author: By WOLDMAN, J.

text:
    STATE, ex rel. STEIGER, Complainant, v. GRAY, Defendant.
    Juvenile Court, Cuyahoga County.
    No. 171915.
    Decided September 9, 1957.

      Albert B. Lefton, John F. Choffey, Cleveland, for complainant.
    Seymour Gross, Cleveland, for defendant.
   OPINION

By WOLDMAN, J.

Complainant, an unmarried woman, filed a complaint in bastardy alleging that the defendant is the father of her child born to her December 1, 1956.

Defendant entered a plea of not guilty and filed a motion for a blood test of the child. This motion was granted, and Dr. Roger W. Marsters, a clinical pathologist with extensive experience involving blood group, tests, and the use of blood tests for disputed paternity, was selected by this court to conduct the blood grouping tests of the defendant, complainant and her child.

The parties waived a jury trial and at the hearing before this court, the complainant testified that she had engaged in sexual relations with the defendant during the period March 9 to June 15, 1956, and that the child was begotten in March, 1956, as a result of said relations. Complainant further testified that she had not engaged in sexual relations with any other man during said period; that the defendant was the father of the child; that he visited her in the hospital during her confinement “to see his baby;” and that he had promised to marry her after obtaining a divorce from his wife.

Complainant’s mother testified concerning defendant keeping company with her daughter, and that after complainant became pregnant defendant told the mother that he would pay complainant’s expenses. She also corroborated complainant’s testimony that defendant visited the complainant and child at the hospital.

The child, a baby girl, was exhibited to the court for the purpose of calling attention to alleged physical resemblance to the defendant, the reputed father.

At the very outset of the hearing, complainant’s counsel called defendant for cross-examination. Defendant personally objected on constitutional grounds that such cross-examination would tend to disgrace or incriminate him. His objection was sustained.

Art. I, Sec. 10. Ohio Constitution, in part provides:

“No person shall be compelled, in any criminal case, to be a witness against himself; but this failure to testify may be considered by the court and jury and may be made the subject of comment by counsel.'’

42 O. Jur. 48:

“The privilege of a witness not to give self-incriminating evidence s not limited merely to criminal prosecutions wherein the witness s the defendant but can be invoked in any judicial proceeding. Thus ;he defendant in bastardy proceedings (quasi criminal action) may not 3e called upon to testify against his wishes.” Simons v. Kiser, 48 O. O. 11 (1950); Schneider v. State, 33 Oh Ap 125, 168 N. E. 568.

Defendant himself did not testify on his own behalf. He called but one defense witness — Dr. Roger W. Marsters, a clinical pathologist, who had been appointed by the court to conduct the blood grouping tests of the child, the complainant and the defendant, as requested by the defendant. Dr. Marsters is a doctor specializing in blood groups. He is head of clinical chemistry at Cleveland City Hospital and in charge of the blood bank. He is also assistant professor of bio-chemistry in the Department of Pathology at Western Reserve University School of Medicine and author of published learned papers on the subject of “Determination of Non-Paternity by Blood Groups.”

Dr. Marsters’ qualifications as an expert serologist were not questioned by the complainant. He testified that he carefully tested the blood specimens of the complainant, the defendant and the child “for the International OAB, M and N, and C, D, E, and c blood factors by using known blood controls along with the unknowns.” Following are the results of these tests:

Int. M N C D E
A Neg. Pos. Neg. Neg. Neg. Pos. ‘Hope A. Steiger
O Pos. Pos. Neg. Pos. Pos. Pos. Bruce Gray
A Neg. Pos. Pos. Pos.* Neg. Pos. Baby Norma Steiger
*Weak Rh positive
“The data on the International OAB blood group factors are inconclusive because the mating of a type A individual with a type O individual may produce offspring of either type A or type O.
“The data on the M-N factors are inconclusive, because the mating of a type N individual with a type MN individual may produce offspring of either type N or type MN.
“The data on the Rh blood factor D are inconclusive, because the mating of a D-positive individual with a D-negative individual may produce offspring of either D-positive or D-negative reaction.
“The data on the Rh blood factor E are inconclusive, because the mating of an E-positive individual with an E-negative individual may produce offspring of either E-positive or E-negative reaction.
“The data on the Hr factor c are inconclusive because all three blood specimens gave identical reactions with each other being c-positive.
“The data on the Rh factor C however indicate that an exclusion of paternity is established on this basis. Both Hope Steiger and Bruce Gray are negative for the C factor and therefore lack this particular blood antigen. On the other hand Baby Norma June Steiger is C-positive and therefore possesses this particular blood antigen. Since these blood factors can only be inherited from the parents and since both of these adults lack the C, then some other man than Bruce Gray must be the father of this child.
“In conclusion, an exclusion of paternity is established by the demon stration of the C factor in this child, Norma Steiger, without the presenci of this particular blood factor in the blood of either of these two adults Hope Steiger or Bruce Gray.
Respectfully submitted,
Roger W. Marsters, Ph.D.
Clinical Pathologist.”

Dr. Marsters stated that he and his associates made five separate blood tests and that all proper safeguards were taken to protect the in-1 tegrity and accuracy of the blood grouping tests. The accuracy of hk conclusion of the exclusion of defendant as the father of the child was not rebutted by any counter medical evidence submitted by complainant Nor was there any question raised as to the reliability or efficacy of determining non-paternity by blood testing.

The burden of proof was upon the complainant to make out her complaint and charge by a preponderance of the evidence.

These are the factors preponderating in favor of the complainant: her own and her mother’s unrebutted testimony; the child being exhibited to the court for the purpose of showing physical resemblance to defendant; refusal of defendant to submit to cross-examination on constitutional grounds; and his failure to testify on his own behalf.

Giving full weight to all these factors, has the complainant succeeded in proving the guilt of the defendant by a preponderance of the evidence — notwithstanding the testimony of the expert serologist that the blood grouping tests establish the exclusion of the defendant as the father of the child?

“Preponderance of the evidence is not determined by the number of the witnesses on either side but by the impression which their testimony makes upon the jury . . . and the character of the testimony itself.” Rice v. City of Cleveland, 144 Oh St 299.

In other words, what weight is the court warranted in giving to the uncontradicted scientific testimony of the blood group expert which unequivocally excludes defendant as the father? Or stated in another way — should a court permit a man to be adjudged the father when the blood tests exclude paternity by the immutable law of genetics?

This case presents a clear conflict between evidence adduced from lay persons and the conclusion of science adduced from the immutable law of genetics.

Some states (California, Michigan, New Hampshire and Oregon among them), have enacted statutes which make blood test exclusions decisive of the issue.

However, the existing Ohio statute (§3111.16 R. C.) does not make the result of blood grouping tests establishing an exclusion of paternity, conclusive.

Sec. 3111.16 R. C., in part provides:

“Whenever it is relevant to the defense in a bastardy proceeding, the trial court on motion of the defendant, shall order that the complainant, her child and the defendant submit to one or more blood grouping jsts to determine whether by the use of such tests, the defendant can e determined not to be the father of the child. The tests shall be made y qualified physicians. In cases where exclusion is established the esults of the tests together with the finding of the expert of the fact of .on-paternity shall be receivable in evidence.”

Since no evidence is by law made conclusive or unanswerable unless o declared by statute, weight must be given to the Ohio legislature’s ailure to provide for conclusiveness in enacting the above statute in 939.

The Ohio rule has been stated in the case of ex rel. Walker v. Hark, 144 Oh St 305, 58 N. E. 2d 773 (1944) as follows:

“The findings and result of such grouping test admitted in evidence tre not conclusive of non-paternity, but may be considered for whatever reight they may have in proving that fact.” (See also: State, ex rel. Slovak v. Holod, 63 Oh Ap 16; State v. Wright, 59 Oh Ap 191 1938; State, ex rel. Freeman v. Morris, 156 Oh St 333 [1951].)

It appears then that when scientific testimony regarding results of hood grouping tests, and the testimony of lay persons as to facts conflict, as they do in this case, the jury or the trial court must determine ;he relative weight of both types of evidence — the law having made no listinction between such expert evidence and any other kind of expert ;estimony.

The QUESTION arises: What weight and value shall the court give ;o such blood grouping test evidence submitted by a qualified expert?

It is apparent that the testimony adduced from the parties and other lay persons in bastardy proceedings, by its very nature, may be susceptible to doubt and question. It is usually self-serving. The alleged intercourse between the woman and the putative father is almost always carried on clandestinely and secretly. Seldom if ever is there any reliable corroborating eye-witness testimony, circumstantial evidence must be relied upon to a great extent. In other words, such testimony in such cases may be as reliable or as unreliable as the persons giving it.

As stated in Jordan v. Mace, 144 Me. 351, 69 A. 2d 670 (1949):

“By the very nature of such a case evidence excluding the possibility of opportunity for another to be the father is limited to the statement of the complainant. No corroboration of total lack of opportunity could well be expected on the part of the respondent. Chance alone would produce evidence tending to show acts of intercourse by another with the complainant within the limited period.”

On the other hand an exclusion of paternity based on the blood groups represents a finding of a rather exact science and is not simply testimony of a lay witness or even the opinion of an expert. Blood grouping test results are governed by the immutability of the scientific law of blood grouping.

Blood grouping tests have been called “the fingerprints of blood”— and to a degree this is correct.

Such tests, conducted for the purpose of determining non-paternity, are based upon the scientific principle that the type of blood of a child is inherited from a combination of blood groups in the blood of its parents.

Should the blood groups of the child in question not correspond iH the parental combinations of blood groups, the accused man could ncB possibly be the father of that child. H

Thus, if a factor is present in the blood of the child and is abserB in the blood of the mother, said factor should be found in the blood q| the man who is the child’s true father. However, if the blood of thB accused man charged with being the father, lacks that factor, that lac excludes him as the true father.

Or specifically applied to the instant case, there being a positive factor in the blood of the child, that blood factor must have been in herited from either the father or mother or both. Since the mother’ blood lacks the C factor, the child must necessarily have inherited tha factor from its father. But inasmuch as the defendant in this case als lacks the C factor, it follows as a matter of scientific certainty that som man other than the defendant fathered this child, and the defendan must be excluded as the parent.

This operation of blood tests to prove non-paternity may be reducec to this simple homely illustration:

If an apple is found under an apple tree the natural inference i; that it came from that or some other apple tree.

However, if a pear is found under an apple tree, it is clear under tht laws of nature that some other tree with pear-producing factors, produced that pear, and the apple tree under which the pear was founc must definitely be excluded as the parent-tree.

At present, practical application of blood grouping in bastardy cases is restricted to ruling out paternity, rather than attempting to establish it. Applying this principle, it is apparent that the apple could have come from any apple tree. Therefore, it is difficult and unsafe to establish which is the parent apple tree. It could have been one of several. Bui it is comparatively simple to exclude the apple tree as the parent of the pear found under it. Accordingly we must look for a tree with pear-producing factors as the parent tree.

Great advances have been made in this science since 1939 when the Ohio law was enacted. In 1939, only two blood group systems were known. Since then at least seven additional and separate blood grouping systems have been discovered to supplement the earlier knowledge, and their inheritant patterns have reached the point of reliability that there can hardly be any question about them. These advances have resulted in more and more courts in states with statutes similar to Ohio’s recognizing the virtual infallibility of properly conducted blood grouping tests which exclude paternity. Increasingly courts are giving judicial recognition to the reliability and accuracy of such tests.

Thus, the Supreme Court of Maine in the case of Jordan v. Mace, supra, held:

“Exclusion of paternity by blood grouping tests under biological law is scientific proof that a respondent is not the father.”

And the highest court of Maryland has taken judicial notice that such tests are scientifically accurate. Shank v. State, 185 Md. 437, 45 A. 2d 85 (1945),

In a recent exhaustive and well annotated article on the subject of lood tests in 46 A. L. R. 2d 1,000, at page 1028, the general rule as to the onclusiveness of blood tests is stated as follows:

“The courts, in answering the question of the conclusiveness of blood rouping tests the results of which established non-paternity, have indi-ated considerable disharmony of opinion. Of the divergent views which tave been taken the best reasoned one would seem to be this: blood ;rouping tests which establish non-paternity are conclusive on the issue if non-paternity except where the evidence is such as to support a jury inding that because of a defect in testing methods employed in a par-icular case (or because of a failure to show that the tests were accurately ¡onducted), the results of the test could not be accepted as accurately •eflecting the operation of the immutable laws of genetics.”

It is significant that the courts of the state of New York whose blood-’■rouping test statute is substantially the same as that of Ohio, have consistently followed the above general rule, as evidenced by the follow-ng decisions: In Clark v. Rysedorph, 118 N. Y. 2d 103 (1952), the court states that blood grouping test evidence excluding paternity, and which was uncontradicted, was conclusive as to non-paternity, since to reject such testimony would be to ignore scientific facts. Houston v. Houston, 199 Mise. 469, 99 N. Y. S. 2d 199 (1950), held that where exclusion of paternity is definitely established by blood grouping tests, the finding of non-paternity is binding upon the jury unless it finds that the tests have not been properly made. Gilpin v, Gilpin, 197 Mise. 319, 94 N. Y. S. 2d 708 (1950), ruled that where it is shown that proper safeguards were drawn around the testing procedure, positive results of blood tests excluding paternity are final on the question of paternity.

Of course, the infallibility of the results of blood grouping tests may depend upon the skill employed in making them and may be subject to errors resulting from the lack of training of the serologist, the use of commercial sera, the failure to make proper counter tests, et cetera.

But where it is shown that the person making the tests is qualified, that proper safeguards were drawn around the testing procedure, and that no discrepancies were found in the testing methods (as was the situation in the instant case), a court is warranted in taking judicial notice of the correctness of such tests. Consideration must then be given to the question whether positive results of such blood tests excluding paternity should not be accorded the full weight to what these scientific tests appear to prove, namely, the exclusion of paternity.

“If the jury might disregard the fact of non-paternity when it was shown clearly by men trained or skilled in science the purpose and intent of the legislature that the light of science be brought to bear in a case such as this are given no practical effect.” Jordan v. Mace, supra.

It is apparent that in Ohio, legislative law has moved more slowly than scientific research in giving full weight to blood grouping tests which definitely exclude paternity.

But this court cannot close its mind to the great advances in the science of blood grouping tests since 1939, and to the modern recognition by medico-legal resources of the high value of such blood tests as sH wholesome aid in a quest for truth in the administration of justice irfl matters relating to contested paternity. This court further believe» that the near unanimity of medical and legal authorities on the question» of the reliability of blood grouping tests as an indicator of the truth in questioned paternity cases, justifies the taking of judicial notice oí the general recognition of the accuracy and value of the tests when properly performed by persons skilled in conducting them. The law does not hesitate to adopt scientific aids to the discovery of the truth which have achieved such recognition. Cortese v. Cortese 10 N. J. Supp. 152, 72 A 2d 117 (1950).

This court has the duty to determine if the conditions exist which made the biological law operative. That is to say, were the tests properly made, and are the results as reported, free from error? If so, the exclusion of the defendant as the father must follow irresistibly.

Enlightened judicial acceptance of the verdict of science must result in the conclusion that where blood grouping tests in a bastardy proceeding, prove non-paternity, this court is not warranted in closing its mind to the conclusion which science declares is established — unless there is proof that the tests were not properly made, or that conditions did not exist to make the biological lav/ operative.

That the Court of Appeals of Ohio, Eighth District, Cuyahoga County, accords great weight to the findings of a blood grouping expert excluding the defendant as being the father of the child is shown by that court’s decision in the case of State of Ohio, ex rel. Gloria Rohde v. Bennett Robert Roush, Court of Appeals No. 23780, Juvenile Court No. 164756, decided June 1, 1956.

In this case the complainant contended that she had had sexual relations with the defendant in April of 1952, which was the probable date of the conception of the child born on January 4, 1953. The defendant admitted being with the complainant on two occasions in April, 1952, but contended he did not have relations with her until the early part of June, 1952.

Two serologists testified that as a result of their blood tests they concluded that the defendant could not be the father of the child. Patently, from the oral testimony by the defendant and the complainant, the jury was entirely justified in finding for the complainant since it was within their province to decide who was telling the truth.

The Court of Appeals held that there was “error prejudicial to the Appellant and, therefore, the judgment of the Juvenile Court is reversed as manifestly against the "weight of the evidence and cause remanded to the Juvenile Court for further proceedings according to law.” (Emphasis supplied.)

However, as the Court of Appeals did not write an opinion explaining the reasons for its conclusion, we can only guess or infer that the reason for holding the jury’s verdict as being “manifestly against the weight of the evidence” was the testimony of the blood grouping experts excluding the defendant as the father of the complainant’s child.

In accordance with enlightened judicial acceptance of the high value of blood-grouping tests properly conducted, I hold that in the absence of any competent proof that blood-grouping tests establishing non-paternity were not properly made, the results of such tests, scientifically conducted and objectively made by doctors expert in such field should be given such great weight by the court that the exclusion of the defendant as the father of the child, follows irresistibly.

I hold, further, that because this great weight must be accorded to the blood grouping test results as testified to by Dr. Marsters, complainant has failed to prove the guilt of the defendant by a preponderance of the evidence.

Accordingly, I find the defendant not guilty as charged in the complaint.


source: Caselaw Access Project

author: By FHILLIPS, PJ.

license: Public Domain

text:
    GORDON, Plaintiff-Appellee, v. PARELLA et, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3826.
    Decided March 26, 1956.
    Mark E. Dilley, Youngstown, for plaintiff-appellee.
    Thomas L. Corroto, Eugene Green, Youngstown, for defendant-appellant.
   OPINION

By FHILLIPS, PJ.

Plaintiff, T. Roy Gordon, Inc., sued defendants, Robert Parella and Rudy Parella, doing business as Parella Concrete Construction Company, in the Municipal Court of Youngstown, to recover $448.10 for labor and material furnished defendants in the repair of a Ford automobile truck, on which it is alleged it had an Artisan’s lien, and which likewise it alleged defendants fraudulently removed from plaintiff’s place of business where the work was done and the labor furnished.

Plaintiff’s attachment filed a few days subsequent to the date plaintiff’s petition was filed on a printed form of the Municipal Court of Youngstown, designed to cover various fact situations, as pertinent provided in the typewritten portion thereof “that said defendant is justly indebted to said plaintiff in the sum of $448.00, with interest thereon from August 9, 1955, for labor and materials.” The unstricken printed portion of the attachment form stated “that the said defendant * * * has property and rights of action which he conceals * * * and that said claim is for manual work, or labor” (sic).

The trial judge overruled defendant’s motion to discharge the attachment, which was bottomed on the ground that the bulk of the amount sued for was the balance due to plaintiff on the trucks sold by plaintiff to defendant.

Defendants appealed to this court on questions of law from the ruling of the trial court on the urged grounds that the trial judge erred in overruling the defendants’ motion to discharge the attachment.

By brief plaintiff’s counsel stated that prior to the filing of its action in the Municipal Court the plaintiff held a truck owned by defendants on which it had an Artisan’s lien, and because defendants refused to pay their indebtedness to plaintiff that plaintiff refused to release such truck; that defendants went to plaintiff’s place of business, and that while one defendant engaged plaintiff’s service manager in conversation the other defendant drove such truck out of and away from plaintiff’s place of business without plaintiff’s permission and secreted it so securely that it took the police authorities and plaintiff’s employees several days to find it, and that when found the action we review and subsequent attachment were filed, the latter allegedly being based on the ground that defendants “has property and rights of action which he conceals and that said claim is for manual work and labor.”

Ey brief defendants state “defendant has been engaged in the contracting business in Younestown, Ohio, for more than four years. It maintains an established office, has substantial capilal assets and physical equipment which at all times have remained within the county.”

In their brief defendants state:—

“At the hearing on the motion, it was established that the affidavit in attachment set forth the ground as labor and material’ and the pleadings of the plaintiff-appellee show that the bulk of the account was for the balance due under the original contract for the sale of three trucks to the defendant-appellant notwithstanding these facts the court overruled the defendant-appellant’s motion to discharge the attachment.”

There is no bill of exceptions before us.

In a word defendant’s contentions are that “the legislature intended that claims for which attachment can issue on ground that it is for work be confined to claims entirely for work”; that “if the attachment be allowed then the plaintiff-appellee with a nominal sum for labor and a very large amount for material or the balance due under contract would succeed in tying up large amounts of property of the defendant-appellant in endeavoring to enforce a settlement.”

Plaintiff argues that defendants did not attack the ground of the attachment “that defendant concealed property,” and that in the absence of a bill of exceptions that based upon the pleadings, the trial judge ruled correctly as “it is apparent from the transcript that the plaintiff in his affidavit alleged two grounds for an attachment, one of which must be presumed to be true, because it was not questioned in the defendants-appellants’ motion.

It has been held that in order to obtain a review of the action of a trial court either sustaining or overruling various miscellaneous motions a bill of exceptions is necessary because factual matters are involved in the ruling which are not otherwise demonstrable from the record.

“It has been held, in a criminal case, that to bring upon the record grounds for motions in arrest of judgment and the action of the mayor in disposing of such motions, it is not necessary to have a bill of exceptions, as these arc matters proper to be regarded and which are shown outside of the bill.” 3 O. Jur. (2nd), Page 333, Section 439.
“Notwithstanding that the frequently employed broad generalization — that affidavits filed along with a motion are not part of the record or original papers — is true and supported by authorities, there are certain instances where the generalization is not applicable. In some cases affidavits bearing the file mark of the clerk of the trial court constitute a part of the record in the absence of a bill of exceptions, and it seems clear that the mere filing of certain affidavits with the clerk makes them a part of the record for the intended purpose. The difference in the effect of the filing seems to result from the original purpose of the filing or the subsequent use sought to be made of the affidavits. Thus, where an affidavit serves some other purpose than to prove or disprove an issue of fact, such as an affidavit for publication, an affidavit to secure the issuance of an attachment, or some other process by the clerk, or where it takes the place of a pleading, it is a part of the record for what it purports to be, regardless of the truth of its affirmations.” 3 O. Jur. (2nd), Page 288, Section 374.

We conclude that the affidavit is a part of the record in the case submitted to us for review for what it purports to be, and now we tum-our attention to the contentions of the parties.

We believe that the basis for the attachment was that the defendants had property rights of action which they concealed from plaintiff.

Sec. 2715.01 R. C., provides:—

“In a civil action for the recovery of money, at or after its commencement, the plaintiff may have an attachment against the property of the defendant upon any one of the following grounds: * *

By motion to discharge the attachment defendants did not attack the alleged ground “that defendant concealed property.” The trial judge refused to hear testimony on this ground of attachment, and in the absence of a bill of exceptions we must assume the finding of the trial judge is correct, as defendants must have known it to be since they did not attack it.

We are not impressed by defendants’ quoted contentions, and conclude that based on the record before us the judgment of the trial judge must be and is affirmed hereby.

NICHOLS and GRIFFITH, JJ, concur in judgment.


author: By STEVENS, J.

text:
    WILLIAMS, Plaintiff-Appellee, v. P. W. PUBLISHING CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23903.
    Decided March 7, 1957.

      Orgill, Klein, Loux & Wickham, for plaintiff-Appellee.
    John G. Shackelford, for defendant-appellant.
    Gingher & Christensen, Baker, Hostetler & Patterson, Amicus Curiae.
    (Judges of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By STEVENS, J.

On November 6, 1952, the appellee, as plaintiff, filed an action for divorce and alimony against her husband, Carroll E. Williams, wherein she charged her husband with gross neglect of duty and extreme cruelty, as set forth in the petition.

On December 22, 1952, Carroll E. Williams filed his answer and cross-petition in said action for divorce, and in the cross-petition he charged the plaintiff with extreme cruelty as follows:

“1. Immediately after plaintiff and defendant were married plaintiff sought to have sexual relations with the defendant in an unnatural manner, much to the disgust of the defendant; that plaintiff harrassed and nagged the defendant to allow the unnatural acts to be done, while the defendant at all times refused; that the worry of plaintiff’s persistence in these attempts made the defendant seek other quarters for living apart from the plaintiff.”

On January 10, 1953, The P. W. Publishing Co., Inc., in its newspaper, “Call and Post,” published the following:

“Williams countered by charging his wife with constant nagging, trying to force him to submit to unnatural sex acts * * *.
“Williams, in his cross-petition, made the following accusations against his wife:
“1. Immediately after their marriage she sought to have unnatural sexual relations with him and harassed and nagged him to allow her to commit these unnatural sexual acts. Because of her continual worrying him to submit to such sex perversion, which he always refused, he had to seek living quarters away from her.” (Emphasis ours.)

Thereafter, on August 24, 1953, the plaintiff, Mary Pringle Williams, filed an action against The P. W. Publishing Co., Inc., et al., seeking damages for libel.

The cause came on to be heard before the court and a jury, and, upon submission to the jury,, a verdict in the amount of $2,500 in favor of plaintiff, and against the defendant The P. W. Publishing Co., Inc., was returned.

After the entry of judgment on the verdict and the overruling of defendant’s motion for a new trial, this appeal on questions of law and fact was filed. The appeal has since been reduced to an appeal on questions of law, and the case was submitted to this court as such appeal.

The errors assigned by appellant may be grouped into the following assignments:

1. The verdict and judgment are contrary to the manifest weight of the evidence and contrary to law.

2. Error in the charge of the court.

It will be observed, from an examination of plaintiff’s petition, that she charged the libel in the exact words of the defendant’s publication.

It will be further observed that the publication in defendant’s paper was not in the words of the cross-petition of Carroll E. Williams. The cross-petition made no mention of “sex perversion,” but alleged that “plaintiff sought to have sexual relations with the defendant in an unnatural manner * *

We therefore do not have in this case the question of the qualified privilege which permits the publication without liability, of fair and impartial reports of the contents of pleadings.

Here, there was included in the publication the interpretation which the defendant placed upon the words used in the pleading, with the result that “sex perversion” by the plaintiff was charged, whereas the cross-petition of the husband did not so charge.

The principal defense of The P. W. Publishing Co. was its claim of qualified privilege under the terms of §11343-2 GC. That section provided:

“The publication of a fair and impartial report of the return of any indictment, the issuing of any warrant, the arrest of any person accused of crime, or the filing of any affidavit, pleading or other document in' any criminal or civil cause in any court of competent jurisdiction, or of a fair and impartial report of the contents thereof, shall be privileged, unless it is proved that the same was published maliciously, or that the defendant has refused or neglected to publish in the same manner in which the publication complained of appeared, a reasonable written explanation or contradiction thereof by the plaintiff, or that the publisher has refused, upon request of the plaintiff, to publish the subsequent determination of such suit or action; provided, that nothing in this act shall authorize the publication of blasphemous or indecent matter.”

The amendment of the section as §2317.05 R. C., effective October 1, 1953, was minor and inconsequential.

If the contents of defendant’s publication of and concerning plaintiff conformed to the provisions of the statute above set forth, then the publication was privileged. If it did not so conform, then the privilege was lost.

“Perversion” is defined in Webster’s New International Dictionary, Second Edition, as: “3. Psychopathol. A maladjustment of the sexual life, such that satisfaction is sought in aberrant ways, as in sadism, masochism, exhibitionism, etc.”

The term “sex perversion,” in its usual connotation, to persons of average intelligence, imports a more abhorrent concept than do the words “sexual relations in an unnatural manner.” The former imputes the attributes of sodomy, a crime, as defined in our statute, §2905.44 R. C.; the latter may not.

The phrase “sexual relations in an unnatural manner:” is susceptible of two or more interpretations: (1) It may contemplate copulation through the normal use of male and female sexual organs, but in an unusual or unnatural position or location; or (2) It may be susceptible of the construction attached to “sex perversion,” above.

However, “sex perversion,” in our judgment, connotes but one concept — viz., the aberrant satisfaction of sexual desires through other than normal copulative procedures. It is, accordingly, a term of greater opprobrium than is the phrase “sexual relations in an unnatural manner.”

Undoubtedly it is true, under §11343-2 GC, now §2317.05 R. C., that the publication, in terms of legal or medical conclusions contained in pleadings, is privileged, even though the conclusions state charges which would otherwise be libelous per se. And where the publication is confined, without embellishment by a recitation of the details, or the publisher’s interpretation of the meaning of the words used where they are susceptible of more than one interpretation, to a fair and impartial report of the contents of the pleading, it is privileged under the statute.

Here, however, when the defendant corporation published its own interpretation of the meaning of the words used in Williams’ cross-petition and charged plaintiff with “sex perversion,” it accused plaintiff not only of a violation of the moral law, but also of a violation of the criminal law.

Such charge was not privileged under the terms of the statute, supra, and was libelous per se upon two grounds: (1) It exposed the plaintiff to hatred, ridicule, contempt, shame, or disgrace. (2) It imputed to the plaintiff the commission of a crime (sodomy).

The publication, as herein set forth, being admitted by defendant, there is no question as to the judgment being manifestly against the weight of the evidence. It is not, but on the contrary is fully supported thereby.

The factual situation here presented was such as required the trial court to resolve the questions of privilege and of the type of libel as a matter of law, and to instruct the jury to return a verdict for plaintiff. This was true because, as a matter of law, the publication was not privileged, and the publication was, as a matter of law, libelous per se. Mauk v. Brand age, 68 Oh St 89, par. 2 of syllabus.

It is next asserted that the charge of the court was prejudicially erroneous in a variety of respects.

We have carefully studied the charge in its entirety. It did contain errors, and some inconsistencies, as charged. However, we are of the opinion that such errors and inconsistencies as it contained were not prejudicial to the substantial rights of defendant.

We are further of the opinion that substantial justice has been accomplished in this case.

The judgment will be affirmed.

HyNSICKER, PJ, DOYLE, J, concur.


author: By FESS, J. By DEEDS, J.

text:
    RANDOLPH, Plaintiff-Appellee, v. AMERICAN AIRLINES, INC., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5501.
    Decided December 12, 1956.

      Bricker, Marburger, Evatt & Barton, Robert L. Barton, Richard C. Pickett, of Counsel, Columbus, for plaintiff-appellee.
    Collis Gundy Lane, Richard Huggard, Kent Ozmun, Columbus, for defendant-appellant.
    (FESS and DEEDS, JJ, of the Sixth District; HUNSICKER, J, of the Ninth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law from a judgment of the Common Pleas Court in favor of the plaintiff in the sum of $835.00 and costs. The judgment was rendered by the court without the intervention of a jury upon an agreed stipulation of facts.

On March 20, 1952, plaintiff purchased a ticket for transportation from Columbus, Ohio, to New Orleans, Louisiana, for the sum of $64.00. On March 21, 1952, prior to boarding defendant’s plane at Columbus, Ohio, plaintiff checked her suitcase, which with its contents was worth $835.00, with defendant for transportation to New Orleans. The suitcase was not delivered to plaintiff upon her arrival, nor thereafter. At the time of the purchase of her ticket and also when she checked her suitcase, plaintiff declared no value on it. Defendant made no extra charge based on value in excess of $100.00. As a matter of fact, no discussion was had between the parties pertaining to the value of the luggage nor the insuring of it.

In March, 1952, defendant had on file with the Civil Aeronautics Board a tariff which was duly filed, posted and published, as required by the Civil Aeronautics Act. So far as is pertinent to this case, this tariff provided that the total liability of the defendant occasioned by reason of any loss of, injury to or delay in the delivery of any personal property accepted for transportation as baggage would be limited to $100.00 for each passenger unless at the time of acceptance for transportation, when, for checking in for flight, the carrier has accepted greater liability; that “upon request and declaration, and payment of ■ an additional transportation charge computed at the rate of ten (10) H cents for each $100.00 or fraction thereof, of excess value declared, the H carrier will accept liability for loss of, injury to, or delay in the delivery H of such baggage up to the amount declared for each piece, with a maxi- H mum limit per passenger’’ of $25,000.00. In checking baggage with ■ defendant and receiving a check therefor, plaintiff was unaware of and had no knowledge of the published tariff and plaintiff did not read the conditions in small print on her ticket and baggage check referring to limited liability.

Inasmuch as this litigation involves an interstate shipment of baggage with an airline common carrier, the rights and liabilities of the parties are to be determined by federal law. Cf. Patton Co. v. Pa. Greyhound Lines, Inc., 75 Oh Ap 100; Adams Express Co. v. Croninger, 226 U. S. 491; New York, N. H. & H. R. Co. v. Notnagle (1952) 346 U. S., 128. It must be conceded that a tariff properly filed and published pursuant to law becomes a part of the contract of carriage. Boston & Maine R. Co. v. Hooker, 233 U. S., 97; Western Union Tel. Co. v. Esleve Bros. Co., 256 U. S., 566.

The sole question to be determined upon this appeal is whether or not the tariff limiting liability on baggage to $100.00, unless excess value is declared and the extra charge based on such valuation has been paid, was authorized to be filed under the provisions of the Civil Aeronautics Act and the regulations of the Board.

There is a general rule of law that common carriers can not stipulate for immunity from their own or their agent’s negligence. While this rule was fashioned by the courts, it has been continuously accepted as a guide to common carrier relationships for more than a century and has H acquired the force and precision of a legislative enactment. United States v. Atlantic Mutual Insurance Co., 343 U. S., 236.

But at common law, a distinction was made between a contract immunizing a carrier from liability for negligence and a contract limiting liability upon an agreed valuation at a higher charge or rate. As early as 1848, in New Jersey Steam Navigation Co. v. Merchants Bank, 6 Howard, 344, 384, the Supreme Court recognized that a carrier was allowed to exempt himself from losses arising out of events and accidents against which he was a sort of insurer. In York Co. v. Central Railroad Co. (1865), 3 Wall, 107, the court held that the common law liability of a common carrier for the safe carriage of goods may be limited and qualified by special contract with the owner, provided such contract does not attempt to cover losses by negligence or misconduct.

In Hart v. Pa. Rd. Co., (1884) 112 U. S., 331, the court held:

“Where a contract of carriage, signed by the shipper, is fairly made with a railroad company, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations.”

The language employed by the court in its opinion is significant.

“The presumption is conclusive that, if the liability had been assumed on a valuation as great as that now alleged, a higher rate of freight would have been charged. The rate of freight is indissolubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was because it was a rate measured by the valuation expressed. If the valuation was fixed at that expressed, when the real value was larger, it was because the rate of freight named was measured by the low valuation. The plaintiff can not claim a higher valuation, on the agreed rate of freight.” (Emphasis supplied.) Hart v. Pa. Rd. Co., supra, p. 337.

Further in the opinion, the court goes on to say:

“The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater.” Hart v. Pa. Rd. Co., supra, pp. 340, 341.

The foregoing decisions were rendered prior to the enactment of the Carmack amendment in 1906. As originally enacted, the Carmack amendment merely required the carrier to issue a bill of lading and provided that the carrier should be liable to the holder thereof for any loss, etc., caused by the carrier or a connecting carrier, and that no contract should exempt such carrier from the liability thereby imposed. 34 Stat. 595. No reference was made to limited liability upon agreed valuation such as is presently found in the second exception in Section 20(11) Title 49, U. S. Code.

Adams Express Co. v. Croninger (1912) 226 U. S., 491, arose under the original subsection of Section 20 of the Carmack Amendment as enacted in 1906.

The primary question decided was that Congress had enacted a uniform rule as to liability imposed on interstate carriers with respect to bills of lading thus superseding all state regulations on the subject. The case involved a schedule based upon declared rates of valuation similar to the one involved in the instant case. The State court had awarded recovery for the full value of the diamond ring delivered to the express company for shipment. The judgment of the State court was reversed. In its opinion, the court said:

“That a common carrier can not exempt himself from liability for his own negligence or that of his servants is elementary. York Mfg. Co. v. Illinois Central Railroad, 3 Wall. 107; Railroad Co. v. Lockwood, 17 Wall, 357; Bank of Kentucky v. Adams Express Co., 93 U. S., 174; Hart v. Pennsylvania Railroad, 112 U. S., 331, 338. The rule of the common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went beyond this and he was liable for any loss or damage which resulted from human agency, or any cause not the act of God or the public enemy. But the rigor of this liability might be modified through any fair, reasonable and just agreement with the shipper which did not include exemption against the negligence of the carrier or his servants. The inherent right to receive a compensation commensurate with the risk involved the right to protect himself from fraud and imposition by reasonable rules and regulations, and the right to agree upon a rate proportionate to the value of the property transported.”

The court went on to say:

“It has therefore become an established rule of the common law as declared by this court in many cases, that such carrier may by a fair, open, just and reasonable agreement limit the amount recoverable by a shipper in case of loss or damage to an agreed value made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk. * * * That such a carrier might fix his charges somewhat in proportion to the value of the property is quite as reasonable and just as a rate measured by the character of the shipment.”

The court further indicated that such a contract is not an exemption from liability for negligence, but is a contract as to what the property is, in reference to its value; the purpose of it is not to change the nature of the undertaking of the carrier or limit his obligation in the care and management of that which is entrusted to him.

Again, in Boston & Maine Rd. Co. v. Hooker (1913) 233 U. S., 97, the court said that the effect of permitting the carrier to file regulations as to passengers' baggage, which limit its liability except on payment of specified rates, is not to change the common law rule that the carrier is an insurer against its own negligence, but simply that the carrier shall obtain commensurate compensation for the responsibility assumed. The Court also held that knowledge of the shipper that the rate is based on value is to be presumed from the terms of the bill of lading and of the published tariff schedules filed with the Interstate Commerce Commission, and the effect of so filing the schedules makes the published rates binding on shipper and carrier alike. This case turned upon the construction of Section 6 of the Interstate Commerce Act as amended by No. 2 of the Hepburn Act (Carmack Amendment), June 29, 1906, 34 Stat. 584, 586, requiring the filing of schedules showing all the rates, fares, and charges for transportation, including “All other charges which the Commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part of the aggregate of such aforesaid rates, fares, and charges, of the value of the service rendered to the passenger, shipper, or consignee.” The court said: “It seems to us that the ordinary signification of the terms used in the act would cover such requirements as are here made for the amount of the recovery for baggage lost by the carrier. It is a regulation which fixes and determines the amount to be charged for the carriage in view of the responsibility assumed, and it also affects the value of the service rendered to the passenger.”

In Western Union Telgraph Co. v. Esteve Bros. (1920) 256 U. S., 566, it was argued that the rule limiting liability with respect to carriers under the Interstate Commerce Act was not applicable because of the difference in the provisions of law which governed the establishment of railroad and telegraph rates. The railroad rate could only be established by filing the tariff with the Commission. Telegraph companies might initiate rates without filing tariffs with the Commission. But the court concluded that when the telegraph company initiated and established its rates, the principle of equality and uniformity laid down in Section 3 of the Interstate Commerce Act required that it should have exactly the same force and effect as the rate initiated by a rail carrier and filed according to the provisions of Section 6 of the Act. The court held that the senders of the message were bound as a matter of law by the provision limiting liability, without regard to their knowledge or assent, because it was a part of a lawfully established rate which could not be departed from without creating an undue preference or advantage in violation of Section 3 of the statute.

It seems to be the position of the plaintiff-appellee that decisions in railroad cases have no bearing upon the instant case because cases involving carriers under the Interstate Commerce act are authorized to limit their liability upon a declared valuation under the specific provisions of the Carmack amendment whereas the Civil Aeronautics Act contains no such provision.

As indicated above, the right to so limit liability arises at common law independent of federal statute, except as provision is made requiring the filing of tariff rates and schedules, which, if reasonable, become binding alike upon the carrier and its patron.

Section 483(a) of the Civil Aeronautics Act (Title 49, Section 483 U. S. Code) requires every air carrier to file, post and publish tariffs showing all rates, fares and charges for air transportation, and, to the extent required by regulations of the Board, showing all classifications, rules, regulations, practices, and services in connection with such air transportation. Section 483(b) contains the customary prohibition against discrimination by providing that no air carrier shall charge a greater or less or different compensation for air transportation, or for any service in connection therewith, than the charges specified in the currently effective tariffs. In its regulations, the Board has defined tariff as follows:

“ ‘Tariff’ means a publication containing rates applicable to the transportation of persons or property and rules relating to the transportation of persons or property and rules relating to or affecting such rates or transportation.” Paragraph (d) Economic Regulation 221.1, Civil Aeronautics Hoard.

In the light of the above decisions of the Supreme Court, it seems clear to a majority of the court that the limitation of liability clause in the tariff applicable herein does not constitute an exemption from liability for negligence, but is a regulation fixing and determining the amount of recovery for lost baggage px-emised upon the amount to be charged for the carriage in view of the responsibility assumed. It is therefore valid and binding upon the carrier and the passenger alike

We agree to the general principle asserted by plaintiff that there must be statutory authority for filing a particular clause in a tariff before persons affected thereby are charged with notice thereof or bound by its terms. Southern Pac. Co. v. United States, 272 U. S., 445; Pacific S. S. Co. v. Cackette, (1925) 8 Fed. 259.

Thus it has been held that under the Civil Aeronautics Act, a clause in a tariff prescribing a limitation of time for the filing of notice of claims and suits for personal injury is not authorized and is not binding upon the passenger, because it has no relation to rate for transportation. Shortley v. Northwestern Airlines (1952), 104 F. Supp., 152, but recognizing the validity of a limitation of liability for loss of property based upon a declared valuation. Thomas v. American Airlines, Inc. (1952) 104 F. Supp., 650; Toman v. Mid-Continent Airlines, Inc. (1952) 107 F. Supp., 345; Bernard v. U. S. Aircoach (1953), 117 F. Supp., 134; Crowell v. Eastern Airlines, Inc. (1954), 129 F. Supp., 319. See also: Glenn v. Compania Cubana Avicon (1952), 102 F. Supp., 631.

On the other hand, a tariff regulation that no action shall be maintained for injury to a passenger unless written notice of claim be presented within a limited time has been held reasonable and valid. Wilhelmy v. Northwest Airlines (1949), 86 F. Supp., 565. Likewise, a limitation of one year for bringing suit has been sustained. Herman v. Capitol Airlines (1951) 104 F. Supp., 955. See, also, State v. Eastern Airlines (1948), 120 F. Supp., 745; Indemnity Ins. Co. v. Pan American Airways (1944), 58 F. Supp. 338; Sheldon v. Pan American Airways, Inc. (1947), 74 N. Y. S. 2nd, 267, 578 (but arising under Warsaw Convention). New York & Honduras, etc., Co. v. Riddle Airlines, Inc. (1956), 152 N. Y. S. 2nd, 753 (citing Lichten v. Eastern Airlines, supra). Tariff regulations with respect to delay in transportation, have also been sustained. Jones v. Northwest Airlines, Inc. (1945), 22 Wash., 2nd, 863, 157 Pac. 2nd, 728; Mack v. Eastern Airlines (1949), 87 F. Supp., 113; Furrow & Co. v. American Airlines (1951), 102 F. Supp., 808.

It has been specifically held that liability oí an air carrier in respect to baggage is limited under such carrier’s tariff to the value stated therein or its equivalent per passenger, unless a higher valuation is declared in advance and additional charges are paid pursuant to the carrier’s tariff. Radinsky v. Western Air Lines, Inc. (Col. 1952), 242 Pac. 2nd, 815; Wilkes v. Braniff Airways (Okla. 1955), 288 Pac. 2nd. 377; Toepfer v. Braniff Airways (1835), 135 F. Supp., 671; Harris Trust & Savings Bank v. United Air Lines, 1951 U. S. Aviation Reports; Wadel v. American Airlines, Inc., 269 S. W. 2nd, 857 (citing Lichten v. Eastern Airlines, infra); Kenny v. Northeast Airlines (1956), 152 N. Y. S. 2nd, 966 (citing the Lichten case, infra). Plaintiff contends that in these cases the validity of the tariff in question was either assumed or not considered by the courts.

The cases cited above are United States District and State court decisions. Lichten v. Eastern Airlines (1951), 189 Fed. 939, 25 A. L. R. 2nd, 1337, was decided by the U. S. Circuit Court of Appeals for the Second Circuit. Defendant relies upon the decision of the majority. Plaintiff argues that the dissenting opinion is more persuasive. As in the cases dealing with a clause limiting the time within which to file notice of claim, the clause involved in the Lichten case is entirely different than the limitation of liability clause in the instant case. In Lichten, the carrier transported a passenger’s baggage under a stipulation in its tariff that any jewelry should be at the passenger’s risk It is -to be readily observed that such a stipulation exempted the carrier “from all liability for its own negligence,” as said by Judge Frank, without any provision for a declared value for which it might exact a higher fare or rate.

The majority of the court held such stipulation to be a part of the carrier’s contract with the passenger, and to be one within the power of the Civil Aeronautics Board to approve. It was further held that its reasonableness could not be attacked in the courts until the administrative remedy for the correction of unreasonable stipulations had been exhausted, and that the regulation is deemed valid until the Board declares otherwise. Frank, C. J., filed a vigorous dissenting opinion on the ground that the Board had no authority to accept anc legalize such tariff exempting the carrier from liability. Under the circumstances disclosed in that case, were we permitted to do so, we coulc well go along with the reasoning of Judge Frank. But upon the facts; the case must be distinguished. In his dissent, Judge Frank says that the $100.00 limitation with respect to baggage “is doubtless valid,” thus recognizing the distinction between such clause and the one exempting the carrier from all liability.

In Herman v. Northwest Airlines (1955), 222 Fed. 2d, 326, Judges Hand, Swan and Hincks, reiterated that portion of the Lichten case holding an air carrier’s regulation with respect to limiting time for bringing suit is to be deemed valid until the Civil Aeronautics Board declares otherwise.

In conclusion, it is regrettable that a passenger on a carrier wholly unaware of the provisions of a tariff schedule should suffer loss as the result of the carrier’s failure to advise him of his right to recover full value of his baggage upon the payment of a slight additional charge. The Aeronautics Board might well adopt a regulation requiring the tender of a valuation slip to the passenger, incident to the checking of baggage. But in view of the foregoing all-too extended observations, the judgment of the Common Pleas Court must be modified by reducing the amount thereof to the sum of $100.00, and as so modified the judgment be affirmed at appellee’s costs. Cause remanded to the Common Pleas Court for execution.

HUNSICKER, J, concurs.

DEEDS, J, dissents.

DISSENTING OPINION

By DEEDS, J.

It is my opinion that Section 483 of the Civil Aeronautics Act requiring carriers by air to file “tariffs showing all rates, fares and charges for air transportation between points served by it,” etc., did not authorize the carrier to limit its liability under the law as established and applicable in determining the air carrier’s responsibility in the circumstances as shown to exist by the evidence in this case, and it is therefore my view that the judgment of the trial court should be affirmed.

Texas P. R. Co. v. Mugg, 202 U. S., 242; Chicago & A. R. Co. v. Kirby, 225 U. S., 155; Southern Pacific Co. v. United States, 272 U. S., 445, 45 S. Ct. 123, 71 L. Ed. 343; United States v. Atlantic Mutual Insurance Co., 343 U. S., 236.

      . This distinction has been recognized in Ohio in cases involving a special contract between a carrier and a shipper. In Baltimore & O. Rd. Co. v. Hubbard (1905) 72 Ohio St., 302, the court held that in consideration of a reduced rate of carriage, a carrier might lawfully contract to be responsible for no more than the agreed valuation. In Pennsylvania Co. v. Shearer (1906), 75 Ohio St., 249, the court sustained an express contract clause requiring the filing of a claim for loss within a specified time.

      . Cf. footnote 1, p. 503, for terminology of Section 20.

      . The Carmack amendment was not made applicable to motor carriers until 1935, Title 49 U. S. Code, Section 319. Plaintiff cites Tubize Chattilon Corp. v. White Transportation Co. (1934), 6 P. Supp., 15; Outdoor Clothing Co. v. Universal Carloading & Dist. Co. (1938), 3 N. Y. S. 2nd, 586 and Sunshine Hosiery Mills v. Chambers Truck Co. (1937), 171 Tenn., 677, 107 S. W. 2nd, 515, holding that the Carmack amendment did not apply to motor carriers, and that the liability imposed for loss in transit upon initial carriers by the Carmack amendment did not apply to motor carriers. These decisions are i bviously inapplicable to the determination of the question presented herein.

      . In Boston & M. R. Co. v. Hooker, supra, the court made express reference to the notice which follows from the tariff filed “as required by statute and the order of the Interstate Commerce Commission.” As hereinafter discussed, however, there is a presumption of validity until otherwise decided by the Board or Commission.

      . In distinguishing Lichten v. Eastern Airlines, infra, the court stated that it has long been recognized that the value of property transported either as baggage or freight is a common ingredient of calculation of tariff and liability for damage.

      . Although the carrier defended on the ground that it was exempt from liability for all loss, it also contended that, in any event, it was exempt from liability in excess of the valuation specified in its tariff. Since it prevailed under the first contention, there was no occasion for the court to comment on its alternative contention, except the expression of Judge Frank that the alternative was “doubtless valid.”


author: By HOLTSBERRY, J.

text:
    TEAGUE, Admrx., Plaintiffs, v. CITY NATIONAL BANK AND TRUST COMPANY OF COLUMBUS, Trustee, Defendants.
    Common Pleas Court, Licking County.
    No. 40976.
    Decided July 17, 1957.

      Vorys, Sater, Seymour & Pease, Columbus, for The City National Bank and Trust Company of Columbus, Trustee. ■
    Jones & Jones, Newark, for plaintiffs.
   OPINION

By HOLTSBERRY, J.

This action is one to construe a portion of the will of Orville C Teague, and obtain a declaratory judgment accordingly. The petitioi of plaintiffs and answer of the defendant Trustees puts in issue the divergent views and claims of the parties. The case was submitted tc this Court upon the pleadings, evidence, stipulations and statements oi counsel, and upon the briefs.

Item 5 of the will of Orville C. Teague provides in part:

“I further direct that my Executor as soon as practicable after mj decease, invest for each of my children the sum of Twenty-Five Thousanc ($25,000.00) Dollars in a refund annuity in some old line life insurance company or companies. In case such insurance annuity is not obtainable from such insurance company or companies satisfactory to mj Executor, then said fund of Fifty Thousand ($50,000.00) Dollars shall pass to the Trust hereinafter provided for.”

The dispute arises since the parties claim that Item 5 of the wil does not specify to whom the refund should be payable. It was stipulated that there were two children, Jean Elizabeth Teague and Carl O Teague, and that the executors did obtain the refund annuities which provided that if any refunds are payable they shall be paid to the trustees under the will of Orville C. Teague.

Grace H. Teague, the mother of Jean Elizabeth Teague, the incompetent daughter of testator, in her capacity as guardian of her daughter signed the applications for Jean Teague’s annuities, and the son, Carl O. Teague, signed the applications for his own annuities. In ail of said policies which were submitted to the Court it was provided that the refunds should be payable to the trustees of the estate. The beneficiaries under the trust include Grace H. Teague, who was the widow of the testator, said Carl O. Teague, and his wife, who are to receive income so long as they live, and may in addition, be paid five percent of principal per year. The principal, after the death of the life beneficiaries, is to be paid to the children of Carl O. Teague. The life beneficiaries have no power to sell or assign their interests in the trust, which interests are further restricted and protected by a “spendthrift” clause.

The entire will which is admitted in evidence, and has on two occasions been judicially determined in part, is as follows:

“LAST WILL AND TESTAMENT OF ORVILLE C. TEAGUE
“I, Orville C. Teague, do make this my Last Will and Testament.
“Item 1st: I desire that all of my just debts and the expenses of administration of my estate and all taxes, including inheritance and Federal Estate taxes be paid out of my estate.
“Item 2nd: I give and devise to my son Carl O. Teague the house and ot located at the North East Corner of Main and Church Streets in the Village of Utica, Ohio, together with all furniture and fixtures, including aeds and bedding, kitchen equipment and all other portable articles in and about said residence.
“Item 3rd: I give and devise to my wife Grace Hill Teague my home property at the North West Corner of Main Street and Factory Street projected west, together with all of the rest and residue of my furniture, fittings, household and other portable articles, also all books, papers, jewelry, portraits, silverware, clothing, and my automobile.
“Item 4th: I give and devise to my daughter Jean Elizabeth Teague my property consisting of a house and seven (7) acres of land on the Utica-Homer Read just west of Utica.
“Item 5th: I direct my Executor to hold the sum of Ten Thousand ($10X00.00) Dollars in money or in U. S. Bonds, for the purpose of paying and to pay to my said wife and son each an allowance of One Hundred and Seventy-five ($175.00) Dollars per month until such time as the income from the trust fund hereinafter provided for shall begin to be paid to them. I further direct that my Executor as soon as practicable after my decease, invest for each of my children the sum of Tv'/eniy-Flvc Thousand ($25,000.00) Dollars in a refund annuity in some old line life insurance company or companies. In case such insurance annuity is not obtainable from such insurance company or companies satisfactory to my Executor, then said fund of Fifty Thosuand ($50,000.00) Dollars shall pass to the Trust hereinafter provided for.
“Item 6th: I give and devise to my son, absolutely the following stocks and securities, viz:—
“$2500.00 par value in Studebaker 6% notes
100 Shares Armour & Company common stock
50 Shares Radio Corporation of America, Common Stock
150 Shares Pennroad, Common stock
25 Shares Hudson Motor Car Co., common stock
50 Shares Republic Steel Corporation common stock
100 Shares Curtis-Wright Corporation, common stock
50 Shares Inland Investors Corporation, common stock
5 1/10 Shares, Mission Corporation, common stock
“All of the stock and notes of the Utica Manufacturing Company in my name, or otherwise belonging to me.
“Item 7th: All of the rest, remainder and residue of my estate including money, bonds, stocks, and all other property of any nature whatsoever I give, devise and bequeath to the Union Trust Company of Newark, and to Harry L. Everts as co-trustees.
“IN TRUST NEVERTHELESS, for the following uses and purposes:
“A. To pay the net income of the trust fund in regular and approximately equal monthly installments shared as follows, to my said wife Grace Hill Teague, Forty (40) per cent thereof, to my son Carl O. Teague, Forty (40) per cent thereof, and to my daughter Jean Elizabeth Teague, Twenty (20) per cent thereof, or the survivor of them for the lifetime of each of them, provided that the share of any deceased beneficiary shall be divided as follows; if Grace Hill Teague or Jean Elizabeth Teague die, such share go the the survivors or primary beneficiaries share and sharH alike but from and after the death of my said son Carl O. Teague, m trustees shall hold the trust fund and his share of the future incom thereof plus such share of the income he receives or would have receivec if living, as survivor of either or both of the other two primary benefi ciaries, upon trust to pay his share of the income of the trust fund othe than stock dividends unto the present or any future wife of my said so¡ so long as she remain his unmarried widow share and share alike wit! the heir or heirs of his body who may happen to survive him until th death of both my said wife and daughter and also the death of my son’ wife, or unless she remarry in either of which events said trust shal cease and determine and the net corpus of said trust fund plus an undistributed income shall pass absolutely and in fee simple share an< share alike to the heirs of the body of my said son Carl O. Teague provided however, that from the share of the income from said trus fund available to be paid to my said wife, son and daughter for ant during the natural life of each of them same shall be paid only thi following express terms and conditions: such payment shall be madi in monthly installments on the 1st day of each month and each installment shall be payable and shall be paid only to each of said beneficiarle: personally, and the same shall not be payable to any other person bj reason of any transfer or assignment, by operation of law or otherwisi of any supposed or possible right of such beneficiary or beneficiaries tt receive the same. And in the event that any one of said beneficiaries shall by operation of law or by reason of any act of his or hers be barre» or prohibited from receiving the payment of any installment and applying the same to his or her own use as the case may be such installment! shall not be payable to him or to her but shall be payable by said Trustees to the corporate Trustee under this trust which shall expend the same or so much as in its discretion is advisable and expedient for the benefit of such beneficiaries and/or unmarried widow and child 01 children of said son which money shall be applied to the care, board anc clothing of such beneficiary or beneficiaries and/or the wife and chile or children of said son Carl O. Teague as far as may be proper or necessary in the judgment of the Trustees.
“B. My trustees shall have full power to manage all of my property as a trust fund, to purchase and/or sell mortgage, notes, stocks, bonds and other securities as they may deem proper, without being restricted to a class of investment which a Trustee is or may be permitted by law to make; provided, however, that not more than 50% of said fund shall be invested in common stock at any one time; and provided, further, that in all investments made, none shall be entered into without the express consent of Harry L. Everts if living or if dead of his duly appointed and qualified successor.
“C. The trustees may in their discretion and upon the written request of any of the beneficiaries of the trust, have the right to withdraw installments of principal and pay over to such beneficiary from time to time but not in excess of five (5) per cent of the then market value of his or her proportion of the principal of such trust fund in any one year for each such beneficiary. And such withdrawal shall in each instance operate to reduce the distribution of the income as provided in Section A hereof to each such beneficiary as may receive a portion of the principal of said trust fund in proportion to his or her share of the principal of said trust fund so reduced.
“D. Said Trustees shall receive such compensation for their services as shall be fixed by the Probate Court of Licking County, Ohio.
“E. In the event of a vacancy in the office of either or both Trustees, such vacancy or vacancies shall be filled by appointment of such Trustee or Trustees as the majority of the primary beneficiaries herein named, shall decide.
“F. No bond in excess of Five Thousand Dollars shall be required of the personal Trustee named under this trust.
“I hereby appoint Harry L. Everts as Executor of this will to serve without bond.
“IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of September, 1935.
ORVILLE C. TEAGUE
“Signed by the said Orville C. Teague and declared to be his last will and testament in our presence and at his request in his presence and in the presence of each other signed by us as witnesses this 12th day of September, 1935.
W. F. LEWIS
HORATIO D. BERRY.”

Jean Teague has died and her personal representative, her mother, seeks to secure for Jean’s personal estate the refunds due on the annuity policies on Jean’s life, Carl O. Teague seeks to have the refund provisions in his policies changed to make any refunds payable to his own estate rather than the trust. To reach a decision herein the Court must, as in all will questions, ascertain the intention of the testator, as the controlling object in the construction of a will is to ascertain and declare the testator’s intention, (Union Savings Bank & Trust Company v. Alter, 103 Oh St 188.)

As is sometimes expressed, the intent is to be ascertained from a full view of everything within the “four corners of the instrument,” in light of the circumstances surrounding the testator at the time of the execution of the will. (41 O. Jur., Wills, pg 600, Section 469.)

In determining the surrounding circumstances a court should, as far as possible, try and put itself in the position of the testator at the time of making the will. Intention must be determined from language used in the will as applied to the subject matter and read in the light of surrounding circumstances at the time of execution. (Setterman v. Bingham, 115 Oh St 35; Anderson v. Gibson, 116 Oh St 684; McMerriman v. Schiel, 108 Oh St 334; 41 O. Jur., Wills, pg 595, Section 468.)

Many rules of construction have been referred to by courts, but none should be permitted to thwart the desire and purpose of a testator if the desire and purpose of the testator can be ascertained from language employed, and- while the purpose of construction as applied to wills is unquestionably to arrive at the intention of the testator, that intention is not that which existed in the mind, but that which is expressed by the language of the will. Intention need not be declared in express terms in the will, but may be deduced as a matter of infer ence or implication from all provisions of the will taken and considerei together. (Clyde v. Simpson, 4 Oh St 455; Morgan v. First National Bank 84 Oh Ap 345.)

The question arises did Orville C. Teague intend that the refum be paid to the heirs of the annuitant or to the trust estate. Item 5 ii effect provides that “Each of my children,” shall receive whateve benefits can be derived by the executor expending Twenty-Five Thousam ($25,000.00) in a refund annuity. The benefits are provided for “eacl of my children.” The Court notes that the testator did not add word such as “their heirs,” or “executors or administrators,” which would ereat an absolute fee title.

It is provided however, that “in case such insurance annuity is no obtainable from such insurance company or companies satisfactory t< my executor, then said sum of Fifty Thousand ($50,00.00) Dollars shal pass to the trust hereinafter provided for.” This provision of the wil places considerable discretion in the executor and made it clear that i. certain circumstances existed the testator did not want the money t< go to the children or the estates of the children, but to the trust. Further, this direction for augmentation of the residuary trust clearly indicates that testator intended the benefits of the annuities were to be enjoyed by the children personally during their lives.

Let us further analyze the terms of the trust, itself. It makes provision for the payment of income and optional, but limited, amounts o: principal to the testator’s wife, daughter, son and daughter-in-law. The principal of the trust after the death of the life beneficiaries goes tc the heirs of the body of Carl O. Teague. Sums payable cannot be transferred or assigned by operation of law or otherwise and payments are further protected by a “spendthrift” clause which provides that if anj life beneficiary should be prohibited from receiving payment of anj installment such installments are to be paid for the benefit “of such beneficiaries and/or unmarried widow and child or children of said son which money shall be applied to the care, board and clothing of such beneficiary or beneficiaries and/or the wife and child or children of said son, Carl O. Teague, as far as may be proper or necessary in the judgment of the trustees.”

With respect to principal beneficiaries, they are given only restricted withdrawal rights. Testator was mindful of dissipation of principal as revealed by these provisions and took precautions in order that his trust estate would eventually go to grandchildren. It appears from language used that testator’s clear intent was that refunds, if any, were to go to the trust, and then through the trust to the grandchildren.

Testator did not create a straight or simple annuity, but was creating a refund annuity which is one where the insurance company agrees to pay an income for the life of the annuitant for which the purchaser pays a single premium; if the annuitant dies before the entire principal plus interest have been paid out in the form of income, then the unused part of the principal is refunded to a designated beneficiary.

The word “refund,” means a return to the source from which the payment originated. (See Words and Phrases, Volume 36, page 672.) further, the word “refund,” has been defined by Webster as meaning to ‘return in restitution, repayment; to supply again with funds; to reimburse.”

An annuity can continue only so long as the annuitant lives and by selecting such annuity testator indicated his intention to benefit his 3hildren during their lifetimes. Had he desired a type of investment to augment their estates he could have chosen some other type of investment which by express terms or operation of law would have descended through the estates of his children.

It is stated in 24 Corpus Juris Secundum, Section 1329, “Where the executor sets apart from the estate a sufficient sum to meet an annuity, he never parts with the title, and even if it is considered a trust fund for the benefit of the annuitant it must be returned to the executor for administration when the trust is terminated.”

The case of Merrill v. Wooster, 92 Me., 460, 59 Atl., 596 is cited. While it is true that the issue in the Maine Case is not precisely the same as the issue in the instant case, there is reasoning which appears sound and applicable herein.

After careful consideration this Court finds that it was the intent of the testator that the refunds are to be made to the trustees of the estate of Orville C. Teague. Having determined this matter on the question of intent the Court will devote very little time to the other contentions raised.

It is contended by defendants that the copies of applications and annuity policies themselves clearly evidence not only that the refunds are to be made to the trustees, but that the plaintiffs in the action clearly understood and agreed that this was proper.

Exhibits D, E and F are policies payable to Carl O. Teague, and in each it is expressly provided that the refund is to be paid to the trustees of the estate of Orville C. Teague, deceased, and in each instance said Carl O. Teague joined in application for the annuity, which application directs among other things to whom the payment is to be made. No right is reserved in said three policies to change the beneficiary.

Exhibits G, H and I are the policies payable to Jean Elizabeth Teague or Grace H. Teague, guardian of Jean Elizabeth Teague, and in each it is expressly provided that the refund is to be paid to the trustees of the estate of Orville C. Teague, deceased, and with respect to two of said contracts, Grace Hill Teague, guardian of Jean Elizabeth Teague joined in the application for the annuity, which application directs among other things, to whom the payment is to be made.

The defendants contend that since this was years ago in 1936, that the annuity contracts were written that such consent in 1936 of plaintiffs constituted a waiver, in any event, with respect to payment of the contracts of insurance in question. Defendants further contend that the relief sought by plaintiffs should be denied and that they are precluded from same under the provisions of §16598-40 GC, which was in effect between 1932 and 1940, and pertain to the filing of accounts and the final effect of such. They contend that since no exceptions were filed to the expenditure of funds for the annuities and refunds payable to the trust estate that Carl O. Teague and Grace H. Teague, then guardian, now administratrix of the estate of Jean Elizabeth Teague, are not now in position to challenge that which was done by the executors, irrespectiv of the fact that they did consent to what was done and joined in th applications for the issuance of the annuities with refunds payable t< the trustees.

The Court having decided the issues herein by ascertaining an< determining the intent of the testator does not deem it necessary t< determine these last questions raised.

Entry shall be prepared and submitted to this Court.

Exceptions allowed.


author: By PHILLIPS, PJ.

text:
    OHIO FINANCE COMPANY, Plaintiff-Appellant, v. GREENE, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3830.
    Decided March 28, 1956.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    Eugene B. Fox, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

On August 12, 1952, plaintiff finance corporation loaned defendant $700.00 secured by his cognovit promissory note of even date payable in twenty equal monthly installments, on which he allegedly defaulted when the balance due on such note was $632.12. On July 30, 1954, plaintiff secured judgment against defendant in the Municipal Court of Youngstown for that amount and interest on the cognovit provision of his note.

As alleged by defendant’s answer on November 16, 1954, defendant filed a voluntary petition in bankruptcy in which plaintiff claims he listed nine creditors to whom he represented he owed $1017.19, and, as alleged in defendant’s answer, on February 1, 1955, he was duly and regularly discharged as a bankrupt.

On August 22, 1955, plaintiff filed proceedings in aid of execution in he Municipal Court of Youngstown and attached defendant’s wages. 3y answer, which the trial judge interpreted as a motion, defendant alleged his discharge in bankruptcy on February 1, 1955, and prayed for lismissal of plaintiff’s order in aid of execution, and that his wages paid nto court be returned to him.

Plaintiff filed a motion to strike defendant’s motion from the files irging that defendant’s motion was a collateral attack upon a good mpaid judgment and contrary to the procedure of the court in which lied and federal and state courts of Ohio.

The trial judge overruled plaintiff’s motion, dismissed the order in fid of execution, and refused to permit plaintiff to introduce evidence Df fraud or misrepresentation for the purpose of establishing that the original obligation evidenced by the note was excepted from discharge in bankruptcy.

Plaintiff appealed from the action of the trial court to this court >n questions of law.

By assignments of error, not all of which were argued and accordingly will not be disposed of, plaintiff maintains:—

“1. That the judgment of the court in overruling plaintiff’s motion is contrary to law.
“2. That the judgment of the court, wherein the court ordered the attachment released filed by the plaintiff in pursuance to a judgment obtained, is contrary to law.
“3. That the judgment of the court on the motion filed by the plaintiff without giving the plaintiff an opportunity to be heard is prejudicial to this appellant.
“4. That the court erred prejudicially to the rights of this plaintiff in entertaining the motion of the defendant and releasing the attachment without having acted upon same, and that the judgment stands in full force and effect.
“5. For any other errors committed by the court which occurred during the hearing of the motions as shown by the original papers.”

Plaintiff states by brief:—

“It is our contention that the court erred prejudicially to the rights of this appellant in entertaining the motion of the defendant and releasing the attachment without having acted upon the motion of the defendant and the judgment hereinbefore obtained in the Municipal Court of Youngstown, so that we can consolidate all the errors into one proposition; that the order made by the court is contrary to law and is prejudicial to the rights of this plaintiff.
“* * * for the defendant to avail himself of the defense of a bankruptcy discharge, it is incumbent upon the defendant to file the proper pleadings, that is by way of a motion within term to suspend the judgment or a petition after term from date when judgment is obtained, and tender an answer stating the defense of discharge and pray for a stay of execution until the case is finally determined upon the merits.
“* * * that the state court does not take judicial notice of bankruptcy proceedings in the federal court.”

While there is no evidence to support its claim plaintiff contendí that in a financial statement furnished by defendant to plaintiff finance corporation for the purpose of securing such loan of $700.00 defendant listed two creditors to whom he represented he owed $280.00, and stated in his own writing that he owed “no other bills” when in fact he had other obligations amounting to $1017.19, and that such financial statement was materially false.

In the case of Ohio Finance Company v. Greathouse, 64 Abs 1, this court said in the third syllabus:—

“Where a discharge in bankruptcy did not relieve a defendant from liability on his promissory note because the debt for which tha note was given was created in reliance upon a materially false statement in writing made by defendant for the purpose of obtaining such credit from plaintiff, plaintiff may bring his action in contract and plead defendant’s tort by way of reply to defendant’s answer setting up the discharge in bankruptcy.”

In the body of the opinion in that case Nichols, J., pertinently observed:—

“It will be kept in mind that defendant was charged with knowledge that this fraudulently incurred indebtedness was not dischargeable in bankruptcy. Certainly plaintiff in the Municipal Court was not required to anticipate that defendant would assert the defense of discharge of a non-dischargeable debt. Defendant having asserted such discharge, plaintiff need only deny the same in its reply, which it did and alleged ihe reasons for such denial. Defendant cannot decide for plaintiff the nature of the cause of action. Nor can defendant change plaintiff’s cause of action by alleging matters defensive thereto. Having attempted to avail himself of a discharge in bankruptcy, which was denied, it was incumbent upon defendant to prove an effective discharge, since he admitted the execution and delivery of the note. Defendant simply failed upon the proof of his alleged defense, although he may have established a prima facie defense by the introduction of his certificate of discharge together with evidence of this debt having been listed in his schedule of debts and that notice thereof was had by plaintiff. Such prima facie defense was effectively rebutted by the facts alleged in plaintiff’s reply and established upon the trial wherein no prejudicial error has intervened.
“This court as now constituted has previously held thrat the same procedure as followed in this case was proper. See opinions in the cases of The Ohio Finance Company, Plaintiff-Appellee, v. Charles E. Wilson, et al, No. 1003, Trumbull County, The Ohio Finance Company. Plaintiff-Appellee, v. Luigi Valle, Defendant-Appellant, No. 2942, Mahoning County.
“The authorities upon which we rely are numerous and include: Gregory v. Williams, 106 Kan. 819, 189 Pac. 932, in which the situation was identical with that in the instant case. Many cases are cited by the Kansas Court in support of its decision. Hisey v. Lewis-Gale Hospital, D. C., 27 F. Supp. 20, 40 Am. Bankruptcy Reports (n. s.) 206. Wieczorek v. Merskin, 1944, 308 Mich. 145, 13 N. W. (2d) 239.
“The cited cases also refer to other authorities.”

In the case of The Ohio Finance Company, v. David W. Waller, Ma-íoning unreported Appeal Number 2822, this court, speaking through fudge Carter, said:—

‘■The facts briefly are as follows: Plaintiff, a finance company, made r loan to defendant in 1939 in which plaintiff contends that defendant n securing same made false and fraudulent statements and reprcsenta-;ions upon which it relied. Subsequent to the securing of this loan by iefendant he filed a voluntary petition in bankruptcy in which it appears ihat this indebtedness to plaintiff was listed. That shortly thereafter iefendant was regularly adjudicated and discharged as a bankrupt. After this adjudication and discharge plaintiff filed its action and secured a judgment on the cognovit note hereinbefore referred to. This judgment is still in full force and effect. A motion was filed in the case to vacate the judgment on the ground that defendant had been adjudicated a bankrupt. However, that motion has never been by the municipal court, or any other court, acted upon..
“The motion to dismiss the proceeding in aid of execution is a collateral attack upon an outstanding judgment. For a general discussion under subject ‘collateral attack’ see 23 O. Jur., page 1120, wherein the author states on page 1141:—
“ ‘A direct attack upon a judgment has been defined to be one by which the judgment is directly assailed in some mode authorized by law, while a collateral attack is defined as an attempt to defeat the operation of a judgment, in a proceeding where some new right derived from or through the judgment is involved.’
“This judgment is not void, but voidable only. Had the motion to vacate the judgment been heard and determined and sustained then and in that event the proceeding in aid of execution would have automatically terminated as a judgment is necessarily the basis for a proceeding in aid I of execution. See 17 O. Jur., page 1015, and cases cited thereunder, wherein it is held that a judgment cannot be collaterally attacked by seeking dismissal of a proceeding in aid of execution.”

It is claimed by plaintiff, but not supported by the record, that the trial judge “flatly refuses to follows this court in Ohio Finance Company v. Greathouse, supra, Ohio Finance Company v. Waller, and Ohio Finance v. Valle, case number 2942 Mahoning Appeals.

The case of Ohio Finance Company v. Greathouse, supra, is distinguished from the case under consideration by the fact that in that case the petition in bankruptcy was filed and the plaintiff was discharged as a bankrupt before suit was brought upon the note. In the action on the note the defendant set up his discharge in bankruptcy and by reply plaintiff alleged that the debt was incurred fraudulently, as was clearly shown by the evidence, and accordingly not discharge-able in bankruptcy.

In the case under consideration action on the note was commenced and judgment entered therein before defendant filed his petition in bankruptcy. Plaintiff failed to take action in the Bankruptcy Court after it had notice of the proceedings in bankruptcy. There is nothing in the record before us to reduce the note to judgment which in any manner raises the question of defendant’s false representations in obtaining the loan. The discharge in bankruptcy was interposed after the proceedings in aid of execution was instituted.

This court, supported by numerous decisions, is on record to the effect that under evidence similar to that in the case we review plaintiff is relegated to an action in tort for damages resulting from tort. See Goodrich v. Eck, 25 Abs 548, where it was said:—

“1. The lower court in a proceeding in aid of execution has no right to go further into the original case than to examine the pleadings, files and records of the evidence therein.
“2. A court has no authority in proceedings in aid of execution to permit the introduction of evidence additional to that upon which the judgment is based in order to show that the injuries complained of by the plaintiff resulted from the wilful and malicious acts of the defendant and were therefore excepted from the defendant’s discharge in bankruptcy, instead of resulting from the wanton acts of the defendant as charged in the original petition. * * *
“It is the view of this court that the lower court has no right to go into the original case further than to examine the pleadings, files and records of the evidence in the original case and could not permit new and additional evidence in an attempt to disclose that the injuries inflicted in the original case were inflicted by defendant wilfully and maliciously.”

The principles controlling the case of Ohio Finance Company v. Greathouse, supra, are applicable in the case of Ohio Finance Company v. David W. Waller, supra.

In the case of United Mercantile Agencies, Inc., Assignee, v. Williams, 87 Ohio App 273, in which the facts are similar to the facts in the case we review, plaintiff obtained a judgment on a promissory note and subsequently defendant went bankrupt listing the judgment. After defendant obtained his discharge plaintiff attempted to issue an order in aid of execution on its judgment. Defendant moved to dismiss plaintiff’s order in aid of execution on the grounds that the judgment obligation had been discharged. Plaintiff sought to introduce evidence to show that the note was given for money obtained by defendant from plaintiff by false and fraudulent representation. The court sustained defendant’s motion to dismiss and refused to allow the plaintiff to introduce evidence. In affirming the trial court the court of appeals said:—

“In a proceeding in aid of execution to enforce a judgment taken on a promissory note, where the record is silent as to the facts and circumstances under which the indebtedness was created and a defense of discharge in bankruptcy is interposed, evidence outside the record is inadmissible to show that the judgment debtor’s obligation is one that is excepted from the operation of a discharge by the provisions of Section 17, Clause 4, of the Bankruptcy Act of 1938.”

On the record submitted the judgment of the trial court must be and is affirmed hereby.

NICHOLS and GRIFFITH, JJ, concur in judgment.