author: Kovachy, P. J.

text:
    Smith, Appellee, v. City of Mayfield Heights et al., Appellants.

      (No. 23251
    Decided February 23, 1955.)

      Mr. George J. McMonagle, for appellee.

      Messrs. Squire, Sanders & Dempsey, for appellants.
   Kovachy, P. J.

The Mayor of the City of Mayfield Heights, Ohio, removed the chief of police, Clarence A. Smith, plaintiff below, appellee herein, from office after appellee’s explanation of ten specific charges of misconduct, nonfeasance, gross and willful neglect of duty and incompetence in office had been found unsatisfactory. Upon appeal to the civil service commission of the city by appellee, the order of removal was affirmed after an extended hearing. The appellee then appealed to the Common Pleas Court of Cuyahoga County, pursuant to Section 486-17a, General Code (Section 143.27, Revised Code). That court, upon a review of the record made before the civil service commission on questions of law, decided:

“That the decision of the Civil Service Commission of Mayfield Heights, Ohio, affirming the removal of Clarence A. Smith as Chief of Police of Mayfield Heights, Ohio, be and is hereby reversed and this cause is remanded to the Civil Service Commission of Mayfield Heights, Ohio, for a new trial,” having found “that although there was evidence to support the order of removal, the failure to admit defendant’s evidence and other irregularities in the said hearing before the said civil service commission were so great they prevented the appellant from having a fair hearing on said charges and prevented the commission from considering all the evidence; said irregularities * * * [consisting] of the prejudicial, erroneous exclusion of evidence offered by and material to the plaintiff appellant, and the prejudicial, erroneous admission of evidence duly objected to by the plaintiff appellant * *

The matter before us here is an appeal by the city of May-field Heights on questions of law from the judgment of the Common Pleas Court. It claims (1) that the judgment of the Common Pleas Court is contrary to law, and (2) that the Common Pleas Court substituted its judgment for that of the civil service commission. In his answer brief, appellee, the chief of police, also assigns an error of law. He claims that the Common Pleas Court erred in failing to reverse the judgment of the civil service commission and in failing to order the appellee reinstated as chief of police and restored to all legal rights lost by his removal.

It is well established in Ohio that the jurisdiction of- the Common Pleas Court in appeals from a civil service commission’s removal of a fireman or policeman from office under Section 486-17a, General Code (Section 143.27, Revised Code), is special and is limited by the terms of the statute to a determination of the sufficiency of the cause of removal. Kearns v. Sherrill, City Manager, 137 Ohio St., 468, 30 N. E. (2d), 805. The power of the court under such jurisdiction is to affirm in toto or reverse in toto. Where the latter is the case, the court’s duty is merely to reinstate the officer to his position and restore to him the emoluments of office from the date of his discharge. Hawkins v. City of Steubenville, 134 Ohio St., 468, 17 N. E. (2d), 641. There appears to be no provision of law authorizing the Common Pleas Court, in appeals to it by virtue of this statute, to remand the cause to the civil service commission for a new trial. We consequently hold that the judgment of the Common Pleas Court in this matter, remanding the cause for retrial to the civil service commission, has no sanction in law, is erroneous and must he reversed.

The Common Pleas Court, in making the order it did, based its conclusions upon a finding that due process of law had not been accorded the chief of police in his hearing before the commission. The appellant contends that since a person holding a public office does not have a vested right to it but has rather a right to hold office during good behavior, such person cannot lay claim to the protection of the constitutional provisions of due process of law with regard to his office. The appellee maintains that he was entitled to the safeguards of due process of law set forth in the provisions of both the Ohio and United States Constitutions in his hearing before the civil service commission. We agree with the appellee. Any hearing involving one’s rights, of whatever nature provided by law, must conform to the standards of a fair trial and are subject to the protection of the general rules of fair play which govern society; and this is true whether the hearing is before a court of law, an executive or a commission.

While it is true that nonjudicial bodies such as commissions are not expected to be held to the same strict conformity to regular rules in the introduction and presentation of evidence as are judicial bodies, they, nevertheless, must not disregard fundamental rules having to do with the observance of the safeguards provided every person by the constitutional provisions, both federal and state, that no person shall be deprived of life, liberty or property without due process of law.

A portion of the syllabus in Stuart, Jr., v. Palmer, as Collector, 74 N. Y., 183, 30 Am. Rep., 289, is as follows :

“ The' constitutional provision declaring that no person shall be deprived of life, liberty or property, without ‘due process of law,’ is not limited to judicial proceedings, but extends to every proceeding which may interfere with those rights, whether judicial, administrative or executive.”

Just what the expression “due process of law” means is difficult to define with exactitude. Many eminent jurists, however, have dealt with the question. In the celebrated Dartmouth College case (Trustees of Dartmouth College v. Woodward, 17 U. S. [4 Wheat.], 518, 4 L. Ed., 629), Webster defined it as follows:

“By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. ’ ’

Another statement reads:

“Some legal procedure in which the person proceeded against, if he is to be concluded thereby, shall have an opportunity to defend himself. ’ ’

In State, ex rel. Keogh, v. Gilmore, Judge, 35 Ohio Law Abs., 97, 39 N. E. (2d), 860, the court holds, in paragraph four of the headnotes:

“4. Due process of law means the right to be heard.” While the Legislature confined an appeal to the Common Pleas Court in these cases to the determination of the sufficiency of the cause of removal, we believe that every court of law reviewing a proceeding disposing of a substantial right of an individual has the duty to consider and determine whether such person was accorded, a hearing conforming to the elemental requirements of due process of law. This concept was well stated by Judge Matthews in the case of Kearns v. Sherrill, 63 Ohio App., 533, 541, 27 N. E. (2d), 407, where he stated:

“We hold that the language of Section 483-17a, General Code, must be construed to confer upon that court jurisdiction to review the proceedings of the civil service commission to determine whether it had exercised the authority conferred upon it in accordance with the statute, and whether due process of law and other constitutional safeguards had been observed.”

The Supreme Court of Ohio unquestionably had such consideration in mind when it wrote, as follows, in paragraph two of the syllabus of Sorge v. Sutton, Jr., Dir., 159 Ohio St., 574, 113 N. E. (2d), 10:

“2. Under Section 486-17a, General Code, the ‘appeal’ from a decision of a municipal civil service commission to the Court of Common Pleas, ‘to determine the sufficiency of the cause of removal, ’ accorded members of police and fire departments in the classified civil service contemplates only a review of the proceedings before the commission as to their legality and regularity and to determine the sufficiency of the cause of removal and not a trial de novo.” (Emphasis added.)

The able judge who tried this 'case in the Common Pleas Court wrote an opinion which was filed and made a part of the record. In it he made findings of fact and conclusions of law as regards the specific charges brought against plaintiff, appellee herein. He found that the record before the civil service commission disclosed no competent evidence sufficient to cause the removal of the chief of police on all charges except charges three and four. We have read with care the bill of exceptions of the proceedings before the civil service' commission and believe that it does not justify a reversal of the holding of the court below with respect to the findings of facts and conclusions of law therein indicated. We accordingly affirm the trial judge’s conclusions as to charges Nos. 1, 2, 5, 6, 8, 9 and 10.

Charge No. 3 reads:

“3. In that in the course of a coroner’s inventory had on or about April 20, 1950, of the valuable effects in the home of Lester Hostetler, deceased, a former resident of Mayfield Heights, he, the said Clarence A. Smith, converted to his own use valuable personalty, the property of the estate of said Lester Hostetler, to wit, one promissory note in the amount of $250 which said note was payable to the order of said Lester Hostetler with the maker of said note being one Thomas A. Lanese. ’ ’

The answer of the appellee to this charge is as follows:

“I never converted to my own use a promissory note of the estate of Lester Hostetler.
“On or about April 20, 1950, Mr. J. E. Hostetler, the father of Lester Hostetler, turned over to me a note for $250 signed by Patrolman Thomas A. Lanese, and asked me to give this note to Mr. Lanese and tell him to take care of it. I did turn this note over to Patrolman Lanese, as Mr. J. E. Hostetler had requested, and told Mr. Lanese to take care of it. Patrolman Lanese told me that he had paid $125 on this note but had no receipt for its payment. I understood that he did take care of his obligation on this note by paying $100 to the estate of Lester Hostetler. As chief of my department it was customary for me to assist in straightening out any claims against my men. This was not the only time when my assistance was requested in connection with the debts of Patrolman Thomas A. Lanese.”

Charge No. 4 reads:

“In that on or about April 22, 1950, the said Clarence A. Smith attempted to obtain $125 from a subordinate, to wit, Patrolman Thomas A. Lanese, in exchange for the promissory note set forth in subparagraph 3, which said promissory note said Clarence A. Smith had converted to his own uses as aforesaid. ’ ’

The appellee’s answer to such charge is:

“I never attempted to obtain $125 from patrolman Thomas A. Lanese in exchange for the note referred to as item 3. This note was never converted to my uses. My possession of it is explained in item 3.”

The following proceedings during the trial occurred:

“Chief Smith, did you convert to your own use valuable personal property of the estate of Lester Hostetler, to wit, one promissory note in the amount of $250 ?
“Mr. Knerly: I object.
“Commissioner Baker: Sustained.
“Mr. McMonagle: (Proffer) The witness, if permitted to answer, would have stated that he never did convert to his own use valuable personalty, the property of the estate of said Lester Hostetler, to wit, one promissory note in the amount of $250.
“Now, sir, Chief Smith, did you on or about April 22, 1950, or on any date, attempt to obtain $125 from Patrolman Thomas A. Lanese in exchange for this promissory note?
“Mr. Knerly: I object to that, too.
“Commissioner Baker: Sustained on the same basis of the previous question.
“Mr. McMonagle: (Proffer) The witness, if permitted to answer, would have testified that he never did attempt to obtain $125 from his subordinate, to wit, Patrolman Thomas A. Lanese, in exchange for the promissory note.”
Chief of Police Smith testified, on direct examination, as follows:
“Q. All right. Now, in your taking this note and saying that you would attempt to get it taken care of, was that in accordance with a practice that you followed in the department? A. It was.
“Mr. Knerly: Objection and move that the answer be stricken.
“Commissioner Baker: Sustained.
“Mr. McMonagle: (Proffer) The witness, if permitted to answer, would have stated that it was in accordance with an established practice in the department in order to assist in keeping the men in the department from becoming involved by virtue of the debts.
“Q. Have you on any other occasions attempted to facilitate the payment of an indebtedness claimed against Patrolman Lanese?
“Mr. Knerly: Objection.
“Commissioner Baker: Sustained.
“Mr. McMcMonagle: (Proffer) If the witness were permitted to answer, he would have stated that he had attempted to procure payment on other occasions in accordance with the accepted practice in his department.
“Q. And was your handling of this note, in accordance with the accepted and customary practice you followed in the department in order to assist your members ?
“Mr. Knerly: Objection.
“Commissioner Baker: Sustained.
“Mr. McMonagle: (Proffer) If the witness were permitted to answer, he would have stated that it was in accordance with the accepted practice.”
While Thomas A. Lanese was testifying on crQss-examination, the following proceedings were had:
“Q. As a matter of fact, didn’t Chief Smith call you in to see if he couldn’t get you to pay this without garnisheeing your wages?
“Mr. Knerly: I object to this line of questioning, as to being irrelevant. It has nothing to do with the action concerning the note.
“Mr. McMonagle: All right. Our answer before you with reference to the note, our answer in these proceedings says this: ‘As chief of my department, it was customary for me. * * * This was not the only time my assistance was requested in connection with the debts of Patrolman Lanese.’
“Mr. Knerly: At this time I move that that portion of Chief Smith’s answer be stricken from the record as being irrelevant and having nothing to do with this note.
‘ ‘ Commissioner Baker: The commission feels that that has no bearing on the actual charge and should be stricken.
“Mr. McMonagle: You mean that the procedure followed by the chief in the line of the operation of his department has nothing to do with this incident?
“Commissioner Baker: I mean that the reference to other such involvements of Mr. Lanese’s has no bearing on this particular case.
“Mr. McMonagle: Exception. (Proffer) I want the record to show that if the witness were permitted to answer, he would have stated that the chief did call him in and requested him to make payments of another debt so that no garnishment may be had of his wages. ’ ’

Due process requires that a person charged with misconduct of whatever nature or kind in regard to his performance of a public office have the opportunity to be fully heard. The plaintiff, appellee herein, as shown above, not only was not allowed to deny under oath the specific charges brought against him, but also was prevented from presenting evidence bearing on one of the written affirmative defenses made by him in his answer to the charges, namely, that taking the note of Thomas Lanese was in accordance with an established custom in the police department, under which the chief of police interceded in matters involving debts of policemen under his command by undertaking to adjust the matter with a party making a claim, with the view of sparing embarrassment to the officer, as well as to the department, if these incidents resulted in court action.

The appellee, to maintain this indicated defense, also presented a witness by the name of John J. Suvak, a justice of the peace. The record discloses these proceedings:

“Q. Now, Mr. Suvak, did you contact Chief Smith in an effort to attempt to have him procure the payment of a claim by Dominic Lanese against Thomas A. Lanese?
“Mr. Knerly: Objection.
“Commissioner Baker: Sustained.
“Mr. McMonagle: (Proffer) The witness, if permitted to answer, would have stated that he did contact Chief Smith as chief of the police department, in an attempt to ask his assistance in procuring the payment of the indebtedness of Thomas A. Lanese to Dominic Lanese in line with the custom and practice of the chief of police which was known to this man.
“Q. Mr. Suvak, did you follow your established practice and the usual practice, as you understood it in the police department, in attempting to procure the assistance of Chief Smith in having Thomas A. Lanese pay an indebtedness due to Dominic Lanese?
“Mr. Knerly: Objection.
“Commissioner Baker: Sustained.
“Mr. McMonagle: (Proffer) The witness, if permitted to answer, would have stated that he was fallowing such practice known to him to be proper.”

This testimony likewise had a direct bearing on the affirmative defense of the chief of police as regards the note.

The record discloses that charges Nos. 3 and 4 revolved around Police Officer Thomas A. Lanese. The testimony, in the main, presented by the city to sustain these charges, emanated essentially from him, either by way of direct testimony or testimony of others who related information told them by Thomas Lanese. In resolving this matter, the commission had the choice of believing Lanese or the chief of police. They chose to believe Lanese. In a situation where the testimony of one or the other of two witnesses becomes critical as to the truth involved, testimony bearing on the motive or credibility of either witness becomes a matter of some importance. The commission refused to receive testimony bearing directly on these factors with respect to the witnesses indicated above. It even refused to hear testimony involving the chief of police of an adjoining municipality and tending to show the motive of Thomas Lanese in testifying against his superior officer as described in the record.

“Q. Now, sir, you are acquainted with Chief Dixon, are you not? A. Yes, I am.
“Q. And he is the chief of police of one of the adjoining municipalities here? A. That’s correct.
“Q. And you were acquainted with him in November of 1951, were you not? A. Yes, I was.
“Q. You had a conversation with him in about the month of November, 1951, in which you stated that either Smith was going to go — it would be his job or your job — did you not, Sir?
“Mr. Knerly: Objection.
“Commissioner Baker: Objection sustained.”

The Common Pleas Court found these irregularities sufficient to declare that the plaintiff, appellee herein, did not receive a fair hearing before the civil service commission pertaining to charges Nos. 3 and 4, in contravention of his constitutional rights under the due process of law provisions of both the United States and the Ohio Constitutions. We affirm these conclusions. We affirm them for the reason that the hearing held before the civil service commission with respects to charges Nos. 3 and 4 denied the appellee the elemental rights guaranteed him under such provisions. We hold further that a hearing in which a party is not accorded the constitutional rights of due process of law is null and void and of no effect. As a consequence, charges Nos. 3 and 4 cannot be the basis for the removal of the chief of police by the civil service commission.

In Kessler, District Director of Immigration, v. Strecker, 307 U. S., 22, 83 L. Ed., 1082, 59 S. Ct., 694, paragraph five of the syllabus reads in part:

“* * * an administrative order for deportation of an alien made after fair hearing, based on findings supported by evidence and without error of law, is conclusive; if any of these elements was lacking it is void.”

Also, in the same case, on page 34, it is said:

“If the hearing was fair, if there was evidence to support the finding of the secretary, and if no error of law was committed, the ruling of the Department must stand and cannot be corrected in judicial proceedings. If, on the other hand, one of the elements mentioned is lacking, the proceeding is void and must be set aside.”

Since we have determined that the hearing before the civil service commission with respect to charges 3 and 4 was null and void and of no effect and that we do not disturb the holding of the trial court that the evidence with respect to charges Nos. 1, 2, 5, 6, 8, 9 and 10 was insufficient to cause the removal of Chief Smith, we proceed to render the judgment which the Common Pleas Court should have rendered and disaffirm the order of removal of the Chief of Police of Mayfield Heights by the civil service commission and order him restored to all the emoluments of office lost to him thereby, and remand this cause to the Common Pleas Court to carry such judgment into effect.

The judgment of the Common Pleas Court is, accordingly, affirmed in part and reversed in part, and final judgment is rendered for the plaintiff, appellant herein.

Judgment accordingly.

' Skeel and Hurd, JJ., concur.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    In re Groban.

      (No. 5111
    Decided October 8, 1954.)

      Messrs. Graham, Graham, Hollingsworth, Gottlieb & Johnston, for appellants.

      Mr. Frank H. Kearns, prosecuting attorney, and Mr. Earl W. Allison, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, denying the appellants herein relief, on a writ of habeas corpus, from a prison sentence.

The record discloses that on January 22, 1954, a fire occurred on the premises of the Dresden Mills, Inc., Dresden, Ohio, which is owned, controlled. and operated by the appellants Shortly thereafter, the State Fire Marshal started an investigation as to the cause of the fire and, pursuant to such investigation, subpoenaed the appellants, together with all the records pertaining to the operation of their business. They appeared in accordance with the subpoena, accompanied by their counsel. The State Fire Marshal refused to permit the appellants to have counsel present at the investigation and ordered that the appellants take an oath and testify, after excluding the presence of their counsel. The appellants refused to be sworn and testify, for the reason that they were not permitted to be represented by their attorney. Thereupon, the State Fire Marshal committed the appellants to the Sheriff of Franklin County, Ohio, to be incarcerated until they were willing to testify.

The error assigned is that the court erred in its interpretation of Section 3737.13, Revised Code, and that its judgment is contrary to law. That section of the Code provides:

“Investigation by or under the direction of the fire marshal may be private. The marshal may exclude from the place where such investigation is held all persons other than those required to be present, and witnesses may be kept separate from each other and not allowed to communicate with each other until they have been examined.”

The trial court held that under this section of the Code, the fire marshal has a discretionary power to determine whether his investigation shall be in private and, if so, that counsel for a witness may not be permitted to be present at the hearing. We think the court properly construed the code section under consideration. The law seems to be well established that where a statute is plain and unambiguous, the terms thereof shall be construed to have their ordinary meaning. It not only provides that the investigation may be private, but also it goes further and defines the meaning of the word “private,” to wit, “the marshal may exclude * * * all persons other than those required to be present * * Clearly, counsel for a witness is' not a person whose presence is required before a fire marshal may proceed with the investigation; hence, his presence may be denied, if so ordered by the marshal.

The next question presented is whether such statutory construction denies the appellants a right or privilege guaranteed to them by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, and Section 10, Article I of the Constitution of Ohio. The appellants’ brief states that “it is a fundamental principle that the first ten Amendments to the federal Constitution are solely restrictions on the federal government and provide no limitations as to state governments.” It states, however, that their interpretation should be valuable to the issues here by way of analogy. The cases cited, however, deal primarily with the principle of self-incrimination, which is not the issue in this case. It is not the contention of the appellee that the State Fire Marshal can compel a person called before him in an investigation to answer a question which would incriminate him. Therefore, the cases cited referring to these amendments cannot be helpful in deciding the matter before this court.

We shall next give consideration to Section 10, Article I of the Ohio Constitution, which provides in part:

“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel * * *. No person shall be compelled, in any criminal case, to be a witness against himself * *

It is to be noted that the amendment refers only to criminal cases, but the right of a witness in other proceedings to assert the privilege has been upheld in numerous cases. 42 Ohio Jurisprudence, 48, Section 33. Therefore, whatever privileges are granted in criminal cases are also available to the appellants in this proceeding. It is merely an investigation for the purpose of determining the cause, origin and circumstances of the fire and whether or not a crime has been committed. The privilege is a personal one and does not extend to all questions which might be asked of a witness. The time for the assertion of the privilege is after the witness has been sworn, and not before. State v. Coco, 87 Ohio St., 313, 101 N. E., 135. Appellants refused to be sworn, and no questions were asked upon which the privilege could have been exercised. In the case of Burke v. State, 104 Ohio St., 220, 135 N. E., 644, the court held that a witness is presumed to know his constitutional privileges and that it was not necessary that he be instructed on the same before answering incriminating questions. At page 229 in the Burke case, Chief Justice Marshall said: be presumed to know the law and therefore will be presumed to have knowledge of his constitutional rights and guaranties, and if he does not claim them without being cautioned the presumption arises that his testimony was voluntarily given.”

“It is claimed that Burke was not advised as to his constitutional rights, or cautioned against testifying to any matters which might tend to incriminate him. This privilege has always been treated as a personal privilege to be claimed by the interested party, and in the absence of his claiming the privilege, or refusing to testify, he will be deemed to have voluntarily testified. We know of no authority or rule of law which makes it obligatory upon the grand jury or the prosecutor in charge of the grand jury to advise the witness as to his constitutional rights and privileges, or to caution him in any respect. In this matter, as in all other matters, the witness will

If it was not obligatory upon those in charge of the grand jury to inform the witness of his privileges, it would not seem that the presence of his counsel could be demanded for this same purpose in a somewhat similar proceeding. The same constitutional principles should be applied to investigations by a fire marshal as to those by a grand jury. In the case of the latter it will be noted that the statute prescribes that the prosecutor may be present and interrogate witnesses or advise on legal matters, but counsel for a witness is necessarily excluded. The fire marshal’s investigation is one step removed from that of the grand jury. If he finds that a crime has been committed, “he.shall furnish the prosecuting attorney such evidence with the names of the witnesses, and a copy of the material testimony taken in the case.” Section 3737.10, Revised Code. The reason for secrecy before a grand jury is that it is in the furtherance of justice. 24 American Jurisprudence, 865, Section 47. And it is for the same reason that Section 3737.13, Revised Code, was enacted permitting the fire marshal to conduct private investigations.

We have examined the opinion of the trial court and are also in accord with the reasons assigned in denying the writ to the appellants.

We find no error in the record, and the judgment is affirmed.

Judgment affirmed.

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


author: Hunsicker, J.

text:
    Fairlawn Meats, Inc., Appellee, v. Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 427, AFL, et al., Appellants.
    (No. 4519
    Decided May 18, 1955.)

      Mr. Stanley Denlinger, Mr. Ray J. McGowan and Mr. Robert Sheck, for appellee.

      Messrs. Smoot & Riemer, for appellants.
   Hunsicker, J.

This is an appeal on questions of law and fact.

In this opinion, the appellee (plaintiff below) shall be designated as Fairlawn Meats, and the appellants (defendants below) shall be designated as the union. The cause in this court, by agreement of the parties, was heard on the transcript of testimony taken in the trial court, together with the exhibits there introduced.

Fairlawn Meats operates three stores for the sale of meats and related products, to both wholesale and retail customers. Approximately 50 persons are employed, a minority of whom were members of the union at the time of or during the occurrences which led to the controversy herein.

The union, through its responsible officers in this area, sought to organize the employees of Fairlawn Meats, but was unable to secure more than 18 members, although, at the time of the strike herein, there were less than 10 who actively interested themselves in the conduct of the strike.

After efforts to organize the employees failed, the management was approached with a request that it recognize the union as sole bargaining agent of the employees, that they sign a contract that would require that all of their employees join the union within 30 days, or, if they refused to do so, they would be discharged. Other provisions of the standard contract were proposed to the management, which, after many discussions, refused to enter into a contract with the union. The evidence discloses that there was no discrimination in the employment or discharge of members of the union, and that they could join or not join, so far as management was concerned.

The union, when Fairlawn Meats refused to sign the contract, then bannered each place of business. Most of the employees who were members of the union remained away from their jobs, although a few who first left their employment returned to work, and a few signed a statement of resignation from Fairlawn Meats.

At two of the stores, picketing was done by using land owned by, or under lease to, Fairlawn Meats; and, although the union officials were notified of this fact, picketing continued over such lands.

The evidence also showed that Mr. Ekers, the manager and principal owner of Fairlawn Meats, was followed by union officials when he went to some of the places where he purchased meat, and that, on one such instance, while at the place where he bought meat for resale, the air was let o.ut of the tires of his automobile.

There is competent, credible evidence to show that, in order to enforce the demands of the union that Fairlawn Meats sign the standard contract requiring Fairlawn Meats to force the employees to join the union, or be discharged, at least two of the companies from whom meats were purchased for resale were threatened with imminent labor difficulties within their plants. As a result of these threats, such companies refused to sell any meat products to Fairlawn Meats.

Fairlawn Meats filed an action in the Court of Common Pleas, asking for both a temporary and a permanent injunction. The union denied that the state trial court had jurisdiction to entertain the action, and, without waiving its objection to jurisdiction, said that it was engaged in a bona fide labor dispute, denied that it engaged in any unfair labor practice, and asserted its right to picket the places of business of Fairlawn Meats. The cause is heard in this court ele novo on the same pleadings filed in the trial court.

The first question that confronts this court is that concerning the jurisdiction of the state court to proceed in a determination of the issues herein.

The Congress of the United States, by the enactment of the National Labor Relations Act, intended to exercise the full scope of its authority to regulate unfair labor practices affecting interstate commerce. Universal Car & Service Co. of Grand Rapids v. I. A. M. (AFL), Lodge 1573, 27 Labor Cases, C. C. H., paragraph 68, 825.

“Affecting commerce” is defined in the Labor Management Relations Act. See Title 29, Section 152 (7), U. S. Code.

It is not necessary to discuss “jurisdictional yardsticks,” as found in the regulations of the National Labor Relations Board (1 Labor Law Reporter, C. C. H., paragraph 1610, p. 1614), to determine whether the National Labor Relations Board will assume jurisdiction. It is not necessary to explore what areas in labor controversies are left open to the jurisdiction of the state courts. It is apparent that we have before us in the instant case a question of fact which may be stated as follows: Does the business of Fairlawn Meats, Inc., affect interstate commerce within the terms of the National Labor Management Relations Act? Or, it may be stated: Do the

facts herein show that Fairlawn Meats, Inc., is an “industry affecting commerce” within the terms of the National Labor Management Relations Act?

Although it is true that the “jurisdictional yardstick” established by the regulations of the National Labor Relations Board may be helpful as evidence to determine the fact, it is not, in the case before us, the controlling feature.

The evidence herein clearly shows that the business of the plaintiff is purely of a local character. It is limited in the main to Akron and the surrounding area. The volume of business is not large for a city and county as populous as Akron and Summit County; it does not sell any of its products outside of the state of Ohio. Its purchases from out of this state, both direct and indirect, do not constitute a large portion of the products it offers for sale to the meat-consuming public in Akron and Summit County.

We find, therefore, that there is no burden placed upon, or obstruction of, interstate commerce by any action taken by the parties to this case.

We determine, therefore, that the state courts have jurisdiction to hear the case.

We come now to the second question presented by the facts as shown by the transcript of testimony and the exhibits before us. Should the injunction be granted?

The case which pronounces the policy of. the state of Ohio, with respect to organizational picketing, is Crosby v. Rath, 136 Ohio St., 352, 25 N. E. (2d), 934, and, while it was true that, in that case, there was much evidence of violence which accompanied the picketing, yet the court said, at page 355:

“* * * The thing upon which the defendants are insisting is that the plaintiff discharge her employees unless they become members of one of the defendant unions. There is no reason or convincing authority sustaining the contention of the defendants that they have the right to engage in picketing or boycotting under such circumstances. That this must be the law is clearly indicated by the intolerable and unexplainable predicament in which an employer might well find himself if picketed by two or more hostile unions with each one insisting that the employer discharge his employees unless they become members of that particular union alone.”

The latest pronouncement by the Supreme Court of Ohio on the subject of the right to picket for organizational purposes is found in the case of W. E. Anderson Sons Co. v. Union, 156 Ohio St., 541, 104 N. E. (2d), 22. The syllabus in that case, which establishes the law, says:

‘ ‘ 1. Where no unlawful purpose or object is involved, workers may by means of picketing or bannering announce their grievances to the public and thus persuade or seek to persuade prospective employees as well as prospective customers of the person against whom the picketing or bannering is directed from dealing with such person.

“2. A boycott may be defined in general terms as a concerted refrainment from business relations with another, or a concerted persuasion of third persons outside the combination to so refrain. It may be primary where there is a concerted refrainment from business relations with another, or by peaceful means a concerted inducement of others outside the combination to so refrain; or it may be secondary where there is not' merely a concerted refrainment from business relations with the person against whom the boycott is directed or by peaceful means a concerted inducement of others outside the combination to so refrain, but an 'exercise of economic pressure upon such others to cause them to refrain from business relations with the person against whom the boycott is directed, through fear of loss or damage to themselves if they refuse to do so.

“3. Where.a building trades union which has a labor dispute with one of several subcontractors on a construction job pickets and banners the construction site for the purpose of inducing the craft employees of the general contractor to quit their employment in concert and thereby bring about a work stoppage on the entire construction job, all for the further purpose of influencing such general contractor to cause the discharge of the subcontractor with whom the union has the labor dispute such picketing and bannering constitute a secondary boycott.

“4. Picketing or bannering as a means of exercising the right of free speech will be afforded constitutional protection so long as it is lawfully conducted, but the right of free speech is predicated on the lawful exercise of such right, and if, through conspiracy or unlawful conduct, the result of its exercise by such means unlawfully injures another in his property rights, the guaranty ceases and the exercise of the claimed right by such means may be enjoined or prohibited.

“5. Picketing or bannering for the purpose of aiding or bringing about a secondary boycott may be enjoined.”

This Court of Appeals has had occasion to pass on the right to picket for organizational purposes in the case of Bean v. Local Union No. 698, 94 Ohio App., 361, 114 N. E. (2d), 445, wherein we said:

“In the absence of a dispute between employer and employees, or between the union and the employer or employees, a labor union may not engage in organizational picketing, even though peaceful, for the purpose of bringing pressure to bear upon the employer to require his employees to join the union.”

In the instant case, the principal object and purpose of bannering the places of business of Fairlawn Meats, Inc., was for the purpose of forcing the great majority of employees to join the union. The resultant acts of the union to secure their object, such as coercion of the suppliers of meats, and picketing on property under control of Fairlawn Meats, were the result of the failure of the union to secure the organization of the majority of the employees by peaceful means. This failure to convince the employees and the management was then followed by the picketing lines being established.

When we examine the acts of Congress, with respect to national labor relations (Title 29, Chapter 7, Section 151, et seq., U. S. Code), we find that Section 157 of the above act says:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively, through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * *

And Section 159 says, in part:

“(a) * * * Representatives designated or selected for the purposes of collective bargaining by the majority of the employees * * * shall be the exclusive representatives of all the employees in such unit * * *.” (Emphasis ours.)

It is thus apparent that, even where jurisdiction does lodge in the National Labor Relations Board, there is an opportunity for the union to appeal to that board, but, in the instant case, without a majority of the employees of Fairlawn Meats, it would be a futile act, and the union would lose all right to proceed in the manner it did in this case.

Although counsel for the union insist that the National Labor Relations Board does have jurisdiction, it seems to us that the picketing engaged in herein was part of a plan to avoid an election by such board, and thus deprive the employees by majority vote to select or not to select bargaining representatives.

The declared policy of the United States, through the Labor Management Relations Act, supra (Title 29, Section 141 et seq., U. S. Code), is to encourage the practice and procedure of collective bargaining, and to protect the exercise by employees of full freedom of organization and selection of representatives of their own choosing.

It is the public policy of the state of Ohio, as declared in the cases cited, supra, that employers may not be picketed for the purpose of coercing their employees to join a union. The Supreme Court of the United States has indicated its approval of such a state policy as adopted by the Legislature of the state of Washington, when it said, in Building Service Employees International Union v. Gazzam, 339 U. S., 532, 94 L. Ed., 1045, 70 S. Ct., 784, as follows:

“In a state whose public policy is that employers shall not coerce their employees’ choice of a bargaining representative, a state court injunction against peaceful picketing by a labor union for the particular purpose of compelling an employer to sign a contract which would coerce his employees’ choice of a bargaining representative does not violate the right of free speech guaranteed by the First and Fourteenth Amendments of the federal Constitution.
“(a) Since picketing is more than speech and establishes a locus in quo that has far more potential for inducing action than the message the pickets convey, this court upholds a state’s restraint of acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity.
“(b) The picketing of the employer to compel bim to coerce his employees ’ choice of a bargaining representative was unlawful because it was an attempt to induce a transgression of the state’s policy against such coercion of employees.”

We do not believe that there is a difference in the effectiveness of the policies so adopted, whether by legislative act or by declaration of the highest judicial authority in the state.

It is declared by Section 158 of the National Labor Management Relations Act, supra, to be an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” to employees by Section 157 of the Act (right of employees to organize or refrain from such activity). Where, then, as in this ease, no election has been held under the federal regulations, and it is shown that many more than a bare majority have indicated a desire not to organize and join the union, it would be an “unfair labor practice” to compel Fairlawn Meats to compel its employees to join a union contrary to their already expressed wishes.

It is the judgment of this court that, since the picketing herein was for organizational purposes only, and not to secure a settlement of grievances among the employees, and since the picketing in part was done on land owned by or under lease to Fairlawn Meats, and since the union by threats and coercion instituted a secondary boycott against Fairlawn Meats, the picketing, although not accompanied by violence, was nevertheless unlawful under the announced policy in Ohio.

The injunction heretofore granted by the trial court shall be continued, and this court will enter the same order with respect to such injunction as was entered by the trial court.

Decree for the appellee, at the costs of appellants.

Judgment accordingly,

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


author: Wiseman, J.

text:
    The Roudebush Realty Co., Appellee, v. Toby, Appellant.
    (No. 2334
    Decided April 13, 1955.)

      Messrs. Scharrer, Scharrer & Hanaghan, for appellee.

      Messrs. Pickrel, Schaeffer & Ebeling, and Mr. William H. Selva, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment rendered in favor of the plaintiff in the sum of $1,000 by the Municipal Court of Dayton, in an action in which plaintiff sued to recover a real estate broker’s commission.

Plaintiff claims there was due it a commission of $1,000 on the sale of a residence, built and sold by the defendant, under a continuing written agreement entered into between the parties on August 5, 1952, whereby the defendant gave the plaintiff an exclusive agency to sell any or all residences which it may construct on lots of the Lotz Plat which was being developed by the plaintiff.

Two residences constructed by the defendant on lots previously purchased by the defendant on the Lotz Plat were sold by the plaintiff under the exclusive agency agreement. In June 1953, the defendant purchased a third lot on the Lotz Plat through the plaintiff’s agency and constructed a residence thereon. The residence was partially completed in the latter part of September. About November 1, the residence was practically completed, althrough the type of heating unit was not definitely settled until November 30, 1953. During the months of October, November, December, and up until January 10, 1954, the plaintiff expended time, effort and money in advertising the property for sale, and did show it to numerous prospective purchasers during all this period. The residences on the Lotz Plat, which consisted of approximately 35 acres which had been subdivided into 75 lots, were of brick construction, ranch type, which sold for a price in excess of $30,000. Four other builders were constructing residences on the Lotz Plat. The two residences previously constructed by the defendant, which were sold by the plaintiff, were completed from four to seven months before a sale was made.

The evidence shows that on November 14, 1953, the defendant purchased a hardware store, and on November 15, 1953, notified the plaintiff that unless the residence was sold before Roudebush went to Florida, he would take the sale out of plaintiff’s hands and give it to another agency. On December 10, 1953, Roudebush went to Florida, but the plaintiff’s agency, which is a large operation, employing many salesmen, continued to advertise and show the property in the absence of Roudebush, making an effort to sell the property until January 10, 1954. On January 9, 1954, by letter, the defendant notified the plaintiff that he desired to cancel and terminate the exclusive agency agreement dated August 5, 1952. On January 10, the defendant sold the property for $31,500. It is conceded that plaintiff was not the procuring cause of the sale. However, under an exclusive agency contract, the plaintiff would be entitled to a commission for any sale made by the defendant, unless the notice given by the defendant legally terminated the agency.

The controversy arises over the. fact that the exclusive agency agreement did not provide for the duration of the contract, or when or how it could be terminated. The defendant contends that he could terminate the contract at will, or at any time before the property was actually sold by the plaintiff. The plaintiff contends that the contract could not be terminated until after the expiration of a reasonable time. In 11 Ohio Jurisprudence (2d), 447, 448, Section 195, the rule is stated as follows:

“It is said that where the duration of a contract is indefinite, the general rule is that the contract is to be performed within a reasonable time. It is likewise frequently stated as a general rule that where no date is fixed for the commencement or completion of performance under a contract, the implication is that performance is to be commenced or completed within a reasonable- time. It is also said that such a contract is so ‘ construed;’ that ‘the law implies that performance is to take place within a reasonable time and that the parties so intended and agreed;’ or that the contract is to be performed within a reasonable time, such being the presumed intent of the parties to be drawn from the entire instrument. However, the rule does not arise contrary to the manifest intention of the parties. ’ ’

See, also, 12 American Jurisprudence, 860, Section 305.

In 8 American Jurisprudence, 1006, Section 35, it is stated:

“ Although there is some authority for the proposition that the mere lapse of a reasonable time is not, as a matter of law, in itself sufficient to work a termination of the employment of a broker, the rule generally adopted is that if the contract of employment is silent as to its duration the broker is deemed to be given only a reasonable time within which to accomplish the object of his agency. What is a reasonable time is obviously dependent upon the facts and circumstances of each particular case and is generally a question of fact for the jury unless there is no dispute as to the facts.”

In 11 Ohio Jurisprudence (2d), 449, Section 195, it is stated:

“If a contract fails to specify the time of its duration, the law implies a reasonable time. ’ ’

In support of this principle of law, reference is made to Richter v. First National Bank of Cincinnati, Trustee, 82 Ohio App., 421, 80 N. E. (2d), 243, where the facts are somewhat similar, except that in the cited case the defendant had given no notice of termination of the contract. In that case the land to be sold was suitable for industrial development. The court held that in view of the difficulty in selling this type of property, which moves slowly on the market, a sale made by the defendant more than five years after the exclusive agency was granted was made at a time when plaintiff was entitled to a commission, in view of the fact that no notice of termination had been given. The fourth paragraph of the syllabus is as follows:

‘ ‘ Where a real estate broker, having been authorized to sell a tract of land and promised a commission on all sales, performs services and sells several parcels, of such real estate, the owner is estopped from terminating said authority before the expiration of a reasonable time. The service performed constitutes the consideration for the owner’s promise, or operates as an estoppel based on the inducement of the services by his promise.”

While we find no case in Ohio deciding the precise question presented here, what case law there is in Ohio indicates that the Ohio courts have rejected the “at will” theory and have subscribed to the “reasonable time” theory. For annotations on this subject see 24 A. L. R., 1537, 1547, and 28 A. L. R., 893;

In the instant case, the plaintiff had sold two residences previously built by the defendant on the Lotz Plat. Plaintiff expended time, effort and money in an attempt to sell the third residence, which is in question. The exclusive agency agreement was continuing in legal effect and applied to this residence the moment defendant began to construct the residence for sale.

In such cases, what is a reasonable time is a question of fact. Bach v. Friden Calculating Mach. Co. (C. C. A., 6, 1946), 155 F. (2d), 361. In view of the fact that high priced homes which sold in excess of $30,000 were constructed on the plat and the difficulty in finding a purchaser for this type of residence, the length of time taken to sell the two residences previously constructed, and the time of year, we cannot say that the trial court erred in finding that a reasonable time had not expired at the time the defendant revoked the agreement.

By reason of the extensive services of plaintiff, mutuality or consideration is not lacking, and defendant was estopped to revoke the agreement before the expiration of a reasonable time. 24 A. L. R., 1537, 1560. The notice of cancellation does . not deprive the plaintiff of his commission.

The judgment of the trial court can be sustained by the application of the proper principles of law to the facts as above stated. However, we cannot overlook the faot that there was evidence properly admitted of an oral agreement between the parties respecting the duration of the exclusive agency. The trial court does not mention this evidence in its opinion; nor do counsel make note of it in their briefs. Clarence Roudebush, on cross-examination, testified as follows:

“Q. Examine this agreement further, Mr. Roudebush, can you tell me where in that agreement is any termination date? A. There is no termination date but the understanding was— “Def: I object to the ‘understanding.’
“Plf: I don’t see why.
■ “Judge: I think the evidence will—
“(Argument)
“Judge: Overruled.
“Plf: Exceptions. A. Our understanding was until sold.
“Q. When was this understanding arrived at?
“Judge: So the record may be clear, when was this understanding entered into between you and Mr. Toby? A. Whenever Mr. Toby came in and we sold him lots we entered into that agreement which was to apply to any lots he bought in that plat.
‘ ‘ Q. WTien was the understanding that this agreement was to continue until the lot was sold? A. At the time the agreement was made.”

This evidence was undisputed. The defendant was not interrogated with respect to this oral agreement. It is well established in the Ohio law that contracts of the character of this one may rest partly in parol and partly in writing. The admission of parol evidence, in such instances, does not violate the parol evidence rule. 17 Ohio Jurisprudence, 523, 524, 525, Section 425. In this case the exclusive agency agreement was drawn by a layman and was a mere memorandum in character, showing on its face that it was incomplete.

“If the writing is incomplete on its face, as where it is a mere memorandum omitting essential elements, parol or extrinsic evidence is admissible to show the omitted portions of the contract.” 70 A. L. R., 770.

“Where the verbal agreement is not inconsistent with, but supplementary to, the written agreement, parol evidence is admissible.” 17 Ohio Jurisprudence, 525, Section 425.

If the exclusive agency did not expire until each of the properties was sold, as shown by parol evidence, the notice of cancellation was of no legal effect, and the plaintiff would be entitled to a commission.

Defendant’s motions for judgment upon the evidence, and for a new trial, were properly overruled. The judgment is not contrary to law. There being no error in the record prejudicial to the rights of the defendant, the judgment is affirmed.

Judgment affirmed.

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


author: Phillips, J.

text:
    Cavanaugh, Appellee, v. The Struthers Bowling Center, Appellant.
    (No. 3657
    Decided November 4, 1954.)

      Mr. David G. Haynes and Mr. Theodore Macejko, for appellee.

      Mr. William E. Pfau and Mr. William E. Pfau, Jr., for appellant.
   Phillips, J.

Defendant, The Struthers Bowling Center, a corporation, appealed to this court on questions of law from a judgment of the Court of Common Pleas entered upon a jury verdict returned for plaintiff in his action brought in that court against defendant to recover damages for personal injuries sustained when he slipped on ice which had accumulated in front of defendant’s property, allegedly as the result of the “unusual” slope of the sidewalk in front of defendant’s building, which was leased to and occupied by defendant’s lessee.

Plaintiff entered defendant’s building about two o’clock on the 16th day of March, 1952, when the sidewalk in question was dry and free from ice or snow. During the four-hour period plaintiff bowled in the building, snow and ice had accumulated upon the sidewalk in front thereof. As he left the building he slipped on ice and fell upon a bowling ball which he was carrying, inflicting personal injuries for which he sought damages from defendant.

In 1923, the city of Struthers assessed the property owners situated in the entire block in which defendant’s building• -is-situated for the construction of sidewalks.

There is evidence that the sidewalk upon which plaintiff slipped sloped northerly from defendant’s building a distance of five and one-half inches in the six-and-one-half-foot width of the sidewalk, and that defendant had allowed it to remain in that condition since its construction by the city of Struthers.

There is no evidence that subsequent to construction such sidewalk was altered, or repaired, or that defendant created defects therein; or that defendant negligently maintained or permitted such defects to exist there for its own. private use or benefit.

There is evidence that the sidewalk was permitted to remain in the condition in which the city of Struthers had constructed it.

“Upon the acqúisition of real property, the owner becomes responsible for future injuries to third persons caused by any construction negligently maintained for Ms benefit in the sidewalk upon which his property abuts.” (Emphasis supplied.) Herron v. City of Youngstown, 136 Ohio St., 190, 193, 24 N. E. (2d), 708.

In the case of Morris v. Woodburn, 57 Ohio St., 330, 48 N. E., 1097, the Supreme Court has made it clear that liability over to the city exists as against an abutting property owner, or, for that matter, against any person, who actively creates a nuisance in the sidewalk as distinguished from one whose negligence with relation to the defective condition of the sidewalk exists from mere omissions to keep the same in repair. See City of Youngstown v. Peters, 60 Ohio App., 247, at page 254, 20 N. E. (2d), 538, wherein the authorities are cited.

The case of City of Youngstown v. Peters, supra, is cited and followed in the case of Hillyer v. City of East Cleveland, 57 Ohio Law Abs., 261, 265, 94 N. E. (2d), 216.

“An owner of property abutting on a public street is not liable for injuries to pedestrians resulting from defects in the abutting portion of such street unless such defects are created or negligently maintained or permitted to exist by such owner for his own private use or benefit.

“Owners of property abutting on a public street are not liable for injuries to pedestrians resulting from defects in such streets unless such defects are created or negligently permitted to exist by such owners for their own private use or benefit, such as an open trap door in a sidewalk (Herron v. City of Youngstown, 136 Ohio St., 190, 24 N. E. [2d], 708).” Eichorn v. Lustig’s, Inc., 161 Ohio St. 11, 13, 117 N. E. (2d), 436.

In the absence of evidence that the defendant created the defect in the sidewalk of which plaintiff complains “or negligently maintained or permitted (such defect) to exist by such owner for his own private use or benefit” (Eichorn v. Lustig’s, Inc., supra), we conclude that defendant is not liable to plaintiff for injuries resulting from such defect.

The judgment of the Court of Common Pleas is reversed as being contrary to law and final judgment is entered for defendant.

Judgment reversed.

Griffith, P. J., and Nichols, J., concur.


author: Middleton, J.

text:
    Mitchell, Admr., Appellant, v. The New York Central Rd. Co., Appellee.
    (No. 1049
    Decided February 5, 1955.)

      Messrs. Bowers, Feighner & Palmer and Messrs. Strelitz, Halberstein & Mitchell, for appellant.

      Mr. Ralph E. Carhart and Mr. Robert O. Stout, for appellee.
   Middleton, J.

This is an appeal on questions of law from a judgment entered by the Court of Common Pleas of Marion County in an action for the wrongful death of McClellan Miller, brought by the administrator of his estate.

Upon trial, the jury returned a verdict for the defendant and final judgment for the defendant was rendered. It is from such judgment that appeal is prosecuted to this court.

At the time of the collision the plaintiff’s decedent was riding as a passenger in an automobile owned and driven by one Braden A. Meadows. In an attempt to cross defendant’s tracks at Front Street in LaRue, Marion County, Ohio, a collision occurred between a passenger train operated by the defendant and the automobile driven by Braden A. Meadows. Both McClellan Miller and Braden Meadows were killed.

Plaintiff’s petition alleges that plaintiff’s decedent’s death was caused solely by reason of the carelessness and negligence of the defendant in that the defendant’s train, at the time of the collision, was being operated at a dangerous and reckless speed of 80 miles per hour, and that defendant failed to sound the whistle or ring the bell and failed to signal the approach of said train.

Defendant’s answer denies that defendant was negligent, as alleged, or otherwise, and avers that if it should appear or be shown that defendant was negligent, the plaintiff’s decedent was guilty of contributory negligence directly and proximately causing his death.

The plaintiff sets out 11 assignments of error. The first seven assignments set forth errors claimed to have been committed by the trial court in giving to the jury special instructions requested by the defendant. The eighth assignment is that the trial court erred in excluding from the courtroom during the trial the widow and three minor children of the plaintiff’s decedent. The ninth assignment of error is that the trial court erred in overruling plaintiff’s motion for a new trial. The tenth assignment of error is that the verdict of the jury is contrary to law. The eleventh assignment relates to other errors apparent upon the face of the record.

These claimed errors of the court will be considered in their order.

For his first assignment of error, the plaintiff asserts the court erred in giving to the jury special charge number two réquésted by the defendant. This charge reads as follows:

“The court says to you, as a matter of law, that as between an automobile and a train approaching a crossing, the train has the right of way.
“The law recognizes the fact that ordinarily, because of unalterable circumstances, railroad companies in the operation of fast-moving trains, cannot be responsible for grade-crossing collisions, and that the burden of avoiding such collisions rests, for the most part, upon the operators of vehicles using such crossings. This rule is made necessary because railroad trains are, in their operation, confined to .fixed tracks, and, because of their weight and momentum, cannot be readily stopped within a short distance or space of time.”

The language of this charge is copied in part from the opinion of Judge Hart in the case of Woodworth, Admx v. New York Central Rd. Co., 149 Ohio St., 543, 549, 80 N. E. (2d), 142.

In the Woodworth case, the plaintiff was the administrator of the deceased who was the driver and only occupant of the automobile at the time of the collision. In the case at bar, the plaintiff’s decedent was a guest riding in the automobile at the time of the collision.

Whether the opinion in that case, which includes the instruction given, states the law or is obiter dictum may be questioned; but, whether it is obiter or not, it is not applicable to the facts in the present ease and is misleading in that it states that a railroad company, in the operation of fast-moving trains, cannot be responsible for grade-crossing collisions, and that the burden of avoiding such collisions rests, for the most part, upon the operators of vehicles using such crossings.

Following the statement of the court as set forth in the above-referred-to opinion, the court continued with the following qualifying statement limiting the application of the rule set forth:

‘ ‘ Of course, if tracks at crossings are so poorly maintained as to cause a vehicle crossing them to break down or be impeded, or if crossing gates are left open, or if a driver is deceived by the signals of a crossing watchman or if the driver is otherwise misled by railroad operation, a different rule obtains.” (Emphasis added.)

The instruction as given by the court does not contain the above qualifying or limiting statement and, as given, was misleading and prejudicial to the plaintiff.

The giving to the jury of the fifth special charge requested by the defendant is the second assignment of error set forth by plaintiff. This instruction reads as follows:

“The court says to you, as a matter of law, that where the danger at a railroad crossing is increased by conditions obstructing vision, greater than ordinary care or caution are imposed upon one about to pass over such crossing. When an automobile driver, whq, because of obstructions, cannot be otherwise sure whether a train is dangerously near, must stop and get out of his vehicle and look, applies both to an open crossing in the country and a crossing in a municipality. If a motorist’s view of an approaching passenger train is partly obscured at a crossing by standing freight cars, he is required to use a. greater degree of eare before attempting to cross the tracks.”

By the great weight of authority, this charge does not state the law. '

“One riding as a guest in an automobile, does not assume the responsibilities of the driver, and the driver’s negligence may not be imputed to him. He is required to exercise that care for his own safety which persons of ordinary care and prudence are accustomed to exercise under the same or similar circumstances, and that test should be applied in an action wherein he seeks to recover damages for injuries sustained in a collision of such automobile and a railroad train at a grade crossing.” Hocking Valley Ry. Co. v. Wykle, Jr., a Minor, 122 Ohio St., 391, 171 N. E., 860.

The courts of Ohio have not differentiated as to the degree of care in an action for damages for a tort, the rule being that an individual is obligated to use ordinary care.

What constitutes ordinary care varies with the facts and circumstances of each case. However, while the amount of care required may be different under various conditions, the degree required is the same, namely, that of ordinary care under all the circumstances. In other words, the amount of care exacted in specific cases may be increased or diminished according to the circumstances, but the standard does not change. 29 Ohio Jurisprudence, 408, Negligence; Section 26.

This statement of the rule’ is supported by a long list of authorities. A few may be cited. Wabash Rd. Co. v. Skiles, 64 Ohio St., 458, 60 N. E., 576; Baltimore & Ohio Rd. Co. v. McClellan, Admx., 69 Ohio St., 142, 68 N. E., 816; Ohio Electric Ry. Co. v. Weingertner, 93 Ohio St., 124, 112 N. E., 203.

Judge Welch, in the case of Bellefontaine Ry. Co. v. Snyder, 24 Ohio St., 670, 676, states the rule as. follows:

“The degree of care and caution required by the law to be exercised by either party is the same — namely, ‘ordinary’care and caution. It is denominated ‘ordinary,’ in the sense that it is such as persons of ordinary care and caution usually observe under like circumstances; and it is sometimes denominated the ‘highest’ degree of care, and- caution; in the sense that persons of ordinary care and caution usually observe their highest degree of care and caution under such circumstances; that is, where human life is in peril. It is ‘ordinary’ care and caution, with reference to the class of persons who exercise it, but it is the ‘highest’ degree of care and caution with reference to the circumstances under which it is to be exercised.”

The opinion in Woodworth v. New York Central Rd. Co., 149 Ohio St., 552, 80 N. E. (2d), 142, eited by the defendant, is in harmony with the rule stated.

It is stated in the opinion that, where conditions increase the danger, greater care and caution are imposed upon one about to pass over a crossing. The quantum or amount of care and caution varies with the circumstances, but not the degree. The degree of care remains the same, to wit, ordinary care which is that degree of care an ordinarily reasonable and prudent person would exercise under the same or similar circumstances.

Even if it is held that the charge as given is applicable in the instant case involving a guest riding in an automobile, the charge places a greater burden upon one about to pass over a railroad crossing than the law requires.

This court is of the opinion that the charge as given was erroneous, and the error of the court was prejudicial to the plaintiff.

Plaintiff’s assignments of error numbers 3, 4, 5, 6 and 7 refer to special instructions numbers 12, 13, 14, 15 and 16 given by the court to the jury.

It is contended by the plaintiff that these five special instructions were erroneous in that they are repetitious.

“In considering a series of special requests to charge, given before argument, it is the duty of the court to consider each separate charge given in connection with all other separate charges given upon the same subject.” Wymer-Harris Construction Co. v. Glass, Admx., 122 Ohio St., 398, 171 N. E., 857, 69 A. L. R., 517.

From an examination of special charges 12 and 13 it is seen that these charges are to all intents and purposes the same, although stated in a different way.

Charge number 12 deals with the failure of the driver of the automobile “to look and listen at such time and in such a manner as to be effective. ’ ’

Charge number 13 deals with the driver’s “failing to stop, look and listen for approaching trains at a time when such would be effective.”

Charge number 15 contains the same proposition, only-using different language: “If you find that the driver of the automobile, had he looked and listened at the proper time and in the proper manner would have seen the approaching train, and had he been approaching the crossing at a reasonable speed under the circumstances.could have stopped his automobile.”

Charge number 14 also deals with the rule set forth in the other charges: “and the negligence of the driver of the automobile in approaching the crossing either at an excessive speed or without reducing his speed so that he would be able to stop upon seeing the approaching train.”

It is the opinion of this court that these charges are repetitious and should not have been given to the jury, and in giving the charges the court erred to the prejudice of the plaintiff.

In the view of , this court, instruction number 16 correctly states the law, and plaintiff’s assignment of error number 7 is without merit.

Plaintiff assigns as his eighth error that the court erred in excluding from the courtroom during the trial the widow and three minor children of plaintiff’s decedent.

A close reading of the bill of exceptions fails to disclose any motion made by the defendant for a separation of witnesses and fails to disclose any order of the court granting such a motion and. ordering a separation of witnesses. There is, therefore, nothing in the record showing that the widow and minor children were excluded from the courtroom during the trial. Plaintiff’s eighth assignment of error is without merit.

Error having been found in the particulars heretofore set out, it follows that the ninth assignment of error is well taken, and the court erred in overruling plaintiff’s motion for a new trial.

For the reasons herein stated, the judgment of the court below is reversed and the cause is remanded to the trial court for a new trial and further proceedings according to law.

Judgment reversed.

Younger, P. J., and Quatman, J., concur.


text:
    Domestic Finance Corp., Appellant, v. Morton et al., Appellees.
    (No. 5170
    Decided March 7, 1955.)

      Mr. Walter S. Barrett, Jr., for appellant.

      Mr. Jesse G. Dickinson, for appellees.
   Wiseman, J.

This is an appeal on questions of law from a judgment rendered by the Municipal Court of Columbus in favor of defendant William Morton.

Plaintiff, appellant herein, The Domestic Finance Corporation, secured a judgment against Cliner Morton and William Morton on a cognovit note by warrant of attorney. Several years later, when an effort was made to enforce the judgment against William Morton, he filed a petition to vacate the judgment against him, which relief was granted.

The defendant William Morton filed an answer alleging that the signature on the note was not his genuine signature, and if his signature appeared it was a forgery. A reply was filed by plaintiff alleging that Morton had ratified the execution of the note in his name, since he had not objected, and that he is n»w estopped to deny authorization of the purported agent to sign his name. The reply was stricken by the court on the theory that there was a departure from the allegations in the petition and on the ground that it constituted a new cause of action.

The first error assigned is that the court refused to hear evidence in support of the reply. Appellant claims he proffered evidence in support of the reply. This assignment of error is not well made, as we have before us a separate findings of fact and conclusions of law, without a bill of exceptions. A bill of exceptions would be required to exemplify this assignment of error.

We consider the second and third assignments of error together, which are: In striking the reply from the record, and in rendering judgment for defendant. We are limited in the consideration of this question because of the meager findings of the court and because of the absence of a bill of exceptions.

The separate findings are as follows:

“Immediately following the trial of this cause, the plaintiff herein required the Court to state in writing the conclusions of fact, herein found, separately from its conclusions of law.

“Therefore, as conclusion of fact, the court finds:

“1. That the defendant, William Morton, Sr., did not sign the note upon which the original judgment was based.

. “And as conclusions of law in this cause based on the foregoing conclusions of fact, the court finds:

“1. That the defendant, William Morton, Sr., is not indebted to the plaintiff on said note.

“There being separate issues involved herein, it is deemed both beneficial and necessary to add the following conclusions of fact and law as follows:

“Facts:

“1. Plaintiff’s petition bases this action upon an indebtedness shown by a cognovit note purportedly signed by the defendant, William Morton.

“2. The reply tentatively filed herein introduces facts which constitute a new, separate and distinct cause of action. “Law:

“1. Such a change of the cause of action as that contemplated by the intended reply herein cannot be permitted.

“The weight of authority in Ohio is heavy in this balance, 31 Ohio Jurisprudence [797], Pleading, Section 214.”

We are required to presume that the findings are supported by the evidence. The question presented is whether the reply should have remained on file and evidence taken in support thereof.

Section 2309.24, Bevised Code, provides that:

“When the answer contains new matter, the plaintiff may reply to it, denying generally or specifically each allegation controverted by him. He also may allege, in ordinary and concise language, new matter, not inconsistent with the petition, constituting an answer to such new matter.”

Bule 15 of the Municipal Court of Columbus in effect at the time the action was filed is in accord with the above statute and in addition provides that “new matter in the answer shall be deemed controverted” without a reply.

Proper evidence could have been admitted without a reply. When this matter was orally presented to the court, counsel stated that evidence was admitted in support of the reply and that when the case was closed the court found that the reply was a departure and struck the reply from the files. Assuming without deciding that the reply was not a departure, the striking of the reply was not prejudicial. ■

The only remaining question is whether the evidence admitted or proffered in support of a reply was a departure or inconsistent with the petition. The evidence admitted or proffered in support of the reply is . not before us, either by way of a bill of exceptions or in the- separate' findings. We are not advised to what extent the evidence admitted or proffered supported the allegations in the reply; whether such evidence fulfilled the requirements of Section ■ 8124, General Code, now Section 1301.21, Bevised Code, which provides that the signature to a note may be made by a duly authorized agent, or whether the provisions of Section -8128, General Code, now Section 1301.25, Revised Code, relative to a forged signature, had application. We cannot assume that the testimony was sufficient to permit recovery if it had been admitted.

We regret .that the question presented is not properly raised.

Judgment affirmed.

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


author: Younger, P. J.

text:
    Poe, Appellant, v. Poe, Appellee.
    (No. 176
    Decided July 13, 1954.)

      Mr. H. S. Vaubel, for appellant.

      Mr. Edward Stroebel, for appellee.
   Younger, P. J.

The question in this case arises out of a divorce action between the parties in which, before filing an answer, the defendant filed a motion to dismiss plaintiff’s petition, on the ground that there had been condonation since the filing of the plaintiff’s petition.

This motion was heard by the Common Pleas Court on February 19, 1954, resulting in the dismissal' of plaintiff’s cause of action, which is the order from which this appeal is taken.

The court heard evidence upon the motion, and the only relative testimony was given by the parties themselves, the defendant wife having testified that since the filing of the petition, there had been three acts of sexual intercourse between the parties, two of said acts occurring in the morning after defendant’s three children by a former marriage had gone to school; but she was unable to remember whether the third act was in the morning or late afternoon.

Plaintiff admitted three visits to the defendant’s home; but he testified that the purpose of his visits was to have the defendant prepare some business ads for him, as she had always done during their married life, and he denied any acts of sexual intercourse.

There are two assignments of error: First, that the court erred in receiving testimony upon the motion and in overruling plaintiff’s objections thereto; second, that the order of the court is against the weight of the evidence, and is not sustained by sufficient evidence and is contrary to law.

It is the contention of the plaintiff that condonation is an affirmative defense which must be specially pleaded; that a motion is not a pleading; and that therefore the question of con-donation was not properly before the court when raised by motion.

In the case of Winnard v. Winnard, 62 Ohio App., 351, 23 N. E. (2d), 977, the Court of Appeals, Franklin County, held, as set forth in paragraph 3 of the syllabus, as follows:

“In a divorce action the defense of condonation is an affirmative one which must be specially pleaded.”

In Section 2309.02, Revised Code, it is stated:

“The only pleadings in civil actions are:

“(A) Petition;

“(B) Demurrer to petition;

“(C) Answer, which if it demands affirmative relief may be styled a cross-petition;

“(D) Demurrer to answer;

“(E) Reply;

“(F) Demurrer to reply.”

In 31 Ohio Jurisprudence, 535, Section 4, referring to the above-quoted section of the Code, it is stated:

“The above provision does not, of course, restrict the filing of motions, which are distinguishable from pleadings and which are the proper and necessary method of reaching defects of form in pleadings, being in the nature of a substitute for common law special demurrer.”

Since condonation is an affirmative defense which must be specially pleaded, it must be set forth in a pleading. The defendant did not do this. She filed an unverified motion by her attorney, which motion was called for hearing by the court a few days after filing, and, over the objections of the plaintiff, the court proceeded to hear testimony and attempted to dispose of the merits of the case.

In 27 Ohio Jurisprudence, 761, Section 2, it is stated:

‘ ‘ A motion is not available to settle important questions of law, or to dispose of the merits of a case.”

We are of the opinion that the plaintiff’s first assignment of error is well taken and that the action of the Common Pleas Court in sustaining defendant’s motion and in dismissing the plaintiff’s petition was error and that such error was prejudicial to the rights of the plaintiff.

In view of this holding it is unnecessary to consider plaintiff’s second assignment of error and we express no opinion thereon.

The case will be remanded to the Common Pleas Court with instructions to overrule the defendant’s motion and to proceed with the case as provided by law.

Judgment reversed and cause remanded.

Quatman. and Middleton, JJ., concur.


author: Carpenter, J.

text:
    AS TO ABATEMENT OF FACTORY NOISES ON COMPLAINT OF NEARBY RESIDENTS.
    Court of Appeals for Hamilton County.
    Henry F. Gau et al v. Howard N. Ley et al.

    Decided, May 31, 1916.

      Injunction—Does Not Lie Against Operation of a Factory—Because its Noise Disturbs a Residence Neighborhood, When—Rights of Owners of Factories Not Nuisances Per se—Where the Trend of Business and Manufacturing Can be Foreseen, Relief Will Not be Granted Against the Natural Results.

    The fact that noise from a manufacturing piant is offensive to nearby residents is not ground for an injunction against its operation, where the business is a lawful one and useful and necessary to the community, and the plant is not a nuisance per se and is being carried on in an up-to-date manner, and is located on two lines of railway which were there long before plaintiffs’ residences were built, and plaintiffs might have foreseen that manufacturing and business' would follow the railways and the land adjacent thereto Would be devoted to such uses'.

      R. J. Reilker, for plaintiffs.

      Frank, E. Wood, contra.

      Reversing Gau et al v. Ley et al, 15 N.P.(N.S.), 1.

   Carpenter, J.

Plaintiffs are asking that we enjoin the defendants from operating their plant located on a tract of land which fronts 200 feet on the south side of Lincoln avenue, where the viaduct crosses the ravine occupied largely by the Cincinnati, Lebanon & Northern and the Norfolk & Western railroads. The office of said plant is on a level with Lincoln avenue. The plant proper or manufacturing building is twelve to fifteen feet lower in the hollow. The eastern side of defendants ’ lot lies alongside of the railroad property. Immediately to the north across said railway tracks and opposite defendant’s property, the Ford Motor Company has a four-story building which it uses in connection with its automobile business. There are other business buildings to the south along the railroads in the ravine between Lincoln avenue and -Oak street, all of which tends to show that the territory in the block of land between Lincoln avenue and Oak street west and east, is gradually casting the mould of business on this territory.

It is admitted that the district lying immediately west is exclusively residential, of somewhat superior character. The evidence shows that-during the business hours of the week days there are noises from the plant which render the .plaintiffs’ homes at times more uncomfortable than before the plant began operations. The only discomfort arises from the noises.

It is claimed by the defendants that if there are any disturbing noises in said neighborhood, they arise from the operation of said railroads. They aver that their plant is used for the fabrication of structural and ornamental iron, and that the machinery used in said plant is the most modern and approved type, and any noise arising therefrom is not sufficient to disturb the peace and quiet of plaintiffs’ homes.

There is no claim, and can not be, .that the operation of defendants’ plant is per se a nuisance. Further, it is admitted that the business is a lawful one. Even though in its operation it were unavoidably noxious and offensive, and thereby became prima facie a nuisance, yet it does not follow that plaintiffs are relieved from establishing that its operation is in fact a nuisance, and from which they suffer irreparable injury. In establishing such fact the surrounding facts and circumstances must be considered.

As is said in Wood on Nuisance, 638-9:

“In determining the question of nuisance from noise or vibration, reference is always to be had to the locality, the nature of the .trade or use of the. property producing it, the time during which it exists, the intensity of the noise and the effects produced thereby.”

In the case of Hiller v. Koehler, 68 O. S., 51, Judge Davis, at page 56 in his opinion, says:

“Whether it be a case of injury to real property, or a case of personal annoyance or inconvenience, or of interference with the comfortable enjoyment of one’s property, or whether the question be as to the existence of a nuisance, or as to the extent of the alleged injury, or as to whether the defendant’s act caused the injury, and though the inquiry be before a chancellor or a jury, the contiguity of the alleged nuisance to the plaintiff’s property and the nature of the vicinage is always a pertinent circumstance to be considered. The matter of locality may be of much or little weight in arriving at a conclusion, nevertheless the parties have the right to have the controversy heard and determined with all the light that locality may throw upon it. The mutual interests of urban population require this. For example, if one unnecessarily erects, maintains and operates a noisy, smoky machine shop, or rolling mill, in the midst of a section of a city or town already wholly given up to residences, possibly many of them of elaborate design and great costs, there would be less excuse for the offender in so using his own property than if he had chosen a place which had 'been wholly or in part given up to trade and manufactures. All that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of a city, business of no kind is desirable or welcome. On the other hand, one who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit sto the ordinary annoyances, discomforts and injuries which are fairly incident to the reasonable and general conduct of such business, in his chosen neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable; anything up to that point would not be actionable.”

In the case of Goodall v. Crofton, 33 O. S., 271, the second clause of the syllabus reads as follows:

“When a party, who complains that a business, lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages, he must establish his right to relief at law, before equity will interfere by injunction.”

Judge Ashburn, in the opinion of the court, at page 277, says:

“A court of chancery may interfere by injunction when the injury is conceded or is clearly established, yet the power should always be exercised cautiously and be sparingly used. Where the business complained of is lawful, and conducted in the most approved and orderly manner, in a place where there are in operation numerous establishments of kindred description, contributing to the needs of the community, and where the destruction of a business would occasion more injury to the defendant than advantage to the plaintiff, the chancellor will exercise the high prerogative of injunction with great care and caution.”

Considering now the application of the foregoing propositions of law in connection with the general law on this subject, we have a lawful business in itself and one that is useful and necessary to the community, and which the public good requires shall be carried on by some persons in some locality. The real question is whether it is proper and right that it be carried on in the locality where it is now established.

It will be remembered that a ravine exists at the eastern border of this territory lying fifteen to twenty feet from the level of Lincoln avenue and May street, where plaintiffs, respectively, reside. That the defendants’ plant was located in this ravine twelve to fifteen feet lower than Lincoln avenue; that other business buildings are located along said ravine in tbe immediate neighborhood; that two railroads are operating their trains day and night on said tracks; that said railroads were there and were operating long before plaintiffs located their homes on Lincoln avenue and May street.

Is it not reasonable to presume that plaintiffs, in possession of all these facts, could have foreseen, that in the large and growing city of Cincinnati, the march of business would sooner or later follow the line of these railroads and convert the adjacent strips of land into business uses? As said by Judge Davis in the case of Eller v. Koehler, 68 O. S., at page 57:

“All that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of a city, business of no kind is desirable or welcome. On the other hand, one who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable; anything up to that point would not be actionable.”

The doctrine underlying this class of cases is grounded upon the gospel rule of doing unto others as we would that they may do unto us. “Sic utere tuo ut alienum non laedas” is borrowed from the Gospel and may be freely translated: So reasonably to use thine own as not to injure another in the reasonable use of his.

As before stated, the land upon which the establishment complained of was located was peculiarly adapted to business and manufacturing. Its location by reason of railroad facilities invited such use; and notwithstanding it may have discommoded plaintiffs and rendered their homes somewhat uncomfortable, yet we can not say that defendant’s use of its property yras unreasonable in its relation to plaintiffs’ reasonable use of theirs.

“The law will not declare a thing a nuisance because it is unpleasant to the eye, nor because the property of another is rendered less valuable, nor because its existence is a constant source of irritation and annoyance to others. It does not pander to man’s taste, nor consult their mere convenience. It simply guards and upholds their material rights and shields them from unwarrantable invasion. ’ ’

While the homes of these plaintiffs in connection with a large number of others, constituted in themselves a residential section or neighborhood, it does not follow that they are free to command the use, so long as that use is reasonable, to which an adjacent district may be utilized. Such appears to us to be the situation here. Consequently plaintiffs, obedient to the law, must submit to such annoyances and discomforts as are fairly incidental to the use of this adjacent district lying along said railroads.

We therefore hold that plaintiffs have failed to bring their case within the rules of law entitling them to an injunction.

The injunction heretofore granted is dissolved and the petition is dismissed, for which an entry may be drawn accordingly.

Meals, J., and Grant, J., concur.