Summary
In State ex rel. Discus v. Van Dorn (56 Ohio App. 82) it was held that a petitioner who instituted suit after termination of her pregnancy by a still birth was entitled to sue and to recover from the putative father since the object of the statute is not only the maintenance of the child but also for providing the necessary expenses caused by pregnancy and childbirth.
Summary of this case from Matter of Gladys C. v. Robert LOpinion
Decided March 24, 1937.
Bastardy — Section 12123, General Code — Character of remedy provided — Not limited to maintenance and support of bastard child — Amount due complaining mother determined, how.
The remedy provided for in Section 12123, General Code, comprehends the payment by the reputed father to the complainant of such sum as the court may find to be necessary for her support, maintenance and the necessary expenses caused by the pregnancy and childbirth, together with the costs of prosecution. The right of action exists under the statute irrespective of whether the child is stillborn or born alive.
APPEAL: Court of Appeals for Crawford county.
Mr. J.D. Sears, for appellee.
Mr. T.B. Mateer, for appellant.
This is an appeal on questions of law from a judgment of the Court of Common Pleas of Crawford county, Ohio, rendered pursuant to the provisions of Section 12123, General Code, adjudging the defendant Herbert Van Dorn to be the reputed father of the bastard child delivered by complainant, Bertha Discus, on May 18, 1935, and ordering him to pay to the complainant the sum of $174.50, being the necessary expenses of her pregnancy and delivery of the child, together with interest from date of judgment.
On May 18, 1935, the complainant, Bertha Discus, an unmarried woman, filed her affidavit before a justice of the peace of Crawford county, Ohio, under the provisions of Section 12110, General Code, charging that she was pregnant with a bastard child and charging the defendant with being the father of the child. Warrant was issued for the arrest of the defendant, and on the same day complainant went to a hospital and the next morning was delivered of a stillborn child.
The defendant was bound over to the Common Pleas Court and subsequently the case was dismissed by the Common Pleas Court for the reason that the justice of the peace had lost jurisdiction.
On the 8th day of February, 1936, the complainant, Bertha Discus, filed another written complaint against the defendant before the same justice of the peace, which complaint is in the words and figures following:
"Before me, W.L. Monnett, one of the justices of the peace in and for Crawford county, Ohio, personally appeared Bertha Discus, resident within said county and made complaint under oath that she is an unmarried woman and that on or about the 18th day of May, 1935, she was delivered of a bastard child, although the same was then and there stillborn, and that Herbert Van Dorn is the father of said child."
Warrant was issued for the defendant on that complaint and he was arrested and brought before the justice's court. On February 17th the complainant, Bertha Discus, having been examined under oath by the justice as provided by law, the defendant was bound over by the justice to the Common Pleas Court of Crawford county and ordered to enter into a recognizance for his appearance before the court. The case was submitted to and tried by a jury in the Common Pleas Court on the 11th day of June, 1936, and the jury found the defendant guilty as charged in the complaint. Motion for new trial having been filed and overruled, judgment was entered on the verdict, from which judgment this appeal is made.
The defendant makes a number of assignments of error but in his brief filed in this court specifies only two errors, to wit: 1. That the verdict and judgment are contrary to law; 2. That the verdict and judgment are against the weight of the evidence.
Under the statute the two assignments mentioned will be the only ones considered and they will be discussed in the order mentioned.
1. The appellant's contention under the first assignment of error above mentioned is that as the child born to the complainant was stillborn (that is, a dead foetus), bastardy proceedings could not be maintained under the provisions of the statute, and that the judgment of the court in the case is for that reason without warrant or authority in law.
In support of this contention he relies on the case of Patterson v. Bucy, 7 Am. L. Rec., 566, 6 Dec. Rep., 723, in which it is held that the putative father of a stillborn bastard is not liable to prosecution by the mother under the Bastardy Act of 1878, and the case of Helfer v. Nelson, 7 C.C., 263, 4 C.D., 587, decided by the Circuit Court of this district about 1893, in which it was held that where a complainant under the bastardy act was delivered of a dead foetus or embryo child twelve weeks after conception, no recovery could be had and the action abated.
The complaint in the case at bar is based on the provisions of Section 12110, General Code, which reads as follows:
"When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes a complaint in writing, under oath, before a justice of peace, or in the juvenile court, charging a person with being the father of such child, the judge or justice thereupon shall issue his warrant, directed to any sheriff, police officer or constable of the state, commanding him to pursue and arrest such accused person in any county therein, and bring him forthwith before such judge or justice to answer such complaint."
There has, however, been a change in the provisions of the statutes relating to the judgment to be entered in bastardy proceedings, between the time of the decisions relied on by the appellant and the time of the judgment in the case at bar. Both of the cases relied on by the appellant were decided when the statute now designated as Section 12123, General Code, was in effect, and prior to its amendment in 110 Ohio Laws, 296. The pertinent parts of the section referred to, in effect at the time the decisions in the cases relied on by appellant were rendered, read substantially as follows:
If the accused, in person or by counsel, confess in court that the accusation is true, or if, upon the trial, the jury find him guilty, he shall be adjudged the reputed father of the bastard child, and shall stand charged with the maintenance thereof in such sum as the court shall order and direct, with payment of costs of prosecution; the court shall require the reputed father to give security to perform such order. (75 Ohio Laws, 742.)
As amended in 110 Ohio Laws, 296, and in effect at the time the cause of action in the case at bar arose, trial had and judgment rendered, the pertinent part of Section 12123, General Code, reads as follows:
"If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him guilty, he shall be adjudged the reputed father of the bastard child and the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with costs of prosecution. The court shall require the reputed father to give security to perform such order."
It will be noted that under the provisions of Section 5626, Revised Statutes, and Section 12123, General Code, as they existed before the amendment in 110 Ohio Laws, 296, the whole remedy provided for and the object to be obtained under such remedy were the maintenance of the bastard child, while the whole remedy provided for and the object to be obtained under such remedy under the provisions of Section 12123, General Code, as amended in 110 Ohio Laws, 296, are to compel the defendant to pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses caused by pregnancy and childbirth, together with costs of prosecution. And it will be noted that in the decisions relied on by appellant, and particularly in the decision in the case of Helfer v. Nelson, supra, the construction of the statute adopted is based on the fact that the whole remedy then provided for and the object to be obtained under such remedy were the maintenance of the bastard child.
In 3 Ruling Case Law, 761, it is stated:
"In the case of bastardy proceedings instituted pending the pregnancy of the complainant the question has arisen whether if the child is still-born the proceedings abate. On this question the authorities are in conflict due largely to the variant provisions of the statutes. If the sole object of the statute is the maintenance of the child the proceedings abate."
On the proposition contained in the last sentence of this statement a citation is made to a note in 30 L.R.A. (N.S.), 1167, 1169. The note referred to incorporates the case of Helfer v. Nelson, supra, as well as cases from other states as supporting this proposition.
A corollary of the proposition contained in the last sentence of the above quotation from 3 Ruling Case Law is that if the sole object of the statute is not the maintenance of the child the proceedings do not abate.
Applying this rule we hold that as under the statutes of Ohio as they now exist the whole remedy relates to compelling the defendant to pay the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth, together with the costs of prosecution, the right of action under the statutes exists irrespective of whether the child is still-born or born alive, as the expenses, the payment of which is provided for in the judgment, are of such character that they would be incurred in either event, and it is the intent and purpose of these statutes that such expenses be paid by the reputed father.
The affidavit on which the case at bar is based is therefore in conformity with the provisions of the statutes, and the verdict of the jury and the judgment entered on that verdict are in conformity with and not contrary to law.
2. Upon the assignment that the verdict and judgment are against the weight of the evidence we deem it unnecessary to discuss the evidence at length, but simply to state that we find, on an inspection of the bill of exceptions, that there is competent, substantial and credible evidence which goes to all the essential elements of the case and which supports the verdict and judgment. While there is a conflict in the evidence, the conflict is such that reasonable men might honestly vary in their conclusions as to whether on the whole record the verdict and judgment is or is not supported by the evidence. In this situation this court is not warranted in reversing the judgment for such claimed error. 2 Ohio Jurisprudence, 759, 761.
Finding no error in the particulars specified in the brief, the judgment of the Court of Common Pleas will be affirmed.
Judgment affirmed.
CROW, J., concurs.
KLINGER, J., dissents, being of the opinion that the decision in Helfer v. Nelson, 7 C.C., 263, 4 C.D., 587, is applicable to the facts of this case, and that for this reason the judgment should be reversed as being contrary to law.