Johnson v. State
| Decision Date | 03 October 1939 |
| Docket Number | Case Number: 28963 |
| Citation | 1939 OK 357,186 Okla. 80,96 P.2d 313 |
| Parties | JOHNSON v. STATE |
| Court | Oklahoma Supreme Court |
¶0 1. BASTARDS--Defendant in bastardy proceeding may be estopped by conduct and promises to plead statute of limitations.
The defendant in a bastardy proceeding may, by reason of his conduct, promises and agreement be estopped to plead the statute of limitations.
2. SAME--Primary interest of mother in proceeding though maintained in name of state--Estoppel of defendant to plead limitation statute by his conduct toward mother inducing her to delay instituting proceeding.
The mother of an illegitimate child has a primary interest in a bastardy proceeding although the same is maintained in the name of the state. Her relation to the proceeding is of such a nature that conduct toward her by the defendant which lulls her into a feeling of false security and induces her to delay the institution of the proceeding for the period prescribed as a bar by the statute may estop the defendant from pleading the statute.
Appeal from County Court, Noble County, Kenneth Reed, Judge.
Proceeding in bastardy by the State, on the verified complaint of Carrie Meisinger, against H. A. Johnson. From an adverse judgment, defendant appeals. Affirmed.
H. A. Johnson, of Perry, for plaintiff in error.
Houston & Mikovsky (by Hal Houston), Mae Q. Williamson, Atty. Gen., and Owen J. Watts, Ass't Atty. Gen., all of Oklahoma City, and Judson H. Pierce, Co. Atty., of Perry, for defendant in error.
¶1 This proceeding in bastardy is presented on appeal from the county court of Noble county where, upon trial to a jury a verdict was returned and a judgment entered determining that H. A. Johnson (defendant in the trial court, plaintiff in error herein) is the father of a bastard child born to Carrie A. Meisinger on the 13th day of February, 1929, and ordering the defendant to contribute $6,840, payable in monthly installments, to the support of the child.
¶2 This is the second time the cause has been presented to this court. In Johnson v. State, 173 Okla. 508, 49 P. 2d 141, we reversed a prior judgment of the trial court adverse to the defendant on the theory that a general demurrer to the complaint should have been sustained by reason of the statute of limitations. We therein applied the rule that when a petition or complaint "shows clearly upon its face that more than the statutory period of limitations has elapsed, and there is no allegation in the petition which takes the cause out of the operation of the statute, a general demurrer is sufficient to raise the question and should be sustained." Following Impson v. State, 166 Okla. 246, 27 P. 2d 359, we held that a cause of action in bastardy is barred three years after the birth of the child, and that since allegations were not contained in the complaint which would remove the cause from the bar of the statute, a general demurrer to the complaint should have been sustained because it appeared upon the face of the complaint that more than three years elapsed after the birth of the child before the complaint was filed.
¶3 When the cause was remanded to the trial court under our former decision, an amended complaint was filed setting forth facts asserted to be sufficient to estop the defendant from relying upon the statute of limitations. The sufficiency of the amended complaint, as well as the evidence in support thereof, was challenged in the trial court. A demurrer to the amended complaint was filed by the defendant. It was overruled. Subsequently, on trial of the cause, the defendant demurred to the evidence offered by the plaintiff, and at the close of all the evidence he moved for a directed verdict on the theory that the evidence was insufficient in view of the statute of limitations. Both demurrer and motion were overruled.
¶4 The cause was then submitted to the Jury, under instructions which among other factors required it to determine as true the facts relied upon to constitution estoppel before a decision adverse to the defendant could be rendered. The jury returned a verdict against the defendant, thereby, for the purpose of this review, establishing as true the facts relied upon to constitute an estoppel.
¶5 The several arguments of the defendant may be grouped and considered under the general question: Were the facts pleaded, proved, and relied upon by the plaintiff to constitute an estoppel sufficient as a matter of law for that purpose? A brief examination of the facts is essential to a determination of this question, but sordid details reflected by the record will not be reviewed in this opinion.
¶6 Sexual intimacy between Carrie A. Meisinger and the defendant was established by her testimony and admitted by the defendant. According to Mrs. Meisinger's testimony, she did not sustain a similar relation with any other man during the time preceding pregnancy. Her testimony in this respect was undisputed. After the birth of the child the relationship between the parties became somewhat strained. However, according to the testimony of the plaintiff, the defendant recognized the child as his and contributed regularly, if not adequately, to its support. During a portion of the time he paid rent on premises occupied by Carrie A. Meisinger and her child. Subsequently, she was permitted by him to live in a house (the record title of which stood in the name of his half sister) without paying rent, the most of the furniture in the house belonged to the defendant. Intermittently, other contributions emanated from the defendant, such as payments for grocery bills and purchases of presents for the child. While the testimony of Carrie A. Meisinger is wanting in the clarity of expression that might be expected from one of brilliant mental attainment, it is apparent from its substance that she was induced to refrain from the institution of this proceeding to establish the paternity of the child by the foregoing conduct and promises of support by the defendant, being induced to believe that the defendant would voluntarily recognize and continue to discharge his obligation to support the child without the institution of legal proceedings. She was thus lulled into a feeling of security.
¶7 The defendant urges the legal insufficiency of the foregoing facts as pleaded and proved by the plaintiff to defeat his plea of the statute of limitations.
¶8 It is settled law in this jurisdiction that a defendant may, upon proper pleading and proof, be estopped to avail himself of the statute of limitations. Depuy v. Selby, 76 Okla. 307, 185 P. 107; Waugh v. Guthrie Gas, Fuel & Improvement Co., 37 Okla. 239, 131 P. 174; Empire Gas & Fuel Co. et al. v. Lindersmith, 131 Okla. 183, 268 P. 2d 218. See, also, 37 C. J. 725, par. 44, "Limitations of Actions." In 37 C. J. 725, it is said:
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