the entire article. We do, however, feel impelled to quote further from page 592, as follows:

“Whenever, on the other hand, a party is shown to have obtained an actual knowledge, even though there has been nothing which constitutes a notice in its true sense, then there is no longer any necessity of resorting to the artificial conception of notice; the consequences must naturally and necessarily flow from an actual knowledge of facts by a party, which from motives of expediency are attributed to a NOTICE of the same facts given to him, in the ^absence of actual knowledge.”

At the bottom of page 606 Section 592, the author quotes from Lord Cairns, as follows:

“All I can do is to apply those principles which have been well established as part of those principles on which the court proceeds. ... I am bound to say that I do not think it would be consistent with the principles upon which this court has always proceeded, or with the authorities which have been referred to if I were to hold that under no circumstances could a trustee, without express notice from the encumbrancer, be fixed with knowledge of an encumbrance upon the fund of which he is the trustee. It must depend upon the facts of the case. But I am quite prepared to say that I think the court would expect to find that those who alleged that the trustee had knowledge of the encumbrance had made it out, not by any evidence of casual conversations, much less by any PROOF OF WHAT WOULD ONLY BE CONSTRUCTIVE NOTICE, but by proof that the mind of the trustee has in some way been brought to an intelligent apprehension of the nature of the encumbrance which has come upon the property, so that a reasonable man, or an ordinary man of business, would act upon the information and would regulate his conduct by it in the execution of the trust. If it can be shown that IN ANY WAY the trustee has got KNOWLEDGE of that kind, — knowledge which would operate upon the mind of any rational man, or man of business, and make him act with reference to the knowledge he has so acquired, — there I think the end is attained, and that there has been, fixed upon the conscience of the trustee, and through that upon the trust fund, a security against its being parted with in any way that would be inconsistent with the encumbrance which has been created.” * * *

The author then in discussing the statement of Lord Cairns, says:

“This extract states what is, in my opinion, the general doctrine, applied here to a trustee, but applicable to all persons whose rights or liabilities can be affected by notice of rights belonging to others. It declares that although there may be no technical ‘notice,’ not even a CONSTRUCTIVE notice, still there may be an ACTUAL KNOWLEDGE, acquired in modes which do not amount to notice; and this KNOWLEDGE may produce the same effects which the rules of equity attribute to ‘notice.’ ”

The author then at Section 593 makes a distinction between “actual” and “constructive” notice, and then at Section 594, the author uses the following language:

“In defining the term “notice” Judges and text-writers have seldom attempted to define themselves with specifying instances, or describing its kinds and effects. Within the meaning of the rules, notice may, I think, be correctly defined as the INFORMATION CONCERNING A FACT actually communicated to a party by an authorized person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent in ITS LEGAL EFFECTS to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge. It should be most carefully observed that the notice thus defined is not knowledge, nor does it assume that knowledge necessarily results. On the other hand, the information which constitutes the notice may be so full and minute as to produce complete knowledge. Although an actual knowledge is not necessarily assumed to result, yet in many instances, as will be seen (No. 606, et seq.), the party is not permitted to show this fact, but the same consequences follow with respect to his rights and interests as though he had obtained real knowledge. The correctness of the definition which I have formulated will appear from a comparison of all the cases hereafter cited in the discussions of this section.”

Then at Section 595, the author, in the light of the foregoing, promulgates a definition of “actual notice” in the following language:

“Actual notice is information concerning the fact, — as, for example, concerning the prior interest, claim or right,— directly and personally communicated to the party. The distinction between actual and constructive notice does not primarily depend upon the AMOUNT of the information, but on the manner in which it is obtained, or assumed to have been obtained. In actual notice information is not INFERRED by any presumption of law; the personal communications of it is a fact, and, like any other fact, is to be proved by evidence. The information MAT be so full, minute, and circumstantial, that the party receiving it thereby acquires a complete knowledge of the prior facts affecting the transaction in which he is then engaged, or it may fall far short of conveying such knowledge. Again, the evidence may be so direct, positive, and overwhelming as to establish the fact that the information was personally given and received in the most convincing and unequivocal manner, or it may be entirely indirect and circumstantial. Wherever, from competent evidence, either direct or circumstantial, the court or the jury is entitled to infer, AS A CONCLUSION OF FACT, AND NOT BY MEANS OF ANY LEGAL PRESUMPTIONS, that the information was personally communicated to or received by the party, the notice is actual. In short, actual notice is a conclusion of fact, capable of being established by all grades of legitimate evidence.”

The author at Section 596, discusses only indirect evidence as to “actual notice” and how it may be applicable, and also discusses the distinction between construction and actual notice, as follows:

“It is admitted by all text-writers and by many judges that much confusion and inaccuracy of language are exhibited in the decisions concerning actual and constructive notice: notices are not infrequently called “constructive,” which are really “actual,” and the rules governing the two are confounded. That the party has knowledge or information of facts sufficient to put him upon an inquiry has often been treated as peculiarly the characteristic of constructive notice. In truth, however, this test is equally applicable to every instance of actual notice inferred by process of rational deduction from circumstantial evidence. The distinction is plain and natural. In all cases of constructive notice, there is no evidence which directly tends to show that any information of the prior conflicting claim was personally brought home to the consciousness of the party effected; the particular facts of which he is shown to have knowledge do not directly tend to show such information; but from these facts the legal presumption arises, either conclusive or rebuttable, that the information was received. In all cases of actual notice inferred from circumstantial evidence, the facts proved do directly tend to show that information of the prior conflicting claim was personally brought home to the consciousness of the party. The court or jury infers from the facts proved, by a process of rational deduction, BUT WITHOUT THE AID OF ANY LEGAL PRESUMPTION, that such information was actually received. '* * *”

The court then at Section 597, discusses the degree of information which would put a person on inquiry in order to charge him with actual notice. In the second paragraph of that section, the author uses the following language:

“On the other hand, the proposition is established by an absolute unanimity of authority, and is equally true both in its application to constructive notice, and to actual notice not proved by direct evidence but inferred from circumstances, that if the party obtains knowledge or information of faets tending to show the existence of a prior right in conflict with the interest which he is seeking to obtain, and which are sufficient to put a reasonably prudent man upon inquiry, then it may be a legitimate, and perhaps even necessary, inference that he acquired the further information which constitutes actual notice. This inference is not, in case of actual notice, a presumption, much less a conclusive presumption, of law; it may be defeated by proper evidence. If the party shows that he made the inquiry, and prosecuted it with reasonablé diligence, but still failed to discover the conflicting claim, he thereby overcomes and destroys the inference (see No. 601). If, however, it appears that the party obtains knowledge or information of such facts, which are sufficient to put a prudent man upon inquiry, and which are of such a nature that the inquiry, IF PROSECUTED WITH REASONABLE DILIGENCE, WOULD CERTAINLY LEAD TO A DISCOVERY OF THE CONFLICTING CLAIM, then the inference that he acquired the information constituting actual notice is necessary and absolute;- for this is only another mode of stating that the party was put upon inquiry; that he made the inquiry and arrived at the truth. Finally, if it appears that the party has knowledge or information of facts sufficient to put a prudent man upon inquiry, and that he wholly neglects to make any -inquiry, or having' begun it fails to prosecute it in a reasonable manner, then, also, the inference of actual notice is necessary and absolute.” * * *

At Section 603, the author discusses the effect of the knowledge on the part of a person who denies the existence of “actual notice”, as follows:

“What, then, is the effect of actual knowledge of the prior fact, interest, claim, or right, acquired previously, or in an entirely different transaction, or from a stranger or person having no interest in the property, or even in an accidental and fortuitous manner? The answer, or principle, is very clear and certain. It was shown in a former paragraph (592) that the conception of notice was introduced, and the rules concerning it were established, from considerations of policy and expediency based upon the common experience of mankind. Notice, even when actual, is not necessarily equivalent to knowledge, but the same effects must be attributed to it which would naturally flow from knowledge. It is treated as a representative of, or substitute for, actual knowledge, and is therefore in its essential nature inferior to knowledge. It necessarily follows that whenever a party has obtained a full knowledge, although not in accordance with the rules which define the nature of notice, and regulate the mode of its being given and received, there is no longer any need of invoking the legal conception of notice; the rules concerning it no longer apply; the very fact for which it is intended as a substitute has been more perfectly accomplished in another manner. To sum up in one statement, if the party has in any way obtained the full knowledge, those same results must necessarily and even in a higher degree, be attributed to it— the very substance itself — which are, from motives of general policy, attributed to notice as its representative and substitute. The conclusion thus reached, upon principle, is supported by the weight of judicial authority, and it will reconcile much, if not all, of the apparent confusion and conflict of opinion upon this subject to be found in some of the decisions. Of course the knowledge here spoken of must be something more than the mental condition produced by rumors, casual conversations, and the like, — more than any constructive notice, —more even than the MERE actual notice defined and permitted by the rules. It must appear that the mind of the party charged with the knowledge has been brought thereby to an intelligent apprehension of the nature of the prior fact, interest, claim, or right, so that a reasonable man, or an ordinary man of business, would act upon the information, and would regulate his conduct by it in the transaction or dealing in which he is engaged.
In accordance with principle, and as a conclusion from the decided case, the following proposition may be formulated: If it can be shown that the party has in any way, from any person or source, by any means or method, for any purpose, although not in pursuance of the rules which regulate the giving of notice, obtained or derived actual and full KNOWLEDGE of the kind above described, concerning the prior fact, interest, claim, or right, — that is, a knowledge which would operate upon the mind of any rational man, or man of business, and make him act with reference to the knowledge he has so acquired in the transaction or dealing in which he is engaged — then the same results must follow from the knowledge so obtained which would follow from an actual notice communicated in the manner required by the rules governing notice; in other words, the conscience of the party having the knowledge is affected by it in the same manner and to the same extent as it would be affected by an actual notice. It sometimes happens that by a positive rule of the law an actual and technical notice is necessary, in order to 'put a person in default, or to perfect some legal right, and then knowledge, however complete, will not supersede or take the place of the notice (see No. 660). Actual knowledge, however, will generally have the same effect as notice in controversies concerning priority; but it is especially important in determining the existence of good faith; it is often a most essential element in making out a fradulent intent, where a mere technical notice would not be sufficient.”

We have also examined the statement of the Editor on the subject of “Actual Notice”, contained in 39 American Jurisprudence at page 234. At Section 4, the author discusses “actual notice” in the following language:

“The words “actual notice” do not always mean in law what in metaphysical strictness they import; they more often mean, knowledge of facts and circumstnces sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts. The statutes of some states provide that actual notice consists in express information of a fact. And some courts have said that notice is actual when it is directly and personally given to the person to be notified. It is the general rule, however, that actual notice embraces all degrees and grades of evidence, from the most direct and positive proof to the slightest circumstance from which a jury would be warranted in inferring notice. It is a mere question of fact and is open to every species of legitimate evidence which may tend to strengthen or impair the conclusion.”

Also at Section 5, the author discusses the circumstances which amount to or tantamount to “actual notice”, as follows:

“As heretofore stated, actual notice embraces all degrees and grades of evidence. Generally, a person can be said to have notice of a fact only when it is actually communicated to him in such a way that his mind can and does take cognizance of it. Of course when a person knows of a thing he has “notice” thereof, as no one needs notice of what he already knows. In-other words, actual knowledge supersedes a requirement of notice.
While extrajudicial proceedings, or proceedings without jurisdiction, do not operate as constructive notice, yet express notice obtained from such proceedings operates the same as notice obtained in any other manner”.

Referring to the subject of “actual notice” as discussed by the Author of the article appearing in Ruling Case Law, Vol 20, page 344, we find the following language:

“Generally a person can be said to have notice of fact only when it is actually communicated to him in such a way that his mind could and did take cognizance of it. And' of course when a person knows of a thing he has “notice” thereof, as no one needs notice of what he already knows.” * * *

Counsel for the estate has called our attention to decisions of. various courts of Ohio construing the statute before its recent amendment. Under the former statute a claimant could have his claim reinstated when it was proven that he was not charged with culpable neglect in failing to present his claim within the four months period. One of the cases to which reference has been made is that of re: George W. Weimer et al, deceased, reported in 8 O. O. page 314. Also the case of re: Est. Felicia Capoziella, 6 O. O. page 469. These cases do net bear directly upon the question at issue but the Court has been very much interested in the philosophy adopted by the courts in determining what constitutes culpable neglect, and we are frank to say that the philosophy adopted in those cases sustains the position of the Court in the present case in determining what constitutes and what does not constitute “actual notice”.

At Section 6, the author discusses the matter of express or implied notice under the sub-division of “actual notice” and in part uses the following language:

“Actual notice has sometimes been said to be of two kinds, viz: (1) express, which includes what might be called direct information, and (2) implied, which is said to include notice inferred from the fact that the person had means of knowledge, which he did not use. Notice of the latter kind has frequently been classified by the courts as constructive notice, and some statutes so classify it. Other courts classify such notice as implied actual notice. This has also sometimes been termed actual notice in the second degree. The importance of the classification of notice of this character arises from the fact that constructive notice is a legal inference, while implied actual notice is an inference of fact. The same facts may sometimes be such as to prove both constructive and actual notice; that is, a court might infer constructive notice, and a jury infer actual notice, from the facts. There may be cases where the facts show actual, when they do not warrant the inference of constructive, notice. Express and implied notice, differ merely in the mode of proof.”

There are a number of provisions of the probate law of Ohio which provide for notice, some constructive, which are properly known as “notice by publication.” Other statutes provide for “actual notice” by service of the notice, either upon the person personally, or at his usual place of residence. The statute now under investigation, however, does not stipulate in what manner the claimant should have “actual notice” or what is considered “actual notice.” Neither have the courts of Ohio heretofore defined said term. And that .is the reason this Court has felt it important to quote from the recognized authorities to the extent as hereinbefore indicated.

From the reading of the foregoing quotations it is quite obvious that the Court should deduce a definition of the term “actual notice” as used in §10509-134 GC by the author. Applying the principles hereinbefore referred to, this Court is impelled to find that if the claimant has in some way been brought to an intelligent apprehension of the death of the decedent or of the appointment of the executor or administrator, so that a reasonable man or ordinary man of business would act upon .the information and would regulate his conduct thereby, he has actual notice of same. A definition less comprehensive would defeat the very purpose of the statute.

It is a generally accepted fact that §10509-112 GC, and following sections, together with §10509-134 GC were enacted to expedite the administration of estates. If the statute should be so construed that the claimant should have actual, personal and direct information or notice served upon him personally, it is obvious that almost any claimant could present his claim after the four month period. The law of Ohio, and especially the probate code, is entirely silent as to the giving of any notice in any event as to the death of a decedent. The only notice which the law requires as to the appointment of an administrator is a publication of the appointment. That is “constructive notice” and as far as it goes it is notice to all persons interested in the estate, whether they be creditors or have some other relation thereto. If the statute should have the narrow application as hereinbefore suggested, it is doubtful if any creditor could be denied the remedies provided by 10509-134 GC, and the statute providing for the presentation of claims within four months would be rendered practically inoperative and useless. That was not the intention of the legislature when the statutes were enacted. The statutes were enacted as hereinbefore stated, in order to. expedite the administration of estates, and it is our opinion that the above conclusion is in harmony with the intention of the legislature-.

At the hearing of this matter, counsel for the insurer of the deceased presented himself for the purpose of cross-examining the witness. The Court took the position that he was not a party, nor did he represent a party to this action. But counsel said that no opposition would be interposed and' the Court therefore permitted him to examine the witness. This examination pertained to conferences between the claimant and representatives of the insurer. The Court is of the opinion that that testimony is admissible testimony upon the question as to whether or not the claimant had “actual notice”.

We now come to the facts as adduced by the evidence and the Court will attempt to apply the law as we have announced it to the facts adduced.

The testimony discloses that the accident out of which the alleged claim grows occurred on August 4, 1948, and that Mr. Hamlin’s death occurred as a result of another accident subsequent thereto. At page 4 of the transcript the claimant was asked when he first learned that an executrix had been appointed on the estate of Mr. M. R. Hamlin. He said he did not know about it until about February 25, 1949. Upon examination by Mr. Rose, the following question was asked of the claimant:

Q. Now, isn’t this true, that the upshot of our contracts was that I told you that the insurance company was willing to pay you a nuisance value of $400, which you would — -which you were ready to accept if the administratrix would give her consent to that settlement, isn’t that true?
A. No, you didn’t mention anything like that.

The witness was then asked if Mr. Rose was to contact the administratrix and see if she would give her consent to a certain settlement. This the claimant denied. The witness was also asked if he did not remember that he was told that, the events following the conversation described in the previous question that the administratrix would not give her consent by reason of the fact that she was considering bringing a claim against the claimant. The claimant denied any such a conversation.

Other questions were asked the witness which failed to elicit that he had knowledge of the appointment of an administratrix.

At page 8 of the transcript, we find that the following questions were asked of the claimant:

Q. Well, when did you become aware of the death of Mr. Hamlin?
A My wife was — my wife saw it in the newspaper — my wife saw it and told me.
Q. And what newspaper do you read?
A. The Dispatch.
Q. You read the morning papers too?
A. No.
Q. Well—
THE COURT: How soon after the death did that notice appear in the papers, the one to which you refer?
THE WITNESS: Gosh, I don’t know. I imagine it was— it was the evening paper that I read it in.
THE COURT: But I say, how soon after the death was that publication — how soon after the death did that appear in that publication, do you know?
THE WITNESS: No, maybe Mr. Rose does.
Q. Mr. Perkins, I will ask you if that wasn’t current news which appeared the same day or the day after the death?
A. It was, yes — it was on the front page, it was.
Q. And it was right close following the death, was it not?
A. Yes, naturally. I don’t know if it was the same day or the day after.

We do not deem it necessary to quote at length from the transcript of the testimony. It is quite obvious that the claimant did have knowledge of the death of Mr. Hamlin as he admitted that he saw an account of his death on the front page of the newspaper. He had been negotiating with the agent of an insurance company with reference to his claim against Mr. Hamlin, and this information in regard to the death of Mr. Hamlin must have had a special significance to him on account of his previous accident and the negotiations with reference to same.

It is the opinion of this Court that under the circumstances he did have such knowledge of the death of Mr. Hamlin as would constitute “actual notice”, not only of his death, but of the appointment of the administrator.

The prayer of the petitioner for the reinstatement of his claim is therefore denied, and an order may be drawn accordingly.


author: By HORNBECK, J.

text:
    GATTERDAM, Plaintiff-Appellee, v. GATTERDAM, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4242.
    Decided February 28, 1949.

      J. Paul McNamara, R. A. Hawley, Columbus, for plaintiffappellee.
    Peter Albietz, John M. Scott, Columbus, for defendant-appellant.
   OPINION

By 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.

Appellee 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. Sec. 11578 GC. 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 §11578 GC in In Re Lowery, 66 Oh Ap 437. 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 §11578 GC, 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 or not under the present provisions of §11576-1 GC 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 subdivision 6 and 8 of §11576 GC 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.”

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 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 or not the contract being proven de praesenti, the marriage is established without further proof of cohabitation and holding out. It is said in Herd v. Herd, 194 Ala. 613, L. R. A. 1916 B, 1243, that,

•‘Mr. Chancellor Kent in the fifth and subsequent editions of his Commentaries says, ‘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, Re: Estate of Hulett, deceased, (Minn.) 34 L. R. A. 384, where at page 397, it is said:

“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 and Separation, paragraphs 239, 313, 315, 317; Norrell v. Norrell (Ind.) 44 N. E. (2nd), 97, and particularly at page 99 of the opinion. Likewise the texts. 35 Am. Jur. 199:

“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 C. J. S. 852.

Some strength is lent to the theory underlying the authorities which was have discussed by our own statute, §11989 GC, providing,

“proof of cohabitation and reputation of the marriage of the parties, shall be competent testimony to prove such marriage, and may be within the discretion of the court, sufficient evidence thereof.” (Emphasis ours.)

This statute has been on the books for many years, March 11, 1853. 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, et al., 10 Oh 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 R. S. 5698, now, §11989 GC.

Here, it is the contention of the appellant that the relations between the parties was meretricious in its inception and so continued at all times; that the twelve days during which they lived together at a tourist camp was but a continuation of the illicit relationship and 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 further appears 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 of Ohio, 12 Oh 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 cirucmstances.”

But at page 560, quoting from Lord Denman in Queen v. Millis, 10 Cl. & Fin. 682,

“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 Oh St 238, 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 syllabus of Markley v. Hudson, 143 Oh St 163. The second syllabus of this case says that,

“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 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 Re: Est. of Hulett, 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 proved 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, Ga. 6 S. E. 2d, 687, 133 A. L. R. 738, and annotation at 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, Fla., 146 So. 241, 91 A. L. R. 212, it was determined that:

“Something more than a secret or undisclosed agreement between the parties must be sought to establish a common law marriage.”

but,

“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 the existence of a common law marriage.”

And further:

“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 maintaining of secrecy concerning the relationship between the parties.”

The most comprehensive authority on the immediate question is that of Peters v. Peters, Colo. 215 Pac. 128, 33 A. L. A. 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, Tex. 153 S. W. 1124, L. R A. 1915 E 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 or not 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. Quare,-Was the holding out sufficient to meet the requirement of the law?

The disturbing cases are those of Re: Est. of Redman, 135 Oh St 558, and Markley v. Hudson, 143 Oh St 163. 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 or not 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, 85 Oh St 238, 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 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 come back to Columbus and held themselves out there as husband and wife, it should 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 came back to Columbus 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 offspring 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 alludes to that fact, when 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 Oh Ap 301, 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, only covered a period of time 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 nor contrary to law.

The judgment will be affirmed. '

MILLER, PJ, and WISEMAN, J, concur.


author: By WATTERS, J.

text:
    STATE, Plaintiff, v. GRAHAM, et, Defendants.
    Common Pleas Court, Summit County.
    No. 169159.
    Decided May 12, 1949.
    Joseph Ford, Asst. Atty. Geni., Columbus, for state.
    Paul Laybourne, Akron, for defendants.
   OPINION

By WATTERS, J.

The three defendants, all appearing to be persons of good repute, and substantial citizens of the county, went out into the country with four coon dogs for the purpose of exercising and training said dogs, one of which was a pup. Needless to say, the men were out also for the sport and enjoyment that naturally follows such adventures.

It is admitted that the night and next morning in question was-closed season as far as racoon hunting is concerned.

During the evening they had treed several coon, and in each instance placed the dogs on leash and went their way looking for new trails.

In the case now before us, when the game wardens stepped in, the dogs had treed a coon in what I gather was a more or less bush-like tree not very high from the ground.

The game wardens claim they heard a rustling sound which in their opinion indicated a shaking of the tree by the men, but the latter deny it.

Their version is that the coon was treed, and they thereupon secured the dogs except the pup, and started to leave the scene; that as the older dogs were being led away from the scene, the pup remained around the bottom of the tree, and that the coon apparently came down to the ground and the pup and coon got to fighting; that in the noise and excitement that ensued, the older dogs, or a couple of them, sensing the situation, broke loose from the men leading them, and went to the fray and proceeded to get in on the fight. Finally the affray broke up and the coon, as the agents claim, limped away to freedom.

The charge in each case is that the defendant, “did unlawfully take a certain fur bearing animal in closed season, to-wit a racoon.” The date charged is October 29, 1948.

Various witnesses, who were members of various coon hunting societies and coon dog trainers, testified in the nature of experts in substance: that the universal custom is to run and train coon dogs on a live trail in and out of season; that it has always been considered permissible to do so, so long as there is no intent to injure or kill the racoon. They claim such is the custom in this state and others. They also claim it bad ethics and unsportsmanlike to shake or shoot or otherwise force the racoon, when treed, from the tree, in closed season, although this is proper during open season.

The agents or game wardens on the other hand say that they are are under instructions to enforce the law to the letter, and that no pursuing, running, etc. of the racoon is permissible out of season for the purpose of training coon dogs, and so forth. They also contend that the defendants did have the intent to injure or kill the animal in question.

THE LAW

Opinion Attorney General of Ohio in the year 1932, Volume 1, Opinion No. 4200. Honorable Gilbert Bettman.

“Syllabus (1) The restrictions provided in §1398 GC, with respect to when a fox may be ‘taken or possessed,’ are restrictions as to when a fox may be killed.”
(2) “Fox may be pursued with dogs at any time providing there is no intent to kill or injure such animals and further providing that such animals are not in fact injured or killed.”

On page 454, the Attorney General said:

“In the last analysis, the purpose of the fish and game laws is to conserve the wild life of the state. The practice of pursuing fox with dogs when the fox are not killed or injured and there is no intent to kill or injure such animal * * * is not detrimental to the conservation of the wild life of Ohio * *

See also Volume 2, Opinion Attorney General 1933, page 896, Opinion No. 959, to the same effect.

Also in the criminal case of State v. Mohler, et al, decided on November 16, 1932, in 44 Oh Ap, 52, in which case Attorney General Bettman represented the State, the Court of Appeals for Perry County had the following to say on page 58:

“Now it may be understood that we fully recognize the right of one to train his dog in the field out of season, but it must be done in such a way that the game will not be injured or brought to a gun for slaughter.” (Emphasis by this writer.)

Out of this ruling and that of the Attorney General cited above, and the custom of years, has. grown the belief and understanding of dog trainers, hunters, that they may run their dogs in the field out of season where there is no intention of injuring the game pursued.

If there is to be a change of policy or a different interpretation of the law to be placed on such a situation, the Department of Conservation of Ohio should so provide by regulations adopted throughout the State.

In the court’s opinion, these men had no intention to injure the coon in question in any way. They were, in the court’s opinion, simply running the dogs for training purposes and for the sport of it, which I hold, under the present status of the law and its interpretation, is permissible. Perhaps they were a little careless under the circumstances, and with greater diligence could have avoided any contact with the coon and the dogs.

However the court cannot find beyond a reasonable doubt that the defendants or any of them are guilty of the criminal offense charged.

The mere claim by the agents that the coon was shaken from the tree, unsupported by any evidence except that it sounded like the tree was shaken, is- insufficient.

I do find that the officers making the arrest had reasonable grounds to bring the matter to court for determination.

I am sending a copy of this decision to the Commissioner of Conservation so that he may be advised of the situation.

Defendants are found not guilty, and dismissed.


text:
    COSTLO, Plaintiff-Appellant, v. STURM, et, Defendant-Appellee.
    Ohio Appeals, Second District, Shelby County.
    No. 144.
    Decided October 15, 1948.

      Roy Warren Roof, John L. Roof, Kenton, for plain tiff-appellant.
    Harry K. Forsyth, E. J. Garmhausen, Sidney, for defendantappellee.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellant for an extension of time within which to file briefs, and, also on the motion of defendant-appellee, Luetta Keplinger Sturm, to dismiss the appeal on the following grounds:

“Plaintiff-appellant failed to file his assignments of error and brief within fifty days after the date of filing his notice of intention to appeal, and for failure to file his motion for extension of time within the fifty day period.”

The record shows that notice of intention to appeal on questions of law was filed on July 12. 1948. The bill of exceptions was filed on August 20th, 1948. On September 7. 1948 plaintiff-appellant filed his assignments of error and also his motion for extension of time within which to file briefs. The period of fifty days within which assignments of error and briefs are required to be filed as provided by Rule VII had expired. Sec. 12223-21 GC in part provides:

“Failure to file such briefs and assignments of error within the time prescribed by the court rules shall be cause for dismissal of such appeal.”

This court has consistently held that where appellant fails to file his assignments of error and briefs within the fifty day period prescribed by Rule VII, unless good cause be shown for such failure, the appeal will be dismissed.

The motion for extension of time is grounded solely on the fact that the bill of exceptions was filed two days before the expiration of the time limit and that sufficient time was not given to counsel to prepare and file briefs. The record shows that the bill of exceptions was filed in this court eleven days before the expiration of the period within which assignments of error and briefs were required to be filed. Thus it appears that the contention made by counsel is not supported by the record.

In the memorandum filed in support of the motion counsel for appellant sets forth an additional reason for his failure to file his briefs. The claim is made that because of illness he was prevented from preparing and filing his briefs within time. No mention is made respecting assignments of error. While the motion by its terms is not based on the fact that counsel was ill, nevertheless, the court will consider and pass on this matter. Affidavits of counsel and his attending physician are filed in support of this claim. These affidavits clearly indicate that the senior counsel during the summer months was suffering from an illness which prevented him from doing all his legal work and that by reason thereof some of his work was neglected. However, the affidavits clearly show that senior counsel was able to go to his office a considerable portion of the time. The record fails to show that senior counsel was unable to make application to the court within time for an extension of time to file assignments of érror and briefs. While the record shows that the junior counsel associated with senior counsel in the practice of law was inexperienced in the preparation of briefs, the record fails to show that the junior counsel was unable to file the necessary application within time. Under the former rulings of this court, sustained by our Supreme Court, the record does not present facts sufficient to constitute “good cause.” Anderson v. Indus. Comm., 135 Oh St 77. For former rulings of this court in similar situations see Peck v. County Commissioners, 28 Abs 702; Seifer v. Indus. Comm., 29 Abs 52; Brown, Gdn. v. Brown, 35 Abs 527; Shank v. Union Central Life Ins. Co. 36 Abs 265.

The motion for extension of time will be overruled. The motion to dismiss the appeal will be sustained.

Judgment of the trial court is hereby affirmed.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


text:
    MELCHION, Plaintiff-Appellant, v. BURKART, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7034.
    Decided December 20, 1948.
    Cowell & Fletcher, Richard B. Baker, Lee J. Hereth, Cincinnati, for plaintiff-appellant.
    Albert D. Castellini, Cincinnati, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal from a judgment of the Municipal Court of Cincinnati for the defendant on his defense that a previous judgment for the defendant barred this action.

From the record we learn that the defendant in this action was the manager employed to conduct the business of the Queen City Furnace & Heating Company, and acting as such manager for and on behalf of his principal. The plaintiff claimed that the manager made certain misrepresentations about the furnace and that the furnace installed under the contract failed to conform to the representations resulting in damage to the plaintiff.

The plaintiff sued the Queen City Furnace & Heating Company on this cause of action. A trial was had resulting in a judgment on the merits for the defendant.

Thereafter, this action was instituted against the agent based on the same transaction. The defendant pleaded the judgment in the prior action as a bar.

The certificate of the trial judge recites that it contains all the evidence, but this certificate is in conflict with the recitals in the bill that a complete transcript of the record including a transcript of the evidence introduced was received in evidence. This transcript was not copied into the bill and no statement identifying it as an exhibit is recited and there is no exhibit attached.

It is difficult on this state of the record to determine with assurance whether the prior judgment constitutes a bar. However, we believe section 99 of the Restatement of Law, (Judgments) applies. It states the rule as follows :

“A valid judgment on the merits and not based on a personal defense, in favor of a person charged with the commission of a tort or a breach of contract, bars a subsequent action by the plaintiff against another responsible for the conduct of such person if the action is based solely upon the existence of a tort or breach of contract by such person, whether or not the other person has a right of indemnity.”

From what appears in the record it seems that the conduct of the defendant within the scope of his employment, constituted the sole claim of liability of the defendant in the prior action. If that is true, the judgment for defendant in that case against the principal is a bar to this action against the agent. Certainly, upon this record we cannot determine that it is not a bar.

Therefore, error not affirmatively appearing, the judgment is affirmed.

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur.