author: By THE COURT:

text:
    FULTON, Plaintiff-Appellee, v. RAPP, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 174.
    Decided November 14, 1950.
    Sam Robison, Frank Murray, London, for appellee-Fulton.
    Dale D. Rapp, Columbus, D. H. Jackman, London, for appellant-Rapp.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment in favor of plaintiff-appelleé on an action to enjoin defendant from interfering with plaintiff’s use and possession of 4.32 acres of land described in the petition. Defendant answered denying plaintiff’s right to the relief sought and by cross-petition set up his claim of right of title by adverse possession and prayed that his title be quieted.

By stipulation and by evidence it appeared that the plaintiff held the record title to the land involved. The land was a triangular strip on the south side of Route 56 lying contiguous to a farm owned by the defendant whose predecessors in title were his father, C. P. Rapp, and before him, David Robison and his children. The farm of which the piece under consideration was a part was known since 1870 as the George Alkire land. Most of this farm land is on the north side of Route 56 and on the side of Deercreek opposite the triangular strip. In 1922, succeeding the death of George Alkire, the farm was deeded to his daughter, Catharine Lucas by the other children and heirs of George Alkire. Later, in June 1939, it was deeded by Catharine Lucas to Bruce Cochran and Catharine Cochran, his wife, and Homer Robison and wife; the Robisons deeded their share to the Cochrans and in September 1946 the Cochrans deeded the 4.32 acres to the plaintiff, Marvin M. Fulton.

The only issuable question presented to the trial judge for determination was upon the claim of the defendant that he held title to the land in controversy by adverse possession for 21 years.

The trial judge, in a written opinion with which we have been favored, based his judgment on the character and extent of defendant’s use of the land involved and upon his failure to show that his possession was otherwise than permissive and found that his possession was not adverse and was subordinate to the legal title.

Numerous cases are cited by the trial judge and by counsel for the plaintiff to support the propositions of law upon which the judgment is predicated as to the soundness of which on the facts to which applied we take no exception. We will hereafter consider and discuss some of these cases.

The dominant question here is how to resolve the material disputed factual issues. The essential elements to support title by adverse possession are, that the possession be actual, open and notorious, hostile and under claim of right, continuous and exclusive and that in addition to these elements the possession continue for 21 years. There is no dispute in this record that the defendant and predecessors in title actually possessed the land in controversy for 21 years; that this possession was open, notorious and continuous. There is then left the questions whether or not this holding was exclusive, hostile and under claim of right. Certainly, if this use of the land was by permission of the owners of the title it could not be adverse nor hostile. Manifestly, if it was used without such permission it was hostile within the intent of the law.

The use of the land which is requisite to adverse possession .is such as would be made of such land by an owner thereof. It is said in Doctor v. Turner, 231 N. W. 119, a Texas ease cited by the trial judge, that

“in order to make good claim of title by adverse holding the true owner must have actual knowledge of the hostile claim or the possession must be so open, visible, and notorious as to raise the presumption of notice to the world that the right of the true owner is invaded intentionally and with a purpose to assert a claim of title adversely to his, or so patent that the owner could not be deceived, and such that if he remains in ignorance it is his own fault.”

In this case there can be no doubt that the true owners had actual knowledge of the possession of the defendant of the land in controversy, nor, is there any dispute that for many years, more than 21, the defendant and predecessors had used the 4.32 acre piece for pasture land for their cattle, horses and mules, hogs and some sheep. Not all of the witnesses say that all of these kinds of animals were pastured, but all that speak on the subject do testify that they regularly pastured their stock on this land. This use was not occasional and sporadic but was regular and continuous and extended back many years more than 21 prior to the institution of the suit.

There was no fence on the property line between defendant and the 4.32 acre piece of the Alkire land and no witness (and some of them went back 50 years) ever knew it to be fenced. There was a fence in front along Route 56. Who placed it there does not definitely appear but it is conclusively shown that it was maintained, kept in repair and made to serve the added purpose of a hog fence by the defendant and his father, his predecessor in title. It further appears that none of plaintiff’s predecessors in title had, during the years that defendant and his father occupied the land in controversy, used it for pasturage or for any other purpose whatever unless it might be as hunting ground, at times, and used a fenced lot which had been enclosed connecting farm scales, which' lot was on the 4.32 acre piece. These scales and fences, the latter occupying a small part of the 4.32 acre piece were standing though pretty well down when defendant acquired his land and were torn down in 1920 or 1921 and the scales were removed by him about the year 1922.

There is some claim that stock from the Alkire land came across a way adjacent to and under the bridge over Deer-creek and over and onto the triangular piece. Testimony was offered by two witnesses of such occurrences. The first instance by a fisherman, that he at one time saw some mules from the Alkire land run under the bridge and onto the 4.32 acre piece of land. The second, where some animals, by the same route, got onto the land in controversy. They were discovered by those who lived on the Alkire land and put back into their own pasture. There was some controversy whether or not ordinarily there was sufficient space or footing for animals to move from one farm to the other. Mrs. Lucas says the water was too deep to permit of such use and Frank Miller testifies that the water was within four feet of the bridge. The reasonable inference to be drawn from the record is that animals did not regularly so move nor was the opening intended for, or used as, entrance and exit for stock from one farm to the other.

It further appears that soon after he acquired his farm the defendant cut some timber, a few trees, off the 4.32 acre piece and sold it; that he had taken gravel therefrom and used it on the strip and elsewhere and had sold some; that he regularly cleaned fence rows and cut out underbrush; that he and his father maintained the driveway across the land and that he regularly used it to get to and from other parts of his farm. There is testimony that he put up one new fence on the strip. It is significant that no one of such uses was made by any other person.

It is conceded by all that the land in controversy one side of which was along Deercreek, one side along Route 5S and the third adjoining defendant’s land, was suitable to be used as pasture land only. The growth on it was sparse, it was rough, washed at times and had gulleys through it. So that, the practical use to which defendant put this land was such as would be made by an owner in its normal operation. Indeed it is difficult to bring to mind any practical use of this land to defendant and his father other than that to which they put it. This use was sufficient to disclose an intention of the defendant to appropriate this land. Ewing v. Burnett, 11 Peters 41, 10 F. D. 574, cited with approval in Clark v. Potter, 32 Oh St 63.

But it is urged that the use by the defendant was permissive. We do not so read this record. Indeed, we find only one part of the testimony which requires this conclusion. In the last few questions and answers of Mrs. Homer Robison the following appear:

Q. Did she (referring to Mrs. Lucas) say how he (referring to defendant, Rapp) happened to use it?

A. No, she didn’t.

Q. Did she indicate whether it was by permission or not?

A. No.

Q. To refresh your mind and memory, did she say they always let Elwood Rapp use it?

A. Yes.

In this last answer it wa's inferable that Elwood Rapp used the land permissively.

The trial judge was of opinion that C. P. Rapp, the father of defendant, knew that the Alkire farm was being partitioned; that he knew that a survey was being made; that he saw the monument marking the southwest corner of the 4.32 acres and saw them measure the south line of the tract which faced his front door and seeing and knowing all of these facts, made no objection whatever but on the contrary gave tacit consent to these acts of ownership. If the record be so construed the conversation from which the foregoing conclusions are drawn occurred in 1922, some 24 years before this action was instituted. Catharine Lucas was not interrogated on cross-examination or rebuttal as to this conversation. The effect of C. P. Rapp’s conduct was nothing more than an admission that evidence of the record title to the 4.32 acres was in the Alkire heirs. It does not appear that C. P. Rapp had no knowledge that the 4.32 acre piece belonged to the Alkire land. He may have known it long before the survey. The testimony goes to the good faith of C. P. Rapp in holding possession of some of the Alkire land and whether it was his obligation to speak in support of his holding. Some courts hold that the requisite of good faith applies only where one holds under color of title and not where there is actual adverse possession. 2 C. J. S. 741. His failure to speak did not affect the character of the use and his acts and conduct disclosed his open dominion and possession of the land. McAllister v. Hartzell, 60 Oh St 69.

An unusual development in the testimony is found in the statements of Catharine Lucas and her husband, Lawrence Lucas. Catharine Lucas was the daughter of C. G. Alkire who owned the land of which the 4.32 acre is a part before his daughter acquired it in 1922. She had lived on it almost continuously from her birth in 1897 and until she sold it in 1939. • She and her husband for 17 years lived on it. Although they made a warranty deed for their farm to the Cochrans Mrs. Lucas says that she nor her father “never used” and “never claimed” the piece in controversy. They both say that they knew that the Rapps were using the 4.32 acre piece for their purposes; that their stock grazed it and made the uses of it that an owner would and that they, the witnesses, believed that this piece belonged to the Rapps. They further say that they never gave the Rapps permission to use the land and that they received no compensation whatever in any form for its use. Neither does it appear that there was an agreement at any time between the true owners and the Rapps which would indicate permissive use. Nor, is there any showing that any prior owner of the Alkire land received in any manner or form payment by way of rent for the use of the 4.32 acre piece from the Rapps. Frank Miller and his son, neighbors and adjoining land owners to the defendant say that the 4.32 acre piece was reputed to belong to the Rapps.

In Yetzer v. Thoman, 17 Oh St 132 & 133 Judge Brinkerhoff writing the opinion said,

“We think that under our statute of limitations, if a party establish in himself, or in connection with those under whom he claims, an actual, notorious, continuous, and exclusive possession of land for a period of twenty-one years, he thereby, except as to person under disability, acquires a title to the land; and this, irrespective of any question of motive or of mistake.”

and later, page 134,

“If he intends a wrongful disseizin, his actual possession for fifteen years gives him a title; or if he occupies what he believes to be his own, a similar possession gives him a title. Into the recesses of his mind, his motives or' purposes, his guilt or innocence, no inquiry is made. It is for this obvious reason that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor.”

If it is a fact that the owners of the title to the Alkire land knew that the 4.32 acre piece was a part of their land, they were put upon ample notice that Rapp and predecessors were openly using it as their own.

The defendant also testifies that it was his opinion that the 4.32 acre piece was included in his record title; but at least two witnesses say that on occasions he proposed to buy the 4.32 acre piece of land. The trial judge had a right to believe this latter testimony, but, if true, it did not change the character of the use of the land which then, and subsequent thereto, defendant made of it. Nor did the offer to buy divest him of his rights. As early as McAllister v. Hartzell, supra, it was held that neither a mere offer to buy within the 21 years nor an acknowledgment by the claimant within that time that the title is in another, or that the claimant does not own the land, will have the effect of estopping the claimant to plead the statute of limitations in an action of ejectment.

The use of this triangular strip of land, at least as far back as 1920, probably longer, and continuously since, has been adverse to the owners of the record title. It was so considered and acknowledged not only by the defendants and their predecessors in title but by the owners of the Alkire land. Indeed nothing of consequence was done by any owner of the Alkire land in derogation of defendant’s title until the plaintiff acquired it in 1946. The fact that Cochrans deeded to the plaintiff by quit claim only may have reflected their opinion that the title might be doubtful.

We are satisfied that, giving full benefit to the trier of the facts of all of his prerogatives, the finding and judgment is against the manifest weight of the evidence.

We give some attention to cases cited in support of the judgment. Walker v. Maynard (Tex. Civ. App.) 31 S. W. (2d) 168,

“mere running of stock on open range and an occasional cutting of wood is not sufficient notice of adverse possession.”

In this case the possession relied upon was the use of an open range in common with others and the occasional cutting of wood on the land. In De Las Fuentes v. McDonald (Tex.) 20 S. W. 43, the land was grazed by others than claimant.

In Doctor v. Turner (Mich.) 231 N. W. 115, the adverse possession relied upon was an occasional or periodical entry to cut wild grass and it was held that this was not sufficient to manifest purpose to take possession as owner and to constitute actual possession.

Perry v. Stephens (Tex. Civ. App.) 97 S. W. 1075, the court held that the claimant had no actual possession of the land in controversy.

Haynes, et al v. Texas and N. O. R. Ry. 111 S. W. 427. Here, there was only occasional cutting of wood and pasturing of stock on unenclosed land and it was held that this was not such possession and occupancy as would affect the title of the true owner. It is not necessary to comment on the difference in the factual development in the cited eases and in the instant case.

Shuster v. Davis, 7 Abs 342. It is asserted that the facts in this case are similar to those found here. The property in question laid on the same side of the established line as the other land of the plaintiff and the record title was in the plaintiff, the reverse of the facts here as to location of the land. The defendant claimed that her cattle had for years crossed the creek, occupied a strip lying beyond the stream and on the side of the plaintiff and there grazed and that she and her predecessors had sold some gravel off the strip. The court held that she did not show exclusive and adverse possession, that the use of the land by her cattle was by no means continuous nor were all of the acts of occupancy shown by her to have been continuous. It is in this case that the quotation is made from 1 R. C. L. 693, that one claiming title by adverse possession

“must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has in-waded his domains, and planted the standard of conquest.”

This is highly colorful language but given its practical application, it reasonably appears that the defendant here and his father observed all of the obligations cast upon them by the quotation and that to hold otherwise is manifestly against the weight of the evidence. Cases on adverse possession are legion and we will not prolong this already too lengthy opinion by discussing them further.

The over-all picture here is that this small strip of land was long recognized by the title holders to be of little or no value to the Alkire farm because of its separation from the rest of the farm by road and stream; its thin soil and irregular contour, and the difficulty of reaching it, fencing and farming it. On the other hand, it had utility value for defendant and his predecessors in title because it was contiguous to their land and naturally fitted into and became a part of their farm. In the situation thus presented it appears that plaintiff’s predecessors in title abandoned and defendant and predecessors appropriated the 4.32 acre piece and possessed it adversely for 21 years, and more, prior to the institution of the suit to quiet title.

A careful consideration of this record is convincing that the judgment should be reversed and the cause remanded for new trial.

It will be so ordered.

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


source: Caselaw Access Project

author: By WISEMAN, J:

license: Public Domain

text:
    STATE, ex rel SIMONS, Plaintiff-Appellant, v. KISER, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 684.
    Decided November 24, 1950.
    Spidel, Staley and Hole, Greenville, for plaintiff-appellant.
    T. A. Billingsley, Greenville, for defendant-appellee.
   OPINION

By WISEMAN, J:

This is an appeal on law from the judgment of the Common Pleas Court of Darke County setting aside a verdict of the jury and judgment of the court on'a motion for new trial in a bastardy proceeding. The defendant also has filed a cross appeal.

The only error assigned by the plaintiff-appellant is that the trial court committed error in sustaining the defendant’s motion for new trial on the ground that the defendant had been called by the plaintiff as a witness on cross-examination over his objection.

The record shows that during the course of the trial as part of the plaintiff’s case the defendant was called for cross-examination. The record is as follows:

“Mr. Staley: I will call the defendant for cross-examination.
“Mr. Billingsley: Objected to. You have no right to in this kind of a case.
“Court: Objection is overruled.
“Mr. Billingsley: In a bastardy case.
“Court: Have you been sworn?
“THEREUPON, the witness, CHARLES KISER, was by the Clerk sworn and took the stand.”

It will be observed that no objection was raised except a general objection by counsel. The objection interposed, and the court’s ruling thereon, is sufficient under §11560 GC, to lay the foundation for review. In sustaining the motion for new trial the court relied on Schneider v. State ex rel. Shorf, 33 Oh Ap 125, 168 N. E. 568, which held:

“In bastardy proceeding, it was reversible error to permit defendant to be called by counsel for complainant and over his objection compelled to testify against himself.”

Plaintiff contends that the Schneider case does not properly state the law. It is the only reported case in Ohio on this precise question of law. In that opinion the court holds that while a bastardy proceeding is quasi criminal in character, it is essentially a civil action and a verdict of three-fourths of the jurors is allowed, and proof by a preponderance of the evidence is sufficient. The court then discusses the right of the plaintiff to call the defendant on cross-examination over his objection. The court states that the proceeding in. some respects is more criminal than civil in that the proceeding is started by filing an affidavit and having a warrant issued for the arrest of the defendant, and when arrested the defendant may be placed in jail and released on bond; a preliminary hearing is held before the magistrate; that the verdict of the jury is guilty or not guilty. It is interesting to note that during this discussion, on page 129 of the opinion, the court states:

“The proceedings are civil in their nature.”

However, the court finally concludes that in a quasi criminal action it is error to require the defendant to testify over his objection; that it is contrary to the constitutional right of the defendant to require him to give testimony against himself. According to the statement in the opinion on page 132 the objection based on privilege was raised after the witness was sworn, and exception taken to the examination of the witness.

It occurs to this Court that considerable confusion would result if a bastardy proceeding is held to be civil in regard to a certain line of procedure and criminal in regard to another. The criminal aspects of a bastardy proceeding become so by virtue of special statutory provisions. Since it is generally held that a bastardy proceeding is a civil action it is our opinion that the better rule is that the rules with respect to civil actions control, unless the statute otherwise provides. For many years the courts of Ohio have ruled that while a bastardy proceeding possesses some of the aspects of a criminal action it is, nevertheless, essentially a civil proceeding; that it is prosecuted by a private party to enforce a private civil duty and obligation; it is not prosecuted by information or indictment by the prosecuting attorney; it is not punitive in character; the relief sought is of a civil nature; that only a preponderance of the evidence is necessary and a verdict by three-fourths of the jurors is sufficient. Dancan v. State ex rel. Williams, 119 Oh St 453, 164 N. E. 527; Dimmitt v. State ex rel. Milburn, 112 Oh St 691, 148 N. E. 90; Carter v. Krise, 9 Oh St 402, 405; State ex rel. Gill v. Volz, 85 Oh Ap 207, 81 N. E. (2d) 796; State ex rel. Merrill v. Moore, 83 Oh Ap 525, 82 N. E. (2d) 323; State ex rel. Pennington v. Barger, 74 Oh Ap 58, 57 N. E. (2d) 815; Reams v. State ex rel. Favors, 53 Oh Ap 19. 4 N. E. (2d) 151; Durst v. Griffith, 43 Oh Ap 44, 182 N. E. 519; State ex rel. Wernery v. Lagemann, 77 N. E. (2d) 478; State ex rel. May v. Shepherd, 1 N. P. N. S. 194. See Vol. 5 O. Jur. page 543, Section 5 (cases cited).

In Burt v. State ex rel. Cook, 79 Ind. 359, and in State v. Jeffrey, 188 Minn. 476, 247 N. W. 692, it was held that the defendant in a bastardy proceeding may be called by the plaintiff on cross-examination on the theory that the action is civil and not criminal.

In our opinion neither the provisions of §13444-3 GC, nor Article I, Section 10 of the Constitution of Ohio are violated by calling the defendant on cross-examination on the theory that a bastardy proceeding is a criminal action. In the Schneider case on which the trial court relied, the court held that the defendant’s constitutional right was invaded in that he was compelled to give testimony against himself. Article T, Section 10, of the Constitution of Ohio in part provides:

“No person shall be compelled, in any criminal case, to be a witness against himself.”

A bastardy proceeding is not a criminal case. However, a witness in a civil case is not required to give testimony which will tend to incriminate him and this immunity is referable to the constitutional guarantee against self-incrimination in criminal cases. See Vol. 42 O. Jur., page 48, Section 33. However, the privilege against self-incrimination is a personal privilege to be claimed by the witness and no other person, not even his counsel. Vol. 42, O. Jur., page 49, Section 34. If a privilege existed in this case, which we do not decide, the witness would be required to claim it. The record does not show that this was done. Unless it is personally claimed it is considered waived. Burke v. State, 104 Oh St 220, 228, 229, 135 N. E. 644; State v. Cox, 87 Oh St 313, 346, 101 N. E. 135; Lindsey v. State, 69 Oh St 215, 222, 223, 69 N. E. 126; Orum v. State, 38 Oh Ap 171, 175 N. E. 876; Haberty v. State, 8 O. C. C. 262, 264, 4 O. C. D. 462; Ammon v. Johnson, 3 O. C. C. 263, 268, 269, 2 O. C. D. 149. In Burke v. State, on page 229, it was held:

“This privilege has always been treated as a personal privilege to be claimed by the interested party, and in the absence of his claiming the privilege, or refusing to testify, he will be deemed to have voluntarily testified.”

In State v. Cox, on page 346, it was held:

"The privilege conferred upon a citizen of this state, by Section 10 of Article I of our Constitution, is a personal privilege, and he may waive this privilege if he desires to do so. The principle announced in the case of Lindsey v. State is predicated upon this theory and no other. Merely being compelled to appear in pursuance of a subpoena and to be sworn is no violation of this constitutional privilege. This is all preliminary to his testifying and is not prohibited by the constitution. and it is only after the administration of the oath that the witness can assert his privilege, for it can only be asserted under the sanction of an oath.”

In Ammon v. Johnson, the court on page 269 held:

“The law does not presume that the witness has so conducted himself that the answer will injure him; but if the witness claims the privilege it may be given. It is personal to the witness, who alone may know what the answer may be, and cannot be interposed solely by counsel, who may have other reasons why they do not. wish the testimony given.”

See Vol. 42, O. Jur. page 50, Section 35.

The record does not show that the witness claimed his privilege. A general objection was interposed by counsel for the defendant prior to the time the witness was sworn. After the witness was sworn no objection was interposed by counsel and the witness failed to claim his constitutional right of privilege. Furthermore, we fail to see how the defendant was prejudiced inasmuch as he took the stand in his own defense and gave substantially the same testimony that was given on cross-examination. Thus, the case at bar is distinguishable from the case of Schneider v. State ex rel. Shorf, supra, on the facts.

In our opinion the trial court committed prejudicial error in sustaining the motion for new trial on the ground that error had intervened in permitting the plaintiff to call the defendant on cross-examination.

The defendant has filed a cross-appeal and assigns as error that the court erred in the admission of evidence; in overruling defendant’s motion to dismiss the complaint at the close of all the evidence, and that the verdict was contrary to the weight of the evidence and not supported by the evidence. We find no prejudicial error in the admission of evidence; neither do we find the verdict of the jury contrary to the manifest weight of the evidence. The other errors assigned are grounded on the contention of the defendant that the plaintiff could not prosecute the action inasmuch as the plaintiff was a married woman on the date of trial. The record shows that the plaintiff was not married when the child was conceived, when it was born and when she filed her complaint on December 20, 1947. The plaintiff married a person other than the reputed father of the child on May 14, 1949, The trial did not take place until February 23, 1950. Under these facts can the plaintiff prosecute the action? The defendant contends that under the principle of law announced in Haworth v. Gill, 30 Oh St 627, and Sullivan, Gdn. v. Wilkoff, Exrx., 63 Oh Ap 269, 26 N. E. (2d) 460, the action cannot be maintained. In Haworth v. Gill the syllabus is as follows:

“Proceedings in bastardy cannot be maintained on complaint of the mother, under the Act of April 3, 1873, ‘for the maintenance and support of illegitimate children,’ when the child in question was begotten and born during the lawful wedlock.”

On page 269 the court holds that if the complaint is not made until after delivery “it is equally certain that the complainant must still continue to be unmarried.” In that case the complainant was married prior to the time of the institution of the action. In the case at bar the complainant was unmarried at the time of the institution of the action, as the statute requires. In Sullivan Gdn. v. Wilkoff, Exrx., the court held:

“The only action provided by the statutes of Ohio whereby the mother may institute proceedings against the father of an illegitimate child is found in §12110 GC, which action may be maintained only by an unmarried woman.” (Emphasis ours.)

In that case a question arose as to whether there was any consideration for an agreement upon the part of the reputed father to pay the mother a sum of money which was agreed upon. The court, on page 275, states:

“At the time plaintiff’s ward was conceived, as well as when the child was born, the mother of the child was the lawful wife of the man her employer had induced her to marry and, under the facts alleged, this child beyond question is the legitimate child of the mother and her husband and being the legitimate child of the mother and her husband, it cannot be the illegitimate child of any other person.”

Neither one of the cases above cited lays down a principle of law applicable to the facts in this case. The court is required to construe the words of the controlling statute, which is §12110 GC, which in part provides:

“When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes a complaint in writing, under oath, before a justice of the peace, or in juvenile court, charging a person with being the father of such child, the judge or justice thereupon shall issue his warrant, * *

The express provisions of the statute require the complainant to be unmarried at the time of filing the complaint. Neither in this section, nor in the sections which follow, relating to bastardy proceedings, do we find any provision which requires the complainant to be unmarried at the time of trial. Sec. 12123 GC, in part provides that:

“If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him guilty, he shall be adjudged the reputed father of the illegitimate child * " 'Emphasis ours )

The accusation mentioned in this section is found only in the complaint filed by the plaintiff. Sec. 12125 GC, recognizes that a change of status on the part of the complainant may have taken place after the action is instituted. This section in part provides that:

“The death of the mother will not abate a prosecution instituted by her. A suggestion of the fact shall be made, and the name of her executor or administrator substituted on the record for that of the mother.”

Sec. 12134 GC, provides that if such an unmarried woman has not made complaint but would be eligible to make complaint, such complaint may be made by the executor, administrator or guardian of such unmarried woman. Counsel for the defendant contends that the holding of the court in Sullivan, Gdn. v. Wilkoff, Exrx., to the effect that the action may be maintained only by an unmarried woman, the word “maintained” refers to the prosecution of the action at the time of trial, as well as the time of the institution of the action. With this we do not agree. We are of the opinion that the marriage of the complainant in this case, after the proceedings in bastardy were instituted, did not deprive her right to prosecute the action to final determination. We find no assignment of error in the cross appeal well made.

The judgment of the trial court will be reversed and the cause remanded with instructions to overrule the motion for new trial and for further proceedings according to law.

MILLER, PJ, and HORNBECK, J. concur.


author: By MILLS, J.

text:
    ERNST v. WISE.
    Common Pleas Court, Montgomery County.
    No. 98914.
    G. E. Miller, Dayton, for plaintiff.
    Murray & McCarthy, Dayton, for defendant.
   OPINION

By MILLS, J.

This cause comes on for consideration of the motion of defendant to require the court to order the discharge of the attachment heretofore issued herein against the Miami Valley Hospital of Dayton, Ohio for the reason that on June 24th, 1949 this defendant filed a petition in bankruptcy in Federal Court of Dayton, Ohio, in which the judgment forming the basis for the said order was duly listed as one of the debts and the plaintiff notified thereof, and this defendant was duly discharged in bankruptcy on October 31, 1949.

The court has before it a certified copy of the discharge in bankruptcy filed in Case No. 9745 in the United States District Court for the Southern Division of Ohio.

The defendant contends that under the Bankruptcy Act, Title 11 U. S. C. A. §35, “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as ■' r * for willful and malicious injuries to the person or property of another.”

The defendant also cites Kreitlein v. Ferger, 238 U. S. 21, 35 S. Ct. 685, 59 L. Ed. 1184, quoting: “From the early days of federal bankruptcy law, the bankrupt’s discharge has been given a broad and liberal construction. Exceptions to its operation have been confined to those ‘plainly expressed’ and the burden is cast upon one asserting the status of a creditor to show that, ‘* * * the debt sued on was by law excepted from the operation of the discharge.’ ”

Plaintiff, Elizabeth Ernst, asserts that the judgment upon which this attachment is based was one for wilful and malicious injury and that it is not dischargeable in bankruptcy.

On June 2, 1948 plaintiff filed an amended petition which reads:

“Plaintiff, Elizabeth Ernst, for her first cause of action says that she was married to Urban E. Ernst on November 30, 1905 in Montgomery County, Ohio and that eight children were born as the issue of said marriage and that she is now and has been ever since November 30, 1905 the lawful wife of the said Urban E. Ernst.
“Further, plaintiff avers that on December 15, 1947, in consideration of plaintiff’s foregoing at that time the filing of a suit for alienation of her husband’s affections, defendant entered into a written agreement, a copy of which is in the possession of defendant and that under the terms of said written agreement, defendant agreed that she would not, from that day henceforth, permit the said Urban E. Ernst to come to her home and that she would not go with him to any places, and that upon her failure to carry out the said agreement, that said instrument of writing should be construed as an agreement to pay to plaintiff the sum of $5000.00 as and for damages because of defendant’s said actions; that in violation of said agreement defendant permitted said Urban E. Ernst to enter her home on March 22, 1948, March 29, 1948, April 5, 1948 and at divers other times since December 15, 1947.”

Plaintiff included in her amended petition a second cause of action for alienation of affections. However, defendant failed to appear on the day the case was set for trial and plaintiff obtained a default judgment for $5,000 on the first cause of action heretofore set forth.

It is contended by defendant herein that to be excepted in a discharge in bankruptcy the judgment herein should be predicated upon an action at tort rather than one in contract. This action, in which the judgment was given, is predicated upon a contract. Most courts throughout other states hold that the meaning of the exception for wilful and malicious injuries was meant to be predicated on an action in tort rather than upon a contract. However, the Supreme Court of the State of Ohio has spoken upon this subject and I quote from the second syllabus of Howland v. Carson, 28 Oh St 625: “A judgment of a court in a civil action between individuals existing against a bankrupt at the time the petition in bankruptcy is filed, is a debt, provable against the bankrupt’s estate, whether the cause of action on which such judgment was founded arose out of a tort or on a contract.”

This court has searched the case records in Ohio and has found no other expression on that subject.

The following is a copy of the contract entered into between the parties to this action:

“Dayton, Ohio “December 15, 1947
“I, the undersigned, Ada Wise, do hereby admit that during the past several years I have been seeing one Urban Ernst, husband of Elizabeth Ernst, and that I have met him at various places in the city of Dayton,'Ohio; that I have attended theaters with him, the admission to some for both Urban Ernst and myself being paid by the said Urban Ernst; and that in consideration of the said Elizabeth Ernst refraining from filing a suit for alienation of affections or damages of any nature against me, I do hereby agree that I will not, from this day henceforth, see or be in the presence •of the said Urban Ernst, wherever he may be, nor will I permit him to come to my home nor will I go with him to any places of any nature or description whatsoever, and that in the event I should fail to carry out the aforesaid agreement as to seeing or being with the said Urban Ernst, I hereby agree that this instrument of writing shall be construed as an agreement to pay to the said Elizabeth Ernst the sum of Five Thousand ($5000.00) Dollars as and for damages for my having seen and accompanied the said Urban Enrst during the past several years.”

The syllabus of United Mercantile Agencies v. Williams, 87 Oh Ap 273, 94 N. E. 2d 572, reads: “In a proceeding in aid of execution to enforce a judgment taken on a promissory note, where the record is silent as to the facts and circumstances under which the indebtedness was created and a defense of discharge in bankruptcy is interposed, evidence outside the record is inadmissible to show that the judgment debtor’s obligation is one that is excepted from the operation of a discharge by the provisions of Section 17, sub. a, Clause (4), of the Bankruptcy Act of 1938.”

See also Pass v. Webster, 85 Oh Ap 403, 83 N. E. 2d 116; Morrow v. Pfleiderer, 4 Oh Ap 283.

The court has not gone outside of the record in the instant case to see whether or not this case comes under the exceptions.

The court has referred to the contract quoted above and has had read back the testimony adduced when the case came to trial. It is evident the plaintiff herein had employed detectives to trace her husband and the defendant, Ada B. Wise, for several years. The evidence showed that a long time before the execution of this contract the defendant and the plaintiff’s husband had been consorting together; plairutiff’s husband visited defendant at her home on numerous occasions, both in the daytime and at night; had taken her to theaters, had met her at theaters; when he visited her at night “he always stayed until nine o’clock and hardly missed.” He and she were seen on her davenport in a compromising position and in a cemetery where she embraced him and at numerous times since the execution of the contract.

It is evident that this is a contract between plaintiff and defendant wherein defendant agrees not to proceed further in her conduct in order to further alienate plaintiff’s husband’s affections from plaintiff herein.

Quoting from Exline v. Sargent, 23 Ohio Cir. Ct. R. (Laning) 180, 1902:

“It is not the purpose of the bankrupt act to release a bankrupt from debts which are the result of his own wilful and malicious wrong doing.”
“Judgment for damages for the alienation of a wife’s affections is within Sec. 17 of the bankruptcy act of 1898, relating to ‘wilful and malicious injuries to the person or property of another’ and is not released by a discharge in bankruptoy.”

The court in the above cited case quotes from Flanagan v. Pearson, 42 Tex. 1, and Loveland on Bankruptcy, page 624:

“In order that the judgment shall not be released, the injury to the person or property must have been wilful and malicious. Whether the act was wilful and malicious must be determined by the record of the court in which the judgment was recovered.”

And from 1 American Ency. Law (2 Ed) 163:

“Whoever by fraud, persuasion or violence entices or takes a man’s wife away from him is liable to the husband for the injury thereby done him.”

“The ground of such an action is the infliction upon the husband of some one or more of the following injuries:

“1 — Dishonor of the marriage bed.

“2 — Loss of the wife’s affections.

“3 — Loss of the comfort of the wife’s society.

“4 — Value of her services, either total loss or as diminished.

“5 — Mortification and sense of shame occasioned by domestic wrongs. Cooley on Torts, p. 224.”

Webb’s Pollock on Torts, p. 269: “Next to the sanctity of the person comes that of the personal relations constituting the family. Depriving the husband of the society of his wife * * * is not less a personal injury, though a less tangible one, than beating or imprisonment.”

Quoting from Hartpence v. Rodgers, 143 Mo. 623, 45 S. W. 650: “In an action for the alienation of a wife’s affections, the husband is entitled to recover for the wrong and injury done to his feelings and character.”

These cases speak of the husband for the loss of his wife’s affections. No one will contend that the wife is not entitled to the same justice for the loss of the husband’s affections.

Quoting further from Westlake v. Westlake, 34 Oh St 621, 634, 32 Am. Rep. 397: “Before marriage the man and woman are endowed with the same personal right * * * in this state, neither the husband or wife unconditionally surrenders their personal rights by consummating the contract of marriage. On the contrary, each acquires a personal as well as legal right to the conjugal society of the other, for the loss of which either may sue separately.”

The Court of Appeals of Ohio, Lucas County, on December 20, 1943, decided the case of Weeks v. Streicher, 74 Oh Ap 253, 58 N. E. 2d 415, and said in the first syllabus: Malice,’ within Bankruptcy Act provision precluding discharge when judgment is for malicious injury to another, means a wrongful act, done intentionally, without just cause or excuse.” And further, on the same page say: “2 Malice, in common acceptation, means ill will against a person, but in its legal .sense it means a wrongful act, done intentionally, without just cause or excuse.”

This court is, therefore, of the opinion that the judgment herein was predicated upon a wilful malicious injury to the person of the plaintiff, Elizabeth Ernst, and is not dis-chargeable in bankruptcy.

Accordingly, defendant’s motion filed herein to discharge the attachment is overruled.


author: By MILLER, PJ:

text:
    CARDWELL, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2085.
    Decided April 28, 1950.
    L. R. Cousineau, Dayton, for plaintiff-appellant.
    Hon. Herbert S. Duffy, Atty. Geni., T. Vincent Martin and Hugh P. Brennan, Asst. Attys. Geni., Columbus, for defendantappellee.
   OPINION

By MILLER, PJ:

This is an action against the Industrial Commission of Ohio for personal injuries received in the alleged course of the plaintiff’s employment.

The answer after admitting the jurisdictional averments was a general denial.

A jury trial was had resulting in a verdict for the plaintiff. A motion for a new trial was not filed but a motion for a judgment non obstante veredicto was interposed, which was sustained and the judgment was rendered for the defendant. The sole question involved was whether or not the appellant’s injuries were received in the course of and arose out of his employment.

The record discloses that on the date of the alleged injury the appellant was employed by the Perry Auto Exchange, Incorporated, which was engaged in the business of conducting a used car sales business upon an open lot. His duties consisted of picking up and delivering cars, going to the bank and other errands, turning the lights on and off at the lot each day and acting as salesman and manager of the lot. He worked whenever needed and was subject to call at all hours, either day or night. On Sunday, November 24, the date of the injury, he was to receive telephone calls at his home as well as attending the lights. His employer testified that his duties at the lot were such as to require him to make three or four trips a day and that his employer furnished him an automobile for his own use.

The evidence discloses that on the above date the plaintiff left his home in his employer’s car about 3:00 P. M. accompanied by his wife. The purpose of this trip was social and after completing their visit they went to look at a house which the plaintiff was considering purchasing. Upon leaving the house he testified that it was getting dusk, which was around 7:00 P. M., at which time he was supposed to turn on the lights. He said he then started to go to the lot but after a short time his wife reminded him that he was to pick up some people. He then changed his course intending to pick them up since it was on his way home to go there, get the telephone calls, if any, and then proceed to the lot. It was while he was thus traveling that he was struck by a train at the railroad crossing and injured. Now under this state of facts was there any substantial evidence in the record tending to establish the plaintiff’s claim? It is the contention of the defendant that the actual employment of the plaintiff did not commence until he arrived at the situs of his employment and therefore the injury could not have been received in the course of or have arisen out of his employment.

The law seems to be well established in this state that an injury suffered by an employee in going to or returning from his employer’s premises where the work of his employment is carried on, excepting in special instances, is not occasioned in the course of, nor does it arise out of, the employment so as to entitle him to compensation. But the facts in this case seem to differ from the “going and coming” cases where the employee has a fixed time to appear at his employer’s place of business. The evidence here clearly establishes that the plaintiff was subject to call at all times, his employer testifying that he was on duty twenty-four hours per day; that his duty of turning on and off the lights required his traveling over the streets three or four times a day. When traveling is involved there can be no “fixed situs of employment.”

In the case of Marks’ Dependents v. Gray, 167 N. E. 181, Justice Cardozo lays down the test to be the reason for the trip, that when the main reason is in the employer’s business, the employee is in the course of his employment even if at the time he is doing some act beneficial to himself. He says:

“If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been can-celled upon failure of the private purposes, though the business errand was undone, the travel is then personal, and personal the risk.”

Another case somewhat similar to ours is found in Industrial Commission of Ohio v. Murphy, 50 Oh Ap 148, the syllabus of which is:

“Where an undertaker’s employee who has no regular hours of employment but is subject to call at all hours, is struck by an automobile while responding to a call from his employer to hurry to the funeral home, the injuries thus received are sustained during and by reason of his employment.”

The trial court in sustaining the motion seemed to have been of the opinion that when the plaintiff started for the used car lot he was acting in the course of his employment, taut that when he changed his course to pick up some people there was a “deviation,” which removed him from his employer’s business and that he was on an errand of his own at the time of the injury. This conclusion was arrived at because the evidence showed, the court said, “he was not proceeding in the direction of his home at the time of the injury, although the only testimony on the subject is that the plaintiff said he was going home.” When the trial court found that the plaintiff was not proceeding in the direction of his home he was finding a fact upon which there was a conflict, as the plaintiff testified that at the time of the injury he was proceeding to pick up the people, go home and get the telephone calls, if any, and then proceed to the lot to turn on the lights. What he was doing at the time of the injury we think was a factual question and should have been determined by the jury.

The Court gave two special instructions before argument which correctly stated the law, we think, as follows:

“1. I charge you, as a matter of law, that if Carl Cardwell was doing anything that had a casual connection with his employment at the time of injury, either through its activities, its conditions, its environments, or by order of the employer, then your verdict shall be for the plaintiff, regardless of the manner or direction in which he was proceeding to carry out that employment.

“2. I charge you as a matter of law that should you find that Carl Cardwell was proceeding at the time of injury to do any service that was appropriate and helpful to his employer, then he was in the course of his employment and your verdict shall be for the plaintiff.”

Having in mind that the plaintiff is entitled to a liberal construction of the law as set forth in Roma v. Industrial Commission, 97 Oh St 247, and Industrial Commission v. Weigandt, 102 Oh St 1, it is our conclusion that the question involved was properly submitted to the jury and the Court erred in sustaining the motion. The judgment is reversed and the cause is ordered remanded with instructions that the judgment non obstante veredicto be overruled and the judgment rendered for the plaintiff in accordance with the verdict.

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


author: By SKEEL, PJ.

text:
    STATE ex rel SPRUNGLE, Plaintiff-Appellee, v. BARD, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21989.
    Decided December 18, 1950.
    C. C. Fowerbaugh, Joseph L. Sweeny, Cleveland, for plaintiff-appellee.
    George J. McMonagle, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment of the Juvenile Court finding the defendant guilty, the proceedings being one in bastardy.

The complainant was a married woman at the time the child was conceived and also at the time of its birth. Her husband was a member of the Armed Services of the United States, he having entered such Services on February 15, 1943 and was sent overseas in June, 1943. He received his Honorable Discharge in Paris, France, on April 14, 1947. He did not return to this country and on August 16, 1947, he met death by drowning and was buried in Bagnolet Cemetery in Paris, France. The complainant testified that the bastard child was conceived about March 1, 1946 and was born November 15, T946 and that the defendant was the father of said child.

This complaint in bastardy was filed May 6, 1949 about nine months after the death of the complainant’s husband.

There is just one question presented: — Can the prosecuting witness maintain this action in bastardy against the defendant, when the child was conceived and born while she was a married woman, the proceeding being commenced, however, after the death of her husband?

Sec. 12110 GC provides:

“When an unmarried woman, who has been delivered of, or is pregnant with a bastard child, makes a complaint in writing, under oath, before a justice of the peace, or, in the juvenile court, charging a person with being the father of such child, the judge or justice thereupon shall issue his warrant, directed to any sheriff, police officer or constable of the state, commanding him to pursue and arrest such accused person in any county therein, and bring him forthwith before such judge or justice to answer such complaint.”

At common law there could be no question but that the complainant could maintain an action in bastardy under the uncontroverted facts in this case. Her husband was “beyond the seas” and access between them was impossible for over two years prior to the time the child was conceived.

It is 'the claim of the defendant that the right of the complainant to maintain the action is conclusively determined in Ohio by the case of Haworth v. Gill, 30 Oh St 627. The facts in the Haworth case were that the complainant was married to John B. Gill on March 26, 1869, and that she continued a “feme covert” until November 12, 1873 when she obtained a decree of divorce. The child was begotten in June, 1872, and born March 22, 1873. The complaint in bastardy was filed December 13, 1873, the complainant at that time being an unmarried woman. It was her claim, and she so testified, that the defendant was the father of the child and that her husband had no access to her for more than two years immediately before the birth of the child. The trial court charged the jury that if the proof clearly showed, beyond a reasonable doubt, that the husband of complainant had no access to her for more than two years immediately before the birth of the child, it was a bastard; and, if at the time of making her complaint in bastardy, she had been divorced from her husband, and if the jury were satisfied, from the evidence, that the defendant was the father of the child, they should find him guilty. Under the instructions, the defendant was found guilty and adjudged the reputed father.

The court said at page 628:

“We think the act in question (70 Ohio Laws 111) (providing for the maintainence and support of illegitimate children) was intended to provide for no such case. Its first section commences thus: ‘When any unmarried woman, who has been delivered of, or is pregnant with a bastard child, shall make a complaint thereof in writing’ * * L Looking at this phraseology, and to the purpose of the act, as shown by its title, we are very clearly of the opinion that it was not intended to invite or authorize an inquiry into the legitimacy of children begotten and born in lawful wedlock, whenever a heartless mother might desire to bastardize them at the expense of her own infamy.”

At page 629, the court also said:

“But no complaint could have been made in this case either during pregnancy, or for eight months after delivery. The child during all this time, was the innocent and honest child of a married woman; and in any proceeding under this act, would have been conclusively presumed to be legitimate.”

The syllabus of the case provides:

“Proceedings in bastardy cannot be maintained on complaint of the mother, under the act of April 3, 1873 (70 O. L. Ill; 4 Sayler, 2929; Sec. 5614 Rev. Stat.) ‘for the maintence and support of illegitimate children’ when the child in question was begotten and born during the lawful wedlock.”

Under the holding of this case, a proceeding in bastardy could not be maintained where the complainant was a married woman at the time the child was conceived, and also when the child was born. In other words, in such a proceeding, a child born during the continuance of lawful wedlock is conclusively presumed to be legitimate.

The theory of this case was, in part, followed by the Supreme Court in the case of Miller v. Anderson, 43 Oh St 473. The first, second and third paragraphs of the syllabus provide:

“1. The natural father of a child cannot be held for its support, under the statutes of this state, if the mother, after the child was begotten and during pregnancy, contracts a marriage with another man, who marries her with full knowledge of her condition.

“2. By such marriage the man so marrying, consents to stand in loco parentis to such child, and is presumed in law to be the father of the child and this presumption is conclusive.

“3. This rule has application to proceedings under the bastardy statutes, and has no relation to actions where questions of heirship and inheritance are involved.”

These cases both quote the first part of the common law definition of a “bastard” found in 1 Blackstone, 454, Chapter 16, which Chapter deals with “the rights of persons” as follows:

“A bastard, by our English laws, is one that is not only begotten but born out of lawful matrimony.”

And the opinion in the Haworth case, supra, follows this quotation by the following statement:

“And this statute (referring to what is now §12110 GC) by limiting complaints under it to unmarried women, evidently proceeded on the same idea.”

However, at page 457, Blackstone, under the same subject head says:

“As bastards may be born before the coverture or marriage state is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards. As if the husband be out of the kingdom of England, or, as the law somewhat loosely phrases it, extra quatuor maria, for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards. But, generally, during the coverture, access of the husband shall be presumed, unless the contrary be shown; which is such a negative as can only be proved by showing him to be elsewhere; for the general rule is, praesumitur pro legitimations.”

The rule as thus stated, under the undisputed facts in this case, would include the child born to the complainant as a bastard. And further, since this Chapter of the Code does not define the term ‘'bastard” it must be concluded that the legislature used it as it was understood at common law.

In 2 O. Jur., page 540 the author says:

“The common law defines a bastard as one who is begotten and born out of lawful wedlock. The term also includes a child born neither within lawful wedlock, nor within a competent time after its termination. Children born within lawful wedlock are bastards, if the fruit, not of marriage, but of adulterous intercourse.” Citing: 5 R. C. L. 722.

Subsequent cases presented to the Supreme Court involving proceedings in bastardy where the child was conceived during lawful wedlock but born after the marital relationship had been dissolved, have seemed not to have held to the strict theory of the Haworth case, supra, and in part at least follow the last quotation from Blackstone, as above set forth.

In the case of Powell v. State, 84 Oh St 165, the complainant was married to Karl Koch, on March 8, 1898 and was divorced on Sept. 15, 1904, although the journal entry was not filed for about two years thereafter and then entered nunc pro tunc as of Sept. 14, 1904. On Jan. 7, 1907, she filed a complaint in bastardy against the defendant alleging that on the 12th day of January, 1905, she was delivered of a bastard child and that the defendant was the father. Her evidence was to the effect that she separated from her husband February 22, 1904. The right to institute the action seems never to have been questioned although the child was conceived during lawful wedlock but was born after the divorce decree became effective. The court, in stating the law of the case, did not mention the cases of Haworth v. Gill, supra, or Miller v. Anderson, supra, although both were cited in each of the briefs of the parties. The syllabus provides:

“1. Every child begotten in lawful wedlock is presumed in law to be legitimate.

“2. Before such child can be adjudged a bastard the proof must be clear, certain and conclusive, either that the husband had no powers of procreation, or the circumstances were such as to render it impossible that he could be the father of the child.”

In the case of State ex rel Walker v. Clark, 144 Oh St 305, the right to institute a bastardy proceeding was in question when the child was conceived during lawful wedlock but born after the marriage had been dissolved by divorce. Again, without referring to the Haworth or Martin cases, supra, and modifying in part the second paragraph of the syllabus of Powell v. State, supra, the court held:

“1. A woman, who is unmarried (not having a lawful husband) and pregnant, may, under the provisions of §12110 GC, institute a bastardy proceeding charging another than her former husband with being the father of the child, even though such child was conceived during the existence of a lawful marriage.

“2. A child conceived during the existence of a lawful marital relation is presumed in law to be legitimate — a procreation of the husband and wife.

“3. Such presumption is not conclusive and may be rebutted by evidence, which must be clear and convincing, that there was no sexual connection between husband and wife during the time in which the child must have been conceived. (Paragraph two of the syllabus in the case of Powell v. State ex rel Fowler, 84 Oh St 165 overruled.)”

Sec. 12110 GC to §12135 GC inclusive, dealing with the subject of bastardy, were passed for the protection of both the complainant and the illegitimate child.

The statutes as amended in 1923 made no provision upon which to award support for the bastard child and therefore it was held in Pummell v. State ex rel Hill, 22 Oh Ap 340:

“1. Under §12123 GC, as amended by Act, April, 1923 (116 O. L. 296) bastardy proceeding is authorized for the sole benefit of the mother and is wholly exclusive in that respect.”

This chapter was amended in 1938 (117 O. L. 808) authorizing an order of support against the reputed father. In the case of Knox v. Covrett, 85 Oh Ap 524, the court, after quoting from Pümmell v. State ex rel Hill, supra, said:

“Sec 12123 GC, was further amended in 1938 (117 O. L. 806-808) provision being made for, among other things, the support of the child until 18 years of age.”

So that the Bastardy Act as amended in 1938, in part provides a benefit for the bastard child and should be construed to afford him its full protection. If it be held that where, as in this case, the complainant’s husband could not be and was not the father of the child, that the complainant cannot maintain this action for the purpose of securing a judicial •determination as to who is the father of the bastard child, and an order for support when such fact is judicially established, the mother, and she alone, will hold the sole responsibility for such child’s support. While the presumption of legitimacy with respect to children ■ conceived and born in lawful wedlock should not be lightly thrown aside, yet such presumption should not be permitted to relieve wrongdoers from their full legal obligation to support their illegitimate children when a reasonable construction of the statute will permit such result.

It seems to us clear that the case of Powell v. Walker, supra, so construed §12110 GC that the complainant does have the right to maintain this action. All other questions being factual and supported by credible evidence, the judgment of the trial court is affirmed. Exceptions noted. Order see journal.

McNAMEE, J, HURD, J, concur.


author: By HORNBECK, J.

text:
    SANDERS, Appellant, v. FLECKNER et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4428.
    Decided August 23, 1950.
    Fred G. Reiners, Cincinnati, Leonard J. Stern, Columbus, Kane, Kennedy, Brant & Morris, Richard A. Morris and Phillip J. Kennedy, of Counsel, Cincinnati, for appellant.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court sustaining an order of the Board of Liquor Control of Ohio revoking a D-5 liquor permit theretofore issued to the appellant.

The Board of Liquor Control predicated its order upon a finding of the truth of the charges against the permittee that he did not own or operate or conduct a restaurant in the place where the business was conducted and that he was not the owner of the business authorized by the permit issued to him by the Ohio Department of Liquor Control.

Upon the first presentation of this appeal to the Common Pleas Court the judge considered and determined the appeal as upon de novo hearing and made separate findings of fact and conclusions of law. Thereafter and before the judgment entry in the Common Pleas Court the Supreme Court had released its opinion in Farr and v. State Medical Board, 151 Oh St 222, whereupon the court reconsidered the appeal as upon questions of law only.

A stipulation is filed in this court to the effect that the record here shall consist of the narrative bill of exceptions, the transcript of testimony taken and the exhibits received by the Board of Liquor Control in cause No. 9963 before said Board, the docket and journal entry in cause No. 174,699 of the Court of Common Pleas of Franklin County, Ohio, and the original papers filed in said cause. This stipulation is signed by all counsel for the parties and allowed by the judge of the Common Pleas Court who heard the appeal.

Six errors are assigned which we will state as we consider them. The first assignment of error is that the finding and order of the Board of Liquor Control are contrary to law, contrary to and not sustained by the weight of the evidence.

It is insisted by the appellant that the burden of establishing the charges against the permittee is by clear and convincing proof. It is our opinion that the Board must sustain the proof by a preponderance of evidence only.

We have carefully read all of the rather voluminous transcript of the evidence taken before the Board and are impressed that the cause for hearing was well and carefully presented, that the testimony received was competent and that rejected was properly refused. We shall not discuss the determinative question at length other than to say there is ample support for the conclusion of the Board that the permittee was not the bona fide owner of the premises, the equipment, the kitchen and the business at the place where the Sanders Cafe was conducted.

The facts and circumstances surrounding the transactions by which the permittee claimed he came into ownership and control of the property the subject of the permit, were such as to support the conclusion of the Board, in its discretion, that the transactions were subterfuge and carried out with the purpose and intent that Sanders be given the indicia of title which would be an advantage in securing the permit. The Board had to draw its conclusions upon the probabilities and in the light of the equivocal and unrealistic testimony of the permittee upon matters vital to the acquisition of the property which he claimed to own and the management of the business, we cannot say that the Board was in error in resolving it against him. The written opinion of the Board in passing upon the citation shows an appreciation of the facts and the law controlling and full consideration of the determinative questions. The Board did not abuse its discretion in making the order which is the subject of the appeal.

The second and third assignments of error are that the Common Pleas Court erred in refusing to hear additional testimony offered by appellant on the appeal and in reducing the appeal from one on questions of law and fact to an appeal on questions of law only.

The trial judge in the light of Farrand v. State Medical Board, supra, could have made no order other or different than he did in the particulars challenged.

The fifth and sixth assignments of error are that the Court of Common Pleas erred in deleting certain language from the narrative bill of exceptions without notice to this appellant and without opportunity for hearing and that the court erred in overruling the motion of the appellant to correct the signed bill of exceptions by reinstating the language originally contained therein which was deleted by said Common Pleas Court. Granting all of the implications in the subject matter of these assignments of error they could not be held to be prejudicial to the appellant for the reason that under Farrand v. State Medical Board, supra, the Common Pleas judge had no right to consider or pass upon the subject matter which the narrative bill attempted to bring onto the record. The proffered testimony was not, in our judgment, newly discovered evidence in the Common Pleas Court.

Further, the assignments are not well made because it is not established that the narrative bill, the subject of the stipulation, was deleted in any particular by the trial judge nor that the subject matter through which a line has been drawn by pen and ink was not in that form when the stipulation was drawn and signed and acknowledged by the trial judge. The basis of this assignment is not exemplified on the record.

The supplemental assignments of error present no new questions.

The fourth assignment of error is that the Court of Common Pleas erred in its finding and judgment affirming the order of the Department of Liquor Control. The consideration which we have given the other assignments requires us to say that the judgment of the Common Pleas Court was not erroneous and should be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By DAVIES, J.

text:
    KAMMER, Exr., v. RAVER et.
    Probate Court, Hamilton County.
    No. 1651.
    Decided December 29, 1950.
    Gallagher, Dorr and Manley, Cincinnati, for plaintiff.
   OPINION

By DAVIES, J.

The court in this proceeding is asked to determine the persons who are entitled to receive, and their respective interests in, the property passing under Item VIII of the will of Katharine Dunham, deceased.

The decedent’s will, executed on July 10, 1935, is sub-divided into eight items, the first seven of which provide for the payment of debts, the appointment of an executor, and the distribution of certain specific bequests, and the last one of which items reads as follows:

“Item VIII. All the residue of my estate, be the same real, personal or mixed, I give, devise and bequeath in equal proportions to my beloved sister Margaret Kammer and my beloved brothers William Raver and Henry Raver.”

The decedent died on April 6, 1950. Her brother, Henry Raver, survived her. Her brother, William Raver, died in 1946, without issue. Her sister, Margaret Kammer, died in 1945, survived by her six children and only issue, Eleanor Kanney, Cecilia Fahrenkamp, Emma Kammer, William J. Kammer, Norbert P. Kammer and Vincent D. Kammer, all of whom survived their aunt Katherine Dunham, the testatrix.

Since Henry Raver survived the testatrix, he will receive directly, under the terms of her will, one-third of the residue of her estate.

By derivation “lapse” means falling from the original condition, and generally refers to a legacy or devise which would have taken effect if the testator had died the instant after he executed his will, but which fails because the devisee or legatee has, in some way, become incapable of taking under the will between the time the will was made and the time the testator died. At Common Law a lapsed devise or legacy fell into the general residuary clause, if there were such a, clause. If there was no general residuary clause, or if the lapsed devise or legacy was contained in a residuary clause, the property devised was distributed to the heirs of the testator. Page on Wills, Vol. 4, Chapter 39.

Many states, including Ohio, have passed statutes which modify or abrogate the common law doctrine that a legacy or devise lapsed when a beneficiary died before the testator.

The Ohio statute (§10504-73 GC), sometimes referred to as the anti-lapsing statute, provides for two contingencies.

The first sentence stipulates that “when a devise of real or personal estate is made to a child or other relative of the testator, if such child or other relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised as the devisee would have done, if he had survived the testator.”

Applying this first provision of the statute, the six children of Margaret Kammer, who survived the testatrix, clearly will take one-third of the residue of their Aunt Katharine Dun-ham’s estate because their aunt devised one share of three equal proportions of said residue to their mother, Margaret Kammer, who predeceased the testatrix, her sister, after the testatrix had made her will.

Secondly, the Ohio Statute provides that “if such devisee leaves no issue and the devise be of a residuary estate or of the entire estate after (a) debts, (b) other legacies and devises, general or specific, (c) a life estate, or (d) any other interest less than a fee or absolute ownership, to such devisee and one or more children or relatives of the testator, the estate devised shall pass to and vest in such other devisee or devisees surviving the testator in such proportions as the testamentary share of each devisee in the devised property bears to the total of the shares of all of the surviving devisees, unless a different disposition be made or required by the will.”

It is evident that the last provision of the statute applies to the one-third share of the residue devised to William Raver because the devise to him is part of a residuary estate devised by a relative (a sister) to him and to his sister and brother, with him dying before the testatrix without issue surviving her and with one of his co-residuary devisees, his brother, Henry Raver, surviving the testatrix and the other of said co-residuary devisees, his sister, Margaret Kammer, having predeceased the testatrix with issue surviving said testatrix.

The court has been asked to decide whether under these circumstances the lapsed devise to William Raver passes entirely to Henry Raver or one-half to Henry Raver and one-half to the six children of Margaret Kammer.

It will be noted that in the first sentence of §10504-73 GC, it is provided that when a devise is made to a primary beneficiary who dies, leaving issue surviving the testator, “such issue shall take the estate devised as the devisee would have done, if he had survived the testator.” In the second sentence of the section, which refers to a residuary estate, nothing is said about surviving issue of a deceased primary devisee. It must be assumed that the legislature intended if there is surviving issue of a deceased devisee named in a residuary clause that such issue will take the same as indicated in the first part of the section, that is “such issue shall take the estate devised as the devisee would have done, if he had survived the testator.”

The purpose of the statute is to prevent lapsing and the legislature certainly intended that the term devisee, whenever used therein, should include issue of such devisee when such primary devisee predeceased the testator. Such issue-of predeceased primary devisees are surviving devisees and. take as substituted devisees and not as heirs of the primary-deceased devisee. In other words, the phrase devisee or devisees surviving- the testator, used in the second sentence of the statute, includes both primary devisees and also issue of predeceased primary devisees who survive the testator.

It is, therefore, evident that the issue of such devisee have a testamentary share in a residuary estate and the proportion taken by such issue is determined by the number of all the shares of the surviving devisees, which means not merely surviving primary devisees but all the shares which take effect upon the death of the testator.

We hold that when a devise of a residuary estate is made to a child or other relative of the testator and one or more children or relatives of the testator, and if such child or other relative was dead at the time the will was made, or dies thereafter, leaving no issue, the estate devised to such deceased devisee shall pass to and vest in such other devisee or devisees surviving the testator in such proportions as the testamentary share of each devisee in the devised property bears to the total of the shares of all the surviving devisees, and the issue of such other devisee or devisees who predecease the testator shall take the estate devised as such other devisee or devisees who predecease the testator would have done if he or they had survived the testator, unless a different disposition be made or required by the will.

Accordingly, the share of the residuary estate of Katharine Dunham provided for her brother, William Raver, will be divided into two equal shares, one of which will go to her brother, Henry Raver, who survived her, and one of which will be divided between the children of her sister, Margaret Kammer, who predeceased her. Her entire residuary estate will be divided as follows:

Henry Raver, six-twelfths; Eleanor Kanney, one-twelfth; Cecilia Fahrenkamp, one-twelfth; Emma Kammer, one-twelfth; William J. Kammer, one-twelfth; Norbert F. Kammer, one-twelfth; Vincent D. Kammer, one-twelfth.


text:
    COUSINEAU, Guardian, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2074.
    Decided December 10, 1949.
    L. R. Cousineau, Dayton, Kenneth Agee, Columbus, for plaintiff-appellant.
    Herbert S. Duffy, Atty. Geni., T. Vincent Martin, Robert W. Halterman, Asst. Attys. Geni., Columbus, for defendant-appellee.
   OPINION

By WISEMAN, J:

This is an appeal on law from the judgment on the verdict rendered for the defendant in the Common Pleas Court of Montgomery County, Ohio. Motion for new trial was filed and overruled.

The plaintiff claims he sustained an injury on September 7, 1944 while working as a maintenance man for The Johnston - Shelton Company at Dayton, Ohio. The Industrial Commission recognized the injury and paid medical bills incurred, but refused to recognize any disability resulting from the accident. After final order of the Industrial Commission on December 6, 1948 denying compensation to the plaintiff the action was instituted in the Common Pleas Court.

The plaintiff based his claim for compensation on the fact that as a result of the injury which he sustained from falling from the ladder on September 7, 1944 he suffered from numbness, dizzy spells, loss of memory and psychoneurosis. The plaintiff presented evidence for the purpose of establishing causal connection between the injury and the alleged disability. The medical witness called on behalf of the plaintiff testified that after he had examined the plaintiff his diagnosis was “psychoneurosis, anxiety state, severe.” This examination took place on July 23,1947. Another medical witness testified that he diagnosed the plaintiff’s' condition as neurasthenia.

The hearings before the Commission extended over a considerable period of time, the first hearing taking place on June 11, 1947, and the last hearing on July 21, 1948. Some time prior to the last hearing the plaintiff was committed to the Dayton State Hospital because of mental illness. At the last hearing the defendant called Dr. E. L. Braunlin, a recognized psychiatrist, who testified that the plaintiff was a paranoid and that he had been suffering from paranoia at the time the injury took place and sometime prior thereto. He further testified that there was no causal connection between the injury and the condition from which the plaintiff was suffering.

The first error assigned by the plaintiff is that one of the medical witnesses called by the plaintiff was permitted to testify on cross examination that the plaintiff was suffering from neurasthenia and that such condition was not caused by the injury. Before the plaintiff is entitled to recover he must show a causal connection between his disability and the injury. This evidence goes directly to refute any claim of causal connection and was admissible for that purpose.

During the cross examination of the two medical witnesses called by the plaintiff it is apparent that the plaintiff proceeded to present the claim on the basis of an aggravation of a pre-existing disease. A change of the theory on which the plaintiff was entitled to recover was permissible even though not pleaded. Scherder v. Industrial Commission, 73 Oh Ap 172, 55 N. E. (2d) 340.

The second assignment of error is directed to the testimony of Dr. Braunlin, which was given after the plaintiff had been adjudged insane and was committed to the Dayton State Hospital. No issue of insanity was made, either by the pleadings or the evidence. The testimony given by Dr. Braunlin was given for the purpose of showing that the disability from which the plaintiff suffered did not arise by reason of the injury but from a mental condition which was progressive in its nature, and that at the time of the injury the plaintiff was suffering from paranoia although the disease was not as pronounced as at the time the testimony was taken. In our opinion this testimony was admissible.

Plaintiff further contends that the testimony of Dr. Braunlin was based on hospital records which were not introduced in evidence. The record shows that Dr. Braunlin took a history from the plaintiff, and that he also examined the records of the Dayton State Hospital and the Good Samaritan Hospital, which were not placed in evidence. The witness referred to these hospital records twice in his testimony. The plaintiff interposed a motion to strike the testimony of the •witness, which was overruled. We are unable to determine from the record how much this information influenced the witness in giving his expert testimony. It is apparent that the witness placed reliance on the findings made at the Good ■Samaritan Hospital. In our opinion to permit the witness to testify from information gathered from records not in (evidence constitutes reversible error.

The plaintiff also assigns as error the refusal of the court to give a special charge submitted by the plaintiff, as follows:

“I charge you as a matter of law, that, if you find the injury Roy Boughton suffered at the Home Store caused his insanity to appear sooner than it would have otherwise, had there been no injury, then your verdict shall be for the plaintiff.”

There was no issue of insanity and the court very properly refused to give this special charge on a matter which was not an issue in the case. The court properly charged on aggravation of a pre-existing mental condition. On this issue evidence was presented and there was ample evidence from which the jury could conclude that the plaintiff failed to prove by a preponderance of the evidence that the injury was the proximate cause of the disability. The jury resolved this issue in favor of the defendant.

Finding error in the record prejudicial to the appellant the judgment is reversed and the cause remanded for further proceedings according to law.

MILLER, PJ, and HORNBECK, J, concur.