author: Metcalf, J. McCurdy, P. J.,

text:
    Sams, Appellee, v. Hughes, Appellant.
    (No. 119
    Decided March 23, 1950.)

      Mr. Harold A. Predmore and Messrs. Rendigs & Pry, for appellee.

      Messrs. Matthews & Altich and Mr. Eugene A. Hahne, for appellant.
   Metcalf, J.

This appeal grows out of an action brought by Donald C. Sams, father of a minor daughter six years of age, to recover for medical, hospital, nursing and other expenses incurred by him by reason of injuries sustained by such minor as a result of being struck by an automobile owned by the defendant-appellant, Ferris L. Hughes, which at the time of the accident was being driven by Edward Barrett, a garage and filling station operator who was delivering the automobile to defendant’s residence after it had been repaired in a garage operated jointly by Barrett and one Woodrow Reno.

The jury found in favor of the plaintiff and returned a verdict against the defendant in the sum of $8,772. It is from that verdict and the judgment thereon that this appeal is taken on questions of law. While there are six separate assignments of error, counsel for both parties agree that the assignments present only two questions of law, there being no dispute of any consequence relative to the facts. These questions are: First, did the trial court err in deciding that the driver of the automobile was the agent of defendant rather than an independent contractor, in operating defendant’s automobile at the time of the accident? Second, did the trial court err in refusing to give appellant’s special charge No. 2?

We will dispose of the second question by simply stating that an examination of special charge No. 2 discloses that, while perhaps not so intended, it is confusing in that it throws upon this minor child the duty of exercising at least some degree of care, and can easily be interpreted as charging her with being capable of contributory negligence, with which she can not be charged by reason of her infancy. True, it contains the word, “solely,” in reference to the cause of such injuries yet, in our opinion, its lack of clarity made mandatory the court’s refusal to give it.

The one important question in this case is whether Barrett, the driver of the car at the time of the accident, was an independent contractor or the servant of the defendant.

The defendant is a farmer residing two and one-half miles south of Hillsboro, Ohio. On May 2, 1946, the time of the accident involved herein, Edward Barrett was the proprietor of a filling station combined with a small garage, located on North High street in Hillsboro and called the Barrett Service Station. Barrett operated the service station individually, but he, together with one Woodrow Reno, an automobile mechanic, operated jointly the garage part of the business, Reno making repairs on cars brought there for that purpose. The record indicates that Reno had nothing to do with the filling station part of the business, it being operated independently by Barrett.

On the morning of the above date the defendant, Hughes, brought his automobile to this garage to be repaired. Barrett was not there at the time and the only contact had by the defendant was with Reno.

On the question of the delivery of the car after the completion of the repairs the defendant, Hughes, testified :

“When he [Reno] drove up he asked me if I wanted him to call me when he got it done. I said, you probably won’t get it done today. He said, I will bring it out. Now that was just the words he said, I’ll bring it out. I said O. K.”

Mr. Reno testified:

“Well, say I asked Mr. Hughes if he wanted the car delivered and Mr. Hughes said, O. K. ”

Reno testified further that he told his partner, Barrett, that the automobile was to be delivered; that he had no instructions as to the manner or mode in which the car was to be driven or the route over which it was to be driven; that it was customary, with the authority of the owner, in the operation of the service station and garage business to deliver customers’ automobiles without charge after the repairs were completed; and that this was done as a courtesy on the part of the garage.

The repairs to the automobile were completed by Reno, and about 12:30 o’clock on that day Barrett drove the automobile from the garage for the purpose of delivering it to the residence of the defendant. Barrett testified by deposition and stated in substance that he chose the route and the manner and mode of driving in delivering the automobile to the defendant, Hughes. As he proceeded southwardly on High street in Hillsboro the car struck and injured plaintiff’s daughter who was running westwardly across the street at a point other than an intersection or crosswalk.

It should be noted that the defendant moved for a directed verdict at the close of all the evidence; moved for a judgment notwithstanding the verdict; and moved for a new trial, all of which motions were overruled.

Since the facts were not in conflict, counsel for both parties joined in asking the court to declare as a matter of law what relationship existed bewteen the defendant, Hughes, and the driver of the car, Barrett. Under such circumstances it became the duty of the trial court to charge the jury as to the result that mast-follow an application of the law to the facts so established, and, since the question is whether the relationship of master and servant or that of independent contractor arose by reason of such facts, the trial court should have instructed the jury as to which relationship existed. Schickling, an Infant, v. Post Publishing Co., 115 Ohio St., 589, 155 N. E., 143.

This the trial court did in its general charge by instructing that the plaintiff must prove:

“That the driver of the automobile was acting as defendant’s agent at the time of the accident.
“And now since there is no conflict in the testimony as to that, the court has found that he was so acting as agent, and, therefore, the principal is liable for any negligence of his agent. That eliminates that issue.”

In determining the correctness of this charge an examination of the rules promulgated by the Supreme Court of Ohio, distinguishing the relationship of master and servant from that of employee and independent contractor, is imperative.

In the case of Miller v. Metropolitan Life Ins. Co., 134 Ohio St., 289, 16 N. E. (2d), 447, the court on pages 291 and 292, said:

The relation of principal and agent or master and servant is distinguished from the relation of employer and independent contractor by the following-test : Did the employer retain control, or the right to control, the mode and manner of doing the work contracted for ? If he did, the relation is that of principal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relation is that of employer and independent contractor.”

The Supreme Court in the case of Gillum v. Industrial Commission, 141 Ohio St., 373, 48 N. E. (2d), 234, again announced the test to be applied in determining whether one is an independent contractor or servant. The second paragraph of the syllabus reads:

“Whether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.”

The defendant’s automobile was delivered to the garage for repair, thereby creating a contract of bailment, one of the implied terms of which is the redelivery of the automobile to its owner. This may be done upon the premises of the garage by placing the automobile where it is accessible to its owner or at any other place agreed upon by the bailor and bailee. The redelivery of the automobile to its owner was as much a part of the contract of bailment as the repairs that were to be made. The garageman was under no obligation, contractual or otherwise, in the first instance, to offer to return or deliver the automobile to the defendant at his farm home. He volunteered to do this in lieu of telephoning the owner and the latter accepted the offer. That it was without extra remuneration or, according to the testimony of Reno, that it was done to accommodate customers when it was able to be done is beside the point. It is strenuously urged by counsel for plaintiff that there were two separate contracts entered into on the morning this car was delivered for repairs. One of bailment for the purpose of repairing, thereby creating the relationship of independent contractor, and one to deliver the car to the farm home by the agent of the owner.

It seems to the majority of this court that which ever view is taken of the arrangement entered into on the morning the defendant brought his car to the garage for repairs, that is, whether there were two separate contracts, one of bailment arid one for delivery, or whether as contended by defendant it was one contract, the result will be the same. The terms of the contract or contracts as completed provide only that the garage should make the repairs and deliver the car to its owner at his home. Only the result was agreed to, namely, the repair and the delivery of the car. The details of making delivery and the manner and mode thereof were left entirely to the discretion of the garage without retention or reservation of control on the part of Hughes. Under the contract, Reno could deliver this car himself or send another and he chose to send his partner, Barrett. The features of the trip such as the route, the speed, and the stops, if any, were left to the uncontrolled discretion of the garage.

It is urged by plaintiff’s counsel in their brief and oral argument that even though this is so, the right to control the same remained with the defendant, Hughes. Such interpretation is in conflict with the terms of the agreement applying to the delivery of this car. There is no question that Hughes could have reserved the right to control the manner and mode of delivering the car, the route to be driven, and all other incidental features appertaining thereto, but this right was neither reserved nor provided for in the contract between the defendant and the garage, either expressly or by implication.

The question is not what right of control the defendant, Hughes, could have provided for in the contract of delivery but rather is what, if any, right of control did he exercise or reserve in the contract for delivery. The contract is devoid of any such reservation of control or the right to control. The reason for this is manifest and can be expressed in no better terms than that in which counsel for plaintiff have set forth in their well written brief, although, of course, it is intended to substantiate their claim of the existence of control. This paragraph in the brief of counsel for plaintiff reads:

£ £ The situation was such that there was no need for Hughes to exercise his right of control. He evidently assumed that the car would be driven lawfully and over the most direct route to his home. Having placed his trust in the garage to properly repair his car, it cannot be said to be unusual that he did not delineate in minute detail the exact manner or route over which he wished his car to be driven upon its return to his farm.”

The fact is that not only did the defendant fail to delineate in minute detail but he in no way exercised nor did he reserve the right to exercise any control.

The Supreme Court of Wisconsin in the Ederer case, infra, under circumstances similar to the instant case, gave as one of its reasons for holding that the garage was an independent contractor a similar statement as to why the owner of an automobile has the right to assume that the car would be driven lawfully, i. e., “the risk which the law puts upon the owner of an * * * automobile is, upon principles of justice and good sense, no longer his when he turns his automobile over to a garage, repair shop, or service station for repairs or servicing.” The court cited a long list of decisions from various jurisdictions upholding this principle.

We agree with counsel for appellee that the situation was such that there was no need for Hughes to exercise any right of control. However, we insist that this right is not something that can be pulled out of thin air and that its existence must be determined from the contract that creates the relationship. The words and statements of the defendant and Reno, admitted by all counsel to be true, yield to no other interpretation than that the manner or mode of doing both the repair job and the delivery of the automobile to defendant’s home thereafter were left solely to the garage and that the garage was responsible only to the defendant for the result.

In Rich, v. Holmes (1932), 104 Vt., 433, 160 A., 173, the Supreme Court of Vermont held, as shown by the first two paragraphs of the syllabus:

“Rule for determination of whether existing relationship is that of independent contractor or master and servant is whether under contract alleged master has right to control not only result, but also means and methods adopted to accomplish result.
“Where garage repairman, after completion of repairs on automobile, was directed by owner to deliver such car at specified place, but details of making delivery were left wholly to former’s uncontrolled discretion, held that he was independent contractor, and not servant and agent of such owner. ’ ’

Since the tests set forth in the Rich case for the determination of whether the driver of the automobile is an agent or an independent contractor are similar to those of Ohio, we take the liberty of quoting from the opinion the comment of the court, at page 438, on the question of control or right to control being reserved to the owner.

“With this crucial test in mind, it only remains to apply it to the facts as stated. The defendant contends that the arrangement for delivery of the car at Pitts-field was a modification of the original contract of bailment, and should be considered and construed as a part of it. But the plaintiff argues that the undertaking for delivery was separate and distinct from the contract for repairs. We think that the plaintiff’s version of the contract is correct, but, whichever view is taken of it, the result will be the same. The terms of the contract as completed provided only that Allen should make delivery of the car to Holmes at Pitts-field, and receive compensation therefor. Holmes specified only the result, which was delivery at Pitts-field. The details of making delivery were left entirely to the control of Allen. He could go himself or send another driver; he chose to go himself. The features of the trip were left to Allen without right of control by Holmes. In those matters he was his own master. The route which he took was of his own selection; the speed of the car and the stops which he made were left to his own uncontrolled discretion. The plaintiff says that Holmes might have stopped Allen at any point of the journey and directed a different place of delivery. This contention is in conflict with the terms * * * specifically agreed upon, and no right was reserved to change it. The contract could be changed in that respect only by putting an end to it, either by cancellation or substitution.”

Counsel for both parties state that this is a case of first impression involving the same factual situation in Ohio. However, we are not without precedent from many other jurisdictions in addition to the Rich case, supra. In Gatz v. Smith (1947), 205 S. W. (2d), 616, decided by the Court of Civil Appeals of Texas, it was held, as disclosed by the headnotes:

“2. Although repairman, who had received automobile as a bailee to repair it, was not under obligation, either by contract or by local custom, to deliver automobile to owner at any place except repair shop, repairman had a right to return automobile to owner at another garage without charge for such service, without effecting an alteration of the relationship.
“3. Where repairman, as a matter of accommodation, agreed to return automobile to owner at a different garage and retain possession of automobile for that purpose and directed an employee to make delivery, and employee struck plaintiff with automobile while making such delivery, repairman, rather than owner of automobile, was responsible for negligence of driver, since possession was still that of repairman..” (Emphasis supplied.)

In Daigle v. Pelletier (1943), 139 Me., 382, 31 A. (2d), 345, decided by the Supreme Judicial Court of Maine, the first two paragraphs of the syllabus read:

“The delivery of a municipally owned fire-truck, by its driver, to a g’arage for requested service and the acceptance of it for the service requested, by the garage, constitutes a bailment.
“In the performance of such contract of bailment, in the absence of any control by the bailor, the garage proprietor and his employees engaged therein are independent contractors whose negligence is not imputable to the bailor.”

In the course of the opinion, on pages 385 and 386, the court made the following statement:

“An essential element of every contract of bailment of an automobile for repairs, however, is the agreement of the bailee to return the car to the bailor or his authorized representative and if the place of return is designated therein the contract is not complete until a delivery there has been made.” (Emphasis supplied.)

The Supreme Court of Rhode Island in the case of Conant f. b. o. Indemnity Ins. Co. of North America v. Giddings, 65 R. I., 79, 13 A. (2d), 517, held, as disclosed by the first paragraph of the syllabus:

“Apart from statutory regulation, a garageman, who takes an automobile to his garage to be worked upon, and over whom the owner of the automobile has no control as to the performance of the work or the operation of the automobile, is an independent contractor on his own business, and not a servant or agent of such owner who is, therefore, not liable for any negligence of the garageman during such trip.” (Emphasis supplied.)

The Supreme Court of Wisconsin in the case of Paine v. Finkler Motor Car Co., Inc. (1936), 220 Wis., 9, 264 N. W., 477, held, as shown by paragraph one of the syllabus:

“When an automobile is delivered for repairs to a public garage or its employees, a bailment is created which places the responsibility for negligence in driving the automobile by garage employees upon the garage keeper under the rule of respondeat superior.”

The Supreme Court of Wisconsin in 1936 also held in the case of Ederer v. Milwaukee Automobile Ins. Co. Limited Mutual, 220 Wis., 635, 639, 265 N. W., 694:

“The owner of an automobile is liable only for his own negligence or that of his agent or employee while the latter is acting within the scope of his employment. * * * He is not liable for the negligence of the owner of a garage, or his agent or employee, while operating his automobile, not as his agent but as an independent contractor. ’ ’

In 46 A. L. R., 840, the question involved in this case is annotated. This annotation is headed by the statement that “as a general rule the owner of a car is not liable for the negligent driving of his car by a person in the general employment of a garage man while getting or delivering his car.” The cases cited thereunder warrant this statement.

Counsel for both parties have been helpful to the court in briefing the law from other jurisdictions as well as the textbook law they feel applies to their respective positions. Plaintiff has set forth several decisions from other jurisdictions which appear to be contrary to the conclusion reached by a majority of this court, but an analysis of those cases reveals that they are clearly distinguishable, either because of the factual situation, the formula to be applied, or the law of the particular jurisdiction making the issue involved, not as it arises in this appeal, but one of fact for the jury.

A majority of this court is forced to the conclusion that Edward Barrett, while in the process of delivering defendant’s car, was an independent contractor and as such his negligence, if any, cannot be imputed to the defendant; that the trial court was in error in charging the jury that the relationship of principal and agent existed between the defendant and Barrett; and that the jury should have been charged in words and effect that the relationship was one of independent contractor with, and not as servant of, the defendant. Of course, such a charge would have terminated the case. In other words, in the opinion of this court, the motion for a directed verdict in favor of the defendant should have been granted. Not having done this, judgment non obstante veredicto would have been in order.

The charge on the relationship existing between the defendant and Barrett as well as the rulings on the various motions herein enumerated are erroneous and prejudicial. There is no conflict in the evidence on this material question; hence, there is presented purely a question of the application of the legal formula to the established facts, which question we resolve against the plaintiff. Therefore, the judgment of the Common Pleas Court should be and hereby is reversed and judgment rendered for defendant.

Judgment reversed.

Gillen, J., concurs.

McCurdy, P. J.,

dissenting. Jurisdictions, which attempt to resolve questions similar to the issues involved in the instant case by confining the situation created to the law of bailments, by necessity must ignore the proposition that the bailee, under proper circumstances at the termination of his work for which the bailment was made, does, if the parties so agree, take off his cloak of bailment and put on the cloak of agent.

The reasoning that should be applied in this case has been adopted in many jurisdictions, and is to the effect that a bailment of an automobile is made when it is delivered to the mechanic for the purpose of making repairs, and such bailment continues in force until the repairs are completed. Ordinarily, delivery would terminate the bailment, but where by agreement of the parties the owner does not return to get his car, and specifies separate and apart from the contract for repairs that the car be delivered to him, the bailment terminates upon the completion of the repairs. The repairman becomes the agent of the owner in making the delivery of the automobile to the owner, even though such delivery is in the nature of an accommodation or a favor.

In this case there is no dispute about the facts. The defendant, Hughes, after making the contract for repairs, stated to the repairman, “Xou probably won’t get it done today,” whereupon the repairman replied, “I will bring it out.” ' To this offer of accommodation the owner of the automobile, the defendant, stated, “0. K.” It must be noted that this conversation took place at a time when the repairman asked the owner, Hughes, whether he wanted him, the repairman, to call Hughes when he got it done. Clearly the arrangement for delivery followed the contract for repairs, and the proper interpretation is that the arrangement for delivery was not a part of the contract for repairs.

Hughes constituted the repairman his agent and could have exercised full direction and control over him for the purpose of delivering the car. This right he did not have while a bailment for the purpose of repairs was in force. It was during the time the owner of the car could have exercised control over his agent that the agent-repairman while driving the car struck the child.

Under such circumstarices to hold that the bailment, which was created for the purpose of making repairs, continued until the time of the delivery of the car to the owner, Hughes, on the theory of law that such bailment continues until delivery by the bailee to the bailor, regardless of the arrangement between the parties in relation to delivery, is not sound and ignores the facts.

The trial court properly charged the jury in this regard, and the judgment should be affirmed.

For the foregoing reasons, briefly stated, I feel compelled to dissent in this case.


source: Caselaw Access Project

author: Hildebrant, J.

license: Public Domain

text:
    Roosa, Exr., Appellant, v. Wickward et al., Appellees.

      (No. 7185
    Decided May 19, 1950.)

      Mr. Fred G. Reiners, for appellant.

      Messrs. Thorndyke & Becker, for appellees.
   Hildebrant, J.

This is an appeal on questions of law from an order of the Probate Court, refusing to admit to probate a paper writing purporting to be the last will and testament of Minnie May Baker, deceased, on the ground that such purported will was not executed according to law.

The paper writing offered for probate, hereinafter referred to as the will, is typewritten, testamentary in character, ending in a testimonium clause denominating it “my last will and testament,” and signed at, the end thereof. The signature is followed by an attestation clause in proper form, signed by two witnesses, so that on its face it appears to have been the product of a professional scrivener, and appears to be without substantial defect as to form.

The general principles governing an application to probate a will have been set forth in In re Will of Elvin, 146 Ohio St., 448, 66 N. E. (2d), 629, as follows:

“Under Sections 10504-18 and 10504-22, General Code, the following principles govern the hearing on an application to admit a will to probate: (a) No issue is presented for a contest of the will between its proponents and opponents; (b) opponents of the will may cross-examine witnesses fully upon the dueness of attestation and execution, the mental capacity of the testator and undue influence, but are not allowed to call witnesses against the admission of the will to probate; (c) a prima facie case in favor of the validity of the will is all that is required, and when all the evidence shows as a matter of law that such a prima facie case is made out, the court must admit the will to probate, even though the evidence is conflicting. ’ ’

The question before the court then is whether a prima facie case in favor of the validity of the will is presented by the record.

There can be no doubt that the genuineness of the signature of the testator and that she was of full age, sound mind and memory and not under any restraint have been established by the proof of record.

Equally well established is the genuineness of the signatures of the attesting witnesses, Maud C. Myers, deceased, and Jennie King, whose testimony is later detailed herein. Satisfactory proof of the signature of the deceased witness, Maud C. Myers, having been made, its effect is, in 41 Ohio Jurisprudence, 405, Section 224, stated to be :

“* * * Proof of the handwriting of the attesting witness in such case raises the presumption that all the statutory requirements of execution have been complied with — as, for example, that the purported will has been duly acknowledged in the presence of that witness.”

Further citation seems unnecessary, so it appears that the signature of Maud C. Myers, deceased, as an attesting witness, furnishes substantial evidence in favor of the validity of the will in every respect.

The refusal of the Probate Court to admit the will to probate must then be based on the testimony of the surviving attesting witness, Jennie King. Pertinent parts of her testimony we now set forth in detail:

“Q. Now directing your attention to October 1935, will you tell us what, if anything, Minnie Baker asked you to do in connection with signing a paper? A. She came to my apartment and asked me to come over to sign her will.
“Q. Will you tell us whether or not you did go to her apartment to sign her will? A. I did. I did.
( C % # *
“Q. * * * are you referring to this paper that you hold in your hand, which is dated October 11th or 12th, 1935, headed last will and testament, and contains Minnie May Baker’s signature? A. That’s the one.
“Q. Is that the paper to which you refer? A. But it was folded in such a way that I couldn’t see her signature.
“Q. I see. Will you state whether or not Minnie May Baker handed you this paper in her apartment? A. It was laying on the table.
“Q. And will you state whether or not Minnie May Baker said This is my will and I want you to sign it’? A. Yes, she did.
“Q. And will you state whether or not this signature of Miss Jennie King on this paper is your signature? A. Yes, sir, it is.
“Q. Will you state whether or not the signature of Mrs. Maud O. Myers was on this paper when you signed it? A. Yes, it was on when I signed it.
C 6 # # #
“Q. And did you see Mrs. Maud C. Myers there at that time? A. No, she wasn’t there; she had signed it before I did.
“Q. You don’t know when she signed? A. No.
“Q. I mean her signature appeared on this paper writing at the time you signed it? A. Yes.
“Q. Now, you stated at the time you signed this paper writing you did not see the signature of Minnie May Baker ? A. I did not.
“Q. On this writing. You don’t know if the signature Minnie May Baker was on this paper writing purporting to be her last will and testament at that time or not? A. I didn’t see it.
“Q. You did not see it. Are you familiar with the signature of Minnie May Baker? A. No. I’m not.
“Q. You don’t know then if that is the signature of Minnie May Baker or not? A. No, I never saw her signature.
“Q. You never saw her signature. You did not see her signature on this paper writing at the time you signed it? A. No.
“Q. Nor did you ever see h(er signature at any time previous to the time you signed this paper writing? A. I never did.
“Q. Now, do you know the signature of Mrs. Maud C. Myers? A. No, I didn’t know her.
C i # * *
“Q. She was not present at the time you signed it, and Mrs. Minnie Baker did not sign this paper writing in your presence? A. Not in my presence, no.
‘‘ Q. And at that time you did not see her signature any place on this paper? A. No, because it was laid in such a way that I couldn’t see it.
“Q. In other words, it was folded over and you don’t know whether it was on there or not? A. No.
C 6 * * *
“Q. 'Will you state whether or not when Minnie May Baker asked you to sign your name on this paper she told you what it was? A. Yes, she did.
“Q. What did she tell you it was? A. She said it was her will.
( ( * * #
“Q. When she told you that was her will she made no attempt to sign it in your presence, did she? A. No.
“Q. And at that time when she told you that was her will you did not see her signature on that paper writing? A. No, I didn’t.
Í C :X; * #
“Q. When you signed this paper will you state whether or not it was so folded that it was impossible to see this line upon which Mrs. Baker’s name appears? A. Yes, I couldn’t see it.
i i * *
“Q. You don’t know if that signature was' on there or not though, do you, Miss King? A. No.
“Q. It was folded in that manner [indicating], so all you saw was Mrs. Maud Myers’ signature? A. That’s all.
“Q. So of your own knowledge you don’t know that Mrs. Minnie Baker’s signature was there? A. No, I don’t.”

Section 10504-3, General Code, provides in part:

“* * * Such will shall be signed at the end by the party making it or by some other person in his presence and by his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his signature.”

Summarizing this testimony, it is apparent that Jennie King did not see testatrix sign the will, did not see any signature on the will when signing as an attesting witness, because of the manner in which it was folded, and that testatrix did not by the spoken word acknowledge her signature to the will to the witness, although she did acknowledge the paper writing being attested by the witness at her request, to be her will.

Based on this testimony, the Probate Court found, as recited in the entry, that the paper writing purporting to be the last will and testament of Minnie May Baker, deceased, which was presented for probate, was not executed according to law and ordered same to be refused of probate.

In so doing, it appears the Probate Court decided the issue of due execution of the will against its validity, as upon contest, thereby depriving the proponents of their right of trial by jury on that issue as provided by law. In so doing, the court must necessarily have weighed the evidence and given effect to the testimony of Jennie King to overcome the first appearance created by examination of the will in proper form, properly executed and proved through the signature of the deceased witness coupled with all the surrounding circumstances in favor of the validity of the will, as shown by the testimony of Jennie King, herself. In other words, it appears the Probate Court did not confine its consideration to whether a prima facie case in favor of the validity of the will had been established, but went beyond that field of inquiry into one reserved for ultimate determination by a jury under the law of contest.

It seems appropriate to observe that we deem it completely illogical to contend that by deciding the larger issue beyond the scope of this inquiry, an adverse finding on the lesser inquiry as to prima facie case is necessarily included.

What is a prima facie case?

In 43 Words and Phrases, 543, it is stated:

“A ‘prima facie case’ is that state of facts which entitles the party to have the case go to the jury. Miller v. Semler, 3 P. (2d), 987, 988, 137 Or., 610.
“A ‘prima facie case’ is one in which the evidence in favor of a proposition is sufficient to support a finding in its favor, if all of the evidence to the contrary be disregarded. Schallert v. Boggs (Tex.), 204 S. W., 1061, 1062.
“ ‘Prima facie case’ means case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded. In re Hoagland’s Estate, 253 N. W., 416, 126 Neb., 377.”

And, at page 544, ibid., it is stated:

“Proceeding to probate a will is not adversary one, and all that can be required is a prima facie case, and, when such appears by substantial evidence, court must admit will to probate. Gen. Code. Sections 10504-15, 10504-16, 10504-18, 10504-22, 10504-35 to 10504-40, 12080 to 12083. ‘ Prima facie case ’ is one in which evidence in favor of a proposition is sufficient to support a finding in its favor, if all of the evidence to the contrary be disregarded. ‘Prima facie case’ is also defined as that state of facts or proof which entitles the party to have his case go to the jury. McWilliams v. Central Trust Co., 200 N. E., 532, 534, 51 Ohio App., 246.”

In the last cited case the court, at page 251, said:

“Here, by analogy, we have the test for a probate proceeding. If the matter is one to be submitted to a jury, and sufficient evidence is offered on all the issues to send those issues to the jury, we have a prima facie case, even though there may be some parts of the testimony of the proponent’s witnesses which tend to negative one or more of the essentials to be established. ’ ’

At page 252, the court pointed out:

“In New York, where the practice is similar to that in Ohio, it has been held that a will may be admitted although in direct opposition to the testimony of both subscribing witnesses. In re Van Houten’s Will, 15 Misc. Rep., 196, 37 N. Y. Supp., 39.
“A very liberal practice has prevailed among Probate Courts in Ohio, as indicated in the following opinions: In re Will of Ludlow; 6 O. D. (N. P.), 344, 4 N. P., 155; In re Will of Stacey, 6 O. D. (N. P.), 499; In re Will of Stocker, 26 N. P. (N. S.), 112.”

With reference to the quantum of proof necessary to admit a will to probate, we glean from a number of Ohio cases cited below that on application for probate of a will, the court may give full weight to testimony of one subscribing witness and disregard testimony of the other; that both subscribing witnesses to a will need not testify positively with respect to due execution of the will; that where an attesting witness to a will does not see testator subscribe his name to it, acknowledgment of that fact by the testator in hearing of the witness, which is required by statute, is not required to be made in any particular words or any specified manner, but, if by sign, motion, conduct, or attending circumstances, attesting witness is given to understand by testator that he had already subscribed the paper as his will, it is a sufficient acknowledgment; and that, while the statute relative to probating wills requires the court to cause the witnesses to the will to come before the court and be examined and their, testimony reduced to writing and filed, the statute does not require the will to be proved by the testimony of such witnesses. In truth, the due execution of the. will may be proved and the will admitted to probate by witnesses independent of and even in contradiction to the testimony of the attesting witnesses. The law does not require a will to be proved as well as attested by a specific number of witnesses. A will may be proved by one witness, though it must be attested by two. In other words, the number of witnesses required to prove a will may be less than the number of subscribing witnesses demanded by the statute. A presumption of due execution of a will arises from the fact of attestation, reciting an observance of all statutory requirements, in the absence of contest as to the genuineness of the signatures of testator and witnesses.

We call attention to the following citations: In re Wood’s Will, 67 N. E. (2d), 11; In re Will of Watts, 19 N. P. (N. S.), 225, 27 O. D., 87; McWilliams v. Central Trust Co., 51 Ohio App., 246, 200 N. E., 532; Blagg v. Blagg, 55 Ohio App., 518, 9 N. E. (2d), 991; In re Will of Fisher, 67 Ohio App., 6, 35 N. E. (2d), 784; In re Will of Hathaway, 4 Ohio St., 384; In re Halterman, 27 Ohio Opinions, 521, 39 Ohio Law Abs., 43; In re Blichensderfer, 28 Ohio Opinions, 42, 40 Ohio Law Abs., 217; 41 Ohio Jurisprudence, 400, Section 214 et seq.

Prom the record presented, we conclude proponents have sustained the burden of making a prima facie case in favor of the validity of the will, and it ivas prejudicial error for the Probate Court to refuse its admission to probate.

The judgment is, therefore, reversed, and the cause remanded to the Probate Court with instructions to admit the proffered will to probate.

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


author: Skeel, P. J.

text:
    McNees, Appellant, v. The Cincinnati Street Ry. Co., Appellee.
    (No. 7290
    Decided April 19, 1951.)

      Messrs. Hoover, Beall, Whitman S Eiehel, for appellant.

      Mr. C. B. Beirne, for appellee.

      Reporter’s Note: For concurring opinion by Hurd, J., see post 275.

   Skeel, P. J.

This appeal on questions of law comes to this court from a judgment entered for the defendant in the Common Pleas Court of Hamilton County.

The plaintiffs cause of action is founded upon the provisions of the Workmen’s Compensation Act. The plaintiff, as the widow of Taylor McNees, filed a claim for benefits under that act on the ground that her husband came to his death because of injuries suffered in the course of his employment with the defendant. The claim was disallowed when presented to the Industrial Commission of Ohio and upon rehearing, as provided by law, was again disallowed, the Industrial Commission ruling as follows:

“That the claim be disallowed for the reason that proof of record fails to show the decedent died as a result of injuries sustained in the course of and arising out of his employment.”

This order was appealed to the Common Pleas Court of Hamilton County where, upon trial to a jury, a verdict was returned for the defendant. In addition to the general verdict, the jury answered a special interrogatory, which was:

“Was the cause of Taylor McNees’ death, the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944?
“Answer: Yes.”

The plaintiff then filed a motion for judgment non obstante veredicto, which motion was granted.

The court, in granting such motion and entering judgment for the plaintiff, giving her the right to participate in the fund notwithstanding ithe jury’s verdict for the defendant, concluded that that part of its general charge to the jury which stated, “now, mere mental strain or worry is not an injury within the meaning of the workmen’s compensation law,” was in error, and that the jury’s answer to the interrogatory, together with the admitted facts and unchallenged evidence, established that Taylor McNees’ death resulted from a compensable injury under the Workmen’s Compensation Act.

That judgment was affirmed by the Court of Appeals (84 Ohio App., 499, 87 N. E. [2d], 819), but upon appeal to the Supreme Court the judgment was reversed (152 Ohio St., 269, 89 N. E. [2d], 138), and the cause was remanded with instructions to enter judgment for the defendant upon the verdict of the jury, the court holding that:

‘ ‘ 1. The answers of a jury to special interrogatories will not authorize a judgment different from that authorized by a general verdict, where such answers can be reconciled with the general verdict. (Davis v. Turner, 69 Ohio St., 101, and Ohio Fuel Gas Co. v. Ringler, 126 Ohio St., 409, approved and followed.)
I Í * # #
“3. Where, on appeal from disallowance of a claim for death benefits under the Workmen’s Compensation Act, a jury answers, ‘Yes,’ to a special interrogatory reading, ‘Was the cause of Taylor McNees’ death the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of Jan. 17,1944’ (the night of his death), sucb answer does not determine that there was a proximate causal relationship between McNees’ employment and either his death or any compensable injury.
“4. Death benefits under the Workmen’s Compensation Act can be awarded only where the death was the proximate result of a compensable injury.
“5. An injury is not compensable under the Workmen’s Compensation Act unless it is received in the course of and arises out of the employment.
“6. An injury does not arise out of the employment, within the meaning of the Workmen’s Compensation Act, unless there is a proximate causal relationship between the employment and the injury. ’ ’

The case was returned to the Common Pleas Court where judgment for the defendant was entered on the verdict of the jury. The plaintiff filed a motion for new trial, which was overruled. The judgment thus entered is the basis for this appeal.

The evidence of what took place just prior to the death of Taylor McNees is not in dispute. He was employed as a driver of a trolley bus by the defendant and was on duty the night of January 17, 1944. The night was very foggy. As he drove his bus down town the fog was so dense that a passenger stood on the front step of the bus to direct the decedent in avoiding the curb and parked cars. The decedent seemed excited before he started on the trip, which excitement continued as he proceeded down town. About a mile from the end of the line from whence his trip began, the trolley poles were pulled off the wires because the bus was driven too far to the left. The decedent tried to get them back on, without success. The driver of the bus following tried to give assistance when he came upon the scene. After it was found impossible to get the trolley poles back on the wires he suggested pushing the bus driven by decedent back under the trolley wires. As the second driver started to push the bus he moved the first bus only about four feet when the brakes seemed to set. He got out and found that the decedent had collapsed over the steering wheel. He was sick. He was removed to the hospital where he was pronounced dead, the deputy county coroner finding the cause of death as “coronary thrombosis.” The decedent had suffered from a heart condition for about a year prior to January 17, 1944.

The plaintiff, to support her claim, called a doctor who testified that McNees’ death was due to “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.”

Upon cross-examination, this witness admitted that death may result from coronary thrombosis at a time when the decedent is not undertaking physical or mental strain of any kind.

The defendant’s expert medical witness testified that the anxiety and nervousness, more than the physical strain, was the cause of death. He said:

“I can safely say that a majority of coronary conditions result not from physical exertion as much as from mental strain or some other condition which we don’t know * * *. It may come on a person just walking down the street or without any more physical exertion than they normally exert. ’ ’

As indicated above, the jury’s verdict was for the defendant, and after the Supreme Court ordered the court to enter judgment on the verdict, the trial court overruled plaintiff’s motion for a new triál.

The plaintiff presents two grounds for reversal: •The first is that the trial court, both in its general charge and in a special charge given at the request of the defendant, committed error prejudicial to the plaintiff. The second is that the general verdict, in the light of the correct state of the law in the case, was manifestly against the weight of the evidence.

It is clear from a reading of the whole charge and the special charge that the jury must have understood the court to mean that if the decedent came to his death while at work, as a proximate result of a coronary thrombosis, which at the time of death was either activated or brought into existence by mental strain or nervous excitement, that such death would not be the result of a compensable injury received in the course of his employment, even though such mental strain or nervous excitement was produced by unusual conditions under which the decedent was at the time compelled to work.

The question of whether or not the court committed error in entering judgment non obstante veredicto upon the jury’s finding that the death was caused by nervous excitement and mental strain was presented to the Supreme Court by the defendant (152 Ohio St., 269) as disclosed by the defendant’s brief filed in that proceeding. Subdivision II, on page 14 of such brief, presents the question as follows:

“Death resulting from mental strain and excitement of conditions of employment is not compensable under the Workmen’s Compensation Act.”

In support of its claim the defendant cites the following cases: Industrial Commission v. O’Malley, 124 Ohio St., 401, 178 N. E., 842; Shea v. Youngstown Sheet & Tube Co., 139 Ohio St., 407, 40 N. E. (2d), 669; Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430.

The O’Malley case, supra, is clearly not in point, as there the excitement was in no way connected with the decedent’s employment, although this point is not mentioned by the court. The excitement was occasioned because of the police asking to have a gate opened to investigate why a door was open in the building next to the building of decedent’s employer. The decedent stated after opening the door between the properties that he was sick from the excitement of it all and that he had high blood pressure. The post mortem disclosed no evidence of injury and there was no paralysis before death. The court said, at page 403:

“* * * If O’Malley’s death was caused by excitement merely, it was not caused by any physical injury contributing to his death.”

In the Nelson case, supra, the decedent was not confronted with any unusual conditions at the time he died. The court said in the first and third paragraphs of the syllabus:

“1. The sudden death of a workman while engaged in his usual occupation, which death resulted from a pre-existing physical condition, is not of itself evidence that an accidental injury, within the comtemplation of the Workmen’s Compensation Act, caused or accelerated such death.
< i * # *
“3. Where a workman suddenly dies at his work and his death results from cerebral hemorrhage, and it appears that the workman had been suffering from cerebral thrombosis, such death is not compensable, in the absence of evidence showing that an accidental injury caused or contributed to the death. Under such circumstances, in the trial of an action by the decedent’s dependent to participate in the State Insurance Fund, a trial court is obligated to instruct a verdict and enter a judgment against the plaintiff. ’ ’

The court in its opinion in the Nelson case quotes from Goodman v. Industrial Commission, 135 Ohio St., 81, 19 N. E. (2d), 508, and Cordray v. Industrial Commission, 139 Ohio St., 173, 38 N. E. (2d), 1017. On page 7 the court said:

“In the Goodman case, a 48-year-old baker, while engaged in his usual occupation shortly after he had commenced work, suffered an acute dilation of the heart from which he died on the same day. Since all the eye witnesses testified that Goodman was at his bench, handling dough in the usual way and under the usual conditions, when he collapsed, and that he was not engaged in any extraordinary effort at the time, he did not suffer any compensable injury.
1 ‘ The court there said:
“ ‘Whatever the rule in other jurisdictions may be, the Supreme Court of Ohio, through a long line of decisions, has consistently defined the meanings of the term “injury,” as used in the Constitution and statutes, to be physical or traumatic injuries accidental in their origin and cause; the result of a sudden happening at a particular time.’
“In the Cordray case, the first two paragraphs of the syllabus are as follows:
“ ‘1. In an action by the dependents of a workman against the Industrial Commission in which no evidence is offered by claimants tending to establish that the workmen’s death was the result of a sudden happening at a particular time causing a physical or traumatic injury accidental in origin and cause, it is error for the trial court to overrule a motion by the commission for a directed verdict in its favor.
“ ‘2. Where the plaintiff’s evidence discloses only that a workman while engaged in performing the usual duties for which he was employed, in the usual and regular 'way without any extraordinary éffort, suffered a cerebral hemorrhage, no compensable injury is shown. The occurrence of a cerebral hemorrhage is not of itself proof that it resulted from a compensable injury. ’ ’ ’

These cases do not deal with the question here presented. In the case now before us, there can be no doubt that death resulted from a physical injury to the heart of the decedent, and that at the time of his death, while he was engaged in his work of driving a bus, he was met with unusual conditions different from what were ordinarily encountered, thereby tending to bring on nervous excitement and mental strain which the jury said was a cause of his death.

The Supreme Court in the McNees case, supra, at page 274, said:

“Since the jury’s answer to the special interrogatory finds a causal connection between decedent’s death and the strain and excitement of certain conditions of his employment, it necessarily establishes a causal connection between his employment and the coronary thrombosis. This follows because there is no dispute in the evidence as to the fact that coronary thrombosis was the proximate cause of death. When it refers to ‘the cause of Taylor McNees’ death’ the jury’s answer to the special interrogatory negatives the existence of other causes.”

That case (152 Ohio St., 269), as above indicated, was decided on the question of whether the mental strain and nervous excitement, which the jury found to be the cause of death, was the proximate and not a remote cause of death, inasmuch as there was no controversy about the fact that the decedent came to his death because of a coronary thrombosis, and one of the doctors had testified that in many cases of that kind neither physical nor mental strain was found to be present. That part of the opinion of the Supreme Court last quoted was concurred in by Judge Hart in his dissenting opinion. In other words, the court did not sustain the defendant’s claim that death resulting from a coronary thrombosis brought on or aggravated by mental strain and nervous excitement because of unusual conditions under which the decedent was working at the time of his death could not be a compensable injury.

On the question of mental strain, worry and anxiety, it is stated in 58 American Jurisprudence, 756, Section 255, as follows:

“By the weight of authority, the sudden and unexpected breaking of some portion of the internal structure of the body, as in the case of cerebral hemorrhage, apoplexy, hernia, etc., or the failure of some essential function thereof, as in the case of heart failure, paralysis, and similar afflictions, brought about by the exertions of the employee while engaged in the performance of his duties, or by the conditions of the employment, even without any external happening of an accidental nature, is to be regarded as an accidental injury within the meaning of the terms ‘injury by accident,’ ‘injury proximately-caused by accident,’ ‘personal injury accidentally sustained,’ and similar expressions, as used in compensation statutes, as well as a simple personal injury, although there are holdings to the contrary. And this is true notwithstanding the workman may have been suffering from a preexisting infirmity which constituted a predisposing cause of such disablement. It is said, in this connection, that an internal injury which is sudden, unusual, and unexpected is none the less accidental because its external cause is part of the victim’s ordinary work.”

The cases representing the great weight of authority are set forth in the annotation supporting the above statement. The holdings to the contrary, referred to above, are not in conflict with the situation presented in this case. The cases cited by Zimmerman, J., in his dissenting opinion (152 Ohio St., at page 286) are Hoage v. Royal Indemnity Co., 90 F. (2d), 387, and Von Ness v. Borough of Haledon, 136 N. J. Law, 623, 56 A. (2d), 888, and are also directly in point.

We must therefore conclude that, under the circumstances of this case, the court was in error, and that such error was prejudicial to the rights of the plaintiff, in charging the jury that “mere mental strain or worry is not an injury within the meaning of the workmen’s compensation law.”

The court is unable to agree that the plaintiff’s second claim of error that the judgment is manifestly against the weight of the evidence is well taken, and, therefore, such claim of error is overruled.

For the foregoing reasons, that is, that the court committefl error prejudicial to the plaintiff in its general charge to the jury and in its special charges, the judgment is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Hurd, J., concurs.

Stevens, J., dissents.

Skeel, P. J., and Hurd, J., of the Eighth Appellate District, and Stevens, J., of the Ninth Appellate District, sitting by designation in the First Appellate District.


author: Hurd, J.

text:
    Armstrong et al., Appellees, v. Duffy et al., Appellants.
    (No. 688
    Decided June 11, 1951.)

      Messrs. Tobin & Tobin, for appellees.

      Messrs. Brooks, Lynch & McDonald, for appellants.
   Hurd, J.

This action in equity for injunction and equitable relief comes before this court as an appeal on questions of law and fact from a judgment rendered by the Common Pleas Court of Columbiana County against the defendants, James Huffy, Charles Jordan and the National Brotherhood of Operative Potters, permanently enjoining said defendants from enforcing certain penalties imposed upon the plaintiffs individually as punishment for alleged violation of the union constitution and bylaws. The trial, resulting-in the imposition of punishment, was conducted by the 55th (July 1949) national convention of the National Brotherhood of Operative Potters, an Ohio corporation, of which the individual plaintiffs and defendants are members. The penalties against which relief is sought consist of (1) a fine of $50 each, and (2) a suspension of the right of each to hold office ■ within the union for a period of ten years.

The nature of this appeal brings the case before us for trial “de novo,” it having- been stipulated by the parties hereto that the record and evidence made and presented in the trial court shall be received and considered by this court as evidence on this appeal.

Fundamentally, the case involves the question of union discipline of individual members of a union, and the jurisdiction of a court of equity to grant relief from alleged oppressive measures by invocation of the injunctive process.

For brevity and convenience, the individual parties will hereinafter be designated as plaintiffs and defendants as they appeared in the trial court. The. corporate defendant, National Brotherhood of Operative Potters, will be referred to as N. B. O. P., or simply as the national brotherhood.

The national brotherhood is, in fact, an international union, originally organized in 1891 and incorporated under the laws of Ohio in 1894. It is the parent organization which is composed of 114 local unions located in the United States and Canada, all affiliated with the American Federation of Labor, which at the time of trial had a membership of approximately 28,000 skilled and unskilled craftsmen employed in the pottery, china and sanitary ware industry.

The defendant, James Duffy, is now and has been for many years president, and the defendant, Charles Jordan, is now, and has been since 1945, the secretary-treasurer of the national brotherhood.

The national brotherhood is a democratically organized union with a code of regulations and bylaws which it has termed a constitution. As these bylaws and regulations are changed from time to time, the constitution is amended accordingly, provided that the designated procedural steps are properly taken.

In February, 1948, a suit entitled Finley v. Duffy, No. 35918, was filed in the Common Pleas Court of Columbiana County, Ohio, by all the plaintiffs in this action, with the exception of E. C. Armstrong, against the defendants Duffy and Jordan, both individually and in their respective official capacities, dealing with certain salary increases, in which action an injunction was prayed for against said individuals and the national brotherhood on the ground that the officers had taken salary increases in a manner not authorized by the constitution and bylaws. Without describing the proceedings of that case in great detail, suffice it to say that after extended hearings, the trial court ruled in favor of the plaintiffs and granted the injunction, holding with the plaintiffs that the salary-increases which had been taken by the president and secretary-treasurer of the national brotherhood were unauthorized under the constitution and the proceedings had thereunder, and on June 26, 1948, entered an order enjoining the defendants, Duffy and Jordan, from taking or accepting said salary increases. As a part of the same case, as appears by the record, the Common Pleas Court suggested in its opinion that the injunction would be dissolved if an election was held and salary raises were approved by the general trade of the national brotherhood in accordance with its constitution. Within a few days thereafter the 54th convention (1948) of the N. B. O. P. met in Atlantic City, New Jersey, and voted salary increases to-the president and secretary-treasurer subject to the approval of the membership to be determined by a referendum vote which was ordered to be taken by the general trade in August, 1948, at which time the defendants filed a motion for a new trial in the original case, stating that a vote was being taken. This was done in pursuance of the statement contained in the opinion of the trial court.

The result of said voting was announced in September, 1948, showing that the salary increases were approved by a majority of 221 votes for Duffy and 241 votes for Jordan. Thereafter, the plaintiffs, Whippier and Finlay, together with two other members of the national brotherhood, who were not in this particular suit, discovered upon investigation that fraud had been committed in the returns reporting the votes of local 191 of Hamilton, Canada. This discovery was made some time during the month of October, and an investigation disclosed that the president of Hamilton local 191 had falsified the return of the votes by arbitrarily adding 300 votes in favor of the salary increases for the president and secretary respectively, and by arbitrarily adding to the number of votes not in favor by 50 votes each respectively. This fraud was later verified by president Garvin Wilson of Hamilton local 191 who, by affidavit, admitted that he himself had made the fraudulent return. With the correction of the returns of the vote in local 191, the entire result of the referendum was changed so that the record then showed a majority of the votes were against the salary increases of the officers, Duffy and J ordan.

On November 4, 1948, L. A. Finlay and Norman Whippier, two of the plaintiffs in case No. 35918, made an affidavit based upon the fraudulent return of local 191, stating in substance that the vote published by the national secretary was incorrect and that the vote of the trade actually was against the national president and secretary receiving the salary increases and stating that the original election returns and envelopes were important in determining the correctness of the vote and that this valuable evidence was in the hands of the defendant, Charles Jordan, and certain members of the canvassing committee. A motion was then filed on behalf of plaintiffs, by their counsel, for an order directing the secretary and the members of the canvassing committee to impound the ballots and envelopes. The court granted the motion and enjoined the defendant, Jordan, individually and as national secretary of the national brotherhood and the members of the canvassing committee of the national brotherhood from destroying any of the election returns together with the original envelopes and ordered the ballots impounded under order of the court.

Thereafter, on November 22, 1948, the canvassing committee received a registered letter, signed by Duffy as president and Jordan as secretary, protesting the votes of certain other local unions, because they had not voted from the rolls. The canvassing committee of the national brotherhood met on December 2nd, 3rd, 6th, 10th and 11th and heard protests on the vote of eleven other locals and made an order voiding the votes of seven of said locals on the ground that they had not voted from the rolls, with the result that the number of votes less than the majority in favor of the salary increases which had resulted from the discovery of the fraud in Hamilton' local, was again changed so that finally the votes in favor of the president’s increase in salary were 4,233, and opposed 3,668, and in favor of the secretary’s increase 4,188, and opposed 3,591.

Thereafter defendants filed a motion to vacate the judgment previously entered and to dissolve the injunction, and were given leave to file a supplemental answer. The trial court overruled defendants ’ motion to vacate the injunction and overruled the motion for new trial. The defendants then upon leave filed a supplemental answer alleging a referendum vote of the trade favorable to themselves to which plaintiffs filed their reply traversing the allegations of the supplemental answer. Upon trial the court found that the action of the canvassing committee above described was “arbitrary and unreasonable for the reasons that said locals voted as they always had voted in the past and received no different instructions than they ever had and had no chance to correct their votes.” Thereupon the trial court restored the votes of the seven locals which had been invalidated by the canvassing committee and found that the votes of the referendum were finally as follows:

Opposed to the president’s increase.......4,678
In favor of the increase..................4,321
Opposed to the secretary’s increase......4,597
In favor of the increase...................4,260

The trial court having found that the referendum was opposed to the salary increases of the president and secretary, continued the injunction against them and rendered an opinion setting forth the reasons therefor on April 11,1949. Thereafter the judgment of the Common Pleas Court was appealed from to this court. A decision was rendered dissolving the injunction, primarily for the reason that the question presented involved the internal policy of the organization and that the salary paid to the officers was not, per se, a property right of the members thereof. See Finley v. Duffy, 88 Ohio App., 159, 57 Ohio Law Abs., 442, 94 N. E. (2d), 466. At page 163 of 88 Ohio Appellate, Skeel, J., speaking for the court, said:

“The basic question here involved comes clearly within the sphere of the internal management of the brotherhood. The compensation of the national officers in no wise effects a property right of any of the members. The continued course of conduct upon this or any other subject of internal policy comes under the complete control of the membership, either by action at the convention of the members or by a referendum. The record discloses that after the amendment to Section 75 of the constitution of 1941 by the 1944 convention, the subject of the change in compensation of the national officers came up for consideration in each of the conventions of 1946, 1947 and 1948 and in each instance the opposition to the basic increases granted by the convention of 1944 and those subsequently given because of wage increases obtained by the trade generally failed to obtain the support of the membership. If, in fact, the desire of the brotherhood is to revoke on the one hand or approve on the other what has heretofore been done on this subject, the convention of 1950 has full power and authority to make whatever order seems just, no matter what this court does in the instant case.”

The Supreme Court overruled a motion to certify the record and dismissed the appeal as of right. Finlay v. Duffy, 154 Ohio St., 390, 95 N. E. (2d), 759.

Referring now to the 54th national convention (1948) the record shows that on July 27, 1948, the delegates adopted the following resolution:

“Resolved, that any member or members of the N. B. of O. P. attempting to, or actually resorting to court action in an attempt to redress an actual or so-called grievance against any member of the N. B. of O. P. or an act of the convention or any authorized agent or agents thereto, without first exhausting every possible effort to redress the grievance under the laws and constitution of the N. B. of O. P. shall be considered as in violation of the laws of the organization and dealt with under appropriate laws of the N. B. of O. P.”

It will be noted that this resolution was adopted approximately five months after the litigation which we have described at some length had been commenced in Common Pleas Court. Thereafter, on June 20, 1949, all the plaintiffs herein, except E. C. Armstrong, received registered letters stating substantially as follows :

“June 20, 1949.
“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., for making issue in court the salary referendum of president and secretary-treasurer of September 1948, before having exhausted appeal provisions as provided in our Constitution. You are to assume all expenses 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 Ñ. B. of O. P. will pay expenses.”

Similar letters had previously been written to the same general effect that the plaintiffs would be brought to trial before the national convention for “taking to court matters which should be disposed of within our organization.” It should be borne in mind that the plaintiff, E. C. Armstrong, was not a party to the original action and did not receive any of these notices. However, Armstrong was notified on the second day of the convention where he was present as a delegate from local 124, that he was charged with violation of the constitution and was to be tried with the other plaintiffs.

Plaintiffs Johnson, Jones and McDaniels were not delegates to the convention and did not appear there. The plaintiffs, Whippier and Finlay, were present, and in substance stated to the convention that they believed the convention had no right to try them and stated that the defendants, Duffy and Jordan, by filing a supplemental petition asking the court to dissolve the injunction in the original action, had forced the issue in the court proceedings which required them to file a reply in order to make up the issues for trial on the merits.

The convention proceeded to try the plaintiffs and on July 2, 1949, found all the plaintiffs, whether present or not, guilty and on July 5, 1949, imposed the punishment above described, the serious part of which was to suspend their right to hold office for a period of ten years.

Thereafter, the plaintiffs filed their petition in the instant case to restrain the defendants from enforcing the penalties against them. The trial court in an exhaustive opinion, containing a detailed statement of the history of the litigation and the facts in the case, found that plaintiffs herein were amply justified in the procedural steps taken by them; that the plaintiff, E. C. Armstrong, was not a party to case No. 35918; that the case being in court, no one had a right to interfere with the judicial process until the matter in issue was finally determined by the court; and further that the proceedings for trial in the convention were not in accordance with due process and entered a judgment enjoining the defendants from enforcing or attempting to enforce any of the penalties imposed upon the plaintiffs by the convention of 1949.

The foregoing is a sketchy outline of the factual situation. For a more detailed history and factual statement, attention is directed to the opinion of the trial court to be found in the record, pages 930 to 982, inclusive.

Before proceeding to a discussion of the general propositions of law involved, we wish to note that it is admitted that one plaintiff in this case, E. C. Armstrong, was not a party to the action complained of by the defendants. Further he was not apprised of any charges pending against him until the second day after he arrived at the convention as a delegate from local 124. Charges against him were identical with those lodged against the other plaintiffs and the penalties against him were the same.

The opinion of the trial court contains an excerpt from the testimony indicating . that Duffy stated to Armstrong that his crime was being seen in the company of two of the other defendants and at page 292 of the record the following appears in the cross-examination of Armstrong by defendants’ counsel:

(To Armstrong)
“Q. You had been involved before that? A. In what ?
“Q. All of these affairs in bringing this action in the first place? A. Why, no, I was never involved in it.
“Q. Didn’t you testify a few minutes ago that" you were in several meetings with them [the other plaintiffs] on this subject?
‘ ‘ The Court: Am I to understand, Mr. Brooks, that that is a crime? I would like to know that. Is it supposed to be against the laws of the brotherhood for some members to get together and talk over something they feel is wrong, of the officials of the brotherhood? I would like to know that.
“Mr. Brooks: I believe if the purpose.of the meeting is destructive of the organization that it is definitely against the laws of the brotherhood.”

Because the plaintiff, E. C. Armstrong, admittedly was not a plaintiff in the original suit and therefore did not resort to court action, we think it unnecessary to discuss his case further, except to state that the trial court was eminently correct in enjoining the defendants from imposing punishment by way of fine and the penalty of suspension from holding office in the union for a period of ten years. This court so holds and as to him a journal entry may be entered accordingly.

Coming now to a discussion of questions of law in respect to the other defendants, it appears to us that two questions are involved.

In view of the fact that the amendment to the constitution and bylaws prohibiting members from resorting to court actions against other members and officers for the redress of grievances was adopted some five months after the snit had been commenced, could the national brotherhood on the basis of such ex post facto legislation visit punishment and impose penalties for an alleged violation of such an amendment?

Such a suit having been commenced prior to the adoption of the restrictive bylaw, is the union empowered thereby to visit punishment and impose penalties because of the further proceedings taken and carried on in the prosecution of said suit, after the adoption of the amendment?

We shall consider these questions in the order presented.

Proceeding to the first question, the weight of authority is in favor of the proposition that the union constitution and bylaws constitute a contract between the members thereof and the union. It follows, therefore, that a member of a union cannot be guilty of the violation of a provision of a contract which was not in existence at the time the alleged offense was committed. The weight of authority also is to the effect that a member of a union has a property right in the trade in which he is engaged and in his membership in a union with its ensuing benefits.

In the instant case, the right of the plaintiffs to be candidates for office and the right to hold office are very valuable property rights which a court in the exercise of its equitable jurisdiction is bound to protect unless the rights are forfeited by conduct prohibited by the organic law of the union. Further, according to the constitution, if they failed to pay the fines they would be deprived of other substantial benefits as well, all involving property rights.

We think it a sound proposition of law that an organization, whether a labor organization or a mutual benefit association, or any voluntary association which is governed by a constitution and bylaws, cannot visit punishment upon a member for any acts or conduct which were not violative of the constitution and bylaws at the time that such acts were committed. We think this proposition has particular application where members invoke the judicial process by appeal to a court of equity for redress of grievances.

We do not mean to state that members of a labor organization may not be bound by proper constitutional provisions requiring them first to exhaust their remedies within the organization before resorting to court action for redress of grievances. Indeed this is a fundamental proposition of law which is recognized in respect of all voluntary associations, but, in the absence of such provisions, all citizens are free to invoke the judicial process without the risk of suspension or expulsion. Courts are created by organic law and are empowered to administer justice according to law, free from interference by any person or group of persons whether well-intentioned or otherwise. To hold otherwise would be a denial of due process.' We conclude, therefore, that the first question presented above must be answered in the negative and that the plaintiffs were fully within their rights in commencing the suit against the defendants in February, 1948.

Proceeding now to a consideration of the second question posed above, it is argued by defendants that the plaintiffs were tried in the 1949 convention, primarily because after having discovered the fraud perpetrated by the president of the Hamilton local 191, they did not exhaust their remedies within the organization but instead filed an affidavit with the court delineating their claim of fraud together with a motion to enjoin Jordan, individually and as secretary of the national brotherhood, and the members of the canvassing committee from destroying the election returns and original envelopes. In other words it is claimed that the gravamen of their offense consisted of calling that fact to the attention of the court. It should be noted that this motion was allowed by the court and in pursuance of the court order the ballots were impounded under the direction of the court. Admittedly, this occurred after the adoption of the resolution amending the constitution and bylaws prohibiting any members of the national brotherhood from resorting to court action to redress an actual or “so-called” grievance without first exhausting every possible effort to redress the grievance under the bylaws and constitution of the organization.

It should be’noted, however, that when the proceedings complained of were had, the case was still pending in Common Pleas Court. Likewise the parties and subject matter were still under the jurisdiction of the court. It is to be noted also that the defendants themselves invoked the jurisdiction of the court in the same proceedings after the adoption of the restrictive amendment. The record shows that on December 16, 1948, defendants were granted leave, at their request, to file a motion to vacate the judgment and to dissolve the injunction and to file a supplemental answer. Their supplemental answer was filed December 17,1948. The court having overruled defendants’ motion to vacate the judgment and dissolve the injunction and having overruled the motion for new trial, plaintiffs filed their reply to defendants ’ supplemental answer and the case came on for trial during the latter part of March, 1949, and the first part of April thereafter.

It appears to us that the suit having been properly instituted in the first instance,' at a time when there was no provision in the constitution restricting such action, the parties were entirely within their rights 'in prosecuting the suit to a conclusion. This is particularly true when defendants continued to recognize the jurisdiction of the court for their own benefit while attempting to deny the jurisdiction of the court to the plaintiffs. The defendants moving the court to vacate the injunction on the ground that the vote of the trade was favorable to the defendants ’ contentions was a submission by them to the jurisdiction of the court. It is axiomatic that fraud vitiates everything it touches, and when the plaintiffs discovered the fraud in the returns from the Hamilton local they had the legal right to direct the court’s attention to the fraud by proper pleadings. This was done by motion and affidavit. Then when the defendants, being dissatisfied with the result, proceeded through the agency of the canvassing committee to recanvass the votes of certain local unions and made a new report invalidating the report of these locals, it was merely in pursuance of a right of due process for the plaintiffs to file a reply traversing the allegations of the supplemental answer of defendants which again raised the issue as to the validity of the votes of the trade. The trial court determined the issue favorably to the plaintiffs and we must assume that the court, acting as a court of equity, granted to all parties to the litigation the right of due process to which they were entitled by constitutional guaranties. The record so shows.

We think that the position of the defendants is untenable when they argue that although the suit was commenced before the restrictive bylaw was enacted, the plaintiffs lost all right by reason of said enactment to have issues made on pleadings ultimately determined by the court. To hold otherwise would, we believe, place the stamp of approval upon a course of action which would constitute an unwarranted interference with, the due and proper administration of justice.

In view of this factual situation here presented we conclude that the defendants were without authority to try the plaintiffs and to punish them merely because they, through counsel, continued to pursue their rights and to prosecute to a conclusion the action which had been commenced prior to the time of the adoption of the restrictive provision of the constitution.

There is abundant authority for the conclusions herein reached. An interesting case in point is found in the case of LoBianco v. Cushing, 117 N. J. Eq., 593, 177 A., 835, wherein it is specifically held in a well-reasoned opinion that a constitution and bylaws of an association cannot be made retroactive in effect upon established rights. That case was decided February 23, 1935, the syllabus of which reads as follows:

“1. A man’s trade is property and his membership in a union, with its ensuing benefits, is a property right, which courts of law and equity are obliged to shield and protect.
“2. Sick or death benefits which are incidental to union membership, are rights of property which equity will protect.
“3. A constitution and bylaws of an association cannot be made retroactive in its effects upon established rights.
“4. A member of a union is not required, in every instance, to exhaust the remedies within the union which are provided by the constitution and bylaws before seeking relief in the courts. Where the question is purely social, he must exhaust all remedies set up within the association before he appeals to the court for reinstatement. If property rights are involved, in the absence of an express agreement to exhaust the remedies provided within the association, he may appeal to the court without having exhausted his remedies. If he has agreed to exhaust the remedies within the association, where property rights are involved, he' is not so required, if pursuing the remedies within the association would be futile, illusory or vain.
“5. A constitution and bylaws affording internal remedies within a union must be strictly construed, and a member is not obliged to pursue a remedy of grace.”

For authorities supporting the same general principles see: Polin v. Kaplan, Pres, of Motion Picture Machine Operators’ Union, 257 N. Y., 277, 177 N. E., 833 (decided by the Court of Appeals of New York September 29, 1931), reversing the Appellate Division of the Supreme Court, opinion by Kellog, J., concurred in by Cardoza, C. J., Crane, Lehman and ITubbs, JJ.; Collins v. International Alliance of Theatrical Stage Employes and Moving Picture Machine Operators of the United States and Canada, 119 N. J. Eq., 230, 182 A., 37 (decided December 24, 1935); Leo v. Local Union No. 612 of International Union of Operating Engineers, 26 Wash. (2d), 498, 174 P. (2d), 523, 168 A. L. R., 1440, and an extended discussion of this and related cases by annotation at page 1462 et seq., of 168 A. L. R.; Duzzing v. Nuzzo (1941), 29 N. Y. Supp. (2d), 882, 177 Misc., 35, modified on other grounds, 263 App. Div., 59, 31 N. Y. Supp. (2d), 849; Annotation, 175 A. L. R., 1516 et seq. Also interesting articles: 64 Harvard Law Review, 1049 et seq., “Legal Limitations on Union Discipline,” by Clyde W. Summers, Associate Professor of Law, University of Buffalo School of Law; Wisconsin Law Review (1948), page 18 et seq., “The Legal Protection of Civil Liberties Within Union,” by Joseph Kovner.

Under our system of jurisprudence, the courts are open to all citizens, and no person shall be deprived of life, liberty or property without due process of law and any provision of any organziation restricting its members from pursuing their rights must be strictly construed.

The Fourteenth Amendment to the Constitution of the United States, Section 1, provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of lato; nor deny to any person within its jurisdiction the equal protection of the laws. ” (Emphasis added.)

Section 16, Article I of the Ohio Constitution, provides :

“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. ’ ’

Section 12866, General Code of Ohio, reads as follows :

“Whoever corruptly, or by threats or force, attempts to influence, intimidate or impede a juror, witness or officer in any court in the discharge of his duty, or by threats or force obstructs or impedes, or attempts to obstruct or impede the due administration of justice therein * * V’ shall be punished as statute provides.

In the absence of self-binding limitations by contract, the foregoing provisions of the federal and state Constitutions and the above-quoted section of the General Code insure the right of every citizen of this state to seek remedy by court action for any injuries done to him in his person or property and en-' title him to have justice administered according to law without denial or delay, and any person who attempts to interfere unlawfully with this right is guilty of a violation of the fundamental principles guaranteed by constitutional and statutory provisions.

We hold therefore that the plaintiffs, having had the right, unrestricted by any constitutional provision of the organization, to resort to the courts in the first instance, had the further right to prosecute their suit to a conclusion, uninhibited by the ex post facto legislation adopted after the commencement of the suit, but during the pendency of the action. As a corollary to this determination, we hold that the defendants were without authority to try the plaintiffs for resorting to court action and to impose the penalties of which complaint is herein made and that the attempted discipline of the plaintiffs was unduly oppressive and without warrant or justification in law and that a court of equity has full jurisdiction to grant relief.

For these reasons a decree will be entered as in Common Pleas Court in favor of the plaintiffs permanently enjoining the defendants from enforcing the payment of the fines imposed upon the plaintiffs individually and from enforcing a suspension of the right of each to hold office within the union, and from visiting any punishment upon the plaintiffs for commencing and prosecuting to a conclusion the suit in the case entitled Finlay et al. v. Duffy et al., No. 35918 in the Common Pleas Court.

A journal entry may be prepared accordingly setting forth this decree so that the same may be entered of record prior to the national convention to be held in June, 1951.

Judgment for plaintiffs.

Skeel, P. J., and Thompson, J., concur.

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