author: Hunsicker, J.

text:
    Local Union 13013, District 50, U. M. W., et al., Appellants, v. Cikra et al., Appellees.

      (No. 4011
    — Decided August 3, 1949.)

      Messrs. Smoyer S Smoyer, for appellants.

      Messrs. Smoot $ Riemer, for appellees Alder Cikra et al.

      Messrs. Brouse, McDowell, May, Bierce & Wortman, for appellee Pittsburgh Plate Glass Company.
   Hunsicker, J.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Summit County, Ohio, which denied the plaintiffs, Local Union 13013, District 50, United Mine Workers of America, et al., herein called Local 13013, an injunction and accounting against defendants Local No. 1, Allied Chemical and Alkali Workers of America, et al., herein called Local 1. The judgment also awarded, to Local 1, money, property and other assets, held by certain of the defendants as trustees for Local 1.

In 1933, the employees of Pittsburgh Plate Glass Company, Columbia Chemical Division, of Barberton, Ohio, were members of a local union affiliated with the American Federation of Labor. In 1937, the local union affiliated with District 50, United Mine Workers of America, and became known as Local 13013, of that organization. Said local had a contract with the employer company as bargaining agent for the hourly-rated employees.

Differences' arose between the membership of Local 13013 and its parent organization, District 50, United Mine Workers of America. On August 1, 1948, the executive board of Local 13013, pursuant to proper request, called a special meeting of the membership of Local 13013 for August 7, 1948. Notice of this special meeting was given by posting the information on the windows and bulletin board of Local 13013, the bulletin boards of the employer company, and by newspaper and radio comment. Such notices and all information by newspaper and radio stated that there would be a meeting of Local 13013, of vital importance, on Saturday, August 7, 1948, at Local 13013 Hall, 915 Wooster Road, West, Barberton, Ohio. Out of the total of approximately 1400 members of Local 13013, five hundred twenty-six members attended this meeting. Of those who did not attend, approximately four hundred were working in the employer company plants, during the hours when the meeting was in progress.

The members of Local 13013 present at the meeting of August 7, 1948, voted to separate from District 50, United Mine Workers of America, and to transfer all money, assets and property, which had been acquired from the dues paid by members of Local 13013, to some of those present, in trust for the benefit of a new local union. The persons there present then voted to form Local 1. All the action taken at this meeting of August 7, 1948, was by the unanimous vote of all persons there present. No one at such meeting made any dissent to any action there taken. The charter and certain papers of Local 13013 were thereafter returned to the officers of District 50, United Mine Workers.

The contract that existed between Local 13013 and the employer company was, by supplemental agreement between the company and Local 1, made effective between the employer company and Local 1.

Fifty-eight members of Local 13013 paid dues for the month of August, 1948, but these payments were made prior to the meeting of August 7, 1948. After August 7, 1948, union dues paid by employees of the company were paid to Local 1. All hourly-rated employees of the company became members of Local 1. Approximately eighteen such employees are also members of a revitalized Local 13013, which began to hold regular meetings in March, 1949. Dues are paid to the revitalized Local 13013 by its present members, although no dues were paid to such Local 13013 until more than three months after August 7, 1948. The dues so paid were for the purpose of attempting to reinstate and place in good standing these approximately eighteen members, for the month of August, 1948, and thereafter.

Mr. Wantling, Regional Director of District 50, United Mine Workers of America, was named by the chief officer of said organization as temporary administrator of Local 13013. He demanded of the former officers of Local 13013, who are filling the same offices in Local 1, that all money, property and other assets which had been transferred from Local 13013 to the trustees of Local 1, be given to him as temporary administrator and lawful representative of Local 13013. The refusal of this demand resulted in this action for injunction and accounting being filed in the Court of Common Pleas.

The principal question to be answered is, To whom do the assets and property of Local 13013, owned by said Local, as of August 7, 1948, belong? Incidental questions that need to be answered are, What was the effect of the action taken at the special meeting of August 7, 1948? Was there a total disaffiliation of Local 13013, or merely a secession of a majority, which left Local 13013 as a continuing organization?

Pertinent portions of the constitution of International Union, United Mine Workers of America, a plaintiff below and an appellant in this court, in effect as of August 7, 1948, are as follows:

Section 2 of Article XIY:

“No applicant for membership in the United Mine Workers of America shall be regarded as being a member in good standing until the full amount of his initiation fee has been paid or a check-off order authorizing the collection of the same has been filed in or through the Local Union where' application for membership is made, and the obligation has been administered, except in case the applicant has religious scruples against taking the obligation. In such case the obligation shall be waived, providing the applicant gives notice of his objections to taking the obligation at the time his application for membership is filed. In all cases applicants for membership must pay dues and assessments for the month during which they start to work.
“Operators’ commissioners, persons engaged in the sale of intoxicating liquors and members of the Civic Federation shall not be eligible for membership. The International Executive Board may, in its discretion, provide rules and regulations upon which supervisory and other employes may be admitted to membership.
“Any member accepting membership in the Industrial Workers of the World, the Working Class Union, the One Big Union, or any other dual organization, or membership in the National Chamber of Commerce, or the Ku Klux Klan, or the Communist Party, or Fascist, Nazi or Bund organizations, shall be expelled from the United Mine Workers of America, and is permanently debarred from holding office in the United Mine Workers of America, and no members of such organization shall be permitted to have membership in our Union unless they forfeit their membership in the dual organization immediately upon securing membership in the United Mine Workers of America. Any member of the United Mine Workers of America who accepts office in any dual organization shall be permanently expelled from the United Mine Workers of America, unless reinstated by the International Executive Board.”

Section 11 of Article XIV:

“Any member becoming three months in arrears for dues or assessments, unless officially exonerated from the payment of same, shall forfeit his membership and can be reinstated only by paying an initiation fee and such other penalties as may be imposed by the District in which application for membership is made. ’ ’

Applicable sections of the rules of District 50, United Mine Workers of America, another plaintiff below and appellant in this court, in effect as of August 7, 1948, are:

Section 3 of Article IV:

“Local unions shall be composed of ten, or more, members engaged in occupations within the jurisdiction of the District. Seven members shall constitute a quorum for the convening of a local union meeting or the transaction of business thereat.”

. Section 4 of Article IV:

“Any member becoming three months in arrears in dues or assessments, unless officially exonerated from payment of the same, shall forfeit his or her membership, and can be reinstated only by the payment of an initiation fee and such other penalties as may be imposed by the local union, subject to the approval of the Administrative Officer of the District.”

Section 5 of Article IV:

“Any member accepting membership in the Industrial Workers of the World, the Working Class Union, the One Big Union, or any other dual organization, or membership in the National Chamber of Commerce, or the Ku Klux Klan, or the Communist Party, or Fascist, Nazi or Bund organizations, shall be expelled from the United Mine Workers of America, and is permanently debarred from holding office in the United Mine Workers of America, and no member or any such organization shall be permitted to have membership in our Union unless they forfeit their membership in the dual organization immediately upon securing membership in the United Mine Workers of America. ■* *

Section 12 of Article IV:

“Should the Local Union for any cause dissolve, disband, or surrender its charter or should its charter be revoked, the charter and all moneys, supplies and property, including real estate shall be taken over by the International Union, provided the rights and interests of all members of such Local Union in good standing shall be fully protected. No Local Union shall be allowed, for any reason or purpose, to divide its funds among its members. * * V’

And Section 3 of Article II of the bylaws of Local 13013, is:

“Special meetings may be called upon the decision of a majority of the officers or upon the request of a duly accredited District 50 representative. Notice of the special meeting shall be published and posted at least 48 hours in advance of the meeting. The special meeting may consider only matters listed in the call for the meeting. Emergency meetings at which no-matters will be voted upon, such as to hear noted speakers, national union, officials, etc., may be held at the call of the Local Union president or a duly accredited District 50 representative.”

We recognize, as a general rule, that a majority of the members of an association may not, as against a dissenting minority who remain faithful to the association, dissolve the association and transfer the assets of the association to a new organization composed of the majority members. Henry v. Cox, 25 Ohio App., 487, 159 N. E., 101; 7 Corpus Juris Secundum, Associations, Section 9 a (4).

The contention, however, herein, by Local 1 and the other appellees, as former officers of Local 13013 and present officers of Local 1, is that, where there is a unanimous consent of the members of a local union, at a properly-called meeting of such local union, there can be a complete severance of the ties which bind the local organization to the national body, and that the money and other property of the local body, which is a trust fund, that belongs to the members of the local, notwithstanding its affiliation with a national, body, may be then transferred to a new local body composed of the same members, whose objects and purposes are the same as that of the dissolved local union.

Until the time when union organizations increased in number, there was very little litigation on this subject. Even now, the majority of case law on the subject of ownership of association property in the event of internal dissention, concerns the dissolution of religious or fraternal organizations. We have been unable to find any Ohio case law on the question of a local union’s right to withdraw from its affiliation with a national or international labor organization, and what effect such withdrawal has on the money and property of the local union.

Two views on the problem involved herein are found in the reported cases. One view, represented by the case of Low v. Harris, 90 F. (2d), 783, tends to sustain the appellants’ contentions. The other view, represented by the case of International Union v. Becherer, 142 N. J. Eq., 561, 61 A. (2d), 16, supports the claims of the appellees.

All the authorities agree, however, that, where there is a withdrawal by a majority of the members of a local union which leaves a minority membership able and willing to carry on the local union activities, there then can be no transfer of the assets by the majority group to itself. The money and property follow the group which continues to function as the original local union. Low v. Harris, supra; International Union v. Becherer, supra.

The constitution, bylaws and charter of a labor union constitute a contract between the members, which the courts will enforce. 31 American Jurisprudence, Labor, Section 43; DeMille v. Am. Fed. of Radio Artists, 31 Cal. (2d), 139, 175 A. L. R., 382, 187 P. (2d), 769, and authorities there cited.

Such constitution, bylaws and charter also constitute a contract which regulates the relationship between the parent organization and its subordinate bodies. Bridgeport Brass Workers Union v. Smith (1948), 15 Conn. Sup., 505, 15 Labor Cases 74,530, at p. 74,533; and cases there cited.

The rights, therefore, in the instant case, of the members of Local 13013 to disaffiliate or withdraw from the parent organization, and to form a new local, will depend upon the provisions of the contract and the construction to be placed thereon.

The contract, as the evidence discloses herein, is the constitution of the International Union, United Mine Workers of America, and the rules of District 50, United Mine Workers of America, effective as of August 7, 1948.

A careful reading of such constitution and bylaws— pertinent portions of which are set forth above — discloses no provision for disaffiliation of a local union from the international organization. There is a .provision to prevent a local union from dividing its assets among the local membership, but such action was not attempted in the instant case.

There was, herein, no disbanding or dissolving of the local union in the sense of separating the body into its component individuals. On the contrary, we have a local union withdrawing from affiliation with a nationwide association, and, still remaining an entity, maintaining itself as a local union group for the same purposes and to the same end as it was when a part of the larger body. ■

Under the facts as we find them to exist, there is no contractual provision which prohibits a unanimous withdrawal by the local union. We must therefore look to such substantive law as is available, to determine the rights of such local union to control and determine the status of its own property.

Title to and the right of possession of the personal property and money sought to be recovered by appellants herein, was at all times in the local union; that is, in the members of such local unit jointly, never in the parent body. The title and right of possession remains in such membership until, by proper action of the body, it is transferred elsewhere. Wrightington, Unincorporated Associations and Business Trusts (Second Ed.), Section 60, at p. 351 et seq.

The parent body provided none of these funds, nor did it collect the monthly dues paid by the members of the local union. All dues were paid to the local, and, from such dues, the per capita tax levied by the international body, was transmitted by the local to the parent organization.

The reasoning and conclusion reached by the Court of Chancery of New Jersey in the case of International Union v. Becherer, 142 N. J. Eq., 561, 61 A. (2d), 16, we think is persuasive in the matter before us. The analogy between that case and the instant case is apparent from a reading of that opinion. The first three paragraphs of the syllabus (by the court) of the New Jersey case are as follows:

“1. A local labor union, affiliating itself with a national or international organization composed of local unions, does not by such affiliation lose its character as a separate and distinct voluntary association. By such affiliation it does not become an indivisible and inseparable part of the larger organization and it may, at will, withdraw from that organization.
“2. A local labor union, affiliating itself with a national or international organization of local unions, does not by the act of affiliation surrender its property rights or create in the larger organization any right in the property or funds of the local union. For its claim to the per capita tax called for by the charter granted by the larger body to the local union, the former possesses but a mere money demand and no title or interest in the property of the local union.
“3. The facts here examined and found to show that Local Union No. 2 was an unincorporated voluntary association affiliated with the International Union, which, in turn, is affiliated with the C. I. O. Held that the Local Union could withdraw from its affiliation with the International and was free to create a new and different affiliation, and that the accumulated property and funds of the Local Union, contributed by its own members, constitute a trust fund held by the officers of the Local Union for the use and benefit of the members thereof.”

We therefore find that:

1. All money and property involved herein as of August 7, 1948, belonged to the members of Local 13013.

2. The meeting of the membership of Local 13013 on August 7, 1948, was properly called to determine the future existence of Local 13013.

3. By unanimous consent of all members of Local 13013 present at the meeting, proper action was taken to withdraw from affiliation with the international organization.

4. No dissent or objection was made to such withdrawal by any member of Local 13013, until more than sufficient time had elapsed for all members of Local 13013 to forfeit all allegiance to the international body.

5. The members of Local 13013 had a right to withdraw as a unit from the parent organization.

6. Local 13013, by its action causing a severance of its ties with the international body, did not lose title to or right of possession of its money and other property.

7. Local 13013, by unanimous consent of its members, had a right to transfer its assets to Local 1.

8. Local 1, as a voluntary unincorporated association, is the rightful owner of the money and other property involved in the instant case.

The injunction and accounting are denied to the appellants.

A decree may be prepared in accordance with this finding and opinion, at the costs of the appellants.

Decree accordingly.

Stevens, P. J., and Doyle, J., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Osso, Appellee, v. Hamilton City Lines, Inc., Appellant.
    (No. 959
    — Decided June 22, 1949.)

      Mr. Mark T. Brown, for appellee.

      Messrs. Baden <& Fiehrer, for appellant.
   By the Court.

This is an appeal on questions of law from a jury’s verdict and a judgment for plaintiff who sustained personal injuries when he swerved the vehicle he was driving from its path at a street intersection which crossed at right angles the path of a bus of defendant approaching the intersection from another direction.

Corwin and Yan Hook avenues are public streets of equal station in the city of Hamilton, intersecting at right angles, so that vehicles approaching that intersection from different directions are governed solely by the right-of-way statute and the requirements of reasonable care.

Plaintiff, approaching the intersection from the west in traveling east on Corwin avenue, had the right of way to proceed uninterruptedly in his path, provided he was proceeding in a lawful manner. Defendant’s bus, approaching the intersection from the north in proceeding south on Yan Hook avenue, was required to yield the right of way to traffic approaching, as plaintiff was, from the defendant’s right. In yielding the right of way, defendant’s bus had the leeway of invading the north half of Corwin avenue as far south as the center line thereof, marking the north boundary of plaintiff’s path and right of way. Morris v. Bloomgren, 127 Ohio St., 147, 154, 187 N. E., 2, 89 A. L. R., 831; Coshun v. Mauseau, 62 Ohio App., 249, 23 N. E. (2d), 656; Schaefer v. Cincinnati Street Ry. Co., 75 Ohio App., 288, 62 N. E. (2d), 102.

Plaintiff testified:

“Q. * * * I will ask you whether or not you saw a bus owned’ and operated by the Hamilton City Lines, Inc.? A. Yes sir.
“Q. Where was that bus when you first saw it? A. Oh, I was 50 feet and he was still further back than I was.
“Q. Now as you reached the intersection of Van Hook and entered the intersection, I will ask you whether or not the bus stopped at the intersection of Van Hook and Corwin avenue? A. No, he kept coming.
“Q. Now then you say he kept coming — what do you mean? A. He kept coming towards me and I thought he would stop, being as how I had the right of way, I thought he would stop.
“Q. Did you come on into the intersection ? A. Yes.
“Q. And did the bus continue on into the intersection? A. Yes, right on in.
“Q. Now how close did the bus come to the truck in which you were riding?
“Q. How close in feet did he come to you? A. I would say five — between five and ten feet.
“Q. What did you do when you observed the bus coming on through the intersection and approaching you from the left? A. I swerved — turned my wheels sharp in order to get out of the way of him.
“Q. Which way did you swerve? A. To my right.
“Q. Would that be down Van Hook avenue? A. Down Van Hook avenue.”

The testimony shows that while the bus did enter the intersection, it stopped before crossing the center line and actually did not invade the path of plaintiff’s vehicle. The testimony varies in estimating the distance north of the center line when the bus was finally halted between extremes of ten to two feet. The bus driver testified that he looked to his right down Cor-win avenue when 62 feet north of the intersection and did not see the plaintiff’s vehicle, and on cross-examination testified:

“Q. When you entered the intersection had you seen the Osso truck? A. Yes sir.
“Q. Where did you see the Osso truck when you entered the intersection? A. In front of me.
”Q. How close to the front end of your bus was it when you first saw it? A. I would say approximately six or eight feet.
“Q. In other words, John, up to that time you hadn’t taken the time to look to the right to see whether or not there was any oncoming traffic from' your right? A. Just the other time that I looked.
“Q. And that was the first time you saw the Osso truck — when it was six or eight feet in front of you? A. Yes sir.”

Defendant maintains it is entitled to final judgment on its motions made at the close of plaintiff’s case, renewed at the close of all the evidence, and non obstante veredicto, because having a leeway of proceeding up to the center line or actual path of plaintiff’s vehicle, and having stopped its bus within that leeway, it, in fact, did yield the right of way, and, therefore, there is no proof of negligence on the part of defendant.

Defendant does not, however, argue that actual collision is necessary to fix liability.

Undoubtedly, the evidence was such as to require its submission to the jury to determine the two issues of negligence and contributory negligence. If the jury believed some evidence, it could have very well concluded that while the defendant had not invaded the plaintiff’s right of way, it had approached so close to it and in such a manner as to lead a reasonable man to conclude that it intended to continue into the plaintiff’s right of way and, as a result, to collide with the truck which the plaintiff was operating, thereby creating a sudden emergency, requiring an instantaneous decision by plaintiff as to what he should do to avoid injury. A charge on the subject of the duty of a person in the presence of a sudden and unanticipated emergency was, therefore, required by the evidence.

A liberal construction of the plaintiff’s petition would bring this evidence within its allegations. The difficulty is that the court, on defendant’s motion, struck from the petition all the allegations susceptible of such construction.

The amended petition (styled “supplemental petition”) contains no allegation even suggesting a sudden emergency. The only allegations of negligence are excessive speed, failure to keep a proper lookout and failure to yield the right of way. The legal conclusion is then alleged that by reason of this negligence the plaintiff was injured, but there is no allegation of facts indicating in what way this negligence caused the injuries. In the part of the petition which was omitted by order of the court, it was alleged that the defendant had driven its truck into and through the intersection in such a manner “as to cause or force the plaintiff to turn or swerve the delivery truck to avoid having the bus collide with the left center or rear of said delivery track, and as a resalt of which plaintiff saffered injaries.” This allegation woald have been snfficient perhaps to permit the introdnction of the evidence showing that plaintiff acted apon a sadden emergency and if that sadden emergency was caased by the negligence of the defendant and the plaintiff acted as a reasonably pradent person nnder sach circamstances, and notwithstanding was injnred as a direct resalt of defendant’s negligence, the plaintiff woald be entitled to recover.

It seems to as that the anasaal caase of action presented by the evidence, reqaired the plaintiff to set forth facts showing that defendant’s negligence was the direct caase of his injaries and also an allegation expressly negativing contribntory negligence.

In 38 American Jurisprudence, 955 and 956, Section 264, it is said:

“One althoagh gailty of a negligent act is civilly liable only for an injary or injaries proximately caased by that negligent act, and it is essential to the statement of a good caase of action in negligence that the plaintiff’s pleading show that the defendant’s negligence as set forth was the proximate caase of the injary of which the plaintiff complains. He mast show a caasal connection between the sapposed negligent act of the defendant and the injary which it is alleged resalted therefrom; anless he does so, his pleading is open to demarrer for the want of a statement of a caase of action. It is not snfficient to charge negligence in the abstract. The breach of daty relied apon mast have been the proximate caase of the injary, and the facts pleaded mast disclose the caasal connection between the defendant’s negligent act and the injary complained of. ’ ’

And at page 956 it is said also:

“A complaint which shows that a proximate caase of the plaintiff’s injury was his own act will be held insufficient unless it goes further and by appropriate allegations shows that he was at the time exercising ordinary care and circumspection.”

See, also, Conway v. Monidah Trust, 47 Mont., 269, 132 P., 26, L. R. A. 1915E, 500, 506.

This is the law of Ohio. In Myers, Admr., v. Norfolk & Western Ry. Co., 122 Ohio St., 557, 172 N. E., 666, it is said at page 558:

“If the plaintiff’s own testimony supporting Ms cause of action raises a presumption of contributory negligence, the burden rests upon him to remove that presumption. Baltimore & Ohio Rd. Co. v. Whitacre, 35 Ohio St., 627; Maddex v. Columber, 114 Ohio St., 178, 151 N. E., 56. However, this rule has been somewhat modified in this respect: That if the plaintiff’s proof raises a presumption of negligence upon his part, he is only required to produce evidence sufficient to counterbalance the evidence giving rise to the presumption. Tresise v. Ashdown, Admr., 118 Ohio St., 307, 160 N. E., 898, 58 A. L. R., 1476. The same rule applies to pleading: If the allegations of his pleading suggest a reasonable inference that the plaintiff himself was negligent or at fault, it then becomes necessary for him in his pleading to negative such inference; otherwise not. Street Rd. Co. v. Nolthenius, 40 Ohio St., 376.”

The syllabus to Street Rd. Co. v. Nolthenius, 40 Ohio St., 376, is as follows:

“1. In an action for an injury alleged to have been caused by the negligence of the defendant, it is not necessary to allege in the petition that the injury was caused without the fault or negligence of the plaintiff, unless the other averments necessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence.
“2. Where an action was brought for an injury received by falling into a trench which had been dug in a public street for the purpose of laying or repairing the track of a street railroad, the opinion of a witness for the plaintiff that the condition of the trench and track was dangerous, was not competent. But after the defendant, on cross-examination, had called out the opinion of the witness, that the condition, as he claimed it to be, of the trench and track was not dangerous, it was not error to permit the witness on reexamination to state his opinion that the condition, as claimed by the plaintiff, of the trench and track was dangerous. ’ ’

We conclude that the issues made by the evidence were never clearly joined in the pleadings and, as a result, those issues were not contested in the way they would have been had the pleadings presented them. It is manifest that a “collision case” requires different evidence to prove, and the application of different rules of law to decide than a case where the plaintiff’s own act causes his injury in a sudden emergency brought into existence by the defendant’s negligence.

At the trial the evidence disclosed that no collision had taken place between the two motor vehicles, but that the plaintiff’s injuries resulted from the truck he was operating coming in collision with a tree on the side of the street. Now to bring the operator of the defendant’s bus into direct causal relation to this collision it was necessary to show that the plaintiff in swerving his truck acted in a sudden emergency to avoid the imminent peril of being injured in a collision of the two trucks. However, the purpose, intent, or motive of the plaintiff in turning, is left to inference from the circumstances. The plaintiff did not testify as to his mental reactions and this was probably due to the fact that early in his direct examination the court sustained a motion to strike out his statement that “if he didn’t swerve, he would have run right into me.” We think it clear that direct testimony of the plaintiff’s mental reactions was competent on the issue raised by the evidence. In 20 American Jurisprudence, 314 and 315, Section 338, it is stated:

“The circumstances attending the act of a party are not the only competent evidence of the condition or state of his mind in doing it. It is now well settled that whenever the motive, belief, or intention of any person is a material fact to be proved under the issues of the case, it is competent to prove it by the direct testimony of such person, regardless of whether or not he is a party to the suit. In other words, when a person’s motive is in issue, he may give his version of the matter, although under the earlier common law, where parties were incompetent as witnesses, the intent of a party could be proved only by circumstantial evidence. The admissibility of direct testimony as to intention depends, however, upon the materiality of the actual intention. ’ ’

Notwithstanding the limitation of the evidence on whether plaintiff had acted as a result of a sudden emergency to circumstantial evidence, the court, at plaintiff’s request, gave a special charge on that subject, and the giving of this special charge is one of the assignments of error. It is claimed that this charge is erroneous, because it is long, involved, and repetitious, covers a principle not raised by the pleadings or evidence, assumes that plaintiff was placed in a position of peril, without his fault, and that the defendant was negligent.

This special charge only incidentally stated the krw of sudden emergency in defining what was and what was not contributory negligence. It did not state the issue of sudden emergency or all the law necessary to guide the jury in deciding such an issue. Nor did the court in its general charge state that issue or the law relating to it. The court did — at the close of the general charge, at the plaintiff’s request — charge that it was not necessary for the plaintiff to prove an actual impact of the motor vehicles in order to recover — and that was all.

Without analyzing the special charge, we think a reading of it is sufficient to disclose the vice of longevity and repetitiousness. At least one member of the court is of the opinion that it is also to be condemned for assuming that the defendant had been negligent.

Our conclusion is that the giving of the special charge constituted error. Whether it would he so prejudicial as to require a reversal in a case that had otherwise been tried free from error, it is not necessary to decide. In this ’case in which the issues were not clearly pleaded or presented to the jury, we are of the opinion that the error justifies a reversal of the judgment and a remand of the cause for further proceedings.

Judgment reversed.

Ross, P. J., Hildebrant and Matthews, JJ., concur.


text:
    Monsey, Appellee, v. The Cincinnati Street Ry. Co., Appellant.
    (No. 7086
    — Decided May 23, 1949.)

      Mr. Robert F. Dreidame, for appellee.

      Mr. John M. McCaslin, for appellant.
   By the Court.

This appeal is from a judgment for the plaintiff for damages to an automobile, as the result of a collision with one of the defendant’s streetcars.

The defendant, appellant herein, complains specifically of the giving of the following special charge:

“I charge you that the mere fact that the front of plaintiff’s automobile ran into and against the side of the defendant’s streetcar does not prevent the plaintiff from recovering, if you find that the sole, proximate cause of the collision was the negligence of defendant’s motorman..
“I charge you that if you find from all of the evidence that the sole, proximate cause of the collision in question was the negligence of the defendant’s motorman, then your verdict must be for the plaintiff.”

As the basis of his claim of error, counsel relies upon Plotkin v. Meeks, 131 Ohio St., 493, 3 N. E. (2d), 404, in which the court held, as stated in the syllabus, that:

“1. When contributory negligence is a controverted issue, it is not error to refuse a special charge to the jury which assumes plaintiff guilty of negligence and leaves to the jury only the question of proximate cause.
“2. A special charge to the jury requested by a party to an action, which is based on the assumption that a material fact exists in the case, but which in reality is in dispute between the parties, is properly refused. (Northern Ohio Ry. Co. v. Rigby, 69 Ohio St., 184, paragraph 1 of syllabus; Binder v. Youngstown Municipal Ry. Co., 125 Ohio St., 193, paragraph 1 of syllabus; Weybright v. Fleming, 40 Ohio St., 52, paragraph 1 of syllabus; Bellefontaine Ry. Co. v. Snyder, 24 Ohio St., 670, paragraph 3 of syllabus, approved and followed. Bartson, d. b. a. Bartson Driveaway Co., v. Craig, an Infant, 121 Ohio St., 371, overruled.) ”

The special charge which the court found contained an assumption of a disputed fact was:

“If you find from the evidence that the negligence of the plaintiff either directly caused or directly contributed in the slightest degree to cause the injuries of which she complains, your verdict must be for the defendant.”

A comparison of the charge given in the Plothin case with the charge given in the case at bar forces us to the conclusion that the latter contains the same vice. In each, there is an assumption of negligence by plaintiff, leaving only the issue of proximate cause for decision by the jury.

We find that the court erred in giving the special charge.

Defendant’s counsel also relies upon an alleged error in the general charge, wherein the court said:

“The court charges you if you find from the evidence that the defendant did violate that ordinance or did violate the law and went against the red light he is guilty of negligence, as defined to you, you should then find for the plaintiff.”

Of course, the finding of one of several issues in favor of the plaintiff would not entitle him to a finding on all the other issues and to a general verdict. Such an instruction, manifestly, would be erroneous. The court did not clearly and positively so charge, but, certainly what was said could have misled the jury and together with the special charge may account for the verdict for the plaintiff.

The last objection of defendant is that the verdict and judgment are not supported by any substantial evidence and that, therefore, the court erred in overruling its motions for an instructed verdict for judgment. In passing upon this claim, we limit ourselves to a consideration of the plaintiff’s own testimony. The plaintiff was operating his automobile at the time and if his testimony fails to show a cause of action, it is useless to go further in our consideration of the record.

The collision of the plaintiff’s automobile and the defendant’s streetcar took place in the intersection of Broadway and East Fifth street in the city of Cincinnati. North of East Fifth street on Broadway, there are two streetcar tracks. One of these tracks continues across East 5th street on Broadway, and the other (the easterly track) turns westwardly on East Fifth street and crosses the westwardly track, and proceeds westwardly on East Fifth street.

East Fifth street is somewhere between 70 and 80 feet wide, and Broadway is about half that width.

There is a loading platform on the west side of Broadway, just north of East Fifth street, and a loading platform on East Fifth street, just west of Broadway. This latter loading platform is immediately south of the streetcar tracks in East Fifth street that turn from Broadway onto East Fifth street at that intersection, and between this platform and the south curb of East Fifth street, there are three lanes of traffic.

Traffic at the intersection of East Fifth street and Broadway is controlled by lights.

The defendant’s streetcar had approached the intersection on Broadway from the north and was proceeding southwardly across the intersection at the time of the collision.

The plaintiff approached the intersection from the west and was proceeding eastwardly in the intersection when his automobile came into collision with the streetcar.

On the subject of what happened just prior to and at the time of the collision, the plaintiff testified:

“Q. Now in which lane were you proceeding? A. I was in the lane right next to the loading platform.
‘ ‘ Q. That would be the northerly lane of these three; is that correct? A. Yes.
“Q. Now, was there anything on the other side of the loading platform? A. Well, directly to my left was a streetcar also waiting for the light to turn to make a left turn, the streetcar.
“Q. That was not the streetcar with which your automobile had later collided? A. No, sir.
“Q. At the time you are talking about was your automobile moving or was it stopped? A. My automobile was completely stopped.
“Q. What was the color of the light at that time? A. Red.
‘ ‘ Q. And about where was the front end of your automobile at the time we are now talking about? A. It was a few feet behind the front end of the streetcar that was on my left, a few feet behind.
‘ ‘ Q. Where was the front of that streetcar that was on your left, with reference to say the car tracks that-run north and south on Broadway? A. Well, I would say that that streetcar was stopped right there where it should be stopped, right there at the buttons.
“Q. Now, what happened from the time that you were stopped? Tell us what next occurred. A. Well, the light changed to yellow and the light changed to green and when the light changed to green I immediately proceeded east and I did not see the streetcar until I was approximately ten feet from it. I was accelerating at the time. There was a reaction period there from the time my foot left the accelerator until I hit the brake pedal and by the time I stopped it was too late. I met with the streetcar. It was a few feet in front of the center unloading platform on the streetcar, that is where I met it, and what caused damage to the car was the fact that this streetcar dragged my car approximately ten feet, because the bumper was caught right there at the unloading platform in the center of the streetcar.
“Q. By unloading platform you mean the step that people step on as they get out of the center of the car? A. Yes, sir.
“Q. When was it that you first saw the front of the streetcar? A.'Well, it was approximately eight or ten feet from me.
“Q. Where was it with reference to this other car that was on your left at that time? A. At the time I saw it it had pulled just in front, just beyond the middle of the streetcar on my left.
“ Q. As it came out ahead of that streetcar on your left you saw it? A. That’s right.
11Q. You were then about ten feet from it? A. From the streetcar, yes.
“Q. Describe the manner in which you ran into the streetcar, that is the manner in which your car came in contact with it, as to whether it was a severe blow or otherwise? A. It was not a severe blow. The bumpers of my car went underneath the streetcar and the hood of my car just barely touched the side of the streetcar. I had almost come to a dead stop, whether I did make contact with the streetcar—
“Q. At that time, Mr. Monsey, can you tell the jury what color of the light was ? A. At the time I proceeded east on Fifth street the light was green.
“Q. And what color was it when you came in contact with the streetcar ? A. The light was green.
“Q. Green for whom? A. Green for me.
* # # * #
“Q. Well, was there any collision between that streetcar and the southbound streetcar? A. No, sir, Mr. McCaslin, because the operator of that streetcar could see the streetcar coming south on Broadway and I could not.
“Q. You were not in a position to tell whether- or not, when that light turned green for you, any traffic had entered the intersection from the north or not, were you? A. No, sir.”

Now what does that testimony mean?

It means, we think, that the plaintiff, relying solely upon the fact that the traffic light was green, proceeded into the intersection, knowing that there might be a streetcar or other southbound traffic on Broadway lawfully in the intersection, with preferential right to complete the crossing (Section 6307-13, General Code), without having his automobile under sufficient control to avoid colliding with such traffic, should there be any such traffic in the intersection. The operator of the streetcar which was alongside of plaintiff’s automobile at the loading platform did not operate his streetcar so as to collide with the streetcar going south on Broadway, because he saw it and controlled his streetcar so that it would not come in contact with the approaching streetcar. The plaintiff, without knowing whether a streetcar had entered the intersection from the north, and with his view obstructed by the streetcar proceeding alongside, failed to so control his automobile as to prevent it from coming into collision with the southbound streetcar proceeding along a path predetermined by the visible equipment in the street. In so proceeding, in sole reliance on the traffic lights* under those circumstances, the plaintiff was negligent, and such negligence was, at the least, a part of the direct cause of the collision.

For these reasons, the judgment is reversed and final judgment rendered for the defendant.

Judgment reversed.

Ross, P. J., Hildebrant and Matthews, JJ., concur.


author: Fess, J.

text:
    Shaffer, Appellant, v. Walpole, Admr., Appellee.
    (No. 4317
    — Decided December 6, 1948.)

      Mr. James V. Easley, for appellant.

      Mr. Clarence P. Ducey, for appellee.
   Fess, J.

This is an appeal on questions of law from an order of the Probate Court overruling a motion of appellant to vacate the order approving the final account in the administration of an estate.

Walter Winkelman died intestate April 5, 1944, and, at the request of a brother and two sisters, Edward L. Walpole was appointed administrator on April 12, 1944. Walpole proceeded to administer the estate and on December- 4, 1944, filed his final account, disclosing distribution of a balance of $485.25 to the brother, two sisters, a half brother and a half sister. The account was duly advertised and approved by the Probate Court on January 4, 1945.

Walter Winkelman was divorced from his wife, the mother of appellant, in 1928. The mother was given custody of their only child, the appellant, who was born October 28, 1924. Shortly after the divorce,- the mother moved from Toledo to Cambridge, Ohio, taking the child with her. From that time on, neither the mother nor the daughter had any contact, either personally or by correspondence, with Winkelman or any members of his family. In the fall of 1946, a Betty Brown of Toledo visited the mother at Cambridge and told her that she had heard that Winkelman had been killed in a war plant. At this particular time appellant was living in St. Louis. The mother visited the appellant in St. Louis in December of 1946, but testified that she did not tell her daughter about Winkelman’s death until some time in January or February of 1947. Thereafter appellant consulted an attorney in St. Louis incident to some service which he was rendering her mother, but did not retain such attorney at that time in connection with any claim which she might have against her father’s estate. On or about April 8, 1947, the administrator received a letter from the St. Louis attorney, inquiring as to the status of Winkelman’s estate, which is some evidence that at this particular time appellant and her attorney were advised of the death of her father and the administration of his estate. There is no evidence, however, that prior to this appellant had any knowledge that her father had left an estate or that she had been excluded from its distribution. Upon receipt of the letter from the St. Louis attorney, Walpole promptly contacted the brother of the decedent and was then-first advised that at the time of the divorce in 1928 decedent had a child. He was also advised that the relatives had never heard from the child and had therefore assumed that she was not living. Walpole made a complete disclosure of the circumstances immediately to the St. Louis attorney, and the evidence discloses that in all respects he acted in good faith in connection with the entire transaction.

On February 8, 1948, appellant filed her motion to vacate the order of January 4, 1945, approving the final account. Appellant contends that Section 10506-40 et seq., General Code, effective in 1932, apply to her motion to vacate. The 1932 act contains no limitation on the time within which to file a motion to vacate on account of fraud. In re Estate of Stafford, 146 Ohio St., 253, 65 N. E. (2d), 701. Appellant contends further that Section 10506-40&, General Code, in the 1945 act, prevents the application of Section 10506-40 in the 1945 act.

Section 10506-40&, General Code, reads as follows:

“Accounts which are filed prior to the effective date of this act, but which prior to said date are not set for hearing or settlement, shall be settled in accordance with the provisions of this act. Accounts which are filed prior to the effective date of this act, and which prior to said date are set for hearing or settlement, shall be settled under the provisions of law existing on the date when filed.”

Two members of the court are of the opinion that the second sentence of the above-quoted section requires accounts, filed prior to the effective date of the act (September 29, 1945) and which prior to such date are heard, to be settled under the provisions of law existing on the date when filed. It will be noted that the first sentence of the section provides that accounts, which are filed prior to the effective date of' the act but are not prior to such date set for hearing or settlement, shall be settled in accordance with the provisions of the 1945 act.

The writer of this opinion holds the view that the second sentence refers to the setting of applications for hearing and settlement as distinguished from the mere filing of applications, and that Section 10506-40& does not exclude proceedings to reopen accounts which have been settled prior to September 29, 1945, from the provisions of the 1945 act. But, construing the second sentence as requiring the vacation of an order approving a final account to be determined in accordance with the act in force at the time of the filing of the account, we find that on December 4, 1944, the act of 1943 (120 Ohio Laws, 649, 653) was in force. This act was in force from September 20, 1943, until September 29, 1945.

Section 10506-40 in the 1943 act provided in part:

“No such order shall be vacated because of fraud unless a motion to vacate such order is filed within one year after discovery of the existence of the fraud. ’ ’

Upon review of the evidence taken at the hearing on the motion to vacate, it is clear that appellant did not discover the fraud of her uncle and possibly her aunts until some time in April 1947, and that, appellant having filed her motion to vacate within a year thereafter, the court committed error in overruling her motion to vacate.

The request of appellant that the court state its conclusions of fact separately from its conclusions of law was denied. The Supreme Court has definitely held that refusal to make such findings is reversible error unless it appears from the record that the party making the' request is not prejudiced by such refusal. Cleveland & T. Rd. Co. v. Johnson & Kellogg, 10 Ohio St., 591; Oxford Tp. v. Columbia, 38 Ohio St., 87; Cleveland Produce Co. v. Dennert, 104 Ohio St., 149, 135 N. E., 531; Levick v. Bonnell, 137 Ohio St., 453, 30 N. E. (2d), 808; Bauer v. Cleveland Ry. Co., 141 Ohio St., 197, 47 N. E. (2d), 225.

However, in the case of a reversal by this court on the weight of the evidence, such question would not be considered by the Supreme Court. Therefore, since in the instant case we are furnished with a bill of exceptions containing all the evidence, the error is not prejudicial in this court. Cf. Oxford Tp. v. Columbia, supra, 94; In re Guardianship of Zimmerman, 78 Ohio App., 297, 70 N. E. (2d), 153.

We find that the judgment below is manifestly against the weight of the evidence and, therefore, such judgment is reversed and the cause is remanded for a rehearing.

Judgment reversed and cause remanded.

Conn and Carpenter, JJ., concur.


author: Hildebrant, J.

text:
    Gallagher, Appellant, v. Harrison et al., Appellees.
    (No. 7018
    — Decided May 23, 1949.)

      Messrs. Paxton & Seasongood, for appellant.

      Messrs. Nichols, Wood, Marx é Ginter, for appellees.
   Hildebrant, J.

This appeal on questions of law and fact tried de novo in this court is in an action arising as a controversy within an organized labor union, .to wit, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, an unincorporated labor union, international in scope, with a membership of approximately 300,000 persons belonging to hundreds of affiliated and subordinate local lodges, all governed by a written constitution.

It becomes apparent at once that the rights involved have common origin, in the constitution of the union.

Membership in the brotherhood is voluntary and the members are obligated and qualify by taking a ritualistic oath' conforming to certain provisions of the union constitution and including in part the following:

“I will obey the constitution and laws of this organization, and all orders emanating from its proper offices when in conformity therewith; I will not knowingly wrong or defame a member myself, or allow it to be done by others, if in my power to prevent it.
“I will assist a member at all times insofar as my means or ability will permit and will guard a member’s interest as my own. * * *
“I further promise and declare that I will not under any circumstances resort to or bring suit in any court or courts either federal or state until after I have exhausted all my rights and used all means at my command within and under the laws of the brotherhood.”

Plaintiff, for a number of years prior to 1943, had been a member of the brotherhood and of its affiliated local lodge in New York City, No. 2125, made up of employees of the Railway Express Agency.

Defendants grand president Harrison, grand secretary-treasurer Ziegler and vice grand president Morgan are officers of the grand lodge of the brotherhood; defendant William Winston is a member of the brotherhood and was chairman of the credentials committee of the 1947 grand lodge convention held in Cincinnati, May 12 to 17, 1947; and defendant Monaghan is a member of the brotherhood and financial secretary of local lodge No. 2125, New York City.

On complaint made to the grand president by defendant Monaghan that plaintiff had violated article 27 of the union constitution, he was expelled from the union on the order of the grand president, which expulsion was, on appeal, upheld by the grand executive council of the brotherhood. Plaintiff failed and refused to appeal the action of the grand executive council to the grand lodge convention at Cincinnati in May 1947, as he had a right to do under the union constitution, and thereby failed to exhaust all remedies within the union.

Thereafter, in March 1945, plaintiff brought an action (Gallagher v. Monaghan, 58 N. Y. Supp. [2d], 618) in the Supreme Court of New York for New York county against defendant Monaghan as secretary-treasurer of local lodge No. 2125, and obtained a judgment against the local lodge, as follows:

“First: That the defendant, its agents, officers, servants and employees are hereby enjoined from interfering with the rights of the plaintiff as a member and as chairman of the defendant association and from interfering with his right to participate in the activities, meetings and deliberations of the defendant association and to exercise all rights,' privileges and duties as a member and chairman of the defendant association.
“Second: That the plaintiff recover judgment against the defendant association in the sum of one thousand two hundred ($1,200) dollars together with costs and disbursements of this action as taxed in the sum of $130.75 and that plaintiff have execution therefor.”

The relief sought here is for mandatory injunction, restoring him to membership in the union, and damages.

The facts appear at length in the excellent opinion of Schneider, J., of the Common Pleas Court with whose reasoning and conclusions this court is in accord.

In this kind of action, it has become the generally accepted law, as stated as follows in International Union of Steam & Operating Engineers v. Owens, 119 Ohio St., 94, 98, 99, 162 N. E., 386:

“It is a well-settled principle of law, recognized by the courts of this state and by the courts of other states, that the members of a fraternal association by adopting a constitution and bylaws and providing reasonable rules and regulations for settling their own disputes, and by establishing their own tribunals of original, intermediate, and appellate jurisdiction, become bound thereby, provided such constitution, bylaws, rules, and regulations do not contravene the laws of the state. It is also well settled that the members of such an association must conform to the reasonable rules and regulations thereof and must exhaust all remedies within the association and before such regularly constituted tribunals.”

It is further generally accepted, as stated in the syllabus of Mace v. Carpenters & Joiners of America, 31 N. P. (N. S.), 17, that “membership in a trade union is in the nature of a contract, under which each member agrees to be governed by its constitution and rules; and where, under such rules, complaints of an individual member against injustices of the association officers are required to be tried before a trial board of the association and an appeal taken within the association before recourse to the civil courts, the latter tribunals are without jurisdiction in such cases until the remedies afforded by the constitution of the association have been exhausted.”

Also, we cite, with approval, Boblitt v. C., C., C. & St. L. Ry. Co., 73 Ohio App., 339, 56 N. E. (2d), 348, the first paragraph of the syllabus of which is:

“When the duly adopted laws of a voluntary labor organization provide for the final settlement of disputes among its members by a regularly constituted standing committee of members, its action thereunder is final and conclusive and will not be disturbed by the courts unless it was unreasonable, arbitrary, capricious or oppressive.”

We note further that conduct of union officers in settling a dispute among members, arbitrarily outside of or contrary to the union constitution or in any manner in denial of due process of law, would not be conclusive upon the courts. However, we refer to the concurring opinion of Stuart, J., in the Boblitt case, wherein the following appears:

“It was said in Richards v. Morison, 229 Mass., 458, at page 460, 118 N. E., 868:
“ ‘The plaintiff, by becoming a member of the association, agreed to be bound by its rules and subject to its discipline. As one of the incidents of membership, he consented to accept liability to explusion, ordered in accordance with its regulations. "When the action of the association or of its officers is challenged in respect to the exercise of the power of expulsion, the court does not sit in review upon the wisdom or expediency of their conduct. The decision of the organization and its officers acting in good faith in accordance with the rules on that subject is the final tribunal. There is no general appeal to the courts.’ ”

Generally, as to the requirements of due process, it is stated in 12 American Jurisprudence, 327, Sections 636, 637, 638:

‘ ‘ Generally speaking, due process is satisfied by one hearing which furnishes a full and fair opportunity within the rules hereinbefore discussed. No rehearing or review is necessary.
“* * * A hearing before judgment, with full-opportunity to present all the evidence and the arguments which the party deems important, is all that can be adjudged vital under the guaranty of due process of law. Rehearings or new trials are not essential to due process of law, either in judicial or administrative proceedings. One hearing, if ample, before judgment satisfies the demand of the federal Constitution in this respect.
“* * * The right of appeal or review is not essential to due process, provided due process has already been accorded in the tribunal of first instance.”

However, plaintiff here contends we never reach application of the principles cited above, for the reason that the defendants, other than Monaghan, although not parties to the New York suit, are bound thereby on principles of res judicata and estoppel by judgment, by reason of being privies thereto, and that such judgment is effective and must be enforced in this court against them.

The claim of privity is based in part on, and the first line of cleavage between the parties here is bound up in, the allegation contained in the first paragraph of the petition before this court, that membership in the local No. 2125 automatically conferred membership in the brotherhood.

This allegation cannot be sustained under the constitution here involved, which is dual in character and clearly gives separate entity to the brotherhood from the local lodges. It is denominated “Constitution of the Grand Lodge, Statutes for the Government of Lodges and Protective Laws of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.”

In the constitution the following appears:

“Statutes for the Government of Lodges
“Under the Jurisdiction of the Grand Lodge of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.
“Preamble
“For the purpose of effecting uniformity in the administration' of privileges and benefits to its members, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees ordains the following constitution for the government of subordinate lodges.”

Then articles 33 to 43 provide the separate constitution for the subordinate lodges.

The constitution of the grand lodge vests supreme and complete authority and control of all members and subordinate units in the grand lodge itself, and the various provisions as to membership clearly show control to he vested in the grand lodge.

In article 34 of the statutes for the government of lodges, which sets forth the eligibility requirements for membership, the extent of that control as provided hy the constitution is indicated as follows by section B:

“The grand president, when he deems it necessary in the interests of the brotherhood, may make exceptions to this section.”

The brotherhood and the defendants other than Monaghan were not parties to the New York suit, no order was made or attempted to be made against them, and, from the dual character of the constitution, it appears none could be made against them, so that the New York judgment could not be binding upon them unless their conduct in connection with that suit was of such a character as to bring them within the rule of privity.

The record is replete with evidence of the interest taken, and assistance given the local lodge, in the New York suit by certain of the grand lodge officials. They furnished documents, suggested the attorney employed hy the local lodge, paid attorneys’ fees and expenses after the judgment and urged an appeal, which the local refused to take. These activities, however, fall short of the generally accepted requirements illustrated hy the following cases:

State v. Cincinnati Tin & Japan Co., 66 Ohio St., 182, 64 N. E., 68, wherein it is stated in paragraph one of the syllabus:

“To constitute the record of an action a bar or res adjudicata it must appear in the record itself that the party against whom it is offered was a party or privy in blood or estate to the former action, or assisted in the prosecution or defense thereof for some benefit of his own.”

Fish v. Vanderlip, 218 N. Y., 29, 112 N. E., 425, paragraph one of the syllabus of which is:

.“The general rule is that a former adjudication to be available as a plea must have been a previous determination of the same issues between the same parties or their privies. Under the term ‘parties,’ in this connection, the law includes all who are directly interested in the subject matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment.”

In that case, at page 37, appears the following quotation from Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S., 111, 126, 56 L. Ed., 1009, 32 S. Ct., 641:

“ ‘To conclude Bigelow by the New York judgment, it must appear that he was either a party or a privy. That he was not a party to the record is conceded. He had no legal right to defend or control the proceedings, nor to appeal from the decree. He was, therefore, a stranger, and was not concluded by that judgment as a party thereto. That he was indirectly interested in the result because the question there litigated was one which might affect his own liability as a judicial precedent in a subsequent suit against him upon the same cause of action is true, but the effect of a judgment against Lewisohn as a precedent is not that of res judicata, and the Massachusetts court was under no obligation to follow the decision as a mere judicial precedent. Nor would assistance in the defense of the suit, because of interest in the decision as a judicial precedent which might influence the decision in his own case, create an estoppel as to Bigelow.’ ”

And, at page 40, it is stated:

“We conclude that the matters pleaded in the fifth separate defense in the amended answer do not suffice to make the judgment in-the Municipal Court suit available to the appellant by way of estoppel. It is easy to conceive of a case where it would operate most harshly to hold a person bound by a former judgment adverse to his interest, merely because he had aided in combatting it but without any legal right to control the course of the litigation, or to appeal from the adverse judgment although it was palpably erroneous.”

Since the record here reveals merely assistance without control or right to appeal, we conclude the defendants, other than Monaghan, are not bound by the judgment of the New York court.

Monaghan, being a party in the New York suit, is bound by that judgment which is enforceable here. By that judgment, Monaghan Was enjoined from interfering with the rights of plaintiff as a member and chairman of local 2125, with his right, to participate in the activities, meetings and deliberations of local 2125, and with the exercise of all his rights, privileges and duties as a member and chairman of local 2125.

It is claimed Monaghan defied the New York decree in that (a) he refused to accept Gallagher’s tendered dues or recognize him as a member of local 2125, (b) he refused to recognize Gallagher as a duly elected and qualified delegate to the 1947 convention and (c) he usurped the office of delegate and received emoluments thereof belonging to Gallagher. It is claimed further that the relief against Monaghan should be (1) injunction similar to the New York decree, amplified to declare that membership in the local entitles plaintiff to membership in the brotherhood, (2) adjudication that, Gallagher being the duly elected and qualified delegate to the convention, Monaghan had no right to serve as alternate and by so doing usurped the office of delegate and deprived Gallagher of the emoluments thereof and (3) money judgment against Monaghan for the same.

As to (a) above, the record shows that Monaghan accepted the tendered dues and transmitted same to the grand president, who refused the payment and returned the certified check to plaintiff. The record reveals that Gallagher testified that, at no time between April 1943 and the time of tendering his check, February 9,1945, was any attempt made by anyone to expel or suspend him for nonpayment of dues, and that, subsequent to that time, Gallagher has been accepted as a member, elected to office in December 1946, and by the local elected as delegate to the 1947 convention. If he has enjoyed this membership, without being out of pocket as to his dues, it is difficult to see how Monaghan’s handling of the tendered dues is in violation of the New York decree.

As to (b) above, there is nothing in the record to show Monaghan’s attitude toward Gallagher as the elected delegate of local 2125. His was not the responsibility of seating or not seating Gallagher, and there is no evidence of his interference in the determination not to seat Gallagher in any way.

As to (c) above, the element of usurpation by Monaghan individually is lacking, his noninterference in seating being noted above. He sat as alternate delegate, as required by his election and duty to his local lodge, and if he had refused to sit in violation of that election and duty, leaving his local without representation in convention, no emoluments would have accrued to Gallagher.

■As to (1) above, declaring membership in the local entitles Gallagher to membership in the brotherhood, the New York decree did not so declare — and certainly Monaghan is without authority to act in that connection, and the views of this court on the subject are as set forth earlier in this opinion.

For the reasons given, the court finds that Monaghan has not violated the New York decree, hence the relief prayed for against him must be denied.

The claims of denial of due process directed at the procedure, hearing and appeal within the union and at the provisions of the constitution itself were litigated all the way to the Supreme Court of the United States, the sixth Circuit Court of Appeals decision being reported in Reigel v. Harrison, 157 F. (2d), 140, resulting in an adjudication that due process was not denied. In the change in the constitution, whereby the grand president rather than a committee on committees selects the committee on appeals, we find nothing not consonant with due process.

In addition, Gallagher testified before the grand executive committee: “I will say I have had a full and free hearing.” This would seem to satisfy the requirements of due process, at least up to that point. ,pAs to delay of an appeal until the quadrennial conven- ' tion, Gallagher abandoned his appeal thereto and wait- , ed until the convention was in session to bring this ,, suit. Had he instituted suit at once, claiming hardship | and denial of due process of law by delay, the court : would have determined the adequacy and fairness of the union proceedings at once, and if entitled to relief, it could have been granted. Having voluntarily delayed, he cannot now be heard to complain on that score.

" By the procedure followed here of preliminary investigation, formal hearing with opportunity to defend in person and represented by counsel, and appeal, where an admittedly full and fair hearing was accorded, with final appeal provided for, hut unavailed of, fit appears that meticulous observation of the fights of the plaintiff here has been accorded.

Under the settled law, no course is open to this court but to dismiss the appeal, for failure to exhaust the union remedies.

A judgment similar to that of the trial court maybe presented.

Judgment accordingly.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the opinion and judgment.


author: Putnam, J.

text:
    Zivkoff, Admr., Appellant, v. The Pennsylvania Rd. Co., Appellee.

      (No. 361
    — Decided December 7, 1948.)

      Messrs. Anderson, Will & O’Donnell, for appellant.

      Messrs. Burt, Carson, Lynch & Miller, for appellee.
   Putnam, J.

Plaintiff’s decedent was killed by defendant’s train, while driving an automobile across the Spring street crossing in the village of Loudonville. This action for wrongful death resulted. At the close of plaintiff’s testimony the court directed a verdict1 for the defendant. This appeal on questions of law results.

The basis of the court’s action was that, although the evidence showed the defendant guilty of negligence, it also showed the plaintiff’s decedent was guilty of contributory negligence which was a proximate cause of his death. The plaintiff claims that the evidence presented a jury question because of the facts peculiar to the case, together with the presumption of the use of ordinary care attaching to the actions of the decedent. The defendant maintains that the case comes squarely within the principles announced in the cases of Patton, Admx., v. Penna. Rd. Co., 136 Ohio St., 159, 24 N. E. (2d), 597, and Lang, Admx., v. Penna. Rd. Co., 59 Ohio App., 345, 18 N. E. (2d), 271. Inasmuch as the court’s action in directing a verdict was confined to the proposition of contributory negligence, this review will be limited to that phase of the case. The court stated that the evidence presented a jury question as to the negligence of the defendant as far as speed was concerned. The court had previously sustained a demurrer to some twenty interrogatories of the plaintiff going to this point and felt that this would have prejudiced the plaintiff had excessive speed not been shown otherwise.

Inasmuch as the defendant intimated in argument, although the contention was not stressed, that there was no evidence of defendant’s negligence as to speed by reason of its claim that an ordinance of the village of Loudonville limiting the speed of trains, alleged in the petition and denied in the answer, was unreasonable and invalid, it is well to point out that the plaintiff also alleged negligence of the defendant' in not having proper warning signs at this dangerous crossing in the closely built-up section of this village. The court excluded evidence of the dangerousness of this crossing and the company’s knowledge' of the same. In the case of Woodworth, Admx., v. New York Cent. Rd. Co., 149 Ohio St., 543, 80 N. E. (2d), 142, in the course of the opinion the court said:

“The law does not require railroad companies to place signals, gates or flashers at highway crossings unless ordered by the Public Utilities Commission, or unless such crossings are especially dangerous or there exist special circumstances which render such precautions necessary for the public safety. None of these exceptional conditions was shown. Cleveland, C., C. & I. Ry. Co. v. Schneider, 45 Ohio St., 678, 693, 17 N. E., 321.”

In the light of the above we feel, therefore, that the pleadings and the evidence did or should have presented a jury question as to the negligence of the defendant.

The facts as shown by the evidence are substantially as follows. The railroad involved was the main line of the defendant’s Pittsburgh and Fort Wayne and Chicago road. It is a double-track road with continual heavy traffic. The train was an eastbound fast passenger train. Spring street intersects the tracks at not quite a right angle in a northwest-southeast direction. There, are four tracks at the crossing, two main line and two sidetracks, one on the north side and one on the south side. The sidetrack on the south side angles away from the eastbound main track so at the east side of Spring street the' distance between the sidetrack and the southeast bound main track is something less than 30 feet. Spring street is 60 feet wide. At the center of the street the distance would be considerably less. Approaching the tracks from the south Spring street has a pronounced upgrade. The south track is lower than the main track. Approaching from the south on Spring street the view to the west is cut off by a house, an embankment and trees until the south sidetrack is about reached, when at this point there is a view to the west of about 2,000 feet.

The accident happened after dark between eight and nine o’clock on April 4, 1945. The leaves on the trees were not out and a high wind was blowing but its direction was not shown. There was no watchman at the crossing, no gates, no lights of any kind or warning devices of any kind except a crossarm railroad sign on the east side of Spring street at the edge of the south main tracks and within the tree line. There was a street light about one block south on Spring street. There was no ¿yewitness to the accident. Plaintiff’s decedent, a young man 18 years of age, lived in Mansfield some 20 miles away. There was no evidence that he was familiar ■ with this crossing. On the night in question he was last seen on Main street in Loudonville coming out of a restaurant with two ice-cream cones. He got into his car in which was his girl friend, a 16 year old high-school girl. He drove west on Main street and turned north into Spring street. A Mrs. Hughes who lived on the west side of Spring street, two houses from the crossing, testified she was in her living room to the front of the house and heard the train and then a crash. She ran up to the crossing where she met a Mrs, Darling and her daughter, who lived north of the tracks. She and the Darlings were the first on the scene. The Darlings did not testify. She looked for an automobile but all she found was a hubcap. The body of the decedent’s girl companion was found some distance east of the crossing between the east and westbound tracks, dead and badly mangled. The train stopped with its engine about North Adams street, some 2,500 feet east of Spring street. The automobile with decedent’s body therein was on the front of the engine.

These are the essential facts except for a claim made by the plaintiff in support of his position that there may have been an engine on the south sidetrack to the west of the Spring street crossing at the time of the accident which obscured the decedent’s vision. We will consider this first. This is based upon the testimony of one Max Peoples, the undertaker. He testified that sometime after the accident he saw an engine west of the crossing at Spring street but he did not know whether it was on the south sidetrack or the eastbound main track. Without going into details, a careful calculation from all his testimony shows that this could not have been less than 20 minutes after the accident. This could be of no probative value because there is no other testimony on this point and from this alone even if it would aid the plaintiff, to place the engine on the south sidetrack west of the crossing before the accident would require two inferences, one based upon the other — first, that the engine was on the south sidetrack, and, second, that its position was unchanged since before the accident. This is not permitted and the jury conld not have considered it for that purpose.

Consequently, we must approach the problem with the proposition that once the south sidetrack was nearly reached there was an unobstructed view to the west of at least 2,000 feet. The facts in the instant case are not the same as in the case of Lang, Admx., v. Penna Rd. Co., supra. In that case there was direct-testimony as to the actions of the decedent just prior to the accident. The value of that case is only as related to the weight to be given the pronouncements therein as to the presumptions attaching in this type of case. The facts of the case of Patton, Admx., v. Penna Rd. Co., supra, are similar to those in the case at bar but with some important differences. In the Patton case, the driver was thoroughly familiar with the crossing; here there was no evidence that he was. In that case there were warning devices; here there were none. There is also a substantial difference in the view of the driver approaching a crossing.

As stated in the Patton case, there arises in cases of this kind a presumption that as decedent came to this crossing he was in the exercise of due care for his own safety. There is also a presumption as far as the defendant is concerned, that the headlight of its train was burning, its bell was ringing and its whistle had blown at the proper place. It is further recognized that the presumption of due care on the part of the plaintiff’s decedent may be counterbalanced or rebutted by circumstances surrounding the accident. There is a difference of opinion as to when and whether these circumstances counterbalance the presumption and become a question of fact for the jury or a question of law for the court. The recognized criterion of course is whether reasonable minds could come to different conclusions on the proposition. That is the crux of this appeal, but it is complicated by the decision reached in the case of Betras, Admr., v. G. M. McKelvey Co., 148 Ohio St., 523, 76 N. E. (2d), 280. As we read the opinion, not the syllabus, it seems to hold that not only the question of contributory negligence of the plaintiff but also the question of that negligence being a proximate cause is to be judged by the above criterion of reasonable minds and that while reasonable minds might or might not differ as to the contributory negligence phase, they might arrive at a different conclusion on the proximate cause phase. However, the minority of the court seemed to go further in its interpretation of the far-reachingness of the pronouncement of the court. Judge Hart, speaking for the dissenting minority, said in part:

“If in every personal injury case in which the contributory negligence of the plaintiff is made a defense the question as to whether such contributory negligence is a proximate cause of plaintiff’s injury must be one for the jury, then in no such case may the trial court direct a verdict for the defendant on the ground of the contributory negligence of the plaintiff even though, as here, it be contributory negligence, as a matter of law. I cannot concur in a rule which renders a trial court so impotent in the exercise of its functions or the discharge of its duties.
“Heretofore, under similar circumstances this court has approved directed verdicts and judgments for defendants notwithstanding the verdict, on the theory that, in those instances, both negligence and proximate cause under undisputed facts presented only questions of law.” (Citing many cases including the Patton case, supra.)

Whether the majority of the court would put the same interpretation on the case is open to question. Again that case was a street accident case involving a pedestrian and a motor vehicle in which the motor vehicle was governed by various statutory regulations by reason of which the injured party would be entitled to place some reliance thereon as effecting proximate cause. In crossing accident cases, however, involving steam railroads, it has long been recognized that the traveler must stop for the train and not the train for the traveler. Consequently, we shall decide this appeal upon the legal proposition that before a court can direct a verdict for the defendant by reason of the contributory negligence of the plaintiff, it must determine as a matter of law not only that the plaintiff was negligent but that that negligence contributed as a proximate cause to his own injury and recognize the principle that the determination of the one does not necessarily involve a like determination of the other.

In giving the plaintiff’s evidence its most favorable construction and indulging all proper presumptions in his favor, all of which we are bound to do, we are faced with the following facts:

(1) The plaintiff’s decedent in going north on Spring street in the exercise of ordinary care might be unaware that he was approaching a railroad crossing or that a train was approaching until he came upon, or very close to, the south sidetrack. This is so because (a) he was not familiar with this crossing, (b) due to the upgrade on Spring street and the different levels of the tracks his lights might overshoot them, (c) proper lights might not necessarily show the crossarm railroad sign on the east side of Spring street at the tree line, (d) until that point was reached the view to the west was obscured by the embankment, a house and trees and (e) the high wind may have made hearing difficult.

(2) Decedent was approaching the crossing at the legal limit of 25 miles per hour and at this rate he would be traveling at the speed of 37 feet per second.

(3) The decedent was traveling just to the right of the center line of the street.

(4) The distance between the south sidetrack and the main eastbound track at the center of Spring street was about 20 feet, because (a) at the extreme east side of Spring street, the only testimony was that the distance was something less than 30 feet, (b) this sidetrack angled considerably to the southeast from the main track, and (c) Spring street is 60 feet wide.

(5) The train was approaching at 70 miles per hour with headlight burning, bell ringing and whistle had blown at proper whistling post, because (a) 70 miles per hour is alleged in the petition and the circumstances surrounding the collision would warrant a deduction of that speed, and (b) in the absence of testimony to the contrary presumptions in this type of case would cover the conclusion above stated as to headlight, etc., as they were legal requirements.

(6) At 70 miles per hour the train would be traveling at about 100 feet per second. This is a mathematical calculation.

Now it is a known fact, furnished to every automobile driver when he gets his driver’s license, that the reaction time of a normal person between sensory perception and muscular action is between three-fourths and one second depending upon conditions. It is also a known fact that an automobile traveling at 25 miles per hour, equipped with normal brakes, has a breaking distance of 52 feet on the level, which on this upgrade on Spring street would be reduced somewhat and might be to the extent of 40 or 45 feet. Adding the reaction time to the breaking distance and giving the plaintiff’s decedent the most favorable presumption of traveling just to the right of the center of the street at the legal rate of 25 miles per hour, the time interval between the decedent’s awareness of danger and his ability to stop short of the eastbound track would be two and one-fourth to two and one-half seconds, which at 25 miles per hour would be 83 to 92 feet. This would place his automobile 60 to 70 feet south of the south sidetrack at a time when he might first have been able to stop his car short of the main rtack. There is no evidence in the record from which a more probable inference could be drawn that he could have seen the train from this point. In fact the evidence is to the contrary. The chief of police testified that one must get “pretty close” to the sidetrack before he has an unobstructed view to the west. At that time the train would have been about 250 feet from the crossing. Could or should the decedent have seen it from that point?

It is true that the above facts as to the reaction time and breaking distance are not in the record but in view of human experience and mathematical calculation can a court say as a matter of law that the contrary is true?

It may be argued that even if the view was obscured, decedent should have heard the roar of the train, the whistle and bell. Perhaps so, but can we say so as a matter of law? With no awareness of danger, the location of these tracks, a high wind blowing, the interpretation of sounds, their distance or direction, becomes a matter of speculation. There is a difference in the standard which must be applied when we determine what is ordinary care to the actions and reactions of one approaching a railroad crossing who is familiar with that crossing and a stranger who is unfamiliar therewith.

In the first case having an awareness of approaching a dangerous railroad crossing one should be looking and listening for certain things and have his mind set to interpret those sights and sounds and sensations which are indications of danger. In the latter case the awareness of danger being absent until that fact is suddenly impinged upon his consciousness, his reaction time in co-ordinating and interpreting the evidence of his senses is greater.

In the great majority of crossing accident cases which this court is familiar with, when a directed verdict has been upheld, either the plaintiff was thoroughly familiar with the crossing, or it was adequately protected by a watchman, or by lights and sound devices, or it was daylight or in plain view, or there were eyewitnesses to the conduct of the injured party. We have none of these conditions here. The decedent was a stranger to the crossing. There were no eyewitnesses to the collision. The crossing was a dangerous crossing. It was not at all protected either by a watchman or by gates or by lights or by sound devices. Was it in plain view? Should the decedent have seen it within .the legal range of his headlights? Perhaps, but from the evidence in this case we cannot say so as a matter of law. There was an upgrade, the first track leveled off, the main tracks were higher. We know from common experience as we approach the top of a hill at night, the headlights of an automobile shoot upward and not downward. It could well be that on this grade none of these tracks was visible even to one using ordinary care.

From all the above considerations we are impelled to the conclusion that giving the evidence its most favorable construction in favor of the decedent and with the presumption involved, a jury question was presented.

The judgment must be and is reversed and the cause is remanded to the court below for further proceedings in accordance with law.

Judgment reversed.

Montgomery and McClintock, JJ., concur.


text:
    Kohler, Appellant, v. Sears, Roebuck & Co., Appellee.
    (No. 2017
    — Decided April 6, 1949.)

      Messrs. Harshman & Young, for appellant.

      Messrs. PicJcrel, Schaeffer dt Ebeling, for appellee.
   By the Court.

This is an appeal on questions of law from the judgment of the Common Pleas Court, Montgomery county, in favor of the plaintiff, appellant herein, for the sum of $70 in an action growing out of a contract of employment.

Plaintiff claims the sum of $1,135 was due him as commission . earned by him on sales of merchandise while an employee of Sears, Boebuck & Company. Upon trial the defendant admitted its indebtedness in the sum of $70.

The plaintiff assigns as error that the judgment of the trial court is not sustained by sufficient evidence, that the judgment is contrary to the manifest weight of the evidence and that it is contrary to law.

The determinative issue in this case is entirely factual. The plaintiff contends that he was entitled to commission for merchandise sold by him during the time he was employed by the defendant company even though such merchandise was delivered after the termination of his employment. The defendant contends that the contract of employment provided that the plaintiff should be compensated for his services on the basis of sales shown on the merchandise condition report and that no sales appeared on this report until the merchandise was delivered; and that because of the peculiar nature of the plaintiff’s services, and the fact that he was in charge of a department which engaged in bulk sales, consisting of large orders of merchandise sold to the federal government and the armed forces of the United States which were subject to cancellation, he was informed and it was agreed, that his commission on such orders would be based on sales made and delivered during the period of his employment.

The trial court resolved this issue in favor of the defendant. After a careful examination of the entire record in this case, we find that there is ample evidence to support the judgment of the trial court.

In our opinion the judgment is sustained by sufficient evidence, is not contrary to the manifest weight of the evidence and is not contrary to law. Finding no error in the record prejudicial to the plaintiff the judgment is affirmed.

Judgment affirmed.

Miller, P. J., Hornbeck and Wiseman, JJ., concur.