author: By HORNBECK, PJ:

text:
    BARGE, Plaintiff-Appellee, v. HOUSE, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 699.
    Decided April 8, 1952.
    Goubeaux & Goubeaux, Greenville, for plaintiff-appellee.
    Jesse K. Brumbaugh, Stanley E. Mote, Greenville, for W. E. House.
   OPINION

By HORNBECK, PJ:

This is an appeal on questions of law from a judgment in the amount of $2,000.00 in favor of the plaintiff and against the defendant on an action for damages for personal injuries.

When we speak of the plaintiff we refer to Rodney Jerome Barge, the minor.

The action was instituted on behalf of the minor against the defendant, an employee of the State Highway Department, who was driving a State truck loaded with gravel in a southerly direction on a highway which intersected the Ft. Loramie and Yorkshire Road which latter highway extended east and west. Plaintiff was a passenger in an automobile driven by his brother which was moving eastwardly on the Yorkshire Road. A collision occurred in the intersection of the two highways resulting in substantial injuries to the plaintiff.

The negligence alleged was failure of defendant to observe a stop sign at the intersection and driving on to the Yorkshire Road without first stopping and ascertaining whether or not the automobile in which plaintiff was riding was approaching. The answer denied generally the negligence alleged and especially denied that he did not stop before entering the Yorkshire Road and averred that he did stop and looked to the west before again starting his truck and said that, when he started into the intersection, the plaintiff’s car had not reached a curve some 500 feet west of the intersection, that plaintiff’s car was approaching the intersection at a speed in excess of 60 miles per hour and that, when defendant had reached a point approaching the center of said intersection, he stopped his truck leaving sufficient space for the driver of plaintiff’s car to pass in front of the truck but that the plaintiff’s driver drove into the side of the truck. Defendant avers that the collision was directly and proximately caused by the sole negligence of plaintiff’s driver.

Five errors are assigned, three of which, the first, second, and fifth, are urged in the brief of appellant. We consider them.

First, the Court erred in permitting counsel for the plaintiff-appellee to propound certain questions to prospective jurors relative to the interest of said jurors in casualty insurance companies, which was objected to at the time by the defendant. It is urged by appellant that these questions were not propounded in good faith. Counsel for the defendant, not in the presence of the jury, advised the trial judge and opposing counsel that the defendant carried no indemnity accident insurance. Counsel for plaintiff asserts that the question was propounded in good faith with the knowledge that counsel represented insurance companies professionally. The questions, in our judgment, were not improper.

In qualifying jurors, counsel for the parties are seeking information which will be of assistance to them not only in challenges for cause but for the possible exercise of peremptory challenges. It is common knowledge that individuals may have predilections for the business in which they are engaged and, possibly, some prejudice against those whose interest may affect that business. The fact that defendant’s counsel represented insurance companies might, in the opinion of counsel for the plaintiff, affect in some particular the opinions of prospective jurors if they were in the employ of insurance companies, especially casualty insurance companies.

The second syllabus of Dowd-Feder, Inc., v. Truesdell, 130 Oh St 530, supports the propriety of the questions in this case subject only to the test set out in the third syllabus that they be propounded in good faith. We cannot say that the Court did not exercise sound discretion in determining that the questions were proper. '

Second, the Court erred in the admission of evidence offered by the plaintiff-appellee and objected to by the defendant-appellant.

This assignment has two branches. The highway patrolman testified, as an expert, to the speed of plaintiff’s automobile immediately prior to the collision based, in part, upon the length of its skid marks on the highway. It is urged that the admission of this testimony was erroneous. The witness stated that he employed a chart which was commonly used by his department in determining speed of an automobile by its skid marks on the highway. The highway patrol is recognized as an agency which considers traffic on the highway in all of its aspects. The question should have included more of the operative facts to permit of a probative answer. But the ground assigned as an objection to permitting the answer, viz: the use of a chart in reaching the conclusion stated, was not well made. In view of all of the testimony of the patrolman disclosing all of the factors which he included in forming his opinion no prejudice to the defendant intervened by the admission of the testimony.

The other aspect of the third assignment and the one error which arrests our serious attention relates to the admission of the testimony of several witnesses regarding the arrest of defendant and subsequent proceedings in the case in the Court of a Justice of the Peace. In this connection it would be well to advert to the decisive issue between the parties. Plaintiff’s success in his action depended, in large part, on proof of his claim that the defendant disregarded the stop sign against him and proceeded into the path of plaintiff’s car when he had the right of way. Defendant denied this claim and testified that he did stop.

It appears that Wm. H. Schneyer, a highway patrolman, arrested the defendant upon the charge that he

“did unlawfully operate a motor vehicle upon the public highway of the State intending to enter a through highway by failure to yield the right of way to all other vehicles, contrary to §6307-42 GC.”

The affidavit upon which the arrest was made was sworn to by the highway patrolman. The Justice of the Peace of the township in which the defendant was arrested and successor to the Justice who tried the defendant was called to the stand. The record of the proceedings was read in the presence of the jury but, at the conclusion of this testimony, an objection to it was sustained and, although there was no motion to strike, the jury did not properly have it for consideration.

However, the plaintiff, in chief, was permitted to testify, over objection and exceptions, that he had heard Mr. House admit that he failed to stop at the intersection but, in the first instance, the circumstances under which the statement was made were not permitted to be shown; but, later, without exception, the witness states the time and place when and where the admission was made at the “Squire’s” office and that the patrolman, the defendant and the “Squire” were there. Upon the record on this testimony we cannot say that its admission was prejudicial to the defendant’s case.

The highway patrolman on redirect examination, in chief, was interrogated and testified as follows:

Q. Were there any violations of traffic laws that you discovered as a result of your investigation?

Objection to the question sustained.

Q. Did you make any arrests?

Objection overruled.

A. I did, Sir.

Q. Whom did you arrest as a result of this collision?

A. Mr. House.

Objection.

Q. What was the charge?

Objection overruled and exceptions.

A. Failing to yield the right of way.

Q. Was a trial had subsequent to his arrest?

Objection sustained.

The driver of plaintiff’s car also was permitted to testify that he was not arrested and that the defendant was arrested and this testimony was received over the objection of the defendant.

The trial judge did not permit proof of the judgment entered in the case in the Justice Court. Thus, the rule that a judgment of conviction in criminal cases may not be offered in a civil action, Annotation to Interstate Dry Good Stores v. Williamson, 31 A. L. R. 262, was not breached, but, the reason for the rule applies to some of the evidence which was received.

By §11573 GC, the test of a reversible error is whether or not the improper admission of the testimony admitted over objection was prejudicial to the substantial rights of the party excepting.

Although the highway patrolman did not see the collision, he was permitted to testify and his competent evidence was favorable to the plaintiff. When, then, in addition to all of the other testimony respecting the criminal proceedings against the defendant the patrolman was permitted to say to the jury that, as a result of the collision, he had arrested the defendant because he did not yield the right of way to the plaintiff and that he did not arrest the plaintiff’s driver it must have accentuated in the minds of the jurors the opinion of the State patrolman that the plaintiff’s contentions on the issues in the case were correct. The jury may have believed that the arrest of the defendant by the patrolman, a police officer charged with enforcing traffic laws, was persuasive that the defendant was guilty of the offense with which he was charged. The incompetent testimony on a vital issue was definitely harmful to the defendant. The reception of this evidence, in our opinion, was erroneous and prejudicial to the defendant. On any subsequent trial no reference should be made to the árrest or subsequent proceedings in the Justice Court.

The fifth and final assignment of error is that the verdict and judgment are against the manifest weight of the evidence. We do not so find.

Upon the one error assigned, which we have heretofore discussed, the judgment will be reversed and the cause remanded for further proceedings according to law.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By MR. JUSTICE DOUGLAS: MR. JUSTICE MINTON,

license: Public Domain

text:
    STANDARD OIL CO. v. PECK, Tax Commr. et al.
    Supreme Court of the United States.
    No. 184.
    Decided February 4, 1952.
    Isadore Grossman, Rufus S. Day, Jr., Cleveland, for appellant.
    'Isadore Topper, Columbus, for appellees.
   OPINION

By MR. JUSTICE DOUGLAS:

Appellant, an Ohio corporation, owns boats and barges which it employs for the transportation of oil along the Mississippi and Ohio Rivers. The vessels neither pick up oil nor discharge it in Ohio. The main terminals are in Tennessee, Indiana, Kentucky, and Louisana. The maximum river mileage traversed by the boats and barges on any trip through waters bordering Ohio was 17% miles. These 17% miles were in the section of the Ohio River which had to be traversed to reach Bromley, Kentucky. While this stretch of water bordered Ohio, it was not necessarily within Ohio. The vessels were registered in Cincinnati, Ohio, but only stopped in Ohio for occasional fuel or repairs. These stops were made at Cincinnati; but none of them involved loading or unloading cargo.

The Tax Commissioner of Ohio, acting under §§5325 and 5328 GC, levied an ad valorem personal property tax on all of these vessels. The Board of Tax Appeals affirmed (with an exception not material here), and the Supreme Court of Ohio sustained the Board, 155 Oh St, 61, 44 O. O. 86, 98 N. E. 2d, 8, over the objection that the tax violated the Due Process Clause of the Fourteenth Amendment. The case is here on appeal. 28 U. S. C., Section 1257 (2), 28 U. S. C. A. Section 1257 (2).

Under the earlier view governing the taxability of vessels moving in the inland waters, City of St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L. Ed. 192; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, 26 S. Ct. 679, 50 L. Ed. 1082: Cf. Old Dominion S. S. Co. v. Commonwealth of Virginia, 198 U. S. 299, 25 S. Ct. 686, 49 L. Ed. 1059, Ohio, the state of the domicile, would have a strong claim to the whole of the tax that has been levied. But the rationale of those cases was rejected in Ott v. Mississippi Barge Line, 336 U. S. 169, 69 S. Ct. 432, 93 L. Ed. 585, where we held that vessels moving in interstate operations along the inland waters were taxable by the same standards as those which Pullman’s Palace Car Co. v. Commonwealth of Pennsylvania, 141 U. S. 18, 11 S. Ct. 876, 35 L. Ed. 613, first applied to railroad cars in interstate commerce. The formula approved was one which fairly apportioned the tax to the commerce carried on within the state. In that way we placed inland water transportation on the same constitutional footing as other interstate enterprises.

The Ott case involved a tax by Louisiana on vessels of a foreign corporation operating in Louisiana waters. Louisiana sought to tax only that portion of the value of the vessels represented by the ratio between the total number of miles in Louisiana and the total number of miles in the entire operation. The present case is sought to be distinguished on the ground that Ohio is the domiciliary state and therefore may tax the whole value even though the boats and barges operate outside Ohio. New York Central & H. R. R. Co. v. Miller, 202 U. S. 584, 26 S. Ct. 714, 50 L. Ed. 1155, sustained a tax by the domiciliary state on all the rolling stock of a railroad. But in that case it did not appear that “any specific cars or any average of cars” was so continuously in another state as to be taxable there. 202 U. S. at page 597, 26 S. Ct. at page 717. Northwest Airlines, Inc. v. State of Minnesota, 322 U. S. 292, 64 S. Ct. 950, 88 L. Ed. 1283, allowed the domiciliary state to tax the entire fleet of airplanes operating interstate; but in that case, as in the Miller case, it was not shown that “a defined part of the domiciliary corpus” had acquired a taxable situs elsewhere. 322 U. S. at page 295, 64 S. Ct. at page 952, 88 L. Ed. 1283. Those cases, though exceptional on their facts, illustrate the reach of the taxing power of the state of the domicile as contrasted to that of the other states. But they have no application here since most, if not all, of the barges and boats which Ohio has taxed were almost continuously outside Ohio during the taxable year. No one vessel may have been continuously in another state during the taxable year. But we do know that most, if not all, of them were operating in other waters and therefore under Ott v. Mississippi Barge Line, supra, could be taxed by the several states on an apportionment basis. The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile. See Union Refrigerator Transit Co. v. Commonwealth of Kentucky, 199 U. S. 194, 26 S. Ct. 36, 50 L. Ed 150. Otherwise there would be multiple taxation of interstate operations and the tax would have no relation to the opportunities, benefits, or protection which the taxing state gives those operations.

Reversed.

MR. JUSTICE BLACK dissents.

MR. JUSTICE MINTON,

dissenting.

I assume for the purposes of this dissent that none of the vessels in question were within Ohio during the tax year, and that, they were taxed to their full value by Ohio. The record shows that the vessels were all registered in Cincinnati, Ohio, as the home port, and that Ohio is the domicile of the owner. Ohio claims the right to tax these vessels because they have not acquired a tax situs elsewhere than their home port and domicile.

Seagoing vessels have always been taxable at the domicile of the owner. Southern Pacific Co. v. Commonwealth of Kentucky, 222 U. S. 63, 32 S. Ct. 13, 56 L. Ed. 96; Morgan v. Parham, 16 Wall. 471, 21 L. Ed. 302; Hays v. Pacific Mail S. S. Co., 17 How. 596, 15 L. Ed. 254 This same rule has been applied to vessels engaged in commerce between the different states. Transportation Co. v. Wheeling, 99 U. S. 273, 25 L. Ed. 412; City of St. Louis v. Wiggins Perry Co., 11 Wall. 423, 20 L. Ed. 192. The only exception to the rule until today was that where vessels had acquired a situs for taxation in some other state, that other state might tax them. Old Dominion S. S. Co. v. Commonwealth of Virginia, 198 U. S. 299, 25 S. Ct. 686, 49 L. Ed. 1059. In Ayers & Lord Tie Co. v. Commonwealth of Kentucky, 202 U. S. 409, 421, 26 S. Ct. 679, 682, 50 L. Ed. 1082, this Court said: “The general rule has long been settled as to vessels plying between the ports of different states, engaged in the coastwise trade, that the domicil of the owner is the situs of a vessel for the purpose of taxation, wholly irrespective of the place of enrollment, subject, however, to the exception that where a vessel engaged in interstate commerce has acquired an actual situs in a state other than the place of the domicil of the owner, it may there be taxed because within the jurisdiction of the taxing authority.”

In the case at hand, the vessels had not acquired a situs for taxation in any other state. They were at large in the Ohio and Mississippi Rivers, touching ports therein from time to time. There was no showing as to how much time any of the vessels spent in any state. Indeed, the time spent in any state by the vessels plying the Mississippi River could not be shown with any accuracy, as the states on each side own to the middle of the stream. The navigation channel might be on either side of the center line or right on the center line. Who is to say what state the vessels were in?

The doctrine of appointment applied in Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169, 69 S. Ct. 432, 93 L. Ed. 585, is not in point. In that case the domiciliary state had not sought to tax the vessels. The tax was approved in the Ott case only on the assurance of the Louisiana Attorney General that the taxing statute “was intended to cover and actually covers here, an average portion of property permanently within the State — and by permanently is meant throughout the taxing year.” Id., 336 U. S. at 175, 69 S. Ct. at page 435. Without such assurance there would have been no basis for applying the apportionment rule. New York Central & H. R. R. Co. v. Miller, 202 U. S. 584, 26 S. Ct. 714, 50 L. Ed. 1155; Pullman’s Palace Car Co. v. Commonwealth of Pennsylvania, 141 U. S. 18, 26, 11 S. Ct. 876, 879, 35 L. Ed. 613; Union Refrigerator Transit Co. v. Commonwealth of Kentucky, 199 U. S. 194, 206, 26 S. Ct. 36, 38, 50 L. Ed. 150.

The record in this case is silent as to whether any proportion of the vessels were in any one state for the whole of a taxable year. The record does show that no other state collected taxes on the vessels for the years in question or any other year. Until this case, it has not been the law that the state of the owner’s domicile is prohibited from taxing under such circumstances.

Southern Pacific Co. v. Kentucky, supra, is a case in point. There the owner of the vessels was a Kentucky corporation which operated between various coastal ports. None of the vessels were ever near Kentucky, but Kentucky was allowed to tax them because it was the state of the owner’s domicile. The vessels were in and out of other states’ ports, just as the instant vessels were in and out of other states’ ports; but the mere possibility that some other state might attempt to levy an apportioned tax on the vessels was not permitted to destroy Kentucky’s power to tax. The crucial fact was that the vessels were not shown to have acquired a tax situs elsewhere.

As recently as 1944 this Court would seem to have added vitality to the doctrine which should govern this case. Minnesota had taxed an airline on the full value of its airplanes, including those used in interstate commerce. Northwest Airlines v. State of Minnesota, 322 U. S. 292, 64 S. Ct. 950. 88 L. Ed. 1283. In upholding the tax, this Court said:

“The fact that Northwest paid personal property taxes for the year 1939 upon ‘some proportion of its full value’ of its airplane fleet in some other States does not abridge the power of taxation of Minnesota as the home State of the fleet in the circumstances of the present case. The taxability of any part of this fleet by any other State than Minnesota, in view of the taxability of the entire fleet by that State, is not now before us. It *. * * is not shown here that a defined part of the domiciliary corpus has acquired a permanent location, i. e., a taxing situs, elsewhere.” 322 U. S. at page 295, 64 S. Ct. at page 952. The fear of “double taxation” was much more real in that case than in the instant ease; yet the Minnesota tax was sustained because there was no showing that a taxing situs had been acquired elsewhere. The question of what some other state might do is no more before the Court in this case than it was in the Northwest case.

The majority today seeks to distinguish the earlier cases by magnifying the relevance of the continuous absence of the vessels from the domiciliary state. But the operative fact of the earlier cases was the absence or presence of another taxing situs. Where no other taxing situs was shown to exist, the state of the domicile was permitted to tax, irrespective of the amount of time the vessels were present in that state. Southern Pacific Co. v. Commonwealth of Kentucky, supra.

As it ■ is admittedly not shown on this record that these vessels have acquired a tax situs elsewhere, Ohio should be permitted to tax them as the state of the owner’s domicile. I would affirm.

      . Douglas Boundaries, Areas, Geographic Centers, and Altitudes of the United States and the Several States, 2d Ed. (U. S. Dept, of Interior, Geological Survey Bull. 817).


author: By THE COURT:

text:
    GREENVILLE (City), Plaintiff-Appellant, v. MARKER et, Defendants-Appellees.
    Ohio Appeals, Second District, Darke County.
    No. 691.
    Decided April 28, 1951.
    Paul W. Younker, T. A. Billingsley, Greenville, for plaintiff-appellant.
    Spidel, Staley & Hole, Greenville, for defendants-appellees.
   OPINION

By THE COURT:

This is an appeal upon questions of law from the judgment of the Probate Court of Darke County, Ohio, rendered upon a verdict of a jury in an appropriation proceeding. We have carefully examined the entire record arid considered all errors assigned and questions discussed in briefs of counsel.

We find no error assigned well made. Any error which may have been committed in admitting evidence as to the cost of sidewalks and curbs was completely cured by the court in its instructions to the jury. We find no error in the record of prejudicial character.

There is ample evidence to support the verdict of the jury. We are of the opinion that the parties hereto have had a fair trial and that substantial justice has been done.

Judgment affirmed.

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


author: By CRAMER, J.

text:
    LEIBROCK v. LEIBROCK.
    Common Pleas Court, Butler County.
    No. 67435.
    Decided May 5, 1952.

      Frank Schwab, of Connaughton & Schwab, Hamilton, for plaintiff.
    John D. Andrews, Hamilton, for defendant.
   OPINION

By CRAMER, J.

This cause is before the court upon plaintiff’s petition for divorce, the answer of the defendant thereto, the evidence, argument and briefs of counsel.

The defendant denies that either a ceremonial or common law marriage exists between her and the plaintiff. Admittedly no ceremonial marriage took place between these parties.

There is ample evidence before us as to cohabitation between plaintiff and defendant over a considerable period of time, probably from the year 1943 until June 1951, at which time they ceased cohabiting. The defendant vigorously disputes the existence of either a contract of marriage in praesenti or that they were treated and reputed as husband and wife in the community of Hamilton in which they resided all during the period in question.

We believe that the evidence fairly discloses that plaintiff, who for many years was a police officer in the City of Hamilton, and the defendant became intimate with each other in 1943. Both of these parties had previous marital experiences. The defendant has a son by a previous marriage who, at the time of the trial, was nineteen years of age. For quite some period of time he resided and had a separate room in the house occupied by these parties. The premises wherein the plaintiff and defendant cohabited from the year 1945 until June 1951 (the date of separation) was located on South “G” Street. This property had been purchased and was taken in the name of Anna Johnson, the defendant herein. During all this period the defendant operated a restaurant known as the Palace Lunch Room which likewise was entirely in her name.

Plaintiff claims, and the evidence supports this contention, that he frequently worked at this restaurant. It was shown that the plaintiff made purchases of provisions for the restaurant, waited on customers and did other work about the place. The defendant contends that he frequented the restaurant for the purpose of obtaining his meals without charge, and that he did so obtain them. That he rendered no service in and about the place of any consequence, and has no interest whatever in and to this business.

It is clear from the evidence that these parties made several extensive automobile trips together. The defendant’s son accompanied them on these trips, which were made in the years 1947, 1950 and 1951. On one of these trips the defendant’s son had a companion with him. On all of these trips these parties occupied one room, either at tourist courts or at hotels wherein they stayed. The plaintiff testified that he registered these rooms which they occupied in the names of Mr. and Mrs. Arthur Leibrock, and that on several occasions the defendant stood by and acquiesced in such registration. The fact of such acquiescence is denied by the defendant, claiming that on each occasion she remained in the car until after the registration was completed. It appears, however, that she was familiar with the fact that the plaintiff signed the register as Mr. and Mrs. Arthur Leibrock.

The appellant admits that all during the period that she and plaintiff occupied the same living quarters, that on many occasions they slept together. The living arrangements likewise support the conclusion that these parties did cohabit as husband and wife.

We have no difficulty in finding, and we believe that the defendant will admit, that such cohabitation took place during and over the period indicated.

There is likewise considerable evidence that these parties were reputed as husband and wife in the City of Hamilton and among their acquaintances and friends, both social and business.

A considerable number of Christmas cards are in evidence addressed to Mr. and Mrs. Arthur Leibrock, and were received by them from business acquaintances, friends, employees, associates, and from relatives of both parties. There is likewise evidence from which the conclusion could be drawn that one of the neighbors of these parties treated them as husband and wife. A visitor at the dwelling occupied oy these parties on South “G” Street testified that one felt that she was walking into the home of a man and wife.

The defendant admitted that she was familiar with a story appearing in the Hamilton Journal which was to the effect that she had reported a fire which was nearby and wherein her name was given as Mrs. Arthur Leibrock.

The plaintiff claims that he, on many occasions, referred to the defendant and introduced her to others as his wife, and that she acquiesced in such introductions. Likewise, it is claimed by him that patrons and employees of the restaurant knew and referred to her as his wife. That persons having business dealings with the 'defendant in connection with the restaurant and elsewhere referred to the defendant as Mrs. Leibrock or Ann Leibrock. The plaintiff offered considerable evidence in support of this particular claim.

The defendant was equally vigorous in her denial that she was ever known either about her business establishments, her home, or anywhere in this community as the wife of the defendant, or as Mrs. Arthur or Ann Leibrock. It is her claim that she was referred to as Ann Johnson or simply as Ann. She likewise had considerable evidence — furnished in the main by some of her restaurant employees — supporting her contention in respect to this particular matter.

All the books in connection with her various business establishments and apartments were kept in the name of Ann Johnson. Her accountant testified that all such records, including tax, social security and other required returns were in the name of Ann Johnson.

It is undenied that the restaurant employees gave plaintiff and defendant a quilt as a Christmas gift and that this present was made to “Ann and Art.” It is likewise admitted by the defendant that presents were given to the employees by her and plaintiff in the names of Ann and Art.

There is evidence, likewise undisputed, concerning a Christmas dinner given at the residence occupied by these parties. The dinner was in the nature of a family affair. One of the witnesses testified that on one occasion she went to the restaurant seeking a job and asked for Mrs. Leibrock. She further testified that the defendant, when asked by her if she was Mrs. Leibrock, stated that she was. This witness also testified that the defendant told her that she had told one Harry Washburn (with whom plaintiff claims she was associating) that she was married. The testimony of this witness was vigorously denied by the defendant.

Other evidence is in the record which supports the plaintiff’s claim that these parties bore the reputation in the community as being husband and wife.

We come now to consider what has been shown, if anything, in reference to an agreement to marry in praesenti made by these parties.

The evidence in respect to this particular matter may be summarized as follows:

The plaintiff testified that in 1943, at which time he and plaintiff were occupying the same apartment on South Third Street, the defenadnt said to him, “I will be your wife and you be my husband.” At that time he gave the defendant two rings, one a diamond engagement ring, and the other a wedding ring. The gift of the rings, plaintiff asserts, was made after the conversation above related.

Plaintiff further testified as follows: “She did call me her hubby and I would call her my little wife.” He also related that he and the defendant many times spoke about a marriage ceremony. That on one occasion, after they had moved to the “G” Street property, in discussing the question of a marriage ceremony, the defendant said to plaintiff, “There is no need to hurry, we are living here, we are man and wife now; we wouldn’t be any more if we were married.” The plaintiff also testified that the defendant wore both the rings which he gave to her, not only in thé home, but also at the Palace Lunch Room and other places outside the residence. Except for admitting the receipt of the engagement ring (the defendant denies wearing the wedding ring), the defendant denied engaging in the foregoing conversation and making the statements attributed to her. In other words, the position of the defendant is that there never was any agreement, express or implied, to become husband and wife.

The foregoing is substantially the only evidence in the record in respect to a claimed express agreement.

We next examine the evidence to ascertain what, if any, proof there is of any facts and circumstances from which an agreement of marriage in praesenti may be reasonably inferred.

In the case of Markley v. Hudson, 143 Oh St 163, 54 N. E. 2d 304, 306, Judge Hart in the course of his opinion made the following statement:

“This court still adheres to the doctrine that it is essential to show an agreement between the parties in praesenti to become husband and wife in order to establish a common-law marriage, but this does not mean that such proof must establish an express agreement resulting in contract, or that such result may not be established by circumstances from which an agreement in praesenti may be inferred.”

Judge Hart also declared, as follows:

“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 by showing that the parties declared themselves to be husband and wife; that they transacted business with each other and with third persons as husband and wife; that they lived together and cohabited as husband and wife for a series of years; and that they were so treated and reputed in the community and circle in which they moved.”

Here we have evidence that both parties declared themselves to be husband and wife. We refer to the testimony of plaintiff and witness Jessie Bowen.

The acts and conduct of the parties from which it might be claimed an agreement to marry could be reasonably inferred are as follows:

Plaintiff’s gift to and the wearing of a ring or rings by the defendant, and the defendant’s gifts to plaintiff. Acquiescence by the defendant in being introduced as plaintiff’s wife. Various financial transactions between the parties and their frequent consultations in respect thereto, and other ventures. Plaintiff’s participation with defendant in the purchase of the various properties and businesses acquired by her. Plaintiff was usually along when such transactions were completed and at least in one instance suggested to the defendant the advisability of purchasing one of the properties. The fact that plaintiff assisted in the operation of the restaurant and to some extent participated in its management. Plaintiff was given, by the defendant, access to the safety deposit box which stood in her name, “in case anything happened to her,” as she said.

The defendant’s living with the plaintiff over a long period of time, during a considerable portion of which her son resided with them. Likewise, defendant’s son accompanying her and plaintiff on the several trips these parties took is of probative value. In other words, might it not be assumed that a mother would be unlikely to want her son, of discerning years, to be about her if her relationship with the plaintiff were merely a meretricious one? Significant also is it that on one of these trips a friend and companion of the son was permitted to accompany the parties.

Consideration should also be given to the social affairs— such as the Christmas dinner given by these parties — at the residence they occupied together, and which were attended by friends and relatives.

The defendant’s acquiescence in plaintiff registering her as his wife at various tourist courts, hotels, and other places of lodging, is of probative value.

We also take into account the fact that the defendant testified that she did not go with the man with whom she is charged with associating by plaintiff, until after she and plaintiff became separated.

Plaintiff contends that the evidence which we have herein to some extent set out, establishes that a marriage relationship exists between these parties. He likewise contends that aggression and misconduct on the part of the defendant have been shown sufficiently to grant him a divorce from her.

There is, in our opinion, ample evidence, sufficiently corroborated, warranting the granting of a divorce to plaintiff in the event, of course, that the marriage relationship has been established.

It is the claim of the defendant that no common law marriage has been established by this evidence; that plaintiff therefore must fail in respect to this issue.

The elements essential to the establishment of a common law marriage have been well established by the various decisions of our Supreme Court. See Umbenhower v. Labus, 85 Oh St 238, 97 N. E. 832; In re Estate of Redman, 135 Oh St 554, 21 N. E. 2d 659; Markley v. Hudson, supra.

These cases declare that

“A mutual agreement of marriage in praesenti made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, as a result of which the parties are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage.”

It has likewise been asserted that the agreement to marry in praesenti must be proved by clear and convincing evidence.

In the disposition of this issue consideration should be given §8003-13 GC (formerly §11989 GO. That statute provides as follows:

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

The foregoing statute is found in the so called new Domestic Relations Act, under Chapter 3, entitled, “Divorce and Alimony.” This section of the Code has identically the same wording as former §11989 GC, which in turn was worded exactly as R. S. Sec. 5698. This statute has been on the books in substantially the same language for many years — since 1824.

The position of the plaintiff in respect to this statute is that it provides a way in which to establish common law marriage other than and in addition to that provided by the rule laid down in the Umbenhower v. Labus case, 85 Oh St 238, 97 N. E. 832. It is apparently his theory that the foregoing-statute dispenses with the necessity of proving an agreement in praesenti, and the marriage may be established by proof of cohabitation and reputation only.

It is the claim of the defendant that §8003-13 GC supra provides a method by which a ceremonial marriage may be shown when the proof of the official record of such a marriage is lost or otherwise unavailable. In other words, it is his theory that this statutory provision permits proof of cohabitation and reputation of the parties to establish a marriage that was ceremoniously entered into. That it certainly is no authority — in view of the many decisions of the Supreme Court of Ohio requiring clear and convincing evidence of an agreement in praesenti — for permitting the establishment of a marriage without showing the contractual basis thereof.

The court is unable to agree with either of these contentions.

It is our view that this statutory provision lends support to the theory underlying the authorities which hold that cohabitation and reputation are evidential facts from which the existence of a contract of marriage may be inferred. It is certainly not the law of this state that a common law marriage may be established without proof of an agreement to marry in praesenti. It is elementary that a marriage rests on contract. The Ohio authorities are unanimous in their holdings to the effect that an agreement to marry in praesenti is an essential element of a common law marriage and its absence precludes the establishment of such a relationship.

There is ample, respectable, authority holding that cohabitation and reputation are not essential to a common law marriage. This view 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 being true, cohabitation and reputation merely become evidential facts which permit the existence of the contract to be inferred. See 35 A. J. 199, Section 30; 55 C. J. S., Marriage. §22, p. 852; 33 A. L. R. 27.

In this connection the case of Gatterdam v. Gatterdam, 86 Oh Ap 29, 85 N. E. 2d 526, is highly enlightening.

It is our opinion that under §8003-13 GC, supra, marriage may be established in a divorce action, that is, a contract of marriage in praesenti -within the court’s discretion, by proof of cohabitation and reputation of the marriage of the parties. It is logical to hold that this statute permits, when the elements set out in the same are present, the court to find that the marital relation has been established, without respect to any other proof of agreement between the parties. This statute, of course, does not expressly require that a contract to marry in praesenti be established; it does, however, in our opinion, permit this essential element to be found from the proof of cohabition and reputation of the marriage of the parties.

See the Gatterdam case supra.

The view we take, we believe, is supported by the case of Markley v. Hudson supra, and also 26 O. Jur., 93; 35 A. J.. 326, See. 220.

It is interesting to note that as far back as 1832, in the case of Houpt v. Houpt, reported in 5 Ohio 539, the court stated as follows:

“Section 4 of the divorce act, 29 Ohio L. 432, authorizes the court, in its discretion, to admit proof of cohabitation and reputation as evidence of the marriage of the parties. We understand the marriage referred to here, which in our discretion, may be proved by reputation, etc., to be the marriage of the parties to the suit, sought to be dissolved.”

We are not in accord with the view expressed by counsel for the defendant -to the effect that it is the law of Ohio that common law marriages are recognized by courts only to protect the rights of innocent persons, and rarely otherwise. Rather, it is our opinion that when all the elements essential to a common law marriage are present, the fact that an innocent person will not be benefitted or protected thereby, will not preclude its establishment.

To infer an agreement to marry from the evidence of cohabitation and reputation of the marriage of these parties is consistent with and in favor of morality and decency.

Irrespective of our construction of the effect of §8003-13 GC supra, we conclude that the evidence warrants a finding that an agreement to marry in praesenti was entered into between these parties. Perhaps the evidence is not clear and convincing respecting an express agreement between them. However, we do find that the plaintiff has established, by clear and convincing evidence, the requisite agreement, by implication, from proof of the facts, declarations and conduct of the parties, and all the other facts and circumstances disclosed. In other words, it is our conclusion that plaintiff has shown an implied contract of marriage in praesenti.

Having found that a marriage has been established between these parties, we find, as indicated above, that the same should be dissolved by reason of defendant’s gross neglect of duty. The plaintiff will, therefore, be granted a divorce from her.

Prior to the filing of this action plaintiff filed a suit against this defendant wherein he sought to establish a partnership between them respecting the businesses and real estate holdings in the name of defendant. It was stipulated between the parties in the cause now before us that the evidence submitted in that cause, which dealt at length with the properties and businesses of the defendant, should be considered by the court in a determination of the issues here insofar as same may be applicable.

Therefore, in the determination of the question of alimony, which is sought by the plaintiff, the court will also consider the evidence submitted in the partnership action.

The defendant owns the following property, real and personal, to all of which Ann Johnson has title:

A restaurant business known as the Palace Lunch Room. This business (defendant does not own the real estate in which it is located) was acquired after the sale by the defendant of a small lunch room which she had prior to cohabiting with the plaintiff. The “Palace” has been a highly profitable venture and it is claimed by the defendant to have provided the funds which made it possible for her to purchase the other properties.

A bakery known as Houston’s Bakery. This business was purchased from the receiver for the sum of $12,000. Here too, only the chattel property is owned. Additional expensive equipment was purchased for the bakery and this business has likewise been a profitable enterprise.

The real estate, title to which is in Ann Johnson, is as follows:

A building located at 139 South “C” Street in the City of Hamilton, containing four apartments. This was purchased in 1944 for the sum of $5200. It produces a rental of approximately $190 per month furnished. The furniture and furnishings therein stand in the defendant’s name, although a small part thereof was owned by plaintiff prior to the acquisition of this property.

A dwelling on South “G” Street (corner of “G” and Pranklin), Hamilton, Ohio. This property was acquired in 1945 and the purchase price was $9,500.

A building located at Front and Dayton Streets, Hamilton, which contains two apartments and six sleeping rooms. This was acquired in 1948 for a purchase price of $13,000. It too is furnished and produces a rental of approximately $420 per month.

A vacant lot which was purchased for the sum of $2000.

A blanket mortgage covers the real estate, and, as of January 23, 1952, $21,275.01 was due on said mortgage. The monthly payments on the same are approximately $275.

The plaintiff claims that he expended somewhere in the neighborhood of $1500 to $2000 over this period of time in making improvements and repairs upon the various pieces of real estate, and that he spent considerable time in looking after the properties, collecting rents, etc.: It is likewise his contention that the purchase of the real estate and the operation of the Palace Lunch Room and the Houston Bakery were ma'de and undertaken at his suggestion and with his advice and counsel. He also claims to have made loans to the defendant to be used in connection with the purchases of properties or for their repair and improvement. It is also asserted that he put in many hours, much work and effort doing many and various jobs in connection with the operation of the lunch room. He therefore contends that whatever has been accumulated and acquired by the defendant resulted from his labor, management, and activities, along with that of the defendant; that 'their joint efforts created the estate she now has.

During practically the entire period in question plaintiff was a police officer in the City of Hamilton, working eight hours each day on various shifts. He therefore could devote only his off duty time in looking after these properties, and in performing work and service in and about the restaurant.

We are not too much impressed with the plaintiff's claim that his efforts, industry and judgment equalled the defendant’s in the acquisition, accumulation and preservation of these various properties; nor does the evidence support him. It may be conceded, however, that he made some contributions in those respects which aided in producing those results.

It is manifest that the defendant is highly industrious, and competent. She possesses business acumen, and it is apparent that her efforts, coupled with her ability have been chiefly responsible for creating the estate she now possesses.

The statute, §8003-17 GC, provides that (when a divorce is granted):

“The court may allow such alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree. Such alimony may be allowed in real or personal property, or both, or by decreeing either such sum of money in gross or by installments, as the court deems equitable.”

It is to be noted that in the allowance of alimony the court is to give due regard to property which came to either of the parties by the marriage.

All the property which now stands in the name of the defendant, with the exception of the restaurant, was acquired by her after the parties entered into the marriage relation which we find exists in this case.

It does not necessarily follow, however, that this property came to the defendant “by their marriage.” This would be true only as to that estate which plaintiff created or aided the defendant in producing, acquiring and retaining.

We believe that plaintiff should be awarded reasonable alimony in accordance with the permissive provisions of the statute.

The court therefore awards to plaintiff as alimony the real estate located at 139 South “C” Street, together with all the furniture and furnishings therein. The defendant will be ordered to convey the same to plaintiff free of and released from the blanket mortgage or any other lien against the same. She likewise will be ordered to execute and deliver a bill of sale for the furniture and furnishings to plaintiff. The decree is to provide that failure on the part of the defendant to make such conveyance and bill of sale to plaintiff within ten days following the entry thereof, will result in the decree operating as such.

The costs are to be taxed against the defendant.

An entry may be prepared in accordance with this opinion including a decree of divorce to plaintiff on the ground of gross neglect of duty.


author: Per CURIAM:

text:
    STATE, ex rel RAYDEL et, Plaintiffs-Appellees, v. RAIBLE, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22654.
    Decided October 1, 1952.
    Corrigan, McMahon & Corrigan, Cleveland, for plaintiffappellees.
    William J. Kraus, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

The appellee filed this motion seeking to dismiss the appeal for the reason that the order appealed from is not a final order.

The defendant was brought before a Justice of the Peace, on complaint for bastardy. The hearing, as provided by law, was had before the Justice at his office on Ontario Street in downtown Cleveland, and not within the territory of the township in which the Justice was elected. A preliminary hearing was had without objection, and the defendant was recognized for trial to the Common Pleas Court of Cuyahoga County and bail given. Thereafter many preliminary matters were presented and determined by the Common Pleas Court in which the defendant, by counsel, appeared and took part. The defendant was then ordered to appear personally, or by counsel, and plead guilty or not guilty on or before April 26, 1952. After such order was made, the defendant, to-wit, on the 15th day of April, 1952, filed a demurrer directed to the claim that the common pleas court was without jurisdiction of the “subject matter” of the action. The plaintiff filed a motion to strike the demurrer for the reason that the defendant had not complied with the previous order of the court to plead to the complaint. The court granted the motion and the demurrer was stricken from the files and the case advanced for trial to Sept. 15, 1952. It is this order from which this .appeal is taken.

The most that can be said for the order striking the demurrer from the files is that it was in fact an order overruling the demurrer. Such an order is not a final order and cannot be the subject of an appeal. An examination of the briefs filed in support of the demurrer discloses that there is no legal basis for the claim that the court is without jurisdiction of the “subject matter” of this action. Both a Justice of the Peace and the Common Pleas Court are vested by law with jurisdiction to hear a complaint in bastardy, the Justice of the Peace to cause the arrest of the defendant upon complaint properly filed, and upon preliminary hearing when and if there is evidence to support the complaint, to bind the defendant over to the common pleas court to hear and finally determine his guilt or innocence. (Secs. 12110 et seq., now 8006-1 to 24, inclusive, GC.)

An examination of this record seems to indicate a studied purpose to prevent a trial of this case on its merits. It could not be said, therefore, that an attempt on the part of the court to set the case for trial at a reasonable date, or in striking a demurrer which is without legal foundation, conceivably filed for purpose of delay, could thus be guilty of an abuse of discretion.

For the reason, therefore, that the order appealed from is not a final order, the motion is granted and the appeal is dismissed. Exc.

SKEEL, PJ, HURD, J; THOMPSON, J, concur.'


author: By THOMPSON, J:

text:
    STATE, ex rel RAYDEL, Plaintiff-Appellee, v. RAIBLE, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22515.
    Decided October 27, 1952.

      Corrigan, McMahon & Corrigan, Sindell & Sindell, Cleveland, for plaintiff-appellee.
    Wm. J. Kraus, Cleveland, for defendant-appellant.
   OPINION

By THOMPSON, J:

The present action constitutes an appeal to this Court on questions of law from an order of the Common Pleas Court of Cuyahoga County, under date of March 5, 1952, granting a motion of complainant in a bastardy action to stay and restrain the taking of depositions by the defendant. The transcript and bill of exceptions disclose that complainant, Alice E. Raydel, filed a complaint in bastardy against defendant, C. Greif Raible, before one Myron J. Penty, Justice of the Peace. A hearing under the statute was accordingly held at which complainant was examined by defendant’s counsel, as authorized by §8006-4 GC, the examination being reduced to writing and subscribed by her. Within thirty days thereafter, as provided by §8006-10 GC, the Justice of the Peace forwarded a certified transcript of the proceedings, including the testimony of complainant, to the Clerk of the Common Pleas Court of Cuyahoga County, the transcript being filed on October 22, 1951.

On December 19, 1951, counsel for complainant filed in the Common Pleas Court an application for an order staying the taking by defendant of the depositions of complainant. The application was in the following language:

“Now comes the complaining witness, Alice E. Raydel, by her attorneys, Sindell & Sindell, and applies to the court for its order staying the defendant, through his attorney, Wm. J. Kraus, from taking the depositions of Alice E. Raydel.”

The application contained a notice of hearing at a specified time and place. At that hearing on January 5, 1952, the application was overruled, and a motion was filed three days later by complainant for rehearing. Upon the re-hearing, which transpired before another judge of the same court, and based upon evidence presented, the Court of Common Pleas entered an order on March 5, 1952, stating that “until further order of the court, conditioned upon the appearance of the defendant herein and his availability to the complainant for prior depositions or the affidavit of an agreement by the parties hereto as to the taking of their respective depositions herein, the defendant by and through his counsel, be and hereby is restrained from taking the depositions of the complainant or any other witness in this cause.” The order referred to the fact that complainant had been previously examined before the Justice of the Peace court in the pending matter and that she had been there cross-examined at length by the defendant. The order likewise recited that plaintiff was seeking the depositions of the defendant who was then absent from the jurisdiction of the court and outside the United States, and that defendant’s counsel although requested by the court, had been unable to advise when and if the defendant would return to the jurisdiction and be available for the purpose of having his depositions taken by complainant.

The assignments of error in this court are nine in number. The principal assignments of error are as follows:

1. The court erred in granting a rehearing of the motion of complainant to stay the taking of her depositions.

2. The court erred in granting the motion of complainant to stay the taking of her depositions.

3. The court erred in staying the taking of the depositions of other witnesses, no motion for that purpose having been filed by complainant.

With respect to the motion for rehearing granted to complainant, we have pointed out that it was filed within three days of the court’s order of January 5, 1952. The motion alleged that it was based on “matters that were not before available” and it is dedueible from the bill of exceptions that various events had transpired since the filing of the motion on December 19th, .very possibly corroborating the original allegations. Under the circumstances, we find no abuse of discretion by the trial court in granting the motion for rehearing.

Coming to the second assignment of error that the trial court erred in granting the motion of complainant to stay the taking of her depositions, we reach the vital question before us. For its determination we turn to an examination of the right to take depositions as recognized under Ohio law.

In this state, the taking of testimony of witnesses by deposition is authorized and regulated by statute. 14 O. Jur. “Depositions” Sec. 3, p. 8. With respect to the taking of depositions in civil cases, see §§11521 to 11549 inclusive GC. These sections are found in Part Third of the Ohio General Code, Title IV, Procedure in Common Pleas Court, under Division III, in Chapter 3, entitled Evidence. Sec. 11526 GC, cited to us by counsel, provides as follows:

“Sec. 11526 GC: What deposition taken. Either party may commence taking testimony by deposition at any time after service upon the defendant.”

Our attention has been likewise called to §11497 GC, declaring in part as follows:

“At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness.”

This section is likewise a part of the procedure in Common Pleas Court set forth in Chapter III, Evidence. We also cite from the same Chapter, Section 11539, of which we quote the first sentence as follows:

“Sec. 11539’ GC. Where depositions may be used. Depositions taken pursuant to this chapter shall be admitted in evidence on the trial of any civil action or proceeding pending before a justice of the peace, or mayor or other judicial officer of a municipal corporation, or before arbitrators, a referee, or a master.” (Emphasis added.)

Although under §13444-15 GC, the examination of witnesses by deposition in criminal cases shall be taken and certified, and the return thereof to the court made as depositions are taken in civil cases, it is important to emphasize that depositions in criminal cases are governed by §13444-11 GC. The only condition under which depositions may be taken in such cases is by application in writing to the court for a commission to take the deposition of witnesses desired. The court has discretion, under such circumstances, to consider whether the right to take the deposition should be granted. This section is so significant that we quote it in full:

“Sec. 13444-11 GC. When an issue of fact is joined upon an indictment and a material witness for the state or the defendant resides out of the state, or residing within the state is sick or infirm, or about to leave the state, or is confined in prison, the prosecuting attorney, or the defendant, may apply in writing to the court for a commission to take the deposition of such witness. The court or judge may grant such commission and make an order stating in what manner and for what length of time notice shall be given to the prosecuting attorney or to the defendant, before such witness shall be examined. Such commission shall not be granted and such order shall not be made until there is filed with the clerk of said court, an affidavit stating in substance the evidence sought to be secured by deposition, and that it is competent, relevant and material, and it shall appear to the court that such evidence is relevant, competent and material.”

Our question for decision in this case is not whether a bastardy action is to be deemed a criminal action, or a civil action, so far as the applicable statutes relating to the taking of depositions are concerned. It has been frequently noted that a bastardy action in this state is a hybrid type of case, possessing criminal and civil aspects alike. The most recent decision of the Supreme Court of Ohio, discussing the nature of a bastardy action, is State, ex rel Gill v. Volz, 156 Oh St 60. The hybrid character of such action is apparent in the fact that the Ohio statutes regulating this type of case were for many years included in Title IV of the General Code of Ohio relative to Procedure in Common Pleas Court, grouped under Division VIII, along with Amercement and Contempt of Court. These were there described as quasi-criminal actions. (See Revised Statutes, Secs. 5614-5638 and later §12110 through §12134 GC, as amended in 110 O. L. 296 and repealed 124 O. L. 65, effective August 28, 1951.)

Bastardy proceedings are presently governed by §8006-1 through §8006-24 GC, effective August 28, 1951. It will be noted that §8006-4 GC, permitting examination of complainant by the accused, is the same as former §12111 GC. The only difference in the more recently enacted section, applicable to the present case, is that it refers to “the justice of the peace or juvenile judge,” while the former section referred to “the justice or judge.” Other new sections remain almost identical in form with former repealed sections, it being apparent from examination of the new Act that the main purpose was to give jurisdiction to juvenile judges, as well as to justice of the peace, in a bastardy complaint and not to change in any respects the essential character of the action.

We might, on the basis that a bastardy action partakes of criminal character, particularly in its preliminary stages, uphold the action of the trial court in the case before us on the ground that the provisions for taking depositions only upon application to court and by commission apply by analogy in such circumstances. We might also uphold the trial court’s action on the ground that a bastardy action is a special proceeding and that to the extent that the statutes here lay down specific requirements and methods of procedure, these shall be followed to the exclusion of general provisions of the Code. In this connection, we might point out that under §8006-4 GC, one examination of complainant by the accused had previously taken place and that only one preliminary examination of complainant is there authorized. We prefer to base' our opinion, however, on the broader ground that even if a bastardy action may be said to have such quasi-civil aspects that the general provisions of the Civil Code with reference to taking of depositions apply, and notably §11526 GC, which we have previously quoted, the trial court was none-the-less vested with authority to apply the section with a certain discretionary latitude or firmness as circumstances might require.

Under §11526 GC, authorizing either party to commence taking testimony by deposition at any time after service upon the defendant, no one would question the right of the trial court, we believe, to postpone or delay the taking of depositions of a party lying semi-conscious in a hospital. We also believe that no one would deny the right of the trial judge to delay the taking of testimony of one of the parties where some unforeseen and unexpected illness of counsel, or unanticipated “Act of God,” intervened.

In the present case, there had already been one cross-examination of complainant at the time of the preliminary hearing and that cross-examination had been thorough. At the time that complainant, through her counsel, filed her motion to restrain the taking of her deposition, there was some evidence before the trial court that harrassment and oppression of complainant was the purpose of the accused rather than the preparation of his own case and he himself was outside of the United States, unable to be reached by process and very possibly evading process. His counsel was unable to give the trial court any idea as to when his client might return to the United States and be available for a deposition hearing.

The order appealed from reveals that the trial court reached its decision restraining the taking of complainant’s deposition only “until further order of the court,” and it was based on evidence presented in open court. We believe the evidence justified firmness by the court. Furthermore, we think it important to stress that the trial court’s action did not deny the right to take depositions by accused. It merely postponed the taking “until further order of court.” We glean from the record that some kind of fisticuffs had been engaged in by counsel, and the court may well have desired not only to uphold its own dignity, but to provide a cooling off period for counsel and the parties. The court also undoubtedly had its own views as to the equities of the matter.

We therefore have before us the question whether a trial court has the authority to exercise a reasonable control over proceedings pending in its forum. We believe that the trial court had power to exercise a reasonable control over the deposition proceedings by deferring the taking of complainant’s deposition under the circumstances of this case. It is our view that such power is inherent in the trial court and that it may be invoked to insure the orderly administration of justice.

We find few cases concerning the right of the trial court to postpone the taking of depositions and no Ohio cases directly in point. We are impressed with the reasoning and essential wisdom of the decision of the Supreme Court of California, in Hays v. Superior Court, 105 P. 2d. 975 (1940). California has, as one of the provisions of its Code of Civil Procedure, a statute identical in purport with §1152C GC. We refer to Section 2021 of the California Code of Civil Procedure providing as follows:

“The testimony of a witness in this State may be taken by deposition in an action at any time after service of the summons or the appearance of the defendants * *

In the case cited, the question was whether this section-of the California Code gave a party an absolute right to take the depositions of an adverse party “at any time after the service of the summons or the appearance of the defendants.” The trial court had delayed the taking of a certain deposition in the case and on appeal from this decision, the Supreme Court of California was confronted with the question whether the trial court’s action constituted an abuse of discretion under the language of the statute.

In its opinion upholding the trial court, the Supreme Court of California declared:

“There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power necessarily exists as one of the inherent powers of the court and such power should be exercised by the courts in order to insure the orderly administration of justice. We find nothing in the code sections relating to the taking of depositions which can be construed as an attempt to withdraw that power with respect to deposition proceedings. It is true that the language of Section 2021 of the Code of Civil Procedure permits the taking of a deposition ‘at any time’ and that the permissive language of said section may be said to confer a right upon the litigants. But such right is not an absolute right but is a right which, like all rights relating to procedural matters, is qualified by the existence of the powers of the court to exercise a reasonable control over the exercise of such right. To deny the existence of such power is to deny the power of the trial court to order the continuance of a deposition in case of the illness of the witness or in case of the illness or the death of a party or his counsel. We do not believe that it would be seriously contended that the power to order a continuance does not exist under such circumstances; and if the power does exist under such circumstances, it may exist under other circumstances for its existence in the suggested cases must necessarily be based upon the power of the court to exercise a reasonable control over the proceedings. If, in any case, the trial court acts unreasonably or in such manner as to deny the right rather than to exercise merely a reasonable control over the exercise of the right, then the trial court would be acting beyond its powers and its actions would be controlled by mandamus or other appropriate remedy.”

Examination of the California cases indicates that the language quoted constitutes the law in California today, although the decision, on other grounds, is questioned by one concurring Judge in the more recent case of Brown v. Superior Court, 212 P. 2d. 882 (1949).

We are content to adopt as ours the language we have quoted in the absence of higher authority in this State.

We might add that in the Nisi Prius case of In re Detention of Helen E. Robinson, 7 N. P. 105 (1900) affirmed 19 C. C. 716 (Caldwell, Marvin & Hale, JJ) a Circuit Court decision of Cuyahoga County, the principle appears to be recognized that a court may intervene to postpone the taking of depositions where abuse of that process is indicated.

The power of a court to protect its own authority, and the rights of those who invoke its orderly processes has seldom been doubted under our theory of government. It is not susceptible of question here.

With reference to the third assignment of error, and in view of the fact that complainant’s request was to restrain the taking of her own depositions only, the trial court’s order in restraining the taking of' any depositions by accused was more inclusive than requested. We are modifying the trial court’s order in this one respect, as it pertaias to the postponement of the taking of depositions of other witnesses than complainant.

We have examined the other assignments of error and with the one modification noted, we affirm the judgment of the trial court.

Judgment affirmed. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, concur.


text:
    RAIBLE, Plaintiff-Appellant, v. RAYDEL et al, Defendant-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22523.
    Decided October 1, 1952.

      William J. Kraus, Cleveland, for plaintiff-appellant.
    Corrigan, McMahon & Corrigan, Cleveland, for defendantappellee.
   OPINION

Per CURIAM:

An appeal on questions of law having been taken to this Court by plaintiff appellant from a judgment and order of the Common Pleas Court of Cuyahoga County, entered on March 5, 1952, there has now been filed in this Court by defendants-appellees a motion to affirm the judgment and order of that Court. We address ourselves here to the last mentioned motion.

The judgment and order of the trial court complained of is not a final disposition of the case on the merits but a ruling of the trial court upon a motion by the defendants for a restraining order filed on January 7 1952, in a suit in equity still pending in the trial court. In that action, C. Greif Raíble, plaintiff-appellant here was plaintiff and Alice E. Raydel et al, defendants-appellees herein were defendants. The original petition in the trial court was to set aside a settlement agreement allegedly based on fraud, deceit,-duress, misrepresentation, lack of jurisdiction, mutual mistake of law and fact and want of consideration, and for recovery of money, accounting and equitable relief, in which a temporary restraining order was likewise sought.

In addition to the principal defendant, Alice E. Raydel, other defendants named in the petition included Charles Griffith Raydel, a minor, described as approximately four and one-half years of age, The Central National Bank acting as trustee under a trust agreement and six other defendants.

The notice of appeal to this court states the appeal is on questions of law from “a judgment and/or final order rendered by the court of common pleas, in the above entitled cause, on March 5, 1952, wherein said court granted the applications” of various defendants to restrain the taking of their depositions by the plaintiff.' The order is contained in the transcript before us and constitutes the ruling of the trial court on the motion of defendants to stay the taking of depositions. This motion is also a part of the transcript. A brief is attached to the motion but no affidavit.

The notice of appeal was filed on March 21, 1952. No bill of exceptions has been filed in this Court by plaintiff-appellant, but he has filed five assignments of error. These five assignments of error are as follows:

“1. That the court erred in granting the motion of defendants-appellees to restrain the taking of depositions of the defendants-appellees or any other witnesses in this cause by the plaintiff-appellant.
“2. That the court erred in ordering that the defendantsappellees’ depositions be restrained until the deposition of the plaintiff-appellant shall have first been taken.
“3. That the judgment and order of the court in granting the motion of the defendants-appellees was contrary to the evidence.
“4. That the judgment and order of the court in granting the motion of defendants-appellees was contrary to law.
“5. For other errors apparent on the face of the record.”

The motion of the defendants-appellees to affirm the judgment and order of the trial court of March 5, 1952, is for the reason that there is no bill of exceptions and that a bill of exceptions is essential to present to this court the alleged errors complained of by plaintiff-appellant.

It appears that a bill of exceptions was actually filed in the trial court more than forty days after March 5, 1952, the date of the judgment and order complained of, but this bill of exceptions, on motion of defendants, was stricken by the trial court as filed too late in that court under the provisions of §11564 GC. There is consequently no bill of exceptions before us.

In view of the motion of the defendants-appellees to affirm the judgment and order of the trial court of March 5, 1952, we are called upon to determine whether under §11564 GC a bill of exceptions is required in connection with the present appeal on questions of law, in order to demonstrate the errors of the trial court complained of, or whether such alleged errors can be sufficiently disclosed by the pleadings or the transcript of the docket and journal entries. Cary v. Wilsey, 71 Oh Ap 122.

As we examine the five assignments of error, we find that the errors of the trial court complained of are insufficiently shown by examination of the transcript and pleadings alone and that a bill of exceptions is necessary to reveal the basis for action by the trial court. We note that the original action in the trial court was one in equity, that a minor of tender years is one of the parties defendant, and that no guardian ad litem had been appointed for the minor defendant at the time of the application by plaintiff to take the depositions of various defendants. The transcript further shows that the journal entry of March 5, 1952 constituted a ruling on the motion of defendant, Alice E. Raydel, and others, to restrain the plaintiff from taking depositions only “until the further order of the court.” Since no affidavit is attached to the motion, in the absence of stipulation or other explanation revealed by the transcript, it is apparent that the motion was heard on the basis of testimony offered in the trial court. The court order of March 5, 1952, further bears out this conclusion, for it refers to a court hearing of February 29, 1952, and the third paragraph of the order reveals that the court reached its decision on the basis of the motion and evidence, and findings of the court. In the absence of a bill of exceptions, the evidence considered by the trial court is not before us, and we must, therefore, indulge all presumptions in favor of the trial court. Barrett v. W. S. Golf Co., 11 Abs 323.

It is perhaps enough to suggest, as possible explanation of the trial court’s action, that although a chancellor has broad discretion he will ordinarily give no relief to a complainant coming into his court with unclean hands. The present order appealed from recited sufficient reasons, in view of the absence of the plaintiff from the jurisdiction, to restrain him “until further order of court” from taking depositions of the defendants when he, himself, was outside the continental limits of the United States and therefore beyond the reach of the chancellor, with his return date unbeknown to his counsel. It is a fundamental principle that he who would invoke the aid of equity must himself do equity. In the absence of a bill of exceptions we cannot assume that this was the motivating spirit of plaintiff, or that the trial court was not cognizant of its duties, particularly where the face of the record indicates that protection of a minor defendant may well have been a prima consideration of the trial judge.

The motion to affirm the judgment and order of the trial court is granted. Exceptions noted.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


text:
    RAIBLE, Plaintiff-Appellant, v. RAYDEL et al, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22629.
    Decided October 1, 1952.
    William J. Kraus, Cleveland, for plaintiff-appellant.
    Corrigan, McMahon & Corrigan, Cleveland, for defendantappellees.
   OPINION

Per CURIAM:

This cause comes before this Court at this time on motion of defendants-appellees to dismiss the appeal of the plaintiff-appellant on the ground that the matter appealed from is not a final order.

For purposes of brevity, the parties will be designated as plaintiff and defendants as they appear below.

The action is predicated upon an amended petition containing eight causes of action filed by C. Greif Raible as plaintiff, against nine defendants, which seeks to set aside a settlement agreement in writing dated June 29, 1948, providing for the maintenance and support of a minor child of the defendant, Alice E. Raydel. The agreement was the result of a bastardy proceeding in a Justice of the Peace Court, wherein the plaintiff, C. Greif Raible was charged with being the father of said child. The settlement agreement, as appears by the record, was made in pursuance of the provisions of §12114 GC, the pertinent part of which reads as follows:

“If, during the examination before the justice or judge, or before judgment in the court of common pleas, or juvenile court, the accused pays or secures to be paid to the complainant such amount of money or property as she agrees to receive in full satisfaction of all claims, she may have individually against said accused arising out of said complaint, such justice, court, or judge shall discharge him from custody, upon his paying the costs of prosecution. Such agreement must be made or acknowledged by both parties in the presence of the justice, court, or judge, who thereupon shall enter a memorandum thereof on his docket or cause it to be made upon his journal * * *.”

According to the terms of the agreement, The Central National Bank of Cleveland was designated as trustee and directed as first charge upon a certain trust estate to pay the sum of $500.00 monthly for the support of said minor child. In his amended petition the plaintiff included said Central National Bank, trustee, as a party defendant. Upon receipt of the summons, the bank trustee ceased payments which it had been making regularly since the time of the settlement, a period of nearly four years, and filed a motion for an interlocutory order with the court praying for instructions as to the disposition of said monthly payments, pending the outcome of the suit. Defendants filed certain motions and caused to be issued subpoenas duces tecum which were served on the plaintiff instructing him to appear and produce documents and give his testimony, in order that the court might dispose of the motion of the bank trustee praying for instructions. The plaintiff failed to attend in response to the subpoenas. Whereupon the court issued an order requiring the plaintiff to attend and produce evidence and give testimony. From this order the plaintiff appeals to this court on questions of law.

Upon consideration of the record we are of the opinion that the order appealed from is not a final order and that the order of the trial court does not constitute an abuse of discretion as alleged by plaintiff.

The trial court on the state of the record shown here was acting within the limits of its jurisdiction and of sound discretion, by requiring plaintiff to appear and testify in response to subpoenas. It is our view that the trial court in such a case has authority to compel the attendance of a plaintiff who seeks equitable relief, to appear and testify concerning matters initiated by the action of the plaintiff himself. Furthermore, the court in such a situation has power and authority to issue a body attachment compelling plaintiff to appear in response to the subpoenas issued and the order of the court, and has authority to proceed further by citing the plaintiff to show cause why he should not be found guilty of contempt for his defiance of the court’s order.

Considering these matters, it appears to us that the trial court was very lenient and that the plaintiff has no cause to complain either in the trial court or by appeal to this court. The conduct of the plaintiff who comes into a court of equity for relief and then challenges the jurisdiction of the court to require the attendance of plaintiff to testify under oath in response to subpoenas, is such as to require strict measures on the part of the trial court, and defiance of the trial court will not be countenanced or condoned by this court.

On the face of the record this appeal, as well as the appeal covered by memorandum of even date herewith on Motion No. 10179, is so obviously frivolous and without merit as to lead to the inevitable conclusion that the principal purpose is to hinder and delay the normal progress of litigation. The parties are admonished that we will not permit the Court of Appeals to be used as an instrument for the purpose of dilatory, vexatious and frivolous appeals. We are not now passing upon the merits of this litigation but we feel that the litigants should be reminded that all persons stand alike before the bar of justice, and that no person, whatever his or her position in life may be, is above the law.

As hereinbefore stated, we are of the opinion that the order appealed from is not a final order and that the appeal should be dismissed.

Further we find there are no reasonable grounds for bringing this appeal and the same is dismissed at plaintiff’s costs. Exceptions noted.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


text:
    RAIBLE, Plaintiff-Appellant, v. RAYDEL et al, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22634.
    Decided October 1, 1952.
    William J. Kraus, Cleveland, for plaintiff-appellant.
    Corrigan, McMahon & Corrigan, Cleveland, for defendantsappellees.
   OPINION

Per CURIAM:

This cause comes to this court at this time upon the motion of the defendants-appellees to dismiss the appeal of the plaintiff on the ground that the matter appealed from is not a final order. This arises from the agreement described in a Per Curiam opinion ruling on the Motion No. 10177, Case No. 22629 in this court.

The several defendants except the corporate defendant, filed motions each on their own behalf to reform; to separately state and number; to make definite and certain; to require plaintiff to elect, and to strike. To these motions the plaintiff filed a motion to consolidate all of the defendants’ motions. The court of common pleas overruled the motion of plaintiff to consolidate and ordered the plaintiff to proceed in the regular order. From this order the plaintiff appeals to this court, claiming that the court abused its discretion in overruling plaintiff’s motion to consolidate.

We are of the opinion that the order of the court is an interlocutory order concerning a matter fully and completely within the jurisdiction of the trial court. By statute, the court may in its discretion grant or overrule such a motion.

It is our conclusion that the motion to dismiss the appeal should be granted.

Further we find no reasonable grounds for bringing this appeal and the same is dismissed at plaintiff’s costs. Exceptions noted.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


author: By DIETRICH, J.

text:
    GILGER, Estate of, In re.
    Probate Court, Portage County.
    No. 17698.
    Decided July 7, 1952.

      James W. Harrah, Akron, for the heirs of John W. Gilger.
    Philip Jones, Ravenna, for the heirs of Lilly M. Gilger.
   OPINION

By DIETRICH, J.

The parties to this case agree that the following is a correct statement of the facts involved:

On March 1, 1952, John W. Gilger and his wife, Lilly M. Gilger, while crossing a street in the village of Mogadore, Ohio, were struck by an automobile. Mr. Gilger died within a few minutes and his wife died on March 21, 1952, admittedly from injuries sustained in this accident. No children had been born as the issue of the marriage of John and Lilly Gilger. Mr. Gilger is survived by two brothers, a half-sister, two nephews and two nieces. Mrs. Gilger is survived oy two brothers and a sister. Both parties died intestate.

On April 15, 1952, the administrator of the estate of John Gilger filed the inventory and appraisal of his estate. In this inventory, John Gilger’s administrator listed all property that stood in the names of both parties at the time of death under the belief that a correct interpretation of §10503-15 GC, justified such action. The administrator of Lilly M. Gilger’s estate filed exceptions to this inventory and the matter was submitted to the court for an interpretation of §10503-18 GC and a determination of the rights of the heirs to these two estates.

Sec. 10503-18 GC, is as follows:

“Presumption of Order of Death. When there is no evidence of the order in which the death of two or more persons occurred, no one of such persons shall be presumed to have died first, and the estate of each shall pass and descend as though he had survived the other or others. When the surviving spouse or other heir at law or legatee dies within three days after the date of death of the decedent, or within thirty days after the date of death of such decedent, if such death resulted from a common accident, the estate of such first decedent shall pass and descend as though he had survived such heir or legatee. The provisions of this section shall not prevail over the right of election of a surviving spouse.”

What was the intent of the legislature when it enacted this statute? Obviously the purpose was to vary the general law of descent and distribution in order to prevent a surviving spouse from inheriting the estate of a decedent, when due to the circumstances of her death, she could have no need or use of it, and both her estate and that of the first decedent would pass to her heirs.

One of the first cases to'consider this section after it became effective on January 1, 1932, was Estate of Thatcher, 30 O. N. P. (N. S.), 515. This decision contains the following as to the purpose of this law:

“When an heir or legatee of a deceased person dies so shortly after the death of such deceased person, so as to eliminate the possibility of such heir or legatee enjoying the benefits derived from the estate of such deceased person, there is no reason in law or equity for causing the estate of such deceased person to pass from his or her heirs to the heirs of the beneficiary who does not survive long enough to enjoy the benefits therefrom.”

In this opinion, Judge McClelland also quotes from the original minutes of the Probate Code Committee of the Ohio Bar Association which drafted this section. This quotation shows that the intended purpose of this section is to prevent the inequity that would result “in letting all property pass to the other branch of the family where there is only a few days difference in the time of death.”

To the same effect is Estate of Kessler, 85 Oh Ap, 240, 40 O. O. 167, where the court states (page 242) that the purpose of “this statute was to prevent double inheritance.”

It should be noted also that this section does not establish a presumption as to the order of death although it is so entitled in the Code. As said by the Supreme Court: Ostrander v. Preece, 129 Oh St, 625, 3 O. O. 24, it is an “enactment, repealing, modifying or changing the course of descent and distribution of property and the right to inherit or transmit property. It does not establish a presumption of the order of death, but merely defines the right of inheritance to property of those who die within the time and under the circumstances therein described.”

The first contention of counsel for the estate of John Gilger is that under this section all of the property that was in his name at the time of his death (with certain exceptions that will be considered later) passed to his heirs; that no part of Mr. Gilger’s estate passed to his wife and her heirs have no claim against his estate. With this contention the court agrees.

This section sets up the legal fiction that the first decedent died last and that no part of his estate passes to the spouse who survived him by less than thirty days. In fact the decisions interpreting this section have held that there is no widow in legal contemplation and her heirs could claim neither the property exempt from administration under §19509-54 GC nor a year’s allowance. Estate of Thatcher, supra; Estate of Metzger, 140 Oh St, 50, 23 O. O. 257. In the Kessler case it is stated:

“The effect of this provision of the statute is not to make each decedent the survivor of the other, and as a consequence, each decedent the heir of the other, but rather to deprive the second decedent from taking any part of the estate of the first decedent when death occurs under conditions set forth in the statute.”

A similar result was reached in the Ostrander v. Preece case.

The second contention of counsel for John Gilger’s estate is that not only do the heirs of Mr. Gilger inherit his estate, but the effect of the statute is to make Mr. Gilger the heir of his wife; that all her separate estate passes to her husband’s estate and so to his heirs, eliminating her heirs from any inheritance. His theory is that the second decedent’s estate is governed by the same provisions as that of the first. With this contention the court cannot agree. To follow this theory would result in the inheritance by one group of heirs, of the estates of both decedents, thus defeating, entirely, the obvious purpose of the statute.

If we look first at the language of the statute itself, its meaning is quite clear on this point. It says “the estate of such first decedent shall pass and descend * * No provision is made as to the descent of the estate of the second decedent. The legal fiction as to descent does not apply to the estate of the second decedent. Accordingly, Mrs. Gilger’s estate would be governed by the general statute of descent and distribution (§10503-4 GC) and since actually Mr. Gilger did not survive her, Mrs. Gilger’s estate would go to her heirs. As stated in the Thatcher ease (page 521) “The court finas and adjudges that the wife’s heirs are entitled by the law of this state to inherit her estate, and that her husband — by virtue of §10503-18 GC, is not entitled to inherit her estate.”

There is a similar conclusion in the Kessler case and in Harrison v. Hillegas, 13 O. O. 523.

The foregoing principles would govern, generally, the distribution of the assets of these two estates. However there are three classes of assets which are controlled by special rules.

Listed in the inventory is a savings account in the amount of $700. This is in the Mogadore Savings Bank and according to the bank records is in the names of “John or Lilly Gilger or survivor.”

It is a well established rule in Ohio that §10503-18 GC has no application where the husband and wife are owners of a joint and survivorship bank account and the proceeds from said account are payable to the estate of the second decedent under the law of contract.

“This statute operates in the field of the law of inheritance and has no application to rights vested under contract.” Estate of Kessler (supra).

“A joint and survivorship account at the time it is created carries a present vested interest and is not affected by the laws of descent and distribution.” Oleff, Adm. et al. v. Hodopp. Gdn., 129 Oh St, 432, 2 O. O. 409.

There are involved in these two estates, life insurance policies of three types: (1) Policies in which Mr. Gilger was the insured and Mrs. Gilger was the beneficiary; (2) Policies in which Mrs. Gilger was the insured and her husband was the beneficiary; (3) Policies in which Mrs. Gilger was the insured, payable at death to her estate.

The Thatcher case considered the question of life insurance policies in relation to §10503-18 GC. Judge McClelland’s conclusions (page 522) are as follows:

“As to insurance policies, it must be observed that they constitute a particular contract in which three parties have an interest viz: the insured, the company and the beneficiary. By the express terms of these policies, immediately upon the death of the insured, the policies mature and the rights of the designated beneficiary to the proceeds of the policies become fixed.
“It must be borne in mind that insurance policies made payable to the designated beneficiary, upon the death of the insured, form no part of the estate of the insured, but vest immediately in the beneficiary and become part of this or her property. Since §10503-18 GC, controls only the estate of a deceased person, it has no application to the policies on the life of the husband, since they vested immediately upon his death in his wife, who survived him.
“There is no question concerning policies on the life of the wife, since it is the settled life insurance law that when the designated beneficiary predeceases the insured the policy becomes payable to the estate of the insured, unless the policy otherwise provides.”

Although the ownership of life insurance proceeds was not a direct question in the Thatcher case, the court finds no instance where these principles have been questioned and accepts them as a correct statement of the law on t,his point. Accordingly, the proceeds of the life insurance policies belong to Mrs. Gilger’s estate, under the law of contract, since actually she survived her husband.

The claims of Mr. Gilger’s heirs to these proceeds are:

First, that under the conditions of this case, the law presumes that Mr. Gilger died last. This is answered by the Ostrander v. Preece case (supra) in which the Supreme Court comes to the definite conclusion that §10503-18 GC does not establish a presumption of the order of death.”

Second, that it is inequitable to give these proceeds to Mrs. Gilger’s heirs, when he had paid all premiums on the first-type of policy. The law has been long established that one who pays the premiums on a life insurance policy acquires thereby no rights not accorded to him by the contract. In re Ammerman, 32 N. P. (N. S.), 457.

We come now to the last property classification: The inventory lists fifty-five U. S. Government E bonds having a current value of $1319.25. These bonds all bear the designation “John or Lilly Gilger.” Both parties claim these bonds as belonging to their respective estates. This poses the question: do these bonds pass under the law of descent and distribution or is this designation a contract similar to a joint and survivorship account, under which the government contracts to pay the proceeds to the survivor?

Although there are decisions holding to both sides on this question, the matter has been settled by the Supreme Court. In the case of Estate of DiSanto, 142 Oh St, 223, 27 O. O. 179, it was held that in the purchase of a War Savings Bond, the purchaser who places a second name on the bond makes a contract under which the government agrees, upon the purchaser’s death to pay the proceeds to the survivor. This is governed by the regulations of the treasury department, which become a part of the contract. As said by the Supreme Court (page 231):

“That a bond is a contract needs no citation of authority. That the contract will be enforced so long as the same are not illegal is also elementary. The terms of the treasury circulars are specifically made a part of the contract as if they were fully set out in the bond form.”

The regulations prescribed by the secretary of the treasury under Section 22 of the Second Liberty Bond Act (Circular 530, February 13, 1945) have the following provisions:

“Section 315.4. Authorized Forms of Registration Series E and General Provisions Relating to Their Use.
“(a) Forms of Registration. Bonds of Series E may be registered only in the names of individuals (natural persons) whether adults or minors, in their own right in one of the following forms.
“(b) Two Persons: — Co-ownership Form. In the names of two (but not more than two) persons in the alternative as co-owners, for example, “John A. Jones or Mrs. Ella S. Jones.” “Section 315.45. Payment or reissue. A savings bond registered in the names of two persons as co-owners in the form, for example, ‘John A. Jones or Mrs. Mary C. Jones,’ will be paid or reissued as follows:
“(c) Payment or reissue after the death of one co-owner.— If either co-owner dies without the bond having been presented and surrendered for payment or authorized re-issue, the surviving co-owner will be recognized as the sole and absolute owner of the bond and payment or reissue, as though the bond were registered in his name alone, will be made only to such survivor'.
“(2) Payment or reissue after the death of the surviving co-owner — If a surviving co-owner who becomes solely entitled to the bond under the provisions of subsection (c) of this section dies without having presented and surrendered the bond for payment or authorized reissue, the bond will be considered as belonging to his estate and will be paid or reissued accordingly.”

Under the DiSanto case and the contract covering these bonds as shown by the treasury regulations, the court concludes that the E Bonds listed in the inventory are the property of the estate of Mrs. Gilger. To the same effect are the following: Estate of Taylor, 27 O. O. 434; Estate of Reiner, 47 O. O. 222; In re R. D. Chittock, Deceased, 47 O. O. 226.

To summarize:

(1) Under §10503-18 GC, if a husband dies as a result of an accident and his wife dies twenty-one days later as a result of the same accident, the general assets of the estate of the husband pass to his heirs, and no part of his estate passes to the estate of his wife.

(2) Under such circumstances, the general assets of the estate of the wife pass to her heirs, since this section deals only with the estate of the first decedent and does not set up a presumption as to the order of death.

(3) Joint and survivorship bank deposits, the proceeds of life insurance policies and co-owner U. S. Savings Bond of the E type are not controlled by statutes of descent and distribution but are controlled by the laws of contract and are payable according to their contract terms.

The parties will file an amended inventory in accordance with the foregoing findings. Exceptions of both parties are hereby noted.