Summary
construing the similarly worded General Code version of R.C. 2311.21
Summary of this case from State ex Rel. Litty v. LeskovyanskyOpinion
No. 24804
Decided November 27, 1934.
Divorce and alimony — Action survives death of party after decree fixing property rights — Revivor of actions — Sections 11397 to 11414, General Code — Executor or administrator proper and only necessary party — Revivor statutes general and not limited to particular courts — Revivor available in Court of Appeals, when — Nunc pro tunc judgment — Date actually filed controls to preserve right of review — Court should recall nunc pro tunc entry and include revivor, when — Section 11403, General Code — Revivor matter of right — Error proceedings — Bill of exceptions erroneously refused — Contents considered where substance of bill allowed under another caption — "Gross neglect of duty" cause for divorce — Section 11979, General Code — Dependent upon circumstances of particular case — Desertion for less than three years attended by aggravating circumstances — Weighing of evidence involved in deciding evidence insufficient in law — Section 6, Article IV, Constitution — Reversal on weight of evidence — Concurrence of all judges of Court of Appeals required.
1. When one or both parties to a divorce action die after decree of divorce by which property rights are fixed, the action survives.
2. In such action, under Sections 11397 to 11414, General Code, relating to revivor of actions, which name the "representative or successor" as the one in whom revivor shall be had, the executor or administrator of the deceased party as his personal representative is the proper person and the only necessary person to effect such revivor in order to prosecute proceedings for review to a higher court or courts.
3. The statutes of Ohio relating to revivor of actions are general in nature and are not limited in their application to any particular court.
4. Where one or both of the parties to a divorce action dies during error proceedings which are still within the jurisdiction and control of the Court of Appeals, revivor may be had in such court.
5. The right of a court to enter judgment nunc pro tunc is available in furtherance of justice only, and such judgment is not effective as of the date to which it relates back if that would deny the right of review to any proper party in a higher court. To preserve such right of review the date upon which such judgment is actually filed will control.
6. In a case where a nunc pro tunc judgment should take effect from the date it is actually filed, a court having control over its judgments during the term in which they are rendered should, in the furtherance of justice, recall such nunc pro tunc entry actually filed during such term and cause its amendment by including therein a revivor of the action in the name of a proper party who has properly invoked the remedy of revivor.
7. When properly invoked, the remedy of revivor given by Section 11403, General Code, is a matter of right and not of discretion.
8. Where a Court of Appeals erroneously refuses to allow and sign a bill of exceptions but does allow and sign the substance of such bill under another caption, which is contained in the record before this court, its contents will be considered.
9. The term "any gross neglect of duty" made one of the causes for divorce under Section 11979, General Code, is elusive of concrete definition and its application as a cause for granting a divorce must depend upon the circumstances of the particular case.
10. Willful absence for a period of less than three years, unattended by any aggravating circumstances, is not a cause for divorce in this state and cannot be classed as gross neglect of duty; but desertion for a shorter period than three years, accompanied by aggravating circumstances, may constitute gross neglect of duty.
11. Where a Court of Common Pleas, under conflicting evidence, finds that the desertion by a wife of a husband afflicted with epilepsy constitutes gross neglect of duty and decrees a divorce to the husband upon that ground, and upon error proceedings prosecuted to the Court of Appeals by the wife, that court decides, by a concurrence of only two of the judges, that the evidence produced is insufficient in law to constitute gross neglect of duty, a weighing of the evidence is involved; and a judgment of reversal carrying such decision into effect must be the judgment of all three judges of such Court of Appeals, otherwise it would conflict with Section 6 of Article IV of the Constitution of Ohio, providing: "No judgment of a court of common pleas * * * shall be reversed except by the concurrence of all of the judges of the Court of Appeals on the weight of the evidence."
ERROR to the Court of Appeals of Franklin county.
Ann Lerch filed her petition and later her amended petition for divorce and alimony against John E. Lerch in the Court of Common Pleas of Franklin county, Division of Domestic Relations, charging extreme cruelty. John E. Lerch countered with an answer and cross-petition, the cross-petition charging gross neglect of duty and extreme cruelty. The allegations as to gross neglect of duty, contained in the cross-petition, are as follows:
"For his first cause of action, this defendant says that plaintiff has been guilty of gross neglect of duty toward defendant in that on or about the thirteenth day of August, 1931, plaintiff left this defendant and has since failed and refused to live with him; that at the time of such leaving and for many years prior thereto, this defendant had been in poor health, constantly under the care of physicians, and is still in poor health, and that notwithstanding the condition of defendant's health and his need for the care, helpfulness and administration of the plaintiff, plaintiff without cause left and has since refused to live with this defendant, as aforesaid."
Finally the case came on for hearing. It appeared that John E. Lerch and Ann Lerch were married on April 18, 1917, and had no children. Mr. Lerch showed such executive ability that he rapidly rose to be general manager of a large shoe manufacturing company at an annual salary of $25,000. The tragedy of his life occurred in the fall of 1924, when, at the age of approximately thirty-two years, he became afflicted with epilepsy in a severe form. Everything possible was done to effect a cure or an alleviation of the disease. Several visits were made to a sanitarium at Battle Creek, Michigan. He underwent surgical operations of a serious character. Residence was taken up in California on account of the favorable climatic conditions prevailing there. Mr. Lerch was a frequent victim to the attacks peculiar to the disease of epilepsy, and Mrs. Lerch became skillful in performing those services necessary for the protection of an epileptic during the seizures to which they are subject. He was in constant need of watching, and Mrs. Lerch's own testimony is replete with instances of her ministrations from the inception of the disease to the permanent separation of the couple in August of 1931.
Mrs. Lerch testified that Mr. Lerch did a number of things of which she disapproved. These matters related principally to his personal habits and conduct and to the manner in which he invested some of his money.
From a financial standpoint Mr. Lerch was always most liberal with his wife and her relatives. Some of the latter were frequent visitors or residents at the Lerch home.
With the passing of time the epileptic attacks became less severe, but failed to diminish in frequency. It is apparent from the record that some friction did exist between Mr. and Mrs. Lerch. According to her testimony it was serious; according to his, it was not. It is equally clear from the record that some of the peculiarities of his conduct were directly attributable to the effect which his disease had upon him.
In the fall of 1930 Mr. Lerch returned to Columbus, Ohio, from California, in company with his brother-in-law, the husband of one of Mrs. Lerch's sisters, as attendant. Mrs. Lerch testified that his separation was an estrangement; Mr. Lerch testified it was not. At any rate, Mrs. Lerch came to Columbus in the spring of 1931, when a reunion took place. She testified it was upon condition that Mr. Lerch would mend his behavior in certain respects; he testified it was not. In July of that year they moved into a furnished house at Catawba Cliffs on Lake Erie and lived there as husband and wife, including sexual relationships. About the middle of August they motored to Columbus, in company with some of Mrs. Lerch's relatives, with the intention of returning to Catawba Cliffs in a few days. Mrs. Lerch testified that Mr. Lerch annoyed her by some of his actions during this time. While sojourning in Columbus an invitation was received to visit Mr. Lerch's parents at their summer home on Buckeye Lake. Mrs. Lerch demurred, and excused herself on the ground that she desired to go to Chillicothe to see her brother. However, instead, she returned to Catawba Cliffs, moved the belongings of herself and Mr. Lerch out of the house they had rented there, withdrew money on deposit in a joint bank account, notified Mr. Lerch he could find his belongings at the home of her mother, and two months thereafter began her action for divorce and alimony.
After a protracted hearing the trial court found that Mrs. Lerch's charge of extreme cruelty lacked the corroboration required by Section 11988, General Code, denied her a divorce or alimony, and dismissed her petition. The court further found that Mr. Lerch had established his charge of gross neglect of duty, granted him a divorce on that ground, and ordered a division of property under Section 11993, General Code. A decree was entered accordingly on February 1, 1933.
Mrs. Lerch prosecuted error to the Court of Appeals. That court reviewed the case and filed its decision on November 14, 1933. All members of the Court of Appeals agreed that the trial court was correct in denying Mrs. Lerch a divorce or alimony on her petition. However, two members took a position as follows:
"The most that the evidence established on defendant's [Mr. Lerch] behalf was a willful absence on the part of the plaintiff [Mrs. Lerch], but not being for three years, it could not be and was not set out as a ground of complaint. The trial court found that the willful absence was a gross neglect of duty. * * * We concede the legal proposition that circumstances attending and coupled with a desertion or willful absence may constitute a gross neglect of duty, but the resultant effect of those circumstances must be more than those attending the usual desertion without just cause. * * *
"Searching the record as we have, we are unable to find sufficient evidence to sustain the granting of a divorce to the defendant on the ground of gross neglect of duty. With regret we find ourselves compelled to reverse the order granting the divorce to the defendant. * * *
"We remand the case to the Court of Common Pleas, * * *."
The third member of the court rendered a dissenting opinion, in which he stated:
"There is ample evidence in the record which, if believed, supports the allegations of the first cause of action in the cross-petition of defendant in error [Mr. Lerch]. * * * The trial court was in a better position to determine the weight to be given the testimony of the different witnesses upon this subject, and also to determine the credibility of their testimony than is a reviewing court. * * *
"From a consideration of the record, assuming that the facts testified to by defendant in error and certain of his witnesses are accepted as true, we cannot escape the conclusion that a wife leaving her husband when he was in a physical condition such as is detailed in the record, constitutes a default upon her part attended by aggravating circumstances, and therefore constitutes gross neglect of duty upon her part."
Counsel were unable to agree upon a judgment entry. The attorneys representing Mrs. Lerch, shortly after the decision of the Court of Appeals was announced, prepared an entry showing that "the judgment of said Court of Common Pleas, Division of Domestic Relations, is reversed for the reason that said court erred in granting a divorce to the defendant, John E. Lerch; the evidence not being sufficient to sustain the granting of a divorce to the defendant on the ground of gross neglect of duty."
The attorneys for John E. Lerch declined to approve this entry. They desired one showing that the judgment of the lower court had been reversed on the weight of the evidence by a concurrence of only two of the judges.
No further progress was made and John E. Lerch died testate on March 6, 1934, his will making disposition of a considerable amount of property.
On March 27, 1934, counsel appeared before the Court of Appeals still unable to agree upon the form the judgment entry of reversal should take. Thereupon, on March 30, 1934, the two judges who had joined in the majority opinion of reversal approved and filed upon their own initiative the entry submitted by counsel for Ann Lerch on March 27, 1934, differing in form from the one originally prepared by the same counsel and referred to above.
The entry which was filed found prejudicial error on the part of the lower court in granting a divorce to Mr. Lerch on the ground of gross neglect of duty, for the reason that the evidence tended to establish nothing more than willful absence for a period less than three years, and therefore the evidence submitted was insufficient in law to entitle Mr. Lerch to judgment. The entry remanded the case to the lower court for further proceedings in accordance with law, and closed with the following statement:
"It being made to appear to the court that John E. Lerch, the defendant in error herein, deceased on the sixth day of March, 1934, which date was subsequent to the rendering of the decision in this cause by this court, the court now orders, in the furtherance of justice, that this order be now entered by the clerk of this court upon the journal of this court as of the date of November 14, 1933, and the September Term of this court, the date of the rendition of the decision by this court.
"To all of which defendant in error excepts."
On April 4, 1934, J. Lawrence Porter was duly appointed executor of the estate of John E. Lerch, as provided in the latter's will. Shortly thereafter, to wit, on April 17, 1934, the said Porter, as executor, and Addie M. Lerch, mother of the decedent John E. Lerch, as successor in interest to a part of his estate, filed their joint motion in the Court of Appeals for a conditional order of revivor of the cause in their names, following and in accordance with Sections 11403 and 11404 of the General Code. It appears from the transcript of the docket and journal entries in the Court of Appeals that notice of this motion was given to Ann Lerch.
On April 17, 1934, J. Lawrence Porter, as executor, endeavored to file a bill of exceptions in the Court of Appeals, including copies of the entries prepared by counsel for John E. Lerch and Ann Lerch, respectively, after the rendition of the majority opinion of reversal, and the majority and minority opinions of the Court of Appeals, in an attempt to establish the contention that the action of the Court of Appeals in reversing the judgment of the lower court had been concurred in by only two members of that court, and that the reversal was in fact a reversal on the weight of the evidence, not made by a unanimous court.
The court declined to approve this document under the title "bill of exceptions", but the two members who had concurred in the majority opinion did sign the substance of it under the caption, "Occurrences in This Court in the Above-Styled Case on the Twenty-Seventh Day of March, 1934", and it was so filed on April 21, 1934.
An entry denying the motion for a conditional order of revivor was entered on April 20, 1934, noting exceptions.
In refusing to allow the conditional order of revivor and in declining to sign the bill of exceptions presented, as such, a majority of the Court of Appeals apparently adopted the view that by reason of the final entry of March 30, 1934, reversing and remanding the case to the lower court as of the date of November 14, 1933, in the preceding term, there was no case pending in the Court of Appeals in which any action by way of revivor or the allowance of a bill of exceptions could be properly taken.
As an, additional measure of precaution, J. Lawrence Porter, as executor, and Addie M. Lerch, as a successor in interest, filed a supplemental pleading in the Court of Appeals on April 21, 1934, under the provisions of Section 11402, General Code, asking revivor of the cause in their names, with a precipe directed to the sheriff of Franklin county, Ohio, for the delivery of a certified copy of the supplemental pleading to Ann Lerch, "returnable according to law.
The case is now before this court upon allowance of the motion to certify the record.
Mr. Newton D. Baker and Mr. Charles S. Druggan, for plaintiffs in error.
Mr. John A. Connor and Messrs. Hedges, Hoover Tingley, for defendant in error.
An unusually full statement of this case has been deemed advisable for a better understanding of the somewhat complicated matters presented for decision.
The first question of major importance is whether this action abated with the death of John E. Lerch. Section 11397, General Code, recites:
"Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party."
Divorce actions are not named among those which abate, nor do we find any other section of the statutes which might be so construed.
Even in the absence of statute, it stands to reason that where one or both parties to a divorce action die before a final decree of divorce the action abates and there can be no revival. Circumstances have accomplished the primary object sought. 9 Ruling Case Law, 414, 415, Section 214. However the weight of authority supports the proposition that where death of one or both of the parties occurs subsequent to a decree of absolute divorce, whereby property rights are fixed, the action does not abate and the decree or judgment complained of may be carried forward for review in the higher courts through the prescribed procedure in the particular jurisdiction. 9 Ruling Case Law, 469, Section 283; 1 Corpus Juris, 171, Section 289; Swanson v. Swanson, 182 Minn. 492, 234 N.W. 675; Craddock's Admr. v. Craddock's Admr., 158 Va. 58, 163 S.E. 387; Bradshaw v. Sullivan, 160 Ark. 547, 254 S.W. 1064; Craig v. Craig, 110 Kan. 13, 202 P. 594; Higgins v. Higgins, 204 Iowa 1312, 216 N.W. 693.
This court held, in the case of Coffman, Admr., v. Finney, Admr., 65 Ohio St. 61, 61 N.E. 155, 55 L.R.A., 794, that where a decree of divorce has been pronounced in favor of a wife, awarding her alimony out of the real and personal property of her husband, and both parties die pending an appeal by the husband, the cause survives in favor of the personal representative of the deceased wife against the personal representative of the deceased husband. And see, Bell v. Bell, 181 U.S. 175, 45 L.Ed., 804, 21 S.Ct., 551.
Considerable properly rights are involved in the instant case, and it is our determination that the action survived.
The next questions engaging our attention are in whose name or names should revivor be had, and in what court.
It will be noted from the statement of the case that the Court of Appeals, subsequent to the death of John E. Lerch and prior to the appointment of J. Lawrence Porter as executor, filed a nunc pro tunc entry reversing the judgment of the Court of Common Pleas and remanding the case to that court "for further proceedings in accordance with law."
Now, John E. Lerch, during his lifetime, had recovered what he considered to be a favorable judgment in the Court of Common Pleas. Had he survived he could have brought the judgment of the Court of Appeals to the attention of this court through motion to certify. Could this right be denied to his "representative or successor"?
Revivor of actions in this state are controlled by Sections 11397 to 11414, inclusive, of the General Code. Section 11403 states:
"A revivor also may be effected by a conditional order of the court, if made in term, or by a judge thereof if in vacation, that the action be revived in the name of the representative or successor of the party who died, or whose powers ceased, and proceed in favor of or against him."
This was the section followed in the first instance by J. Lawrence Porter, as executor, and Addie M. Lerch, as successor in interest, in attempting to secure a revivor.
When properly invoked, the remedy of revivor provided by this section is a matter of right and not of discretion. Bates' Pleading, Practice, Parties Forms (4 Ed.), 522, Section 579a; Carter v. Jennings, 24 Ohio St. 182; Spaeth v. Sells (C. C.), 176 F., 797.
These sections relating to revivor are general in nature and are not limited in their application to any particular court. If revivor was proper in the instant case, it should have been had in the Court of Appeals, a review of the judgment there rendered being sought.
Under the wording of our statutes relating to revivor, and considering the character of this case, we think that J. Lawrence Porter as executor and personal representative of the decedent, John E. Lerch, was entitled to demand revivor for the purpose of attempting to secure a review of the case in this court. We hold him to be the only necessary party in this respect. Addie M. Lerch, as a successor in interest to a part of the estate of John E. Lerch, was probably a proper person to join in the application. A number of the cases from other jurisdictions seem to recognize without question the right of an administrator or executor alone to prosecute appeal or error in cases of this kind. Thus, in Swanson v. Swanson, supra, this statement appears in the opinion:
"When one party to a divorce action dies after the judgment and pending the appeal, and property rights are affected by the judgment, the personal representative of the decedent will be substituted and the judgment will be reviewed."
Had the Court of Appeals lost jurisdiction of the case through its action in filing the nunc pro tunc entry as of a former term? This question demands a negative answer.
It is stated in 23 Ohio Jurisprudence, 680, Section 260: "The right of a court to enter judgment nunc pro tunc is available in furtherance of justice only, and it is not available where it would operate to deprive a party of a substantial right, such as the right to file a motion for a new trial, or to prosecute a proceeding on appeal, or in error."
In this case the date upon which this entry was actually fixed, viz., March 30, 1934, is controlling. Charles v. Fawley, 71 Ohio St. 50, 72 N.E. 294. A Court of Appeals has control over its judgments during the term in which they are rendered. Board of Commrs. of Mercer County v. Deitsch, 94 Ohio St. 1, 4, 113 N.E. 745; City of Cincinnati v. Alcorn, a Taxpayer, 122 Ohio St. 294, 171 N.E. 330.
Since J. Lawrence Porter, as executor and personal representative of John E. Lerch, deceased, was entitled to a revivor of the action in his name as a matter of right, it was the duty of the Court of Appeals in the furtherance of justice to have recalled its judgment entry and caused its amendment by including therein a revivor of the action in the name of J. Lawrence Porter, as executor, the judgment of reversal and the motion for revivor having both been incidents of the same term of court.
All proper rights of review in the higher courts should be preserved to litigants. If the action of the Court of Appeals in washing its hands of the case by refusing to allow a revivor or a bill of exceptions were to be upheld, it would be tantamount to denying this court the opportunity of reviewing the judgment of the Court of Appeals, no matter how erroneous.
This is a court of last resort. In error proceedings we are primarily interested in the judgment of the Court of Appeals, and when the judgment of that court is determined to be wrong, and the judgment of the trial court right, we have the power to say so and render our judgment accordingly.
Let us assume for the present that the judgment of reversal in the Court of Appeals was erroneous and ineffectual. If that judgment were allowed to stand and this court were precluded from doing anything about it, a grave injustice would result to J. Lawrence Porter, as executor, and the interests he represents, for through the erroneous judgment of the Court of Appeals obliterating the judgment of the Court of Common Pleas he would be irretrievably relegated to the latter court, wherein he would be helpless because remitted to proceed on the original cause of action in the cross-petition which died with John E. Lerch. If the original judgment in the Court of Common Pleas was valid, and if the Court of Appeals could not reverse it in the manner in which it was done, the rights of J. Lawrence Porter, as executor, are entitled to protection through the judgment of this court.
The situation we are attempting to portray is treated in the case of Lewis v. St. Louis Iron Mountain Rd. Co., 59 Mo., 495, 21 Am. Rep., 385, wherein the court says:
"It is insisted that the action died with the person, and as the judgment in his favor was reversed, it was thereby entirely destroyed or annihilated, and nothing was left but a simple right to recover, which would abate at his decease. Had the reversal been in a court of last resort, where it would have been necessary to have a new trial on the merits, this effect might have been ascribed to it. The judgment in that event would not only have been annulled, but all the subsequent proceedings would have been on the original cause of action. But now if the judgment of the intermediate court * * * is reversed, the effect is to restore the judgment of the trial court. * * * The operation of the judgment is suspended, but new life and validity may be imparted to it."
And see Lew v. Lee (Can.), S.C. R., 612, [1925] 1 D. L. R., 179, 62 A. L. R., 1043, a decision by the Supreme Court of Canada.
It might be better practice to remand this case to the Court of Appeals with directions to revive the action there in the name of J. Lawrence Porter, as executor, and allow the case to proceed to this court again. However, the record in this case has already been certified here upon our order. The case is before us for determination on its merits, and we are disposed to regard as done that which should have been done in the Court of Appeals, land without more ado make an entry on the docket of this court legalizing the appearance here of J. Lawrence Porter, executor, as the proper successor plaintiff in error to John E. Lerch, deceased. Revivor has been had in this court and error proceedings have also been entertained here without revivor. Foresman v. Haag, 37 Ohio St. 143; Hanover, Admr., v. Sperry, 35 Ohio St. 244.
Much of what has been said concerning the duty of the Court of Appeals to permit a revivor in the name of the personal representative of the decedent can be applied to that court's refusal to allow and sign the bill of exceptions as such, if its contents were correct. The court's refusal to do so upon the basis of lack of jurisdiction was clearly erroneous. However, the substance of the bill of exceptions presented was signed by two of the judges of the Court of Appeals under the somewhat unusual title of "Occurrences In This Court In the Above-Styled Case on the Twenty-Seventh Day of March, 1934." It purports to show the presence of respective counsel for Ann Lerch and John E. Lerch; the two judges of the Court of Appeals who joined in the majority opinion of reversal; and the absence of the dissenting judge on account of illness. To it is attached as "Exhibit A" the judgment entry of reversal tendered by counsel for Ann Lerch on March 27, 1934, showing a reversal of the judgment of the Court of Common Pleas because the evidence submitted "was insufficient in law to entitle defendant in error [John E. Lerch] to judgment," which entry was subsequently approved and filed by the Court of Appeals.
"Exhibit B" is a copy of the entry of reversal tendered by counsel for John E. Lerch, showing "there is not sufficient evidence in the record to sustain the judgment of the Court of Common Pleas in granting a divorce to John E. Lerch on the ground of gross neglect of duty," made upon a concurrence of two of the judges of the Court of Appeals. "Exhibit C" sets forth a copy of the entry prepared and approved by counsel for Ann Lerch shortly subsequent to the announcement of the majority decision of reversal by the Court of Appeals, which contains the statement that the judgment of the Court of Common Pleas is reversed "for the reason that said court erred in granting a divorce to the defendant, John E. Lerch; the evidence not being sufficient to sustain the granting of a divorce to the defendant on the ground of gross neglect of duty." "Exhibit D" is a copy of the majority and dissenting opinions of the Court of Appeals. The objections of counsel for John E. Lerch to the entry marked "Exhibit A" are noted.
This document bearing the unique caption "Occurrences In This Court In the Above-Styled Case on the Twenty-seventh Day of March, 1934", is before us in the record of the case. Its form is substantially that of a bill of exceptions. We have considered its contents. Herbert v. Buttler, 97 U.S. 319, 24 L.Ed., 958; Schultz v. Keeler, 2 Idaho 333, 13 P. 481; Dennis v. State, 103 Ind. 142, 2 N.E. 349.
The final question for determination is whether the Court of Appeals in fact reversed the judgment of the Court of Common Pleas on the weight of the evidence by a concurrence of only two members of the court, in contravention of Article IV, Section 6, of the Ohio Constitution, which provides:
"No judgment of a court of common pleas * * * shall be reversed except by the concurrence of all the judges of the Court of Appeals on the weight of the evidence * * *."
It is apparent that the reversal by the Court of Appeals, no matter on what ground predicated, was by a concurrence of but two members of that court. If there was no evidence to sustain the findings and judgment of the Court of Common Pleas, such reversal was proper; if there was some evidence in support of such findings and judgment, the reversal required the concurrence of all three members of the court.
The function of the Supreme Court here is not to weigh the evidence, but to determine whether there is any evidence to support the findings and judgment of the trial court. Chicago Ornamental Iron Co. v. Rook, Admr., 93 Ohio St. 152, 112 N.E. 589; 2 Ohio Jurisprudence, 735 to 740, Sections 657 and 658.
Counsel for plaintiffs in error contend that the judgment entry of reversal shows on its face a reversal on the weight of the evidence by the use of the word "insufficient" in relation to evidence. This contention finds some support in the cases of Brittain v. Industrial Commission, 95 Ohio St. 391, 115 N.E. 110, and Waldron v. N.Y. Central Ry Co., 106 Ohio. St., 371, 140 N.E. 161. Be that as it may, we are not so much concerned with the wording of the entry of reversal as we are with the true basis of the reversal.
Under Section 11979, General Code, "any gross neglect of duty" is cause for granting a divorce. The statutes do not define this term and it is elusive of any concrete definition which can be applied to all cases. Necessarily, its application as a cause for the granting of a divorce must depend upon the circumstances of the particular case.
It was conceded by counsel for Ann Lerch in open court upon the last oral presentation of this case to this court that the allegations of the first cause of action in the cross-petition, quoted ante in the statement of the case, are sufficient to constitute gross neglect of duty, if proved. The two members of the Court of Appeals rendering the majority opinion also assent to the proposition "that circumstances attending and coupled with a desertion of willful absence may constitute a gross neglect of duty." The sufficiency of the evidence to establish gross neglect of duty becomes the issue. The trial court and one member of the Court of Appeals were of opinion that the necessary quantum of evidence was produced in the instant case; two members of the Court of Appeals were of opinion that it was not.
Of course, willful absence for a period of less than three years unattended by any aggravating circumstances is not a cause for divorce in this state and cannot be classed as gross neglect of duty, but desertion for a shorter period than three years accompanied by aggravating circumstances may be gross neglect of duty and a cause for divorce. Smith v. Smith, 22 Kan. 699.
Where a particular case presents evidence of aggravating circumstances the adequacy of such aggravating circumstances to constitute gross neglect of duty is the question to be decided. What one person might consider sufficient another would not. A weighing of the evidence and an appraisal of its probative value are thus involved.
It is said in 19 Corpus Juris, 69: "Since the statutes do not define gross neglect of duty, its interpretation is to be left to the sound discretion of the court." And in 9 Ruling Case Law, 470, Section 284, this statement appears: "As a general rule the verdict or decision of the trial court as to the sufficiency of the evidence to warrant the granting or denial of a divorce should not be disturbed on appeal unless it is very plain to the appellate court that the conclusion reached cannot be supported by any rational view of the evidence." See, also, 14 Ohio Jurisprudence, 393, Section 14. In order that the above quotations may not carry a mistaken implication we hasten to add that when it is plain to a reviewing court that the conclusions reached by the trial court cannot be supported by any rational view of the evidence, the duty rests upon the latter court to render its judgment accordingly.
From an examination of the record in the instant case it is our determination that there is at least some evidence to sustain the findings and judgment of the Court of Common Pleas. Such evidence is sufficient to support the following conclusions: That John E. Lerch was a chronic invalid; that the nature of his affliction required that he be constantly watched and assisted; that Ann Lerch performed such services frequently from the inception of the disease to the final separation; that this was a duty devolving upon her as a wife and in fulfillment of the obligations imposed upon her by Section 7995, General Code; that John E. Lerch was in need of and entitled to her care and ministrations; that she deserted him without just cause. These are in substance the conclusions of the trial court and the basis of the finding that Mrs. Lerch was guilty of gross neglect of duty.
In the last analysis we cannot escape the conclusion that this case was reversed by the Court of Appeals on the weight of the evidence by a concurrence of but two of the judges. Under constitutional prohibition this cannot be done. The judgment of reversal was therefore erroneous and ineffectual and the judgment of the Court of Common Pleas remained undisturbed. The action required of us is to reverse the judgment of the Court of Appeals and affirm that of the Court of Common Pleas.
Judgment reversed.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, BEVIS and WILKIN, JJ., concur.