Yuin v. Hilton

165 Ohio St. (N.S.) 164
CourtOhio Supreme Court
DecidedApril 18, 1956
DocketNo. 34544
StatusPublished

This text of 165 Ohio St. (N.S.) 164 (Yuin v. Hilton) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yuin v. Hilton, 165 Ohio St. (N.S.) 164 (Ohio 1956).

Opinion

Taft, J.

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.

Defendant 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, [167]*167v. 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, a Minor, v. McClure, 143 Ohio St., 569, 56 N. E. [2d], 171; 15 Corpus Juris Secundum, 896, 897, Section 12; 2 Beale, Conflict of Laws, 1288 et seq., Sections 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 arguments, 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 substantially 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 [168]*168the 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 for the benefit of itself for an act committed in a foreign state, relating to a resident of a foreign state, who always had lived and still is living in that foreign state? The interest of the state of Ohio in the matter is absolutely nothing.”

It is probably sufficient to state that Ohio may well be interested in providing not only for the filiation (i. e., determination of the identity of the father) and maintenance of any illegitimate child (regardless of its location or the place where it was begotten, conceived or born) of any man found within its borders, but also for some of the expenses of the mother caused by such man’s participation in the origination of the child. The General Assembly could have believed that the absence of such legislation would encourage such a man to seek refuge in Ohio from obligations which the General Assembly probably believed should rest upon him; and the General Assembly may therefore have regarded it as of interest to Ohio to avoid having [169]*169this state become a refuge for those fathers of bastard children, who were seeking to avoid such obligations.

In 7 American Jurisprudence, 683, Section 85, it is said:

“Statutes giving the right to maintain bastardy proceedings sometimes expressly provide that the proceedings shall be brought by a woman resident within the state. Other statutes do not expressly limit the right to resident women, and the question has often arisen whether such a statute may be invoked where, although the father is domiciled in the jurisdiction, the mother and child are nonresidents. There are two views of this question, each well supported by authority: (1) That the purpose of the statute is to secure the maintenance of illegitimate children liable to become paupers in the state, and hence that it does not apply to the illegitimate children of nonresident mothers, and (2) that the statute converts an existing moral obligation of the father into a legal obligation, enforceable like any other legal obligation upon the obligor if within the jurisdiction. The better view seems to be the latter, the bastardy proceedings being considered transitory in their nature, and the father subject to suit in the county of his residence. A sound reason for this view is that if the rule were otherwise, there might be no remedy where the father took care to cross state lines at the proper time or where the complainant and her child were, by force of circumstances, compelled to reside outside the state.”

In Restatement of the law of Conflict of Laws, Section 455, it is said:

“A statute of the state of domicile of the father of a minor bastard child will be there applied to compel him to contribute to the support of the child, irrespective of where the mother is domiciled, unless the statute provides otherwise.”

In the comment under that section it is stated:

“Rationale. Whether a bastardy statute is criminal or civil in nature, it represents the exercise of the state’s police power either to punish misconduct or to impose the onus of supporting a child upon its natural parent to prevent the child becoming a dependent upon society.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Berkley v. Berkley
246 S.W.2d 804 (Supreme Court of Missouri, 1952)
Collins v. McClure
56 N.E.2d 171 (Ohio Supreme Court, 1944)
Kerper v. Wood
15 L.R.A. 656 (Ohio Supreme Court, 1891)
Stough v. Industrial Commission
52 N.E.2d 992 (Ohio Supreme Court, 1944)
State v. Tudor
95 N.E.2d 385 (Ohio Supreme Court, 1950)

Cite This Page — Counsel Stack

Bluebook (online)
165 Ohio St. (N.S.) 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yuin-v-hilton-ohio-1956.