author: Thompson, J.

text:
    Crossen et al., Appellees, v. Duffy et al., Appellants.

      (No. 689
    Decided June 11, 1951.)

      Messrs. Tobin & Tobin, for appellees.

      Messrs. Brookes, Lynch & McDonald, for appellants.
   Thompson, J.

This is tbe third case to come to . this court growing out of various internal controversies of the National Brotherhood of Operative Potters, an Ohio corporation. This case is being decided solely on the facts of this action, but the explanation of the instant case becomes clearer if we have in mind the other litigations.

The first case to reach this court was that of Finley v. Duffy, 88 Ohio App., 159, 57 Ohio Law Abs., 442, 94 N. E. (2d), 446, decided by this court on May 19, 1950. In the Finley case, the plaintiffs were members of the National Brotherhood of Operative Potters and the defendants were national officers of that union. The membership of the union comprises operative potters belonging to separate local unions scattered throughout the United States and Canada. These local unions, some 114 in number, have a total membership of about 28,000 and are affiliated with and under the jurisdiction of the National Brotherhood of Operative Potters. In the Finley case, the plaintiff members sought an injunction against certain salary increases of the national officers, claiming that the increases were unauthorized and in violation of the constitutions of the national union and of its subordinate locals.

The petition was filed in the Common Pleas Court of Columbiana County and that court granted an injunction against the salary increases but this court, on appeal on questions of law and fact, held that this court would not substitute its judgment for that of those authorized to determine questions of policy and internal management of a voluntary association. This court also stated, in reaching its decision, that the right to grant injunctive relief in a court of equity cannot be invoked unless and until it is made to appear that a property right has been invaded for which there is no other adequate remedy afforded. Chronologically stated, the increased salary for the national officers had been voted by the executive board in early 1947. In May, 1947, a spirited campaign developed within the union on the part of the individual members (Finley, Whippier and others) campaigning as a slate opposed to the then officers of. the national brotherhood. These members failed of nomination and the officers who for many years had guided the national brotherhood policies were re-elected at the annual convention in June, 1947. In that national convention a resolution was introduced and passed by the delegates amending the constitution. The language of the resolution was as follows:

“Report of Law Committee Recommendation.
“Whereas, the law committee has been instructed to offer a solution for unethical tactics and conduct in the past election; and whereas, the dignity of our organization has been lowered; therefore be it resolved, that any member contesting for national office shall conduct himself in a proper manner; and be it further resolved, that any member accused of making false accusations, misrepresentations, untruths or using degrading' literature shall be called before the convention following said election, by a majority vote thereof.
“The succeeding convention could try accused member or members or elect a body of five members to try said accused, or set up a special court with power to impose a reprimand, fine, suspension or expulsion.
“Committee recommends adoption.
‘‘ Motion by J ohn Thorne that we concur in the report of the committee. Motion carried unanimously. ’ ’ (Defendant’s exhibit I.)

Subsequently, in February of 1948, the suit referred to in the Common Pleas Court of Columbiana County was instituted by Finley and Whippier to enjoin the officers of the National Brotherhood of Operative Potters from receiving the salaries voted by the executive board. After the Common Pleas Court had granted the injunction in June, 1948, the national convention passed a resolution (July, 1948) requiring exhaustion of intraunion remedies before resorting to court action to correct intraunion grievances. Subsequently, in the autumn of 1948, plaintiffs in the original action in Common Pleas Court returned to that court by supplemental petition and presented certain facts based on claims of newly discovered evidence, indicating fraudulent voting by local unions in connection with proposed salary increases to national officers. The Common Pleas Court rendered a decision in April, 1949, continuing the injunction against salary increases for the officers and it was that decision that this court reversed, as previously noted, in 88 Ohio App., 159, 57 Ohio Law Abs., 442, 94 N. E. (2d), 448 (July, 1950). Meanwhile in March, 1949, in accordanee with the constitution of the national brotherhood, the customary primary elections had been held to select the national officers for the ensuing year and in May, 1949, runoff elections were held between the two highest candidates for each office at the primaries. In this May, 1949, election there was a slate known as the “Finley Slate” opposing the then national officers which we refer to as the “Duffy Slate.” The Finley slate was unsuccessful.

In the contest in May, 1949, certain of the supporters of the Finley slate had circulated a sheet referred to as the “Green Sheet” which is plaintiffs’ exhibit 7 in this case. The election campaign at the local union levels was decidedly spirited but the Duffy slate was successful. Subsequent to the 1949 annual convention and prior to the annual national convention to be held in June, 1950, certain of the candidates for office at the May, 1949, primaries and certain of their supporters who had backed them, and who had circulated what is referred to as the “Green Sheet,” received notices to appear for trial at the national convention to be held in June, 1950. We shall return to a more specific statement of the facts concerning the action taken at the June, 1950, convention, but at this point we may summarize the events by saying that the national convention of 1950 tried and punished certain of the candidates for office at the May, 1949, primary and, also, tried and punished certain of their supporters who admitted that they had either signed or circulated the “Green Sheet” or handbill referred to as plaintiffs’exhibit 7.

In August, 1950, Finley, Whippier and various other candidates for national office at the May, 1949, primary, who had been punished by the national convention in June, 1950, instituted suit in the Common Pleas Court of Columbiana County (case No. 37226) asking that court to set aside their fines and suspensions. At the same time, the present action was instituted in the same court (case No. 37227) by five members of the union, the plaintiff appellees in this action, none of whom were candidates for office at the May, 1949, primary, but all of whom had been punished at the June, 1950, national convention because of their circulation of the handbill referred to as plaintiffs’ exhibit 7, which had been used in support of the unsuccessful candidates.

We are, in this decision, in no way concerned with the court actions by the candidates for office appealed to this court, and bearing case No. 688, reported as Armstrong v. Duffy, ante, page 233, opinion by Judge Hurd. The sole question involved in this action, involving the five members of the union who were not candidates, is the question of the legality of the punishment imposed by the 1950 convention against the said members who merely circulated handbills in behalf of the unsuccessful slate at the May, 1949, primary.

In order to determine the nature of the action of these five individuals and in order to consider the punishment meted out to them and the relief which they are now requesting, a further examination of the-facts in this case is required.

We have previously referred to and quoted the resolution adopted at the national convention in June, 1947. That resolution in modified form, which modification was made by the national secretary without the authority of a convention of the brotherhood, or a referendum of the members, was thereafter embodied in the constitution of the national union as revised October, 1947, and is therein set forth as section 37. That section provides as follows:

“Any member of the N. B. of O. P. who is not a citizen of the United States or Canada shall not be eligible to hold any national office. Any members contesting for national office shall conduct themselves in a proper manner. False accusations or misrepresentations, untruths, or use of degrading literature shall be brought to the attention of the delegates in convention following the national election. Any candidate convicted by a majority vote of delegates in convention, of enumerated practices may be reprimanded, fined, suspended or expelled after due and proper hearing. If the offending member candidate is not a delegate, the convention shall by a majority vote elect a body of five members as a special court to hear the case, with power to fine, reprimand, suspend or expel.”

It may be noted that section 37 was perhaps intended as a condensation of the June, 1947, resolution, but comparison of section 37 with the resolution shows one or two material differentiations. Thus, the resolution by its words provides that “any member contesting for national office shall conduct himself in a proper manner.” The resolution also declares that any member accused of making false accusations, misrepresentations, untruths or using degrading literature shall be called before. the convention following said election by a majority vote thereof. The resolution then proceeds to declare that the succeeding convention could try any accused member or members or elect a body of five members to try them or set up a special court with power to impose a reprimand, fine, suspension or expulsion. Section 37 of the constitution on the other hand provides that any members contesting for national office shall conduct themselves in a proper manner, and declares that “false accusations or misrepresentations, untruths or use of degrading literature” shall be brought to the attention of the delegates in the next convention and then states that any candidate convicted by a majority vote of delegates may be reprimanded, fined, suspended or expelled after due and proper hearing.

Section 37 declares that if the offending member candidate is not a delegate, the convention shall, by majority vote, elect a body of five members as a special court to hear the case.

In addition to section 37 of the constitution, it must be noted also that at the 1948 national convention the following resolution was enacted:

“Recommendation of Law Committee:
“The executive board shall be empowered to summon any member or members before our national convention for examination of any act or conduct in violation of their obligation, or anything in any manner detrimental to the N. B. of O. P. and its members.
‘ ‘ The delegates in the convention shall have authority to impose suitable and proper penalty in any case where guilt is established.
“Failure to present themselves shall not prevent the delegates from disposing of the case in accordance with letter and spirit of this law.
“If proven not guilty, the member or members shall be entitled to transportation and hotel expenses to be paid by the national organization.
“This law to become effective immediately.
“Committee recommends adoption.
“Motion by T. J. Desmond that we concur in the report of the committee. Motion carried unanimously.”

Plaintiffs in this case are Crossen, Gilbert, Cranston, Hammond and Snyder. Of these five plaintiffs, the handbill (plaintiffs’ exhibit 7) bears the names of three, namely, Gilbert, Cranston and Snyder, as members of a committee of six urging a change in national officers and setting forth as worthy of election the names of eight individuals which we refer to in this opinion as the Finley slate. None of the plaintiffs in this case was a candidate on that slate, the offense charged against the plaintiffs in this case, and for which they were tried, being that they either published or circulated improper campaign literature.

Prior to the June, 1949, convention, each of the plaintiffs in this case had received a letter dated June 20,1949. Gilbert, Cranston and Snyder received similar letters containing the following notice:

“Dear Sir and Brother:
“You are hereby summoned to appear in the national convention, June 27, 9:30 a. m. Atlantic City Auditorium, Atlantic City, N. J. to defend yourself for the act of publishing malicious misrepresentations regarding present national officials in the last election.
“You are being charged with violating the law adopted in the 1947 convention, prohibiting malicious political activity within the organization.
“You are to assume all expense in connection with your getting to Atlantic City. If proven guilty you will not be reimbursed for any expense whatsoever. If adjudged not guilty the N. B. O. P. will pay expenses. We remain,
‘ ‘ Fraternally,
“James M. Duffy, President
“Charles F. Jordan, Secretary-Treasurer”

The letters to Crossen and Hammond also summoned them to appear at the national convention on June 27, 1949, at Atlantic City, but these two individuals, not having signed the handbill, were summoned to appear to explain their conduct in distributing handbills to local union members during the recent election. The last paragraph of the letters to Crossen and Hammond contained the identical language contained in the last paragraph of the letters to Cranston, Gilbert and Snyder, informing them that they were to assume the expenses in getting to Atlantic City and advising them that if proven guilty they would not be reimbursed for any expenses incurred.

It becomes important now to examine the handbill, the publication or circulation of which gave rise to the charges in this case. We reproduce the handbill as follows:

‘‘ Election N. B. O. P. Officers First Meeting in May “VOTE
“We believe the present administration should be changed
..........because of its..........
1. Reluctance to Accept Laws and Courts of U. S. A.
2. Illegal Salary Increases.
3. Arbitrary Disregard of Wishes and Opinions of Locals and Members.
4. Unfair Election Tactics.
5. Use of Potters Herald for Personal Propaganda Agency and to Impugn Motives and Attack Members.
6. Inefficiency in Office.
7. Denial of Help to W. Va. Federation of Labor in Efforts to Increase Silicosis Benefits.
8. Duffy’s Open Shop Attitude.
“Restore Democracy in N. B. O. P.
“The following are Honest and Capable — Elect
President — Larry Finlay
Sec. Treas. — P. K. Calhoun
First Vice — E. Curry
Second Vice — Harold West
Third Vice — E. C. Armstrong
Fifth Vice — Verne Phillips
Seventh Vice — Charles Boso
Eighth Vice — George Brunt
Committee:
Norman Whippler — No. 124
E. Cranston — No. 9
Frank Appelgate — No. 59
Paul Gilbert — No. 33
H. Snyder — No. 133
O. L. Sullivan — No. 201.”

It should be added that along with the five plaintiffs in this case who were summoned to appear at the convention, one other individual not a party to this suit, O. L. Sullivan, had his name on the handbill as a member of the committee in behalf of the Finlay slate. The latter did not come to the convention, but he wrote a letter stating his signature had appeared on the handbill without his authorization and he was exonerated by the national convention.

The national convention which commenced on June 27, 1949, had a number of matters to dispose of and on July 5th the convention took up the matter of the alleged misconduct of Crossen, Gilbert, Cranston, Hammond and Snyder, pursuant to the summons received by each. The proceedings of this convention (plaintiffs’ exhibit 2) thus summarized the action which then occurred, as follows:

“The case of the next accused by the executive board for distributing malicious handbills in violation of the constitution was taken up.
“Secretary-treasurer Jordan read the accusation against Frank Applegate, local union 59, Norman Whippier, local union No. 124, Ed Cranston, local union No. 9, Paul Gilbert, local union No. 33, O. L. Sullivan, local union No. 201 and Henry Snyder, local union No. 133.
“Frank Applegate, local union No. 59, rose and stated that lie wanted to go on record that he did not have anything to do with having his name on any handbills, but that he did distribute them because he believed they were true statements.
C Í * * *
‘ ‘ The prosecution stated their charge and rests their case on the presentation of the green document carrying the names of the following members: [plaintiffs’ exhibit No. 7] Norman Whippier, local union No. 124, Ed Cranston, local union No. 9, Frank Applegate, local union No. 59, Paul Gilbert, local union No. 33, Henry Snyder, local union No. 133, O. L. Sullivan, local union No. 201.
‘ ‘ The photostatic copy of a letter sent brother O. L. Sullivan, local union No. 201 from Norman Whippier, local No. 124, was read for the record. Motion by delegate Morgan, local union No. 89 that brother Sullivan be exonerated in the misuse of his signature on the green sheet. Motion carried 108 to 24.
“Delegate Applegate, local union No. 59 pleads not guilty. I knew nothing of the use of my name until I saw it on the green sheet. Motion by delegate Williams, local union No. 4, seconded by delegate Blake of local union No. 172 we exonerate brother Applegate, local union No. 59 of the use of his name on the green sheet. Motion carried 134 yes 3 no. ’ ’

The proceedings of the convention further show that by resolution subsequently adopted, after hearing, fines of $50 were assessed against Gilbert, Cranston, and Snyder for putting their names to the green sheet, subject to appeal to the executive board. As to the charge of distributing literature on the part of Crossen and Hammond, the fines were originally fixed at $50, but the fine as to Crossen was at a later point in the convention suspended and he was placed on four years’ probation.

This modification as to Crossen was apparently the result of a statement attributed to Crossen at the convention and carried in the printed proceedings in which he declared: “I am willing to rub off the war paint and co-operate 100 per cent.”

Thereafter, letters were written to each of the five individuals found guilty by the convention, advising them of the $50 fine. As to Crossen, it was declared that his fine was suspended and that he was placed on probation for four years. As to the other four individuals, letters informed them of the fine in the amount of $50 each and stated that the fine would be suspended if the individuals appeared before the national executive board and gave satisfactory explanation of their recent conduct and assurances of good conduct in the future. The letter closed as follows: “You must however, satisfy the executive board in your explanation before the fine is suspended. The fine must be paid to the national secretary. ’ ’

Under date of September 2, 1949, Gilbert, Cranston, Snyder, Crossen and Hammond filed their petition in the Common Pleas Court of Columbiana County naming, as defendants, the national president and the national secretary of the union in their individual capacities and as officers of the union. Plaintiffs alleged that they were members in good standing of the union, having paid all dues and assessments required by law and regulations of the union. They recited the fact that in May, 1949, an election for national officers was held by the national union in which the defendants were candidates for election to the offices of national president and national secretary. Plaintiffs alleged further that the said defendants were opposed by another slate of candidates headed by one L. A. Finley, and that plaintiffs had campaigned to advance the cause of the slate headed by Finley. Plaintiffs alleged further that they distributed literature in behalf of the Finley slate, that their slate lost in the election and that the defendants Duffy and Jordan were re-elected to the offices of national president and national secretary. The petition then recited that plaintiffs were thereafter ordered by defendants to appear at the national convention of the brotherhood to be held on June 25, 1949, at Atlantic City, New Jersey, and to stand trial. Plaintiffs recited further that at said convention, and regardless of whether plaintiffs were present or not at the convention, charges were brought against them for having campaigned against the slate headed by the defendants. Plaintiffs alleged that at no time did they submit to the trial, but that nevertheless each of plaintiffs, with the exception of Crossen, was assessed a fine of $50 and that plaintiff, Crossen, was placed on four years’ probation. Plaintiffs alleged further that under the rules and regulations of the national union, the payment of the fine was required to be made, the same as dues, and that if not paid, plaintiffs would be suspended from their local unions and from the national union, thus preventing them from being bona fide members of the union and endangering their ability to pursue their trade. Plaintiffs alleged further that because of the fines assessed against them, the good standing of plaintiffs was thereby taken from them, making them ineligible under union rules to run for any office or to hold any office in the national brotherhood or in the local unions for a period of five years. Plaintiffs alleged further that any literature distributed by them was merely to enhance the cause of the Finley slate, which they were advocating, and they denied that they had distributed any literature of a degrading, malicious or vicious nature such as to cast disrespect upon the national union. Plaintiffs alleged further that the defendants had presented charges and acted as prosecutor before the convention in June, 1949, to punish plaintiffs for campaigning against them and to prevent any further activities of plaintiffs, by placing plaintiffs in a position where they would not be in good standing in their unions. Plaintiffs alleged further in their petition that the various offices for which they could run, including that of delegate to wage conferences, were valuable property rights, that their good standing in the union was a valuable property right and that plaintiffs lacked adequate remedy at law. Plaintiffs, therefore, prayed the court to restrain the defendants from enforcement of the penalties meted out to the plaintiffs at the convention of 1949 and for such other and further relief as might be just and proper.

The defendants in their answer admitted that at the annual convention of the union in 1949, the plaintiffs were summoned to appear on charges brought against them for conducting a campaign for national officers of the brotherhood in a manner contrary to the constitution and for the act of distributing handbills to union members or for publishing malicious representations regarding the national officers. The defendants in their answer averred further that the charges against plaintiffs, the trial by the convention and the findings were in accordance with the provisions of the constitution, rules, regulations, custom and usage of the National Brotherhood of Operative Potters. The answer set forth the allegation that the action of the convention was in accordance with, and pursuant to, the constitution and expressly quoted the resolution of July 7, 1948, as authority for the action taken. Defendants asserted that the plaintiffs were found guilty of conducting or causing to be conducted a campaign for national officers in a manner in direct violation of the constitution of the union.

In their reply, the plaintiffs denied that they had published or distributed handbills containing malicious representations regarding the national officers and denied the other allegations of the answer.

On the hearing of this cause in the Common Pleas Court, the testimony of the various witnesses called by plaintiffs and defendants consisted primarily of the narration of the events surrounding the trial of plaintiffs in the national convention in 1949. The trial court was advised of the evidence proffered against the plaintiffs at that time and numerous exhibits were introduced, consisting of the constitution and bylaws of the union, the charges against the plaintiff contained in the letters summoning them to the trial before the convention, various issues of The Potters Herald, the union newspaper published under authority of the national officers, and the campaign literature distributed by the opposition slate including two copies of the Potters News and the so-called “green sheet” (plaintiff’s exhibit 7) hereinabove reproduced.

The testimony of the defendant, Jordan, the national secretary-treasurer, made it clear that the only evidence presented at the convention against plaintiffs Hilbert, Snyder and Cranston was that their names were signed to the “green sheet” (plaintiff’s exhibit 7) and that they had ordered the distribution of it. Jordan further stated that none of these three men was present in person at the convention.

As to plaintiffs, Crossen and Hammond, neither signed plaintiff’s exhibit 7, and Hammond was not present at the convention but there was testimony that both had helped to circulate plaintiff’s exhibit 7, and possibly, also, plaintiff’s exhibits 10 and 11.

It is apparent from the proceedings of the convention and the testimony of defendants Duffy and Jordan that plaintiff’s exhibit 7 was the particular literature to which objection was taken and which furnished the basis for the charges against plaintiff and trial by the convention.

As to plaintiffs Gilbert, Cranston, Hammond and Snyder, the trial court held that the action of the 1949 convention in trying these men, and imposing penalties upon them, was void and of no effect and the court therefore enjoined the defendants, Duffy and Jordan, individually and as president and secretary of the national brotherhood, and also the national brotherhood, from collecting or attempting to collect the fines imposed upon plaintiffs. The injunction was denied only as to plaintiff, Crossen.

As a result of the appeal on law and fact to this court by the defendants, Duffy and Jordan, from the trial court’s judgment, this court has studied carefully the evidence in this case, including the analysis by the trial court of the eight charges published or distributed by plaintiffs in the handbill referred to as plaintiff’s exhibit 7. We do not find that any of these charges fall within the classification of libel. It seems to us rather that the charges complained of fall within the scope of. free, if not fair, criticism and the free speech guaranteed by the United States Constitution and the Constitution of Ohio. It is admitted that plaintiffs’ exhibit 7 was circulated as part of an election contest in behalf of one of two slates of national officers being presented for election, and to be voted on by the constituent local unions. The slate advocated in plaintiff’s exhibit 7 failed of election. Each slate was warmly espoused by adherents and, in turn, strongly attacked by its opponents. Defendants, as national officers seeking re-election, had available channels of publicity not open to the slate advocated by plaintiffs, since the defendant president was editor of the official newspaper of the brotherhood sent to all members, and the columns of that paper understandably advocated the defendants’ slate and virgorously criticized the opposition, terming these individuals “smear artists,” and otherwise belittling them.

In reaching our decision, we recognize that the National Brotherhood of Operative Potters is a strong union, a democratic union. Its record for successful leadership in the industrial field has been outstanding. A strong organization presupposes strong leadership. Such leadership calls forth strong adherents and often strong critics and lively contests, not to be found, because not tolerated, in a totalitarian climate. In our political democracy and in our economic achievements, a measure of our strength in this country has beeu our ability to permit, and benefit by, criticism and the competition which encourages that strength.

The important and apparently original legal question squarely presented in this case is whether a rule adopted by a mutual benefit association of the character of a labor union may infringe upon and take away fundamental liberties otherwise granted by the Constitution of the United States and the Ohio Constitution. It is quite true that by joining a mutual benefit association an individual consents to be bound as a member by rules and regulations not affecting nonmembers. How far may a mutual benefit association go in restricting the freedom of members? In this ease, the association involved is an Ohio corporation and it is subject to the Constitution of Ohio and the Constitution and laws of the United States. The Constitution of the United States (Amendment I) declares that Congress shall make no law “abridging the freedom of speech, or of the press.” The Constitution of Ohio (Article I, Section 11) declares as follows:

‘ ‘ Every citizen may freely speak,, write, and publish Ms sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *”

Having in mind the foregoing safeguards, we may consider the provisions of the regulation or bylaw, if any, which the plaintiffs in this case may be said to have violated. Examination of section 37 of the constitution of the union as revised in October, 1947, shows that despite the language of the summons to the convention, plaintiffs could not have been properly tried for violation of section 37 because it applies only to candidates. Plaintiffs were likewise not properly subject to trial under the resolution of June, 1947, because, under the procedure there outlined, any member accused of making false accusations, misrepresentations, untruths, or using degrading literature, could be called before the convention following the election, but could be tried only by the succeeding convention, or by a body of five members or by a special court selected at such succeeding convention.

We find that, despite the letter calling plaintiffs to appear before the June, 1949, convention to defend themselves for “the act of publishing malicious representations regarding present national officers in the last election,” as in the case of Cranston, Gilbert and Snyder, or to explain their conduct, “in distributing handbills to local union memberships during the recent election for national officials,” as in the case of Crossen and Hammond, the plaintiffs were actually tried or subject to trial by the June, 1949, convention only for violation of the resolution adopted at the July, 1948, convention covering “conduct in violation of their obligation or anything in any manner detrimental to the N. B. O. P. and its members.” We are loathe to say, in view of the provisions of the Constitutions of the United States and of the state of Ohio, guaranteeing free speech, that we should construe this indefinite language as intending to deprive members of the union of the right of free and fair criticism, otherwise theirs, although the 1949 convention appears thus to have construed it and to have punished plaintiffs on that basis. Examination of the facts before us impels us to hold that a member of a mutual benefit association continues to be a citizen of the United States, and the free speech guaranteed by the United States Constitution permits him freedom in criticising his union officials, as well as his public officials generally, subject always to the limitations imposed by the laws of slander and libel. 64 Harvard Law Review, 1071. In so declaring, we recognize that it is not generally the function of courts to control the policies or the internal affairs of labor unions, but the courts may and should protect the democratic processes within unions by which union policies and their leaders are determined. Upon this point, see the illuminating article entitled “Legal Limitations On Union Discipline ’ ’ by Clyde W. Summers, 64 Harvard Law Review, 1049, at page 1073 and, also, the article by Joseph Kovner entitled “The Legal Protection Of Civil Liberties Within Unions, ’ ’ (1948) Wisconsin Law Review at page 18.

Particularly important seems to us the recognition that labor unions constitute a special type of mutual benefit association, standing in special relation to their members and to the state. Membership has become a frequent condition of employment, even as the right of every man to work has become increasingly recognized as one of the most valued rights of a free society. Viewing the important role of labor unions in this era, a court may well determine in a particular case that protection of their democratic processes is essential to the maintenance of our democratic government.

The right of free criticism of union officials was recognized in the recent case of Ames v. Dubinslcy, 70 N. Y. Supp. (2d), 706. The eleventh paragraph of the syllabus announces the following proposition:

“Where a person offers himself as a candidate for office in a union or for re-election, his character for honesty and integrity and his qualifications and fitness for the office are presented as suggestions for fair comment by contrast, comparison or analysis. ’ ’

See, also, Polin v. Kaplan, Pres, of Motion Picture Machine Operators’ Union, 257 N. Y., 277, 177 N. E., 833.

In Gleeson v. Conrad, 81 N. Y. Supp. (2d), 368, it was held that courts will examine into the internal problems of unions and other associations when the rules of the organization have not been substantially complied with and a member has been damaged by such noncompliance or where the rules are themselves unreasonable or contrary to law or public policy.

We hold that the action of the 1949 convention in fining plaintiffs because of publication or distribution of the handbills constituted an infringement of the right of free speech possessed by plaintiffs, calling for exercise, under the peculiar circumstances of this case, of the equity powers of this court to protect the plaintiffs in their property rights and in their calling. In so declaring, we consider that we are in no wise departing from previous decisions of this court including Pfoh v. Whitney, 43 Ohio Law Abs., 417, 62 N. E. (2d), 744, decided by this court on June 25, 1945, and Finley v. Duffy, 88 Ohio App., 159, 57 Ohio Law Abs., 442, 94 N. E. (2d), 466, this court’s decision of May 19, 1950. It is our belief that our present ruling is a logical development of those two cases.

It is to be noted that in tbe Pfoh case there was no claim asserted by plaintiff that the section of the constitution of the union, on the basis of which plaintiff was expelled, was violative of the laws of the land or that it was not a valid part of the union’s constitution.

In the Finley case, the opinion declared that courts will not assume to act in place of those authorized to interpret the constitution and bylaws of voluntary associations unless those upon whom the duty is placed act in an arbitrary and unreasonable manner. The precise question in that case involved the regularity of adoption of a resolution determining the compensation of the national officers and Judge Skeel, in rendering the opinion of the court, expressly pointed out that this matter in no way affected a property right of any of the members. In the opinion, Judge Skeel stated: ‘ ‘ The right to seek the power of injunctive relief in a court of equity cannot be invoked unless and until it is made to appear that a property right has been invaded for which there is no other adequate remedy afforded. ’ ’

In the present case, we find that a property right on the part of plaintiffs is clearly involved, since failure within thirty days to pay the fines levied would subject plaintiffs under section 181 of the union’s constitution to suspension from the union. Furthermore, by section 255 failure to pay a fine expressly deprives any member of all privileges of local membership, thus entailing loss of benefits, loss of right to seek office within the union and possible loss of work opportunities.

Numerous cases hold that where the expulsion or suspension of a member of the union affects the individual’s property rights, a court of equity will award relief to a member wrongfully expelled or suspended from the union by decreeing his reinstatement, at least where a resort to the internal remedies within the union would be futile, illusory or useless, or would not accord to the member in question substantial or practical justice. See the note in 168 A. L. R., 1462, entitled “Exhaustion of Remedies Within Labor Union As Condition Of Resort To Civil Courts By Expelled Or Suspended Member” and particularly the eases cited at page 1479.

In the court below, the trial judge in his opinion pointed out that the matter of exhaustion of remedies within the union is not a required prerequisite to court action unless the tribunal is impartial, and in this case it was the executive board which brought the charges against plaintiffs and further appeal to that board would presumably be unavailing. Particularly was any such gesture to be deemed futile where the objectionable actions of plaintiffs constituted support of an opposition slate and where, in the companion case decided by this court today (Armstrong v. Duffy, ante, 233) and involving attempted punishment of candidates on the rival slate, the action of the executive board had given evidence of intention of silencing further opposition.

Finding that plaintiffs exhausted their remedies within the union, to the extent feasible, and finding that plaintiffs’ property rights were involved, w'e therefore conclude that the injunction prayed for should issue against the defendants in favor of the five plaintiffs in this case.

Injunction granted.

Skeel, P. J., and Hurd, J., concur.

Skeel, P. J., Hurd and Thompson, JJ., of the Eighth Appellate District, sitting by designation in the Seventh Appellate District.


source: Caselaw Access Project

author: Hurd, J.,

license: Public Domain

text:
    McNees, Appellant, v. The Cincinnati Street Ry. Co., Appellee.
   Hurd, J.,

concurring. In my opinion the judgment should be reversed also on the ground that it is against the manifest weight of the evidence for the reasons herein stated.

The Supreme Court has held in the majority opinion by Taft, J. (McNees v. Cincinnati Street Ry. Co., 152 Ohio St., 269, 89 N. E. [2d], 138), that in passing upon a motion for judgment non obstante veredicto “neither the trial court, the Court of Appeals, nor this court, may weigh the evidence.” Section 11601, General Code. See, also, the second paragraph of the syllabus of the McNees case. However, this court is not now precluded in this appeal by an order overruling a motion for a new trial from passing upon the question of whether the verdict of the jury was contrary to the manifest weight of the evidence. It is clear from an analysis of the opinion of the Supreme Court that the evidence was not weighed by that court, for in the McNees case, supra, at page 281, we find the following statement:

“We have, therefore, a situation where the evidence received upon the trial is not such as to require a determination, as a matter of law, that decedent’s employoment was the proximate cause of the coronary thrombosis, which admittedly caused decedent’s death. Assuming, without deciding, that there was sufficient evidence tending to prove that such employment was the proximate cause of the coronary thrombosis or death so that there was a question for the jury on such proximate causation, the answer to the interrogatory does not determine that anything was a proximate cause. ’ ’

Coming now to a consideration of the evidence, the record shows that there were two medical witnesses, one called on behalf of the plaintiff and the other on behalf of the defendant. Plaintiff’s witness, Dr. Heinold, testified positively that there was a causal relationship between the events immediately preceding the death and the death. He testified in substance that the incidents of decedent’s employment contributed to his death because these incidents would cause a rising of blood pressure in an artery somewhat occluded and would cause a sudden clotting and closing up of the full artery preceding sudden death. "While he testified also that a person might die of coronary thrombosis without strain, it should be observed most emphatically that all the evidence in this case pointed unmistakably to an unusual strain in the operation of the bus in a dense fog. While the general public was exposed to the same fog, the decedent with a pre-existing heart condition was in an entirely different position from the general public, being obliged to work under the most unusual conditions then existing which in any common sense view of the facts was the proximate cause of the coronary thrombosis and the resulting death.

The statement of Dr. Hein old amply supported this conclusion when he testified that ‘ ‘ the events previous to the man’s collapse contributed to the collapse and his eventual death because of the tremendous strain that was placed upon this individual’s physical being and his mental being both, but particularly on the strain of his physical effort.”

These events could not possibily be other than the activities, exigencies and conditions arising out of his employment.

Defendant’s medical witness, Dr. Ventress, when asked concerning the factors which caused the death of McNees, outlined these factors as being very bad driving conditions due to the fog,- the aggravation created by a passenger contradicting those attempting to help the decedent, and the responsibility for the safety of his passengers under the unusual conditions to which the bus driver was subjected at the time of his death. He also testified:

“I think that this anxiety and nervousness, more so than any physical exertion, would be the factor that caused the coronary to become aggravated enough to cause death.”

It should thus be noted that, while Dr. Ventress emphasized anxiety and nervousness, he did not exclude the physical exertion necessitated by decedent’s having to stop his bus, get off, and replace the trolley poles on the wires two or three times before he collapsed. While he minimized the effect of the physical exertion, he did not exclude it entirely nor did he testify at any time that there was not a proximate causal relationship between the employment and the death.

It is also well to note in this connection that no charge was asked or given on the question of proximate causal relationship between the conditions, activities and exigencies of the employment and the death. Therefore, when we consider this testimony and the record as a whole, it seems to me that the conclusion is inevitable that the verdict of the jury was so clearly contrary to the manifest weight of the evidence as to require a reversal on that ground and a remanding of the cause for a new trial according to law.


author: Fess, J. Carpenter, J.

text:
    Hughes, Appellant, v. The Baltimore & Ohio Rd. Co., Appellee.
    (No. 609
    Decided April 16, 1951.)

      Messrs. Young é Young, for appellant.

      Mr. G. Ray Craig, for appellee.
   Fess, J.

This is an appeal on questions of law from an order dismissing a second supplemental petition and also dismissing that portion of the original petition seeking an injunction. In his first cause of action plaintiff sought recovery of $2,500 as damages to trees and crops arising from the continnons flooding of his land with polluted water. In the second cause of action he sought an injunction restraining the defendant from further trespass upon his lands.

Prior to the trial, upon leave of court, plaintiff filed a supplemental petition setting forth an additional item of damages in the sum of $250 arising from the loss of trees and crops incurred since the filing of the original petition. The case came on for trial, and on December 12, 1949, judgment was entered upon a verdict in the sum of $1,000. Defendant paid that judgment. Thereafter, on September 12, 1950, plaintiff filed a second supplemental petition seeking recovery of $150 as damages to crops occurring subsequent to the verdict of the jury. The supplemental petition likewise alleged that during the summer of 1950 the defendant had constructed a dike which turned the flow of pollution so that it no longer passed over plaintiff’s premises, and that, by reason of the previous flow during the times thereinbefore mentioned, the deposits of deleterious material permanently injured the soil and fertility of the land, causing damage in the sum of $2,000. The defendant moved to dismiss the case without further action and to dismiss the original petition and first supplemental petition for the reason that the cause had been fully adjudicated and the nuisance abated. Defendant filed a second motion to dismiss the second supplemental petition. The appeal is from the order granting the two motions.

It appears from the record that the issues made up under the first cause of action and first supplemental petition were tried to the jury, and judgment was rendered thereon, but the record discloses no action with reference to the second cause of action seeking an injunction, except the allegation in the second supplemental petition to the effect that the pollution no longer flows over plaintiff’s property.

Section 11368, General Code, authorizes the filing of a supplemental petition alleging facts material to the case which occur subsequent to the filing of the original petition. It does not, in terms, authorize the setting forth of a new cause of action upon facts occurring after the commencement of the action. Furthermore, a supplemental petition is ancillary to the original petition. Its office is to bring before the court some event that has happened subsequent to the commencement of the suit. Gibbon, Admr., v. Dougherty, 10 Ohio St., 365, 372. A new and different cause of action can not be set forth by a supplemental petition. Hiler v. Hiler, 14 Ohio App., 174; Bullock v. Kilgour, 39 Ohio St., 543.

The $150 item of damages to crops occurring after the judgment might have properly been presented in a supplemental petition prior to the trial of the case, but the item of $2,000 for damage to the soil was in existence at the time the original petition was filed and is not an item setting forth facts material to the case occurring subsequent to the filing of the petition. Whether the damage to the soil is regarded as merely an additional item of damage or as a separate cause of action, plaintiff might have elected to have included it in his original petition by way of amendment, under Section 11306, General Code, permitting joinder of causes of action. But, having omitted to include it before trial, he can not assert it by supplemental petition. Without so determining on this appeal, it may be that, if the subject matter of damage to his soil was not included in the issues submitted to the jury, the cause of action may be the subject of a new suit.

It is contended that inasmuch as the second cause of action was undetermined and is still pending, the filing of the supplemental petition is ancillary to the cause of action for injunctive relief. Were the first cause of action still pending, it is possible that, by way of amendment, plaintiff could claim additional damages incident to his claim for equitable relief, but the second supplemental petition as drawn merely seeks to recover additional damage and is not so drawn as to be ancillary to his equitable action.

Apparently the defendant is not relying upon the provisions of the statute which requires consent to be first obtained before the filing of a supplemental petition. Nevertheless, the statute does make such requirement, and that portion of the order dismissing the supplemental petition is justified upon that ground alone. However, the second cause of action should not have been summarily dismissed until such time as it should be made to appear to the court, after due hearing, that relief under the second cause of action is no longer required.

That portion of the judgment dismissing the second supplemental petition is affirmed, and that portion relating to injunctive relief is reversed, and the cause remanded for further proceedings.

Judgment accordingly.

Conn, J., concurs.

Carpenter, J., concurs in part and dissents in part.

Carpenter, J.

I concur that the second cause of action in the petition was not disposed of, either by proper pleading or evidence, and that the order dismissing it was error and should be reversed. That cause being pending as an equitable issue, the damage to the land itself as alleged in the second supplemental petition was incidental to that pending cause of action and such issue should be disposed of as a part of it. It was a cause of action for damage to the land resulting from a continuing and permanent nuisance. It was separate and different from the damage that arose from the loss of growing crops and timber. It required different evidence to prove it and a different measure of damages. The two causes were analogous in principle to the two causes of action of injuries to person and damage to property, which may be caused by the same tortious act. Paragraph four of the syllabus, Vasu v. Kohlers, Inc., 145 Ohio St., 321, 61 N. E. (2d), 707.

Also, relief of this character in an equitable action is such as is demanded by the nature of the case and the facts as they exist at the close of the litigation. Oliver v. City of Cincinnati, 12 Ohio App., 432 (motion to certify overruled); Antol v. Dayton Malleable Iron Co., 34 Ohio Law Abs., 495, 38 N. E. (2d), 100.

I would reverse the order dismissing the second supplemental petition as to that item of damages.


author: Guernsey, P. J.

text:
    Westrick, Appellee, v. Unterbrink et al., Appellants.
    (No. 373 —
    Decided April 5, 1950.)

      Mr. Louis B. Young and Mr. G. W. Fawcett, for appellee.

      Messrs. Taylor, Gruey £ Kalb and Messrs. Warren £ Weaver, for appellants.
   Guernsey, P. J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas' Court of Putnam County.

The action was instituted in the Common Pleas Court by the appellee, Louisa Westrick, who will be hereinafter referred to as the plaintiff, for the partition of two parcels of real estate in which she claims to be the owner of an undivided one-fourth interest. These two parcels are contiguous and are operated together as a farm. One parcel consists of a tract of about 45 acres and is improved by a dwelling and barns. It is referred to in the testimony as “the home place, ’ ’ and will be herein referred to as parcel A. The other parcel is unimproved farm land consisting of about 73 acres and will be herein referred to as parcel B.

Appellants, Anna, Estella, and Mary Unterbrink, who will be herein referred to as the defendants, are alleged in plaintiff’s petition to be the owners of the remaining three-fourths interest. Certain lienholders were also made parties, but no issue has been made as to their interests.

The petition of the plaintiff and the second amended answer and cross-petition of the defendants are .the pleadings upon which this cause was submitted to the Common Pleas Court and to this court.

The defendants, by their second amended answer and cross-petition, take the position that the plaintiff has no interest in parcel B, or that if she has an interest in both parcels then such interest is only a fractional interest of approximately one-eighth, and seek to charge an equitable lien against any interest to which the court might find the plaintiff entitled.

The Common Pleas Court rendered judgment dismissing defendants’ cross-petition, determining that plaintiff was the owner of an undivided one-fourth interest in both parcels of real estate, and directing a partition on that basis. That is the judgment from which this appeal is taken.

Plaintiff, by her petition, as above indicated, claims to be the owner of an undivided one-fourth interest in both of the parcels by virtue of separate deeds to each parcel, each dated September 26, 1927.

By their second amended answer defendants set forth that the deeds to the two parcels were executed by Theresia Unterbrink, the mother of plaintiff and defendants, on the dates alleged in the petition, and that prior to the execution thereof their mother was indebted to the parties in certain amounts represented by promissory notes which were secured by mortgages upon the respective parcels as follows:

Parcel A
Anna Unterbrink, defendant.........$1,000
Estella Unterbrink, defendant ...... 1,000
Mary Unterbrink, defendant......... 1,000
Louisa Unterbrink, plaintiff......... 1,000
Parcel B
Anna Unterbrink, defendant ........$1,330
Estella Unterbrink, defendant ....... 1,650
Mary Unterbrink, defendant......... 1,020.

It is set forth further in the second amended answer that the deeds in question were executed pursuant to an oral understanding that the property would be conveyed to plaintiff and defendants as their respective interests appeared in each parcel in the respective proportions of the sums due them, and upon the conditions (which were expressed in each of the deeds) that the four sisters would support, nurse and care for the grantor, their mother, for the remainder of her life and pay her annually at least $25; that the deed to parcel A named the four sisters as grantees, but that the deed to parcel B named only the three defendants, Anna, Estella, and Mary, as grantees; that plaintiff’s name did not appear as a grantee therein, although the record of the deed by inadvertence also showed the plaintiff as a grantee and by reason thereof plaintiff has no interest whatsoever in parcel B; that by virtue of the disparity in the consideration furnished, if it should be determined that plaintiff has an interest in both parcels, then her interest is' limited to no more than that proportion of the total consideration furnished by her, or approximately a one-eighth interest; that plaintiff furnished no part of the care and support of the parties’ mother; that she paid no part of the annuity provided; that the entire burden of fulfilling these obligations was performed by the defendants for a period of approximately 20 years, to the unjust enrichment of plaintiff; and that this indebtedness constitutes an equitable lien upon any interest plaintiff might have in the property, greater than the value of any such interest.

The defendants, by their second amended answer, deny that the deed to parcel B conveyed any interest in that parcel to plaintiff.

By their cross-petition, defendants seek to quiet their title in the real estate in question against any claim of the plaintiff, and further offer to refund to plaintiff the amount advanced by her should the court determine that plaintiff is entitled to such refund.

The matter set forth in the second amended answer and cross-petition is, in general, denied by the reply.

The questions presented by the pleadings are:

1. Was plaintiff named as a grantee in the deed to parcel B %
2. If she was named as a grantee in the deed to parcel B as well as in the deed to parcel A, what interest was conveyed to her?
3. Do the defendants have a lien upon the interest of plaintiff in the real estate by virtue of their performance of the obligation to their mother set forth in the deeds?

The following facts are established by the evidence:

On and prior to June 2, 1927, and until her conveyance thereof on September 26, 1927, title to both parcels was vested in Theresia Unterbrink, the mother of plaintiff and the defendants. On June 2, 1927, the mother executed and delivered to each of her four daughters, the plaintiff and the three defendants, her separate promissory notes, promising to pay to each of them the sum of $1,000. The notes were secured by a mortgage to the four daughters upon parcel A, recorded in volume 96 of the Putnam county records of mortgages at page 205. On the same day the mother, Theresia, executed and delivered to three of her daughters, the defendants, promissory notes as follows : To Estella $1,650, to Anna, $1,330, and to Mary $1,020. These notes were secured by a mortgage to the three daughters upon parcel B recorded in volume 96 of the Putnam county records of mortgages at page 203. No question is raised as to the validity of these obligations and of the mortgages securing the same. The amounts of the liens with reference to the two 'parcels were, therefore, as follows:
Parcel A Parcel B
Mary (defendant) ...........$1,000 $1,020
Estella (defendant) ......... 1,000 1,650
Anna (defendant) ........... 1,000 1,330
Louisa (plaintiff) ........... 1,000 —
$4,000 $4,000

It is to be noted that upon the giving of these mortgages, plaintiff had no interest whatsoever in parcel B, but was secured for her advance or loan of $1,000 by a lien only on parcel A, that the total indebtedness to the daughters aggregated $8,000, and that .plaintiff's claim was for only $1,000 or one-eighth.

On September 26, 1927, the mother, for the purpose of better securing the indebtedness to her four daughters and of obtaining their promise and agreement to care for and support her, executed and delivered the deeds by which plaintiff claims title, and simultaneously releases of the mortgages were executed by the respective mortgagees therein named.

The record of the deeds as made by the recorder shows that plaintiff, as well as the defendants, was named as a grantee in the deed to parcel B. The deeds have been lost and cannot be found. However, one of the deeds was prepared by the witness Perd Unterbrink and the other by Prank G-miner (who is since deceased) under the direction of Perd Unterbrink.

Perd Unterbrink testified that he read both deeds after they were prepared and that the deed to parcel A contained the names of all four daughters as joint grantees; but that the deed to parcel B contained only the names of Anna, Estella, and Mary, and that plaintiff’s name did not appear thereon.

Both deeds contained provisions to the effect that the grantees should “pay the outstanding debts contracted by said grantor not to exceed $200 total, ’ ’ and should “furnish and provide for said grantor the necessarys [sic] of life and care for and nurse said grantor in sickness and pay her annually at least $25.” Of these obligations, plaintiff admitted that she fulfilled only a negligible part.

The obligation was fulfilled by her three sisters, the defendants. At the time the deeds were given, plaintiff was teaching school and the only services she rendered, according to her own testimony, was help in the periodic house cleanings and driving the automobile three miles to a grocery store once a week. These services continued only until she married and left home about two years later. She admitted that she did nothing thereafter to care for or support her mother except on one occasion when she spent a weekend at the home while her mother was ill. She admitted further that she made no payments either with reference to her mother’s debts or the $25 per year charge. Thus, the entire burden of caring for plaintiff’s mother, which extended over a period of about 19 years, fell upon her sister Mary who remained at the home at all times, and upon Anna and Estella who, although working in Toledo at the time the deeds were executed, returned home shortly thereafter and remained upon the farm. The services rendered by these three sisters consisted of housekeeping, nursing and caring for their mother, taking care of and milking the cows, taking care of and feeding the hogs, and doing the other usual chores about the farm.

The plaintiff testified as a witness on her own behalf as to matters occurring prior to the death of her mother, and upon cross-examination by defendant’s counsel testified, among other things, that the purpose of the deeds was to secure her $1,000 advance to her mother, and that “the idea was to get my $1,000.” In other words, she was being given security in the form of a conveyance for the $1,000'advanced. This testimony was received without objection by any party, but later, during the progress of plaintiff’s cross-examination, her counsel objected to her answering-further questions on the ground that she was inhibited from testifying as to matters occurring prior to her mother’s death by reason of the provisions of Section 11495, General Code.

We will discuss the questions raised by the pleadings and evidence in the order in which they are herein-before stated, after discussing the admissibility of the testimony of the plaintiff hereinbefore referred to.

The testimony of the plaintiff developed upon her cross-examination was properly received, as the plaintiff, by offering herself as a witness and testifying as to matters occurring prior to the death of her mother, under whom she claims title, waived any right to claim immunity from testifying under the provisions of Section 11495, General Code, and subjected herself to an examination in the same manner as any other witness.

Furthermore, her testimony concerning which complaint is made was received without objection at the time it was given, and the objection by her counsel made after the receipt of this testimony did not affect its competency.

Was plaintiff named as a grantee in the deed to parcel B ?

The certified copy of the record of the deed shows that she was. This is contradicted only by the testimony of Ferd Unterbrink who testified from recollection. We find that this testimony is insufficient to overcome the prima facie evidence of the execution of the instrument that arises from its record. The above question is, therefore, answered in the affirmative.

If plaintiff was named as a grantee in the deed to parcel B, as well as in the deed to parcel A, what interest was conveyed to her?

The defendants contend that since plaintiff testified that the purpose of the deeds was to secure her $1,000 advance to her mother, and “the idea was to get my $1,000,” the deeds are to be considered as mortgages securing the indebtedness due the plaintiff and defendants from the mother, which debts had been secured by the real estate mortgages.

Such construction of the deeds might be proper if the deeds were not, in terms, based on a further consideration moving to the mother, to wit, the provisions as to the support, care and nursing of the mother to be furnished' by the grantees. These provisions conclusively show that the deeds were not given merely for security for the indebtedness, and consequently the rules of law applicable to deeds given as security are not applicable to the deeds in question. This contention of the defendants is, therefore, without merit.

The defendants contend further that the consideration for the deeds was the indebtedness owing to them and the plaintiff, severally, by their mother, as disclosed by the real estate mortgages, and that by reason thereof a trust in the real estate conveyed arose in favor of the grantees in proportion to the parts of the purchase price paid by each of them, in conformity with the rule stated in Section 454 (f) of the Restatement of the Law of Trusts, as exemplified in illustration (5) of the application of such rule.

This contention would be well taken except for the fact that the consideration for the deeds consisted not only of the indebtedness mentioned, but the joint obligation of the grantees to support, care for and nurse the grantor, the value of which obligation and the proportion it bore to the total purchase price being entirely speculative and not determinable at the time the deeds were made; and the further fact that, the share thereof to be furnished by each of the grantees not being specified, each grantee was equally obligated to furnish the same, regardless of the amount of the indebtedness owing by each of the grantees to the mother.

For the reasons mentioned, the interest conveyed to the plaintiff by the deeds, as appears from the record thereof, the respective interests of the grantees not being specified, was the undivided one-fourth of both parcels of real estate.

Do the defendants have a lien upon the interest of plaintiff in the real estate by virtue of their performance of the obligation of themselves and the plaintiff to their mother, set forth in the deeds 1

As hereinbefore noted, both of the deeds in question contained an express condition requiring the parties to care for and support the grantor for life and to pay her annually at least $25. This condition was binding upon plaintiff as well as the defendants, it being a general rule of law that where a grantee accepts a deed he is bound by the conditions contained in the deed as effectually as if he had signed and sealed the instrument. 13 Ohio Jurisprudence, 958, Section 144; Hickey v. Railway Co., 51 Ohio St., 40, 36 N. E., 672, 46 Am. St. Rep., 545, 23 L. R. A., 396; Miller v. Lake Shore é Michigan Southern Ry. Co., 88 Ohio St., 499, 103 N. E., 374.

It is admitted by the plaintiff that she furnished practically nothing in caring for and supporting her mother and paid none of the obligations assumed by the grantees in the deeds, and it appears from the evidence of other witnesses that the obligations of the grantees in the deeds were performed by the defendants over a period of approximately 19 years.

The rule is well established that where two or more are under a joint obligation and one discharges the whole he is entitled to contribution from the other. The doctrine of contribution rests upon the broad principle that where one has discharged a debt or obligation which others were equally bound with him to discharge, and thus removes a common burden, the others who have received the benefit ought, in good conscience, to refund to him a ratable proportion. Robinson v. Boyd, 60 Ohio St., 57, 53 N. E., 494 (also opinion of Circuit Court, Boyd v. Robinson, 13 C. C., 211); Baltimore & Ohio Rd. Co. v. Walker, 45 Ohio St., 577; Terry v. Claypool, 77 Ohio App., 87, 65 N. E. (2d), 889; 2 Pomeroy’s Equity Jurisprudence (5 Ed.), Section 407; 9 Ohio Jurisprudence, 246, Contracts, Section 10; 9 Ohio Jurisprudence, 666, Contribution, Section 4.

Under this rule the defendants are entitled to contribution from the plaintiff for the value of the various -things done by them in the performance of the joint obligation of themselves and plaintiff.

As the performance of such obligation by the defendants constituted a portion of the purchase price of the parcels of real estate in question they are entitled to an equitable lien upon the undivided one-fourth interest conveyed to plaintiff by such deeds to secure the amount of the contribution due to them from plaintiff.

Liens of this character are generally recognized and enforced in equity. 16 Ohio Jurisprudence, 226, Section 97; 37 Corpus Juris, 321, Liens, Section 27; 4 Pomeroy’s Equity Jurisprudence (5 Ed.), Sections 1239, 1240 and 1243.

Such a lien was especially recognized and enforced in the case of Hicks v. Bool, 21 C. C. (N. S.), 346, 33 C. D., 355. See, also, Goudy v. Goudy, Wright, 410.

From the evidence in this case, the court finds:

1. That the plaintiff and the defendants, as tenants in common, are each seized in fee simple of an undivided one-fourth interest in the parcels of real estate described in the petition herein, and that each is entitled to one-fourth of the proceeds of the sale thereof, subject to the payment of costs, taxes and liens thereon and on their respective interests therein.
2. That there is due from Anna Unterbrink,. Mary Unterbrink, Louisa Unterbrink Westriek, Leo Westriek, and Estella Unterbrink, to the defendant The First National Bank of Ottawa, on the promissory note mentioned and described in the answer and cross-petition the hank- filed herein, the amount set forth in such answer and cross-petition, and that such amount constitutes the first and best lien upon the real estate described in the bank’s answer and cross-petition.
3. That the allegations contained in the answer of Edward J. Siefker are true, and that there is due him from the defendant Estella Unterbrink, on the judgment described in the answer, the sum therein set forth, and that such amount constitutes a lien on the undivided one-fourth interest of Estella Unterbrink in the real estate described in the petition, subject to the lien of The First National Bank of Ottawa upon the real estate hereinbefore mentioned.
4. That there is due the defendants Anna, Estella, and Mary Unterbrink, from the plaintiff, Louisa West-rick, as plaintiff’s contribution to defendants’ fulfillment of the joint obligation of the grantees under the deed conveying the real estate to plaintiff and defendants, the sum of $1,000, which the court adjudges and decrees to be a lien upon the undivided one-fourth interest of the plaintiff in the real estate, which lien is subordinate to the lien of The First National Bank of Ottawa on such real estate.

It is therefore ordered, adjudged, and decreed by the court that the real estate be partitioned and sold as prayed for in the petition, and that out of the proceeds thereof remaining after the payment of costs and the tases which are a lien thereon, the several liens thereon be paid in the order of priority hereinbefore set forth, the lien of the bank being paid out of the whole of the proceeds of the tract which is covered by its lien, and the lien of the defendant Edward J. Siefker being paid out of the proceeds of the interest of Estella Unterbrink in such real estate, and the lien of the defendants Anna, Estella, and Mary Unterbrink being paid out of the proceeds of the interest of the plaintiff, Louisa Westrick, in the real estate, and that the balance of the proceeds be paid and distributed to the plaintiff and the defendants Anna, Estella, and Mary ITnterbrink, in the amounts to which they are respectively entitled under this judgment and decree, after the payment of costs, taxes and liens.

It is further ordered, adjudged, and decreed that this cause be remanded to the Common Pleas Court for further proceedings in connection with the carrying out and execution of this judgment and decree.

Judgment accordingly.

Middleton and Jackson, JJ., concur.


author: Per Curiam.

text:
    Salley, Appellee, v. Wagner et al., Appellants.

      (No. 2105
    Decided November 30, 1950.)

      Mr. Mason Douglass, for appellee.

      Messrs. Landis, Ferguson, Bieser <3 Greer, for appellants.
   Per Curiam.

This is an appeal on questions of lav/ from the Common Pleas Court of Montgomery County in which court judgment was rendered on a verdict returned in favor of the plaintiff.

This action was brought against the chief of police and two police officers of the city of Miamisburg and The Ohio Casualty Insurance Company, which wrote their official bonds, to recover damages which plaintiff alleged he sustained by reason of an unlawful arrest and false imprisonment. The case was tried to a jury which returned a general verdict against Arthur Wagner, the chief of police, and The Ohio Casualty Insurance Company in the sum of $1,000, the full amount of the official bond. The jury returned verdicts in favor of the two police officers.

Defendants, appellants, filed a motion for judgment non obstante veredicto, which was overruled and thereupon judgment was entered on the verdict.

The two errors assigned are: The trial court erred in overruling the motion for judgment non obstante veredicto based on the answers given by the jury to special interrogatories; and the court erred in entering judgment for the plaintiff upon the general verdict, disregarding the answers to special interrogatories.

There being no bill of exceptions, the sole question presented is whether the special findings of fact are inconsistent with a general verdict. If the findings are inconsistent with the general verdict the former must control. Section 11420-18, General Code.

The following special interrogatories submitted by the defendants were answered and returned with the verdict:

“1. Did chief of police Wagner fail to faithfully perform his duties as the chief of police of the city of Miamisburg, Ohio? Answer: Yes.
“2. If your answer to special interrogatory No. 1 is no, then do not answer this interrogatory. If it is yes, then answer. In what respect or respects did chief of police Arthur Wagner fail to faithfully perform his duties as chief of police of the city of Miamis-burg, Ohio? Answer: Failed to properly instruct subordinates in performance of their duties according to law.
“3. Did police officer Edward Dickey fail to faithfully perform his duties as a police officer of the city of Miamisburg, Ohio? Answer: No.”

Special interrogatory No. 4 was not answered since no answer was required.

“5. Did police officer Ruff or d Cos fail to faithfully perform his duties as a police officer of the city of Miamisburg, Ohio ? Answer: No. ”

Special interrogatory No. 6 was not answered since no answer was required.

The amended petition alleged that The Ohio Casualty Insurance Company bonded the three police officers of the city of Miamisburg and that the undertakings were conditioned that the company would save the city and the public harmless from any wrong or damage done by the principals in such bonds under color of such office and from any failure of such principals to faithfully perform the duties of their offices. The plaintiff then charged the defendant police officers with certain unlawful acts in connection with his arrest and imprisonment, viz., that he was deprived of his liberty unlawfully, that he was imprisoned unlawfully, with force, and without a warrant of commitment, and that during his imprisonment he was deprived of sufficient food, deprived of legal counsel, kept incommunicado, and was subjected to prolonged and repeated questioning and threats of physical violence. It will be observed that there was no charge made that the chief of police failed to properly instruct his subordinates according to law. Even so, the jury found that officers Dickey and Cox did not fail to ’faithfully perform their duties. We are concerned mostly with interrogatories Nos. 1 and' 2. These interrogatories were so framed as to indicate a purpose to test the verdict with respect to the liability of The Ohio Casualty Insurance Company which was liable only if Wagner failed in some way to faithfully perform his duties as alleged.

It is contended that interrogatories Nos. 1 and 2 were not properly submitted and embrace a question of mixed law and fact. Interrogatory No. 1 unquestionably constitutes a question of mixed law and fact, and this interrogatory was improperly submitted. The answer to this interrogatory may be disregarded. Brier Hill Steel Co. v. Ianakis, 93 Ohio St., 300, 112 N. E., 1013; Master Tire & Rubber Co. v. Lansinger, 108 Ohio St., 377, 140 N. E., 770; 39 Ohio Jurisprudence, 1160, Section 429. While it is true interrogatory No. 2 is predicated upon an affirmative answer to interrogatory No. 1, nevertheless, this interrogatory calls for a special finding upon a particular question of fact. The plaintiff was entitled to have submitted this interrogatory for the purpose of eliciting from the jury a finding of fact on which the general verdict was based, even though it was predicated upon the former interrogatory which called for a finding on a question of mixed law and fact. While it is true the jury had a duty to consider whether Wagner faithfully performed Ms duties as chief of police, nevertheless, the question in its entirety called for a finding of an ultimate fact by requiring the jury to state in what respect or respects Wagner failed to faithfully perform his duties. That this was a proper question to be submitted to the jury is supported by Klever v. Reid Bros. Express, Inc., 151 Ohio St., 467, 477, 86 N. E. (2d), 608; Elio v. Akron Transportation Co., 147 Ohio St., 363, 375, 71 N. E. (2d), 707; Wheeling & Lake Erie Ry. Co. v. Hollywood Cartage Co., 86 Ohio App., 513, 517, 93 N. E. (2d), 708. In those cases it is pointed out that where two questions are propounded, one being a question of mixed law and fact and the other eliciting a finding on specific fact issues though predicated upon the first question, the second question is properly submitted.

Answering interrogatory No. 2, the jury failed to find the defendant Wagner guilty of any acts charged in the amended petition. We are unable to find that the answer bears any definite relation to any of the factual issues in the case. Since the jury failed to find that such defendant was guilty of any of the unlawful acts alleged in the amended petition, can the general verdict stand? What is the legal effect when the jury, in answer to a question properly submitted, fails to find such defendant guilty of any acts alleged? In Masters v. New York Central Rd. Co., 147 Ohio St., 293, 70 N. E. (2d), 898, the second paragraph of the syllabus is as follows:

“An interrogatory requiring the jury in a personal injury action, in the event the jury finds the defendant guilty of negligence, to specify the act or acts of negligence is a proper inquiry; and the failure or inability of the ju,ry to find the existence of a claimed act of negligence, in answer to interrogatories so submitted, is equivalent to a finding on such claim of negligence against the party having the burden to establish it.” (Emphasis ours.)

On page 298, the court, in commenting on this principle of law, said :

“The reason for the rule is that a special verdict or answers to interrogatories must find facts, and it will be inferred that the failure to find a certain fact is due to the absence or insufficiency of evidence to support it. ”

The Supreme Court, in Elio v. Akron Transportation Co., supra, reaffirmed this principle of law. See, also, Casanova v. Wagner, 85 Ohio App., 278, 280, 88 N. E. (2d), 312; and Croke v. C. & O. Ry. Co., 86 Ohio App., 483, 492, 93 N. E. (2d), 311. Does the answer to interrogatory No. 2 completely negative the finding of the general verdict that the defendant Wagner was guilty of one or more of the unlawful acts alleged in the petition? We think it does. If the jury fails in its answer to find the defendant guilty of some specific unlawful act alleged in the petition a verdict for the plaintiff is improperly returned and cannot stand.

The trial court should have sustained the motion for the judgment non obstante veredicto.

The judgment is reversed and the cause remanded with instructions to sustain the motion.

Judgment reversed.

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


author: Carpenter, J.

text:
    Angel, Appellee, v. Leech et al., Appellants.
    (No. 601
    Decided October 30, 1950.)

      Messrs. Miller & Miller, for appellee.

      Messrs. Young & Young, for appellants.
   Carpenter, J.

This is an action for damages to farm land alleged to have been caused by the defendants, Orlo W. Leech and Charles H. Leech. A judgment for $350 for plaintiff against both defendants was entered upon a verdict of a jury. From that judgment this appeal on questions of law was taken by both defendants.

The petition alleges that defendants “unlawfully entered plaintiff’s close,” a farm containing 108 acres, constructed a ditch about five feet deep across the southwest corner for a distance of about 400 feet, and otherwise “injured plaintiff’s said land to plaintiff’s damage.” On cross-examination, the plaintiff testified that title to the farm was in the name of his wife, Florence Angel, who was not a party to the action. Apparently the plaintiff was in possession of the farm and by reason of that- relationship claimed the damage was to his possessory interest, and, except by their answer which is a general denial of all allegations in the petition, the right of the plaintiff to maintain this action is not challenged.

In the submission of the issue of damages, the court charged as though the plaintiff was the owner of the land. This was error. The charge should have been as to the damages plaintiff sustained to his possessoryrights in the farm, and there should have been some evidence as to what those rights were.

Adjoining the Angel farm to the south was the farm land of defendant Charles H. Leech, a physician, who then resided and practiced his profession in Lima, Ohio. The elevation of the Leech land was somewhat higher than that of the Angel farm, and its drainage was across the corner of that farm. On the Leech farm there was a ditch, a part of which to the southeast was tiled. This led into an open ditch which crossed the southwest corner of the Angel farm for about 400 feet.

Charles H. Leech desired to improve that open ditch on his land and across that of the Angels and another farm to the west owned by one Enzor. To that end he employed his brother, defendant Orlo W. Leech, who lived a few miles from these farms, to arrange with the neighbors, Angel and Enzor, for permission to go upon their farms and open that ditch. Following that direction, Orlo W. Leech conducted some negotiations with Angel and Enzor, and it was contended by Orlo W. Leech that consent of Angel was given. As agent for defendant Charles H. Leech, Orlo W. Leech employed an excavating contractor to open the ditch, which was done shortly thereafter with power-shovel equipment. This was the alleged trespass.

Angel contended that his consent to the construction of the ditch was conditioned upon the ditch on his land being a 12-inch tile covered ditch, but not an open ditch. This dispute is the basic fact issue in the case.

At the close of plaintiff’s evidence and at the close of all the evidence, defendants made appropriate motions, asking the court to require the plaintiff to elect against which of them he would proceed. These motions were overruled and the cause was submitted to the jury against both defendants, with the result as above stated.

It is undisputed that Orlo W. Leech was acting in this transaction solely as the agent for Charles II. Leech.

There was no evidence tending to prove that Charles H. Leech directed his agent to put in the open ditch without the consent of plaintiff, or that he ratified any such act. It does appear that Charles H. Leech paid the excavating contractor for its services, but it does not appear that he had any knowledge that the excavating was done without plaintiff’s consent.

In the absence of some evidence tending to prove either direction or ratification, the liability of Charles H. Leech was predicated upon the principle of respondeat superior, and, under the evidence, the overruling of the last motion to require the plaintiff to elect whether he would proceed against the agent or the principal was prejudicial error. Clark v. Fry, 8 Ohio St., 358, 378; French, Admr., v. Central Construction Co., 76 Ohio St., 509, 515, 81 N. E., 751, 12 L. R. A. (N. S.), 669.

As authority for this principle, there is cited in the opinion in the French, case, among others, the decision of Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 F., 637. That opinion by Judge Taft was concurred in by Judge Lurton, when they were both members of the United States Circuit Court of Appeals. In that decision, this phase of the relationship of principal and agent and the liability of the principal is discussed at length and the leading cases on the subject are cited and analyzed.

For the error in the charge on the issue of damages and the failure of the court to require the election above noted, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

Conn and Fess, JJ., concur.


text:
    Blackman, Admr., Appellant, v. Zeligs, Appellee.
    (No. 7404
    Decided May 7, 1951.)

      Messrs. Nichols, Wood, Marx S Ginter, for appellant.

      Messrs. Brumleve, DeCamp & Wood, for appellee.
   Per Curiam.

Mary Ferber broke her hipbone. The family physician was called and, in accordance with his recommendation, she was taken to the Jewish Hospital. Again on his recommendation, the defendant, an orthopedic surgeon, was employed to perform the required operation of setting the bone so that it would knit properly. He recommended what is described as a hip pinning operation, which was performed on December 11, 1946.

On December 11,1947, Mary Ferber filed this action, charging that the defendant was negligent in the course of the operation and, as a result, she (Ferber) sustained burns from chemicals on her back, extending from her shoulder all the way down to a point midway between her hips and knees.

At the close of the evidence, the court sustained the defendant’s motion for an instructed verdict and entered judgment on the verdict rendered under such instruction. It is from that judgment that this appeal is taken.

The appellant urges two reasons for his contention that the issue of negligence should have been submitted to the jury.

It is urged that this situation called for the application of the doctrine of res ipsa loquitur. Its application is justified only when the instrumentality or instrumentalities that cause the injury are in the exclusive control of the defendant and the circumstances ' are such as to indicate that injury would not have resulted had due care been exercised. Under such circumstances, the issue of negligence should be submitted to the trier of the facts and it would be justified, but not required, to draw the inference of negligence.

The impossibility of applying that doctrine in this case lies in the fact that the defendant did not have exclusive control of the agency — the chemical — that allegedly caused the injury. The operation was performed in a hospital selected by the plaintiff. The hospital prepared the patient for the operation and furnished all the accessories including the chemicals, etc., required in the operation, and its employees applied the chemicals. Under such circumstances the doctrine of res ipsa loquitur is not applicable, because, even assuming an inference of negligence could be drawn, such negligence could not be attributed to the defendant. It would be attributable with greater force to the hospital employees.

It is said that independent of the rule of res ipsa loquitur, there is evidence of negligence. It is said that the defendant admitted that the burns were caused by benzine applied in preparing the patient for operation. This was denied by the defendant, but assuming it to be true that the burns were caused by the benzine, that is not evidence that defendant was negligent. The defendant took no part at all in preparing the patient for the operation. He took no part in the application of benzine and his attention was not attracted by any improper action by the hospital employees in applying the benzine. Negligence, if any, on the part of the hospital employees could not be attributed to the defendant. As soon as his attention was called to the condition of the patient’s back on the following morning he gave it the proper treatment.

We find that there was a failure of proof of plaintiff’s claim of negligence on the defendant’s part and that, therefore, the court did not err in instructing a verdict for the defendant.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


text:
    Technical Schools, Inc., d. b. a. Cleveland Engineering Institute, Appellee, v. Collopy, Admr., Bureau of Unemployment Compensation, Appellant. Hal Cooper School of Cartooning & Advertising Art, Inc., Appellee, v. Collopy, Admr., Bureau of Unemployment Compensation, Appellant.
    (Nos. 4579 and 4580
    Decided September 27, 1951.)

      Mr. Howard M. Metsenbaum, for appellees.

      Mr. C. William O’Neill, attorney general, and Mr. John W. Hardwick, for appellant.
   Per Curiam.

These two cases have been consolidated since the questions presented are identical. The two cases involve appeals on questions of law from judgments of the Common Pleas Court of Franklin County, reversing the orders of the Administrator of the Bureau of Unemployment Compensation and ordering the state of Ohio to refund all contributions collected by the state of Ohio from the appellees for their administrative officers, teachers, members of the faculty and all persons engaged in research, or experimental work, on the ground that such employees were exempt under the provisions of Section 1345-1 c D (4), General Code.

All questions raised by counsel for appellant were discussed by Judge Harter in a well considered opinion, a copy of which has been furnished this court. This court is in accord with the judgment of the trial court in all particulars.

We find no assignment of error well made. There being no error in the records prejudicial to the rights of the appellant the judgments are affirmed.

Judgments affirmed.

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