Yuin v. Hilton

• Decision Date: 18 April 1956
• Docket Number: No. 34544,34544
• Citation: 165 Ohio St. 164,134 N.E.2d 719
• Parties: , 57 A.L.R.2d 681, 59 O.O. 219 YUIN, Appellee, v. HILTON, Appellant.
• Court: Ohio Supreme Court

Page 164

165 Ohio St. 164

134 N.E.2d 719, 57 A.L.R.2d 681, 59 O.O. 219

YUIN, Appellee, v. HILTON, Appellant.

No. 34544.

Supreme Court of Ohio.

April 18, 1956.

Syllabus by the Court.

1. The statutory law of the forum may in some instances provide for or create a cause of action based upon something done beyond its borders, where the state of the forum has a reasonable interest in imposing the obligation involved in the provision for or creation of such cause of action.

2. A proceeding in bastardy can be maintained in Ohio under Section 8006-1 et seq., General Code (Section 3111.01 et seq., Revised Code), by an unmarried woman, the mother of a bastard child, against a defendant resident and domiciled in Ohio, notwithstanding that the child was begotten, conceived and born in another state and the mother and child were never residents of Ohio and regardless of the laws of such other state. (McGary v. Bevington, 41 Ohio St. 280, approved and followed.)

3. Where an order granting a new trial is reviewable on appeal, an appeal therefrom must be instituted by filing a notice of appeal within the time specified in Section 12223-7, General Code (Section 2505.07, Revised Code).

4. If part of a document contains information not admissible in evidence, that does not prevent admission in evidence of other parts of the document which are admissible, especially where the inadmissible parts of the document can be so covered up or cut out as to prevent the jury from seeing them. In such an instance an order overruling an objection to the admission of the whole document will be sustained on appeal where no motion was made to exclude the part of the document containing information not admissible in evidence.

5. Where a party advances certain grounds for an objection to admission of evidence, or, when asked by the trial court to state the ground of his objection, specifies certain grounds, such party will be held to have waived all grounds for the objection other than those so advanced or specified.

This proceeding was instituted in the Municipal Court of Willoughby by the filing of a complaint, pursuant to Section 8006-1, General Code (now Section 3111.01, Revised Code). In this complaint, appellee, herein sometimes referred to as the mother, states that she was 'an unmarried woman' and 'that she was delivered of a bastard child on the 16th day of November, 1952, and that' defendant 'who resides on Bishop Road, Wickliffe, Ohio, is the father of said child.'

Section 8006-1, General Code (now Section 3111.01, Revised Code), reads:

'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 the peace or in juvenile court, charging a person with being the father of such child, the judge or justice shall issue his warrant, directed to any sheriff, police officer, or constable commanding him to pursue and arrest such accused person in any county and bring him forthwith before such judge or justice to answer such complaint.'

Pursuant to Section 8006-8, General Code (now Section 3111.08, Revised Code), the Municipal Court, in exercising the powers provided for a justice of the peace, bound the defendant to appear at the next term of the Court of Common Pleas of Lake County where the defendant plead not guilty of the charge.

Thereafter the cause was herd by that Common Pleas Court, a jury having been waived by both parties, and the court made an order finding the defendant 'not guilty as charged.'

Subsequently, at a time beyond the time within which an appeal could have been taken by the mother from that order, the mother filed a motion to vacate that order and grant a new trial. This motion was granted 'for fraud practiced by the successful party in obtaining the order' and because 'the order was obtained in whole or in a material part, by false testimony on the part of the successful party, and witnesses in his behalf.'

The cause came on again for trial and was submitted to a jury which found the defendant guilty. Thereafter, the Common Pleas Court rendered a judgment and order, by which it overruled defendant's motion for a new trial, 'adjudged' defendant 'to be the reputed father of the child of the complainant,' found that there was due as of April 1, 1954, for the maintenance of said child at $10 per week the sum of $710, for layette, hospital, medical bills and related items $561.50, and for lying-in expenses $240, making the total amount due $1,511.50, and ordered defendant to pay $10 per week commencing April 1, 1954, for the maintenance of said child 'until the child should reach majority or be emancipated.'

That judgment and order was apparently made pursuant to Section 8006-17, General Code (now Section 3111.17, Revised Code), which reads so far as pertinent:

'If, the accused * * * confesses in court * * * that the accusation is true or if the jury finds him guilty, he shall be adjudged the reputed father of the illegitimate child and if the child is alive, the court shall 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, and * * * a reasonable weekly sum to be paid complainant for support and maintenance of the child up to 18 years of age. * * *'

The foregoing order and judgment of the Common Pleas Court was affirmed by the Court of Appeals.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.

Owen Calvin Neff, Cleveland, for appellant.

Justin Rosenthal and Gerald S. Gold, Cleveland, for appellee.

TAFT, Judge.

The evidence in the instant case shows without dispute that the mother, since a time substantially prior to the time of conception of the child, was a nonresident of Ohio; that the child was begotten, conceived and born in New York City and was in Ohio only for the trials in the instant proceeding; and that defendant at all times since substantially prior to the time of the child's conception has been a resident of and domiciled in Lake County, Ohio.

Defnedant first contends that the Common Pleas Court erred in assuming jurisdiction over the subject of this action. In support of that contention, defendant in effect argues that a bastardy action is a civil action for a tort, State ex rel. Gill v. Volz, 156 Ohio St. 60, 100 N.E.2d 203, that the law of the place of an alleged wrong determines whether there can be a cause of action in tort on account of such alleged wrong, Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N.E. 69; Collins v. McClure, 143 Ohio St. 569, 56 N.E.2d 171; 15 C.J.S., Conflict of Laws, § 12, pp. 896, 897; 2 Beale, Conflict of Laws, 1288 et seq., Section 378.1, 378.2 and 378.4; Restatement of the Law of Torts, Section 378, that there can be no recovery in tort under the law in force in New York City by or on behalf of either a bastard child or its mother against the father of such child for or based upon his participation in originating the child, and that therefore, since this child was admittedly begotten, conceived and born in New York City, there can be no recovery against the father in Ohio.

Because of these argument, we allowed defendant's motion to certify so that we might reconsider the soundness of the decision of the Supreme Court Commission in McGary v. Bevington, 41 Ohio St. 280.

In view of that decision and of the conclusion which we have reached, we do not believe it necessary to consider whether, as defendant states, there can be no recovery in tort under the law in force in New York City by or on behalf of either a bastard child or its mother against the father of such child for his participation in the origination of such child. For the purposes of this opinion, we will assume that the law applicable in New York City is as so stated by defendant.

In McGary v. Bevington, supra, 41 Ohio St. 280, the syllabus reads:

'A proceeding in bastardy may be maintained in this state under Chapter 3, Title 1, Division 7, Revised Statutes, by an unmarried woman, the mother of a bastard child, notwithstanding the child was begotten and born in another state, and the mother and child never were residents of Ohio.'

Thus, it was held that, by the use of language substantilally similar to the language found in our present bastardy statutes, our General Assembly intended to provide for a cause of action against the father of a bastard child even where the mother and child were nonresidents of Ohio and the child was begotten, conceived and born outside Ohio. Furthermore, neither the syllabus nor the opinion indicates that the court regarded the law of the place where the child was begotten and born and where it lived with its mother as being of any significance whatever in determining the existence of such a cause of action.

Both parties in the instant case concede that the instant case was instituted under the Ohio bastardy statutes. Thus, the existence of the cause of action asserted depends upon those statutes.

The authorities referred to by defendant in support of his argument, that the law of the place of an alleged wrong determines whether there can be a cause of action in tort on account of such alleged wrong, do not necessarily require the conclusion that the statutory law of the forum may not provide for or create a cause of action, which may be based upon something done beyond its borders as well as something done within its borders. Although the opinion in the McGary case did not purport to answer any argument that the General Assembly could not so provide, the report of the case indicates that such an argument was made. The decision there rendered necessarily rejects that argument, which is well stated in the report at page 281 as follows:

'* * * what right has the state of Ohio to require a bond...