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    General Electric Co., Appellee, v. International Union United Automobile, Aircraft, and Agricultural Implement Workers of America et al., Appellants.
    (No. 7639
    Decided September 8, 1952.)

      Mr. J. Mach Swigert, Mr. Robert T. Keeler, Mr. Thomas F. Hilbert, Jr., and Mr. Charles Steele, for appellee.

      Mr. Sol Goodman, for appellants.
   Per Curiam.

While this case was pending in the Common Pleas Court, a temporary restraining order was entered, enjoining the defendants from committing any act in violation of a certain written contract entered into as of March 15, 1951, between the plaintiff and the defendant unions, fixing wages, hours, working conditions and other provisions as they affected the plaintiff’s employees, who were members of such unions. An appeal from that order was attempted, -which, on motion, was dismissed by this court on the ground that the order appealed from was not final, and, that, therefore, this court had no jurisdiction to review it. That appeal is numbered 7632 upon the docket of this court.

Thereafter, on a final hearing of the issues made by the pleadings, the Common Pleas Court found in favor of the plaintiff and a final judgment was entered granting a permanent injunction against the defendants. This appeal is from that judgment. We find part of the original papers filed under one number and part under the other. As the parties considered all of them filed under No. 7639, the court will treat them as so filed.

On the trial de novo of the issues by this court, the parties stipulated to submit the cause upon the record made in the Common Pleas Court, supplemented by the testimony of two witnesses taken before a notary public.

In its petition, the plaintiff alleged that the defendant unions and the individual defendants — all members of one or both unions — are actively and in concert engaged in inducing and participating in a work stoppage and strike in violation of certain terms of a contract entered into between it and them to regulate their relations as employer and employee for one year from March 15, 1951, and automatically renewable from year to year under the conditions therein set forth, to wit, “and thereafter from year to year unless not later than sixty (60) days prior to any anniversary of the effective date of this agreement either party notifies the other in writing of its intention to terminate this agreement in which event the agreement shall terminate on the anniversary date following the notice. ’ ’

Plaintiff alleged that neither party notified the other in writing of an intention to terminate the agreement, and, that by its terms, the contract will continue in effect until March 15, 1953.

The plaintiff alleged also that the action of the defendants in engaging in a strike and work stoppage violates the following provision of the contract:

“Neither the union nor its members will sanction, cause or participate in a sitdown, work stoppage, or a slowdown of work upon company property. Nor shall the union nor its members engage in a strike of any kind because of any grievance during the time such grievance is under discussion as herein provided.

“Any individuals causing or taking part in any action contrary to the provisions of this section shall be subject to disciplinary action at the discretion of the company.”

The plaintiff alleged also that the defendants jointly and severally have caused employees of the plaintiff to cease work and to absent themselves from its plant; that they have caused pickets to be stationed in great numbers at the entrances to its plant for the purpose of preventing employees and others having business with the plaintiff from entering its place of business; that they have made threats, engaged in mass picketing and acts of intimidation and coercion in furtherance of their purpose to enforce a work stoppage and block all means of ingress and egress at plaintiff’s place of business, all in violation of the above quoted provision of the contract; that, by reason thereof, many employees and others having business with the plaintiff have been coerced and intimidated into not entering, plaintiff’s place of business; and that plaintiff has-been forced to- cease production consisting of manufacturing jet engines under a contract with the United States of America, which jet engines are of vital and emergent importance to the country in its progress in preparation for national defense, and which cannot be obtained elsewhere.

The plaintiff alleged also that the defendants, .unless restrained, will continue to violate their contract as aforesaid, to its irreparable damage; and that the plaintiff has no adequate remedy at law.

The prayer of the plaintiff is for a temporary and permanent injunction, restraining the defendants from permitting to continue in effect any instructions, orders, requests or other communications theretofor issued or communicated to the members of the defendant unions and other employees to suspend work at its plant in Lockland, Ohio, or to interrupt or impede such work or engage in a work stoppage or strike or in any other way interfere with production there. By its prayer, the plaintiff seeks a prohibitory injunction against defendants engaging or encouraging others to engage in the many acts incident to a work stoppage and strike, and a mandatory injunction requiring the defendant unions to give written notice in such form as is approved by the court to all their members and to all the plaintiff’s employees that the work stoppage and strike have ended and that they should return to work.

The defendants by answer denied that there is any contract as alleged by the plaintiff, denied the court has jurisdiction of the subject matter, and denied generally each and every allegation contained in the petition. However, at the trial, the defendants did not dispute that the unions and their members had jointly and severally quit work and engaged in picketing the plaintiff’s business establishment and that they had endeavored to dissuade persons from entering. In other words, they were conducting a strike against the plaintiff and would continue to do so until their demands were met, unless enjoined.

The plaintiff offered no evidence of any fraud, violence, intimidation or other illegal acts that would be denounced by the law and enjoined to prevent irreparable damage. The gravamen of the plaintiff’s case is, that, assuming in the absence of any contract its employees would have the right to do all the acts complained of, that these defendants have no such right, because they have surrendered such right in a binding enforceable contract. The defendants denied that any such contract exists now or existed at the time of the commission of the acts sought to be restrained.

It becomes necessary at the outset to examine the evidence to determine that issue.

There is no dispute that an agreement in writing containing the provisions heretofore quoted was entered into between the defendant unions and the plaintiff for one year ending on March 15, 1952, unless automatically renewed by failure of either party to give notice as provided in Article XXV, heretofore quoted. The defendant unions claim that they gave a notice to terminate the contract more than 60 days prior to March 15, 1952, and it is not disputed that a notice was given. The dispute is as to whether the notice served on the plaintiff by the defendant union was a notice to terminate, a notice to modify, or both; or whether it was an ambiguous notice, ineffective as either a notice to terminate or a notice to modify. The written contract was introduced in evidence, and to understand the controversy relative to the legal effect of the notice served upon the plaintiff, we should have before us Article XXIV thereof, which is as follows:

“Within sixty (60) days prior to March 15, 1952, and of any subsequent year, either party to this agreement may present to the other proposed modifications or revisions of any of the provisions hereof and the reasons for such recommendations. Within thirty (30) days after notice is given, a conference shall take place for the purpose of considering such modifications or revisions. Failing agreement on such proposed modifications or revisions, the agreement shall continue in effect for the contract term. ’ ’

The evidence shows that the defendant unions had printed and kept in supply a form of notice to be used by them when they desired to serve notice of their intention either to terminate or to modify. They used one of these forms to serve on the plaintiff. The following is a copy of that form, which was served upon the plaintiff, with the blank spaces filled in:

“60-DAY NOTICE TO EMPLOYER

Date, January 3, 1952

‘ ‘ To General Electric Company — Gas Turbine Division

(Name of Employer as it appears in the contract)

Lockland road, Lockland 15, Ohio

(Address of Employer)

“This is a 60-day notice to you that we propose to (modify) (terminate) our collective bargaining contract. (Strike out one)

“We hereby request you to meet and confer with us for the purpose of negotiating the terms of a (modified) (new) contract.

(The modifications which we propose

(are, among other, as follows:

(

(Tobe (1. Wages

filled out (

if modifi- .(2. Automatic progression

cations are (

proposed.) (3. Classification

(

(Etc. union security and other issues

“While this notice is given pursuant to the Labor-Management Relations Act, 1947,.. the undersigned union waives none of its rights and hereby expressly reserves all objections to the constitutionality, validity, and applicability of each and all of the provisions of said act.

International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), Local No. 647

(Name of local union as it appears in the contract)

By, George Jent — President

(Name and title of each officer signing this notice)

“Form of notice approved:

January 4, 1951 (Date)

By Ray Ross, Director,

Region No. 2A, UAW, CIO

Received Jan. 5, 1952

Labor Relations.”

Congress took note of the unsettling effect of the sudden termination of a collective bargaining agreement and, by placing certain restrictions upon the right, sought to cushion the shock to the public economy. By Section 8 (b) (6) (d) of the Labor-Management Relations Act of 1947 (Section 158 [b] [6] [d], Title 29, U. S. Code), Congress provided that:

“* * * Provided, that where there is in effect a collective-bargaining contract covering employees in' an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification—

“(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;

“ (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;

“(3) notifies the federal mediation and conciliation service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any state or territorial agency established to mediate and conciliate disputes within the state or territory where the dispute occurred, provided no agreement has been reached by that time; and

“(4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later. ’ ’

It will be observed that the limitations imposed relate to occasions when the purpose is to modify the contract as well as to when termination is intended, and equally to contracts at will as to contracts for a definite term. The contract under consideration here was prepared by draftsmen who were alert to the meaning of the language used and, who, with such alertness, chose the language to express their intent.

There is evidence that within the time when notice of intent to terminate could be given, one of the defendants orally informed the plaintiff that the written notice was intended as a notice of modification. There is also evidence that after such time had expired, certain defendants contended that the notice was one of intent to terminate. All the ensuing bargaining related to modifications. Neither side submitted an offer containing all the terms of a proposed contract. The evidence shows that the negotiations relating to modifications were continuous. The plaintiff never refused to bargain.

In view of the law requiring a written notice, the effect of oral evidence must be limited to placing the court in the position of the parties, so that it may determine the meaning of the party as expressed in the written notice. It is not for the purpose of giving effect to an oral notice. The law specifically requires a writing, complete in itself, expressing an intent with reasonable clearness.

Tested by this rule, of what does the writing notify the plaintiff?

As the expiration of the time within which a notice could be given approached, the defendants were confronted with the problem of weighing the advantages and disadvantages of seeking a termination on the one hand, or a modification on the other. Neither alternative promised benefits unmixed with detriment. Under the law, as long as the contract continued the defendants were protected against interference by third persons with the contract relation. On the other hand, recognition of the continuance of the contract relation placed them at a disadvantage in negotiating for modification with their employer. This necessity for decision could not be evaded. They could not terminate and modify the same contract at the same time by the same notice. However, it seems, according to the defendants ’ testimony and contention, that they attempted by the notice served upon the plaintiff to do just that, but in attempting to do both, they did neither. Such a notice cannot be construed to be a notice to terminate within the meaning of the Labor-Management Relations Act and Article XXY of the contract.

While we are of the opinion that the ambiguity of the notice destroys its effectiveness for any purpose, we are further of the opinion that if its service upon the plaintiff imposed a duty of inquiry as to its meaning, plaintiff was justified in relying upon the defendants’ statement that it was a notice to modify. The insertion of the items of modification lent credence to that interpretation.

While Section (8) of the Labor-Management Relations Act (Section 158, Title 29, U. S. Code) requires the employer to bargain collectively until the minds of the parties have met and the contract relation established and, if desired by either party, its terms integrated into a written memorial, it does not require the employer to disregard the contract and continue to bargain as though no agreement fixing the rights of the parties had been reached. This is recognized in the provision of that section that the duty to bargain “shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract.”

The only grievance or issue between the parties open for discussion at that time was whether a notice to terminate had been served upon the plaintiff. The plaintiff never refused to discuss that question. It seems that the plaintiff displayed a greater desire than the defendants on that subject. Having determined that a notice to terminate had not been served, the contract was automatically renewed for an additional year, and while it appears that plaintiff did bargain on the subject of modifications to become effective during the term of the renewed contract, it was under no legal compulsion to do so.

We conclude that the collective bargaining contract was automatically renewed for one year from March 15, 1952, and that the parties were and are bound by its terms.

The contention is made that the court has no jurisdiction of the subject matter of this action. Of course, it is conceded that the Courts of Common Pleas of Ohio are courts of general law and equity jurisdiction, and that this court, on appeal on questions of law and fact, has general equity jurisdiction to pass upon the issues as though it had been granted original jurisdiction over the cause. But it is asserted that, under the National Labor Relations Act (Section 151 et seq., Title 29, U. S. Code) and the Labor-Management Relations Act of 1947 (Section 141 et seq., Title 29, U. S. Code), exclusive jurisdiction to enforce collective bargaining agreements, therein referred to, has been conferred upon the federal courts.

It cannot be seriously questioned at this time that, prior to any federal legislation on the subject, employees had a right to join together and agree collectively with their employer as to wages and other conditions of their employment. Such an agreement, in the absence of any legislation, would constitute a valid contract, enforceable in any state court of general jurisdiction where service of summons could be obtained.

Nor can it be questioned that Congress by express legislative declaration can withdraw contracts relating to interstate and foreign commerce from the jurisdiction of the states and retain to the federal government the exclusive jurisdiction to enforce such contracts. 54 American Jurisprudence, 966, Section 344. And where the subject is inherently national and all state control is excluded, the jurisdiction of the federal courts is exclusive. The subject with which we are dealing is not inherently national.

We believe it is equally clear that where a new right is created or a new duty imposed by a statute and the statute prescribes a remedy for the enforcement of the right or duty, the remedy thus prescribed is exclusive. 37 Ohio Jurisprudence, 791 et seq. However, the corollary from these propositions is just as firmly established, i. e., if exclusive jurisdiction is not expressly retained and the legislation relates to rights and duties already recognized and enforced by the law, tbe legislative provision for a remedy is construed to be cumulative and not exclusive. Tbe established rule of statutory construction is to treat a statutory remedy to enforce an existing right or duty as an additional remedy, leaving the existing remedies unaffected. 37 Ohio Jurisprudence, 793, Sections 467, 468.

Upon this subject, as it applies to the exercise of jurisdiction by state and federal courts over rights and duties falling within the domain of concurrent state and federal power, but where the federal power is supreme, it is said in 14 American Jurisprudence, 441, Section 247:

“In regard to state courts the law is also said to be settled that courts of general jurisdiction therein have power to decide cases involving the rights of litigants under the Constitution or statutes of the United States unless deprived of the right so to do by the terms of the federal Constitution or acts of Congress.”

At page 442, Hid., Section 248, it is said :

“While the provisions of the Constitution as to the extent of the federal judicial power do not, of themselves and without more, exclude the jurisdiction of state courts, the judicial power of the United States is, in some cases, unavoidably exclusive of all state authority, and in all others, may be made so, at the election of Congress, exclusive jurisdiction being uniformly attendant upon exclusive legislation. If, however, exclusive jurisdiction is not thus given, state courts are generally held to have concurrent jurisdiction, since either express words of exclusion or a manifest repugnancy to the exercise of state authority is required. It is, however, a principle applicable to judicial powers that where the exercise of state authority is incompatible with the exercise of federal authority, the state authority is superseded without express words. Therefore, it is held, that where a United States statute gives a right without specifying a remedy, it may be prosecuted in a state court; but where a right is thus given and a specific remedy provided, or a new power and the means of executing it are therein granted, such right and power can be enforced only in the method provided by such statute.”

A reading of the National Labor Relations Act and the Labor-Management Relations Act is sufficient to disclose that new rights and new duties are created, as, for instance, the duty of the employer to negotiate in good faith on terms of employment with a representative chosen by his employees without interference by him. And it is clear that as to these new rights and duties, the remedy provided by the act is exclusive. The National Labor Relations Board is clothed with the administrative jurisdiction to enforce these new rights and duties in the first place, subject to review by the federal courts. Unfair labor practices, as defined by Section 8 of the National Labor Relations Act as amended by the Labor-Management Relations Act (Section 158, Title 29, U. S. Code) are the most distinctive new rights and duties created by the act, the enforceability of which is confided to the National Labor Relations Board to the exclusion of jurisdiction of any and all state courts.

But a collective bargaining agreement may, and the one before the court does, include many provisions on subjects upon which the parties were free to act. They were free to contract collectively — and still are. They were and are free to provide for the automatic renewal of the terms of a contract and to provide against work stoppages and strikes.

Let us examine the statute. We find that it creates a board (the National Labor Relations Board) to enforce the provisions relating to unfair labor practices by employers and employees, as listed and defined in Section 8 of the act (Section 158, Title 29, U. S. Code), and to exercise certain investigatory, supervisory and. conciliatory functions. No provision for judicial review of the investigatory, supervisory and conciliatory action of the board is provided, but we assume that any invasion of personal or property rights could be redressed by the appropriate remedies. But, by section 10 (Section 160, Title 29, U. S. Code), the board is empowered “to prevent any person from engaging-in any unfair labor practice (listed in Section 8 [Section 158 of Title 29]) affecting- commerce,” and in that section is found the first reference to the judicial branch of government. The board is required to conduct its hearing's of charges of unfair labor practices in accordance with the rules of procedure and evidence applicable in District Courts of the United States, and the board is given power to petition the United States Circuit Courts of Appeals for the enforcement of its orders made in such unfair labor practice proceedings, or to petition a United States District Court, if no Court of Appeals is in session at the time. That court is given jurisdiction to grant temporary relief by injunction or otherwise pending- final hearing, at which the court may affirm, modify and enforce, or reverse the order under review. However, the court is required to consider all findings of fact by the board as conclusively proven if supported by substantial evidence. The jurisdiction of the United States Courts of Appeals is expressly made exclusive, with right of appeal as in other cases. Any person aggrieved by the final order of the board is given the same right to invoke the jurisdiction of the United States Circuit Court of Appeals or the United States District Court for a review.

The board is also given the right to invoke the jurisdiction of the United States District Court for temporary relief or restraining order, but this applies only upon complaint of an unfair labor practice having been filed with the board, or when the board finds by investigation that a complaint should be filed, and whatever order is made expires upon the making of the final order disposing of the complaint of unfair labor practice.

The board is also given authority to invoke the jurisdiction of the United States District Courts to punish contumacious witnesses and to compel witnesses to obey its subpoenas.

It seems manifest that the foregoing provisions for intervention by the United States courts for particular or temporary purposes, even though their jurisdiction is expressly made exclusive, shed no light upon the intent of Congress or indicate in any way its intent to limit or exclude the jurisdiction of other courts upon subjects entirely foreign to the particular or temporary purpose to which it was addressing itself.

In this action, the jurisdiction of this court is not invoked to enjoin any unfair labor practice, as listed and defined in section 8 (Section 158, Title 29, U. S. Code). While the National Labor Relations Board’s jurisdiction is not expressly made exclusive, except as to unfair labor practices defined in section 8 (Section 158, Title 29, U. S. Code), we assume that it is exclusive as to all unfair practices created by the act. Its jurisdiction to hear and decide does not purport to extend beyond that sphere, and this court has no jurisdiction to enter it.

The only reference in the act to actions on contracts between an employer and a labor organization is found in section 301 (Section 185, Title 29, U. S. Code). We quote the entire section excepting paragraph (e), which is of no importance in the construction of the balance of the section:

“ (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this act, or between any such labor organizations, may be brought in any District Court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

“(b) Any labor organization which represents employees in an industry affecting commerce as defined in this act and any employer whose activities affect commerce as defined in this act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a District Court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.

“(e) For the purposes of actions and proceedings by or against labor organizations in the District Courts of the United States, District Courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.

“(d) The service of summons, subpoena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization. ’ ’

The first thing that strikes one on reading this section is that while Congress expressly made the jurisdiction of the United States Circuit Courts of Appeal exclusive, it refrained from making any comparable provision as to the jurisdiction of the District Courts in actions for breach of contract between employers and labor organizations.

It also strikes one that the language is permissive rather than mandatory.

We also note that in paragraph (b), a labor organization may sue or be sued as an entity “in the courts of the United States,” and that any money judgment against it in such action shall be enforceable against the entity and its assets and not against any individual member or his assets. We attach no significance to this limitation of the applicability of the provision to the United States Courts other than that Congress thereby recognized its lack of constitutional power to provide a judicial code for state courts.

The only implication we can draw from the exemption of the union members from individual liability on money judgments is that relief other than a money judgment could, in an appropriate case, be obtained in a United States District Court against the individual members of the union without any additional legislation and within the limitations of existing law.

The reference to section 301 (Section 185, Title 29, U. S. Code) in subdivision (b) of section 303 (Section 187, Title 29, U. S. Code), casts no light upon the intent of Congress on this subject.

So we come to the question of whether the mere conferring of jurisdiction upon the United States District Courts over a subject historically and constitutionally within the jurisdiction of state courts of general jurisdiction excludes the state courts from such jurisdiction. Concededly, Congress has the power to exclude state courts from exercising jurisdiction over controversies arising out of interstate commerce by express words of exclusion, but in the absence of clear words of exclusion, should such a radical departure be implied? See 14 American Jurisprudence, 441, heretofore quoted.

Congress clearly indicated that it did not regard recourse to the United States courts for the enforcement of the valid provisions of collective bargaining agreements as an impingement upon the power of the National Labor Relations Board to prevent the unfair labor practices defined in section 8 of the act (Section 158, Title 29, U. S. Code), or of any other power or duty with which it clothed it. We have been given no reason for denying to state courts jurisdiction in the same field. If any implication can be drawn from the provision, conferring jurisdiction upon the United States courts, we think it would be that Congress recognized that the field was appropriate for judicial intervention, and, for that reason, clothed the District Courts with jurisdiction so that they would be in a position to share in the added burden. We fail to find any word or combination of words indicating an intent to exclude the state courts or to draAV to the United States District Courts the exclusive jurisdiction.

The language of the act is permissive and nonexclusionary. We discover no intent to use “may” in other than its ordinary sense.

In 50 American Jurisprudence, 51, 52, Section 30, it is said:

“However, it should be helpful to keep in mind the fundamental rule that ordinarily the words ‘may’ and ‘shall’ or ‘must’ are not used interchangeably or synonymously, but are given their ordinary meaning. When the use of the words in other than their ordinary meaning is intended, the intention to do so must clearly appear.”

Having concluded that the court has jurisdiction, we turn to a more specific consideration of the terms of this contract, the evidence relating to its breach, and the relief to which the plaintiff is entitled in the event we find that there has been a breach.

Now as to the terms of the contract. In Article XXI of the contract, in which is found the provision against sitdowns, work stoppages, and strikes, hereinbefore quoted, is found the procedure for the adjustment of “grievances” commencing with discussion by the employee with his foreman, then by reference to the bargaining committee which may refer it to the management committee, then to the plant manager, and then to representatives of the international union for discussion with executive department of the company. If no settlement is reached and the grievance “involved the application or interpretation of the contract,” either party may request that it be submitted to arbitration for final decision.

By section 501 of the Labor-Management Relations Act (Section 142, Title 29, U. S. Code), Congress defined “strike” as including “any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slow-down or other concerted interruption of operations by employees.”

It is not disputed that the defendants and the other employees of the plaintiff represented by them were engaged in the activities defined in section 501 (Section 142, Title 29, U. S. Code). The interpretation and application of that provision of the contract relating to its automatic renewal were under discussion at the time. It seems to us that the situation, therefore, calls for the application of the contractual provision against a strike.

"We, therefore, hold that the defendants have violated the contract by engaging in a strike.

Finally, we reach the nature of the relief afforded for the breach of a contract of this character. Counsel points out that no American court can compel a person to work against his will except as a punishment for crime, and that the breach of a simple contract is not, and cannot be made, a crime. There can be no doubt about the soundness of that position. The Thirteenth Amendment to the Constitution of the United States abolished slavery and involuntary servitude, except as a punishment for crime. It cannot be revived in any form. Congress, in obedience to the Thirteenth Amendment, expressly provided in section 502 of the act (Section 143, Title 29, U. S. Code) that nothing in the act “shall be construed to require an individual employee to render labor or service without his consent, nor shall anything in this act be construed to make the quitting of his labor by an individual employee an illegal act; nor shall any court issue any process to compel the performance by an individual employee of such labor or service. ’ ’

So, it is clear beyond cavil that any attempt by this or any other American court to compel a pérson to labor against his will except as a punishment for crime would be utterly void under the Thirteenth Amendment to the Constitution of the United States, and contrary to the express prohibition of the National Labor Relations Act and the Labor-Management Relations Act.

It should be said here, however, that long before the ratification of the Thirteenth Amendment, and while execution against the person and imprisonment for debt were standard procedure at common law for the enforcement of money judgments based on simple contractual obligations, courts of equity had established the principle that they would not by injunction or any other process compel or attempt to compel the actual performance of personal service, particularly continuous personal service over a long period of time. The reason given for such refusal to give relief was the impracticability of enforcing such a decree, and where the reason upon which the rule was based did not exist, courts of equity granted injunctions, coercing the performance of personal acts. Of course, this never extended to attempting to establish and maintain the relation of employer and employee by injunction.

We do not understand that the plaintiff is seeking a mandatory injunction, requiring the defendants to return to work and to continue to perform service. It does ask the court to enjoin the defendants from concerted action; from permitting to continue in effect any instructions to suspend work or interrupt or impede such work or engage in a work stoppage or strike, or any interference with production in plaintiff’s place of business, or from giving publicity to any instructions counseling such action; from violating any of the terms of the contract; and from encouraging any employee or other person to interfere by strike or otherwise with work in plaintiff’s plant. It also prayed the court to enjoin picketing, coercion, threats, violence, inducement or breach of the contract, or aiding and abetting others in such action; from lending financial support; and, finally, prayed that the court require the defendant unions to give written notice to their members and all other employees of plaintiff that ‘ ‘ the said strike and work stoppage is ended,” and to “notify such employees to return to work on their next regular shift.”

It seems to us that the granting of this relief in its entirety would clearly violate the Thirteenth Amendment of the United States Constitution and the express prohibition of the Labor-Management Eelations Act, as well as the traditional refusal of courts of equity to compel by injunction the performance of personal service.

But the fact that the plaintiff seeks some relief that is beyond the power and discretion of the court to grant does not deprive plaintiff of the right to insist that the court award to it the relief to which the facts entitle it and which it is within the jurisdiction of the court to grant.

That Congress recognized that the subject of labor relations was or might be appropriate for the exercise of equitable jurisdiction is disclosed by the provisions of section 10 of the National Labor Relations Act (Section 160, Title 29, U. S. Code), authorizing the United States courts “to grant such temporary relief or restraining order as it deems just and proper,” as an aid to the board arid a protection to others, in the enforcement by the board of the prohibition against the unfair labor practices listed in section 8 of the act (Section 158, Title 29, U. S. Code). As we interpret those provisions, the United States courts would grant the appropriate relief without any preliminary inquiry as to whether the law provided an adequate remedy. However, in this case it is manifest that the legal remedy is inadequate.

The declared purpose of the National Labor Relations Act and the Labor-Management Relations Act is to promote the normal flow of commerce and the full production of articles and commodities for such commerce. They must be construed in the light of that policy, and courts, within the limits of their jurisdiction, must afford the remedies in harmony therewith.

Certainly, there is nothing in the National Labor Relations Act or the Labor-Management Relations Act to indicate that a state court should withhold any remedy for the breach of a collective bargaining agreement that would be available under similar circumstances for the violation of the terms of a contract of any other character.

It is the inadequacy of the remedy at law for damages for breach of the contract that is the basic reason for equitable intervention. The remedy afforded must not violate any constitutional right.

In reaching the conclusion that injunction within the constitutional limitation is an appropriate remedy for the breach of this contract, we cannot ignore the fact that this plaintiff is under contract with the United States Government to manufacture jet engines at this factory, and that two-thirds of the available supply of such engines are manufactured there. These engines are needed in preparation for national defense. The public has an interest in the uninterrupted production of these engines. The public interest has been held to outweigh the inconvenience of supervision, and to require the granting of the relief.

In 49 American Jurisprudence, 87, Section 71, it is said:

“Difficulties in regard to supervision will not be allowed to deter a court of equity from granting specific performance of a contract where public interest seems to require it, and when the inconvenience of the courts in acting is more than counterbalanced by the inconvenience of the public if they do not act, the interest of the public will prevail.”

If a court of equity will grant specific performance under such circumstances, there certainly can be no reason to withhold its injunctive process and if public inconvenience will move the court to act, surely a threat to public safety should.

On the subject of inconvenience of enforcing a contract involving personal service, in Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y., 60, at page 66, 51 N. E., 408, 68 Am. St. Rep., 749, 43 L. R. A., 854, it is said:

‘ ‘ Contracts which require the performance of varied and continuous acts, or the exercise of special s]jill, taste, and judgment, will not, as a general rule, be enforced by courts of equity, because the execution of the decree would require such constant superintendence as to make judicial control a matter of extreme difficulty. (Marble Co. v. Ripley, 10 Wall., 339, 358; Beck v. Allison, 56 N. Y., 366, 370; Gervais v. Edwards, 2 Dr. & W., 80; Blackett v. Bates, L. R. [1 Ch. App.], 117; Fargo v. N. Y. & N. E. R. Co., 3 Misc. Rep., 205; Pomeroy Spec. Per. Section 312; Fry, Spec. Per. Section 69.) An exception to this rule, founded upon the rights of the public rather than those of the plaintiff, obtains with reference to contracts relating to the management and control of railroads and other agencies of transportation which enjoy special privileges conferred by statute, and promote the general welfare. (Joy v. St. Louis, 138 U. S., 1, 47; Prospect Park & C. I. R. R. Co. v. Coney Island & B. R. R. Co., 144 N. Y., 152.) When the inconvenience of the courts in acting is more than counterbalanced by the inconvenience of the public if they do not act, the interest of the public will prevail. But, even if, upon a trial of the action, specific performance of the contract in its entirety were refused as impracticable, still the bill should be retained as one permitting an injunction, in the sound discretion of the court, to restrain the defendants from violating the negative and severable covenant of the Siegel-Cooper Company that it would not ‘sell, or allow to be sold, on its premises during the duration of this (the) contract any other make of paper patterns’ than those of the plaintiff. The learned Appellate Division, one of the judges dissenting, overruled the demurrers on this ground, holding that the court should extend its remedy as fatf as it is able and thus prevent the principal defendant not only from making money by breaking its agreement, but from inflicting a double wrong upon the plaintiff by depriving it of the right to sell and conferring that right on a business competitor. We think this is a sound and just conclusion, because it will compel the Siegel-Cooper Company to either perform its agreement, or lose all benefit from breaking it and at the same time will shield the plaintiff from part of the loss caused by the breach, if persisted in.”

Upon the whole case, we find that the plaintiff is entitled to some, but not all, of the relief prayed for. The plaintiff is not entitled to an injunction requiring the defendants or any member of defendant unions to resume or continue to work, and as the court has no power to order the resumption or continuance of work by any one, it has no power to direct any defendant to give such an order to others.

The court has power to and will by its injunctive process require the withdrawal of all communications heretofore issued to defendant unions ’ members, indicating to them that a work stoppage or strike should be instituted or continued, but this withdrawal should be so worded as to leave the individual his free choice to resume or continue to work without restraint or compulsion from any one.

The defendants will also be restrained from engaging in any combination or agreement to stop work or strike, or to influence the union members not to work. They will be restrained from picketing and from doing any act that would induce or encourage any member of their unions to breach the contract not to stop work or strike.

For these reasons, and to this extent, the court finds in favor of the plaintiff.

Judgment accordingly.

Hildebeant, P. J., Matthews and Metcalf, JJ., concur.

Metcalf, J., of the Fourth Appellate District, sitting by designation in the First Appellate District.


source: Caselaw Access Project

author: Savord, J.

license: Public Domain

text:
    Vogus, a Minor, Appellee, v. Chase, Appellant.
    (No. 626
    Decided October 22, 1951.)

      Messrs. Freeman é Freeman, for appellee.

      Messrs. Miller & Miller, for appellant.
   Savord, J.

Defendant appeals on questions of law, seeking to reverse a judgment in favor of plaintiff. In briefly but substantially outlining the factual situation disclosed by the record, we shall designate the parties as they were named in the trial court.

On November 12, 1949, defendant resided on the east side of what was then known as Alley Number One in the village of North Fairfield, Ohio. To the south side of defendant’s residence and leading to Alley Number One, was a driveway. On the west side of such alley there was located the residence of Albert Foster. A driveway located on the north side of the Foster residence had its outlet into Alley Number One at a point practically opposite the outlet of the driveway leading from the property of defendant. To the north of the Foster residence and separated therefrom by a large grassy area was the residence of plaintiff.

Early in the afternoon of the aforementioned day, defendant proceeded to back his automobile out of his driveway onto Alley Number One, where he parked it in front of his house and on the wrong side of the alley. At about the same time, Albert Foster, accompanied by his wife and two grandchildren, proceeded to back his automobile in an easterly direction and just before reaching the street stopped the same, as the result of his wife’s suggestion that there was an automobile to the rear of the Foster automobile. Almost immediately, the defendant came to the side of the Foster automobile and engaged in brief conversation with Mrs. Foster. The testimony is not only meager but also conflicting as to the exact substance of the conversation, although there is limited testimony tending to establish that the defendant in substance inquired of Mrs. Foster as to whether defendant had “bumped” the Foster automobile. Very shortly thereafter, Kittie Foster observed Florence Vogus, the mother of plaintiff, come running and pick up the plaintiff who was lying a short distance, not more than four feet in front of the Foster automobile, and in the grassy area between the Foster and Vogus residences. The medical testimony discloses that the plaintiff, through some cause, sustained a fracture of the occipital bone and other injuries less serious in nature.

At the close of plaintiff’s case, defendant moved for a directed verdict in his favor, and, the same having been overruled, such motion was renewed at the close of the case. This motion having been denied, motions for judgment notwithstanding the verdict and for new trial were tendered and overruled. Defendant assigns as error the overruling of such motions and that certain portions of the court’s charge and rulings as to the admissibility of certain evidence operated to the prejudice of defendant.

We have been unable to discover any direct or inferential evidence supporting any one of the several allegations of negligence made by the plaintiff against the defendant, unless it be such evidence as tends to show the way and manner in which defendant backed his automobile from his driveway. Assuming, however, that such evidence was of a nature and character to warrant the submission of this cause to a jury, there still remains the vital question as to whether there was any evidence of a substantial character having the effect of proving that any. negligence of the defendant was the direct and proximate cause of the injuries sustained by plaintiff.

Some time prior to plaintiff being discovered lying on the ground, the plaintiff was observed in close proximity to the Yogus residence, a location considerably removed from the place plaintiff was found subsequent to his injury. As to the interval between the plaintiff being so observed and his being found on the ground, the record is shrouded in mystery. There is not a word to indicate the movements of plaintiff or any evidence tending to prove just what happened to plaintiff.

It therefore follows that plaintiff totally failed to meet the burden which the law places upon him. No better expression of that burden and the character of proof required can be found than as set forth in the syllabus in Gedra v. Dallmer Co., 153 Ohio St., 258, 91 N. E. (2d), 256, 17 A. L. R. (2d), 453, reading as follows :

“1. In a negligence action, it is essential for recovery that plaintiff prove by a preponderance of evidence not only that defendant was negligent but also that defendant’s negligence was a direct or proximate cause of plaintiff’s injury.

“2. In a negligence action, it is not stifficient for plaintiff to prove that the negligence of defendant might have caused an injury to plaintiff but, if the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which defendant is not legally responsible.

“3. In such an action, if the cause of an injury to a plaintiff may be as reasonably attributed to an act for which defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant. ’ ’

A further statement of the rule is found in 38 American Jurisprudence, 975, Section 285. Therein it is emphasized :

“In showing that the negligence charged was the proximate cause of the injury, it is not enough for the plaintiff to prove that the negligence might perhaps have caused the injury. If, for example, the injury complained of might well have resulted from aiiy one of many causes, it is incumbent upon the plaintiff to produce evidence which will exclude the operation of those causes for which defendant is under no legal obligation. If the cause of the injury to the plaintiff may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of fastening tortious conduct upon the defendant.”

All of which is but another way of saying that a jury, as trier of issues of fact, is required to determine probabilities, and such determination can not be based upon testimony as to mere possibilities. Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St., 429, 92 N. E. (2d), 1. As announced in Boles v. Montgomery Ward & Co., 153 Ohio St., 381, 92 N. E. (2d), 9, “a ver diet for plaintiff predicated upon conjecture, guess, random judgment or supposition can not be sustained. ’ ’

Review of the cases cited by plaintiff quickly convinces that they are easily distinguishable from the instant case, as in all of such cases there is found either direct evidence or reasonable inference establishing the proven negligence of the defendant as the proximate cause of such damage as sustained by plaintiff.

In one respect at least, the charge was prejudicial to defendant. The trial judge said to the jury, “We know this little child was in the street or out in the field at the time,” thus assuming to decide one of the important issuable facts in the case and indulging this positive statement, although no evidence as to the exact movements and whereabouts of the plaintiff is revealed by the record. We find no prejudicial error with respect to the trial court’s rulings as to the admissibility of evidence. In view of our conclusions, extended discussion of these particular assignments of error is not required.

Consistent with the above reasoning, the trial court should have sustained the several motions of the defendant for a directed verdict or should have granted defendant’s motion for a judgment notwithstanding the verdict. Therefore, the judgment of the Common Pleas Court is reversed, and final judgment is entered for appellant.

Judgment reversed.

Fess, J., concurs.

Conn, J. I concur in the judgment of reversal but am of the opinion that the case should be remanded for a new trial.


author: Doyle, J.

text:
    Miljak, Appellee, v. Boyle, Appellant.

      (No. 4301
    Decided October 8, 1952.)

      Messrs. Myers, Myers & Myers, for appellee.

      Messrs. Bmoyer & Bmoyer, for appellant.
   Doyle, J.

Violet Miljak, by Olga Miljak, her guardian and next friend, brought suit in the Court of Common Pleas of Summit County against Eugene Boyle for damages for personal injuries sustained while she was riding as an invited guest in an automobile driven by the defendant, Boyle. She alleged wanton misconduct of the driver, Boyle, $s the proximate cause of her injuries, the proof of which was necessary for recovery under the so-called “guest” statute of this state. Section 6308-6, General Code.

Upon the issues joined by the answers, and the evidence presented, the jury returned a general verdict for the injured girl. Judgment was thereupon entered for her following the overruling of motions by the defendant for judgment notwithstanding the general verdict, and upon the answers by the jury to the special interrogatories. A motion for a new trial, later filed by the defendant, was also overruled.

An appeal to this court from the judgment above noted presents for decision claimed error in the following respects:

“1. * * * in overruling the motions of the defendant for a directed verdict made at the conclusion of plaintiff’s case in chief, and at the conclusion of all the evidence;

“2. * * * in overruling the motion of defendant for judgment upon the special findings returned by the jury in answers made * * * to * * * interrogatories * * * and in entering judgment against defendant upon the general verdict;

“ 3. * * * in overruling the motion of defendant for judgment notwithstanding the general verdict

“ 4. * * * in overruling the motion of defendant for a new trial.”

The petition alleged the following facts in pleading wanton misconduct:

“ * * * defendant had driven within the city of Akron, Ohio, south on High street and turned east on Waterloo road at an excessive rate of speed as high as seventy (70) miles per hour; that all during said time plaintiff and others in the car remonstrated with defendant to slow down, at which defendant became angry, and, when the light at South Arlington street turned green, he started off, setting his automobile at once up to a speed of seventy (70) miles per hour; that plaintiff screamed to defendant to slow down, but he kept on at this high speed, and as he came to the first curve after South Arlington street intersection, he hit the concrete divider in the center-of the highway, thereby spinning his vehicle out of control and causing it to slam violently into the north ditch and embankment of * * * route 224, throwing plaintiff violently about against the interior of said vehicle. Plaintiff further says that defendant knew that the speed of seventy (70) miles per hour at which he was operating his vehicle on Waterloo road, which was heavily traveled, winding, and surrounded by businesses and homes, was an unusually dangerous speed at which to operate his vehicle; and defendant also knew that the manner in which he was operating his vehicle would in all probability result in injury to those riding in said vehicle, including this plaintiff; but that in his anger defendant was heedless of the danger to which his driving subjected this plaintiff.”

1. Attention will first be directed to error claimed to exist through the action of the court in overruling the motion of the defendant to enter judgment on his behalf “upon the special findings returned by the jury.”

The interrogatories, which were properly submitted at the instance of the defendant (Davison v. Flowers, 123 Ohio St., 89, 174 N. E., 137), and the answers thereto, are in the following terms:

“Interrogatory No. I. Q. Does the jury find by a preponderance of evidence that the defendant at or immediately prior to the accident, was guilty of wanton misconduct?

“A. Yes.”

“Interrogatory No. II. Q. If the answer of the jury to question No. I was ‘yes,’ then state of what acts and omissions of the defendant such wanton misconduct consisted.

“A. Such wanton misconduct consisted of a peevish disregard of request by other occupants of car to exercise more caution, thus constituting a disposition to perversity. ’ ’

It appears in the record that after the case was submitted and the jury had commenced its deliberations, the following request was made to the trial judge: “The jury would like to have a written statement of the court’s definition of ‘disposition to perversity.’ * * * William H. Doolan, jury foreman.” The court thereupon prepared and submitted in writing the following answer:

“The word ‘disposition’ as used is used in the sense of mental state, mental inclination or tendency. By ‘perversity’ is meant the quality of being perverse, that is, stubborn, obstinate, cantankerous, contrary, not disposed to be set right, wilfully erring, peevish.

“Taken together the expression ‘disposition to perversity’ is such a disposition or mental state as is manifested or shown by a person, who when notwithstanding his or her conscious and timely knowledge of an approach to an unusual danger, and of common probability of injury to others, proceeds into the presence of the danger with indifference to consequences and with absence of all care.”

It thus appears that the jury had before it in writing not only the above definition of “disposition to perversity, ’ ’ coupled with an illustration of how it may be “manifested or shown,” but also the following written charge (given before argument) setting forth the necessary elements of wanton misconduct:

“In order to warrant a finding that the acts of the defendant constituted wanton misconduct, your inquiry must be directed to a determination of the mental state of the driver at the time of the accident; there must be substanital evidence supporting the conclusion that his mental state constituted a disposition to perversity; neither speed, absence of ordinary care, bad judgment nor violation of safety statutes, alone, is sufficient; there must have been an absolute indifference to the consequences of his acts; and there must have been a reckless indifference to the interests of others. Conscious and timely knowledge of approach to unusual danger with a known probability of injury to others, if coupled with indifference to such consequences and an absence of all care, is necessary to establish a case of wanton misconduct.”

In appraising the above instructions, it appears that they come well within the pronounced definitions. of the Supreme Court of this state in a number of notable cases, some of which are: Higbee Co. v. Jackson, 101 Ohio St., 75, 128 N. E., 61, 14 A. L. R., 131; Reserve Trucking Co. v. Fairchild, 128 Ohio St., 519, 191 N. E., 745; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St., 567, 200 N. E., 843, 119 A. L. R., 646; Vecchio v. Vecchio, 131 Ohio St., 59, 1 N. E. (2d), 624; Morrow v. Hume, Admx., 131 Ohio St., 319, 3 N. E. (2d), 39; Jenkins v. Sharp, 140 Ohio St., 80, 42 N. E. (2d), 755; and Masters v. New York Central Rd. Co., 147 Ohio St., 293, 70 N. E. (2d), 898 (certiorari denied, 331 U. S., 836, 91 L. Ed., 1848, 67 S. Ct., 1519). There is no error here.

Fortified with the above written instructions, the jury then proceeded to weigh the evidence in the light of the law thus given, and at the conclusion thereof reached a general verdict for the plaintiff, and answered the interrogatories as above indicated.

The statutory authority for the submission of interrogatories is Section 11420-17, General Code, and is as follows: “When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

“The ‘particular questions of fact’ contemplated by the statute are such that the answers to them will establish ultimate and determinative facts, and not those which are only of a probative character; such facts as will enable the court in the application of the law, to determine the rights of the parties, and not those which simply tend to prove them.” Schweinfurth, Admr., v. C., C., C. & St. L. Ry. Co., 60 Ohio St., 215, at p. 232, 54 N. E., 89.

This rule was later construed-to not exclude questions, the answers to which would establish probative facts, from which, an ultimate material fact might be inferred as a matter of law. Gale v. Priddy, 66 Ohio St., 400, 64 N. E., 437.

The code of procedure then follows with Section 11420-18, General Code: “When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

Through a long line of cases the Supreme Court has labored these statutes and has reached some interesting, if • not astounding, conclusions, as to the propriety of certain questions, and the effect of various answers to interrogatories upon the general verdicts under consideration. Some of the cases are noted and discussed in an article contained in 23 Ohio Bar, 421. Among the cases therein noted may be found the recent case of Masters v. New York Central Rd. Co., 147 Ohio St., 293, heretofore cited in this opinion for the purpose of showing the various necessary elements for the proof of wanton misconduct. The case will now be used as authority, in our determination of the effect of the answers to the interrogatories here under consideration, upon the general verdict. The second paragraph of the syllabus of that ease is as follows:

“2. 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 jury 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.”

This syllabus has reference to the answers of a jury to the following interrogatories: “Was the defendant guilty of any negligence?” and “If so, what was the negligent act or acts of the defendant?” The answer of the jury to the latter interrogatory “found the defendant guilty of only two of the acts of negligence which were comprehended in the first three of the ten specifications of negligent acts charged in the petition.” Under these circumstances the case is authority for the rule set forth above, that a failure to find on some of the pleaded specifications of negligence is equivalent to a finding on such claim of negligence against the party having the burden of proof.

Further analyzing the case, there will be found in the petition several allegations charging wilful and wanton misconduct. There was no finding by the jury on any of these allegations, and, in treating this legal circumstance, the Supreme Court, speaking through Judge Hart, said: “Furthermore, by failing to specify in answer to the interrogatories, as negligent acts of which defendant was guilty, the grounds of negligence charged in specifications 7, 8, 9 and 10 of the petition, the jury effectively found against the plaintiff on the issue of willful and wanton misconduct.”

It thus appears to be the law of this state that, where several specifications of negligence are made in a petition, and a jury, in an answer to an interrogatory directing it to specify the act or acts of negligence found by it to exist, fails to include a finding on some of the pleaded specifications, such failure or inability constitutes a finding, on those specification^, against the party having the burden of proof — i. e., the plaintiff. It also appears to be the rule that, where various charges of wrongful conduct are pleaded which are sufficient, if proved, to constitute wanton misconduct, a failure to find operative facts alleged in the pleadings essential to constitute the charge of wanton misconduct, is a finding against the plaintiff on those essential elements.

In the case of Johnson v. Gernon, Jr., 91 Ohio App., 529, 107 N. E. (2d), 377, Judge Stevens speaking for this court wrote: “5. An interrogatory in a personal injury action requiring the jury, in the event it finds the defendant guilty of wanton misconduct, to state what acts or omissions of defendant constituted such misconduct is a proper inquiry; and, in answering such interrogatory, the failure or inability of the jury to find the existence of conscious knowledge by defendant of an approach to an unusual danger, absence of all care on his part, and an indifference to consequences, is equivalent to a finding against the party having the burden of establishing wanton misconduct.”

We determine in the case here for decision that the jury’s answer that “Such wanton misconduct consisted of a peevish disregard of request by other occupants of car to exercise more caution, thus constituting a disposition to perversity,” was a finding on but one of the several essential elements of the offense of wanton misconduct, and that the failure or inability to find on other pleaded essential elements in the light of the court’s charge (special request to charge reduced to writing and given to the jury) “is equivalent to a finding” against the plaintiff, upon whom the burden of proof rested. It is not the law that a “disposition to perversity” alone may constitute wanton misconduct.

It was charged, among other things, as heretofore stated, that the defendant drove his automobile at a speed of 70 miles an hour, and that he knew that, at this rate of speed over a heavily-traveled, winding and built-up section of the country, his activities would in all probability result in injury to those riding with him.

It must be observed that there was no finding on speed, nor of a dangerous situation existing at the time and place; and while wantonness can never be predicated upon speed alone, yet, when the concomitant facts show an unusually dangerous situation and a consciousness on the part of the driver that his conduct will in common probability result in injury to another of whose dangerous position he is aware, and he drives on without care, and without slackening his speed, in utter heedlessness of the other’s jeopardy, speed plus such unusually dangerous surroundings and a knowing disregard of another’s safety may amount to wanton misconduct. Morrow v. Hume, Admx., supra; Jenkins v. Sharp, supra.

Just as speed alone is not sufficient to constitute wanton misconduct, neither, as heretofore stated, is a disposition to perversity alone sufficient. The necessary factual circumstances (speed plus concomitant facts showing “unusually dangerous surroundings and a knowing disregard of another’s safety”), although pleaded and charged by the court, are entirely lacking in the answer to the interrogatory. To this situation, we must now apply the rules stated above.

It is the conclusion of this court that in giving effect to the rules of law pertaining to that which the jury specifically found, and that which the jury failed or were unable to find, the special finding of facts is inconsistent with the general verdict. Under such circumstances, Section 11420-18, General Code, requires this court to “give judgment accordingly.”

The judgment therefore will be reversed, and final judgment entered for the defendant.

Judgment reversed.

Hunsickee, P. J., and Stevens, J., concur.


text:
    In re Appropriation of Easement for Highway Purposes.
    (No. 766
    Decided April 7, 1952.)

      Messrs. Bowman, Manna é Middleton, for appellants.

      Mr. C. William O’Neill, attorney general, Mr. Everett M. Krueger and Mr. Kenneth Adams, for appellees.
   Savord, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court.

In order to carry to completion plans for the construction and improvement of U. S. Route No. 25, generally known as the Dixie highway, at a point just south of Bowling Green, Ohio, the Director of Highways, on August 21, 1950, pursuant to statutory provision filed a resolution and finding declaring it necessary to appropriate certain lands belonging to appellants. Within the statutory period, appellants filed their petition in appeal. The cause coming on for trial, judgment was ultimately entered upon the verdict of the jury, and it is in respect to such judgment that appellants now complain.

The bill of exceptions discloses that the proposed improvement is a four-lane highway with limited access as contemplated by Section 1178-21, General Code; that appellants are the owners of a tract of land approximately 40 acres in size, located on the west side of the highway; that the north line of this particular parcel is the south corporation line of the city of Bowling Green, the parcel having a frontage of 385 feet on the Dixie highway; that on the southeast corner of this tract is located a house and barn; that prior to the appropriation there had been operated at a point slightly north of the house a used car lot; that the area thus used, from which the owners secured a rental, extended for approximately 300 feet along the Dixie highway and had a depth from the highway of 45 feet; that this area had been stoned; that also located thereon was a revenue-producing refreshment stand, a septic tank and a water well; that the state is appropriating from this area a parcel 35 feet in width off the entire frontage or a total of .309 acre; that upon completion of the improvement, it will be approximately 28 feet from the new right-of-way line to the front porch, or 37 feet to the house; and that the plans contemplate one 14-foot opening located substantially at the location of the present opening approximately 100 feet north of the south line of this particular parcel and a future drive at the north line of the property, the width of same to be determined by the Director of Highways when such drive is finally established.

It appears further that appellants are the owners of a tract of land 14 acres in size located on the east side of the highway; that the southerly line of this particular parcel is an east and west road, known as Gypsy Lane road, the parcel having a frontage to the north in and along the Dixie highway of approximately 800 feet; that this parcel is bare land; that the state is appropriating from this parcel a triangular strip of land 53 feet in width at Gypsy Lane road and tapering to a point at the northwest corner of the property, such triangular strip containing .482 acre; and that the plans provide present access to this particular parcel by means of a 50-foot opening located about 50 feet south of the north line of the parcel and contemplate future entrances approximately 150 feet and 400 feet respectively therefrom, thus confining the owners to one present means of access, unless they are to avail themselves of the facilities provided by Gypsy Lane road, located at the extreme southerly end of the parcel.

The plans anticipate construction of a curb on each side of the highway, the installation of a solid dividing strip extending northwardly from Gypsy Lane road a distance of approximately 300 feet, and the installation of precast concrete blocks from sneh point north to the corporation line, preventing, in some measure, vehicles crossing from one side to the other of the road.

By its verdict, the jury awarded the appellants as compensation for the .309 acre appropriated and located on the west side of the road $1,884.50, for the .482 acre appropriated and located on the east side of the road $1,090, as damages to the residue of the property on the east side of the highway $546 with interest from August 21, 1950, to date of verdict of $176, making a total award of $3,696.50. The jury apparently concluded that the residue of the property on the west side of the highway was not damaged, as no award was made with respect to this item. Judgment was entered on the verdict and motion of appellants for a new trial was overruled.

Appellants assign as error:

1. That the verdict of the jury and judgment of the court are contrary to the weight and sufficiency of the evidence.

2. That the verdict of the jury and the judgment of the court are contrary to the evidence.

3. That the verdict of the jury and the judgment of the court are contrary to law.

4. That the verdict of the jury and the judgment of the court are inadequate and do not fully compensate the appellants herein.

5. That the court erred in its charge to the jury.

6. That the court erred in excluding certain evidence at the trial of cause, and also in not admitting certain evidence, all of which was excepted to by appellants herein.

7. Other errors occurring at the trial and excepted to by the appellants.

8. That the court erred in overruling appellants’ motion for a new trial.

Before entering upon a discusión as to the specific claimed errors, it appears proper to suggest that doubt exists as to whether the method pursued by either party in submitting testimony as to the value of the parcels taken and damage, if any, to the residue reflects the correct approach. Examination by counsel for both appellants and the state indicates a variety of formulae adopted for establishing value and damages. Bearing in mind the elements to be established, the rule reduces itself to a simplicity. In the last analysis, the elements are (1) the fair and reasonable market value of the property taken, and (2) the reduced value of the residue, to be determined after serverance of the property taken and without deduction for benefits, save special, if any, considering the effect upon such residue of the uses for which the appropriation is made. It follows, therefore, that there are but three questions to be propounded to a witness, subject to the right of cross-examination residing in the adverse party, namely, (1) what is the fair and reasonable market value of the area sought to be appropriated; (2) what is the fair and reasonable market value of the residue prior to the appropriation; and (3) what will be the fair and reasonable market value of the residue after the appropriation, the difference between the two latter figures reflecting the damages. 15 Ohio Jurisprudence, 841, Section 151, and authorities therein cited.

Application of the foregoing formula justifies the ruling of the trial court in excluding the testimony tendered in direct examination by D. C. Brackney as to the cost of the construction of a service road. While the evidence clearly proves that, no matter how either the east or west tract is subdivided or employed, the construction of a service road will be a definite necessity, this circumstance is but a factor entering into determination of the value of the residue after the severance of the parcel appropriated. Testimony as to the cost of a service road was properly received in connection with the cross-examination by the appellant of Harold B. Kaufman, location and design engineer, a witness for the state. Undoubtedly, if the testimony sought to be elicited from Brackney had been tendered in rebuttal, the same then having become competent, should and would have been received.

Appellants complain of the action of the trial court in refusing to receive testimony tending to show loss of rental values arising by reason of occupancy of a portion of the appropriated west side strip. They submit that under the authority of In re Appropriation by Superintendent of Public Works, 155 Ohio St., 454, 99 N. E. (2d), 313, such testimony was competent. The unusual factual situation existing in the latter case, involving as it did several different interests or estates in the property sought to be appropriated, requires that the principles therein stated be accorded limited application rather than being accepted as setting aside the general rule as stated in Columbus, Hocking Valley & Toledo Ry. Co. v. Gardner, 45 Ohio St., 309, 13 N. E., 69; Lakeshore & Michigan Southern Ry. Co. v. Cincinnati, Sandusky & Cleveland Ry. Co., 30 Ohio St., 604; Powers v. Hazelton & Letonia Ry. Co., 33 Ohio St., 429, and similar cases. No better statement of the reason for the rule can be found than in the Gardner case, supra, where it is said: “If this inquiry was permissible, it would place it in the power of the plaintiffs, by private contract "with the lessees, to fix their own basis of damages.” The exclusion by the trial court of testimony with respect to rental values did not constitute error.

It is contended by appellants that the trial court erred in its charge to the jury, especially with respect to that portion of the instructions having to do with the determination of damages independent of any benefits resulting from the improvement. Specifically, appellants characterize as prejudicial error that portion of the charge wherein the court instructed the jury as follows :

“Therefore, in determining the value of the property taken, you should make no deduction on account of benefits to the residue; but, although you will disregard the general benefits which may result to the property, you can consider any incidental benefit thereto which is blended with an incidental injury for the purpose of arriving at the extent of the injury sustained by the property.”

The rule that any benegfits accruing to the residue are to be disregarded in fixing the value of the property appropriated finds its origin and foundation in Section 19, Article 1 of the Constitution of Ohio, the pertinent portion of which reads:

“ * * * and such compensation shall be assessed by a jury, without deductions for benefits to any property of the owner.”

It is to be noted that this section uses the word, “benefits,” neither by expression nor implication attempting to classify benefits as “general,” “special” or “incidental.” It is to be recognized, however, that there are instances wherein either special or incidental benefits do accrue as the result of the improvement, and whether warranted by the Constitution or otherwise, courts in a proper instance have correctly instructed the jury that such special or incidental benefits might be considered. Such a situation was presented in Cleveland & Pittsburgh Ry. Co. v. Ball, 5 Ohio St., 568, in which ease a ditch drained a swamp, making part of the owner’s land valuable, although in draining the swamp, the destruction of a valuable spring resulted. The criticized portion of the charge has apparently been developed to meet the factual situation encountered in the latter and similar cases. In a proper instance, we can not say that it is incorrect either in expression or substance, although lacking the concrete and explicit character which an instruction should possess. In the case at bar, however, there was not an atom of evidence tending to prove any benefit, special or incidental, accruing to the residue of the property and, therefore, the instruction was not applicable to the issue. It is true that throughout the entire charge the court cautioned against the deduction of benefits, nevertheless, we are convinced that the giving of the complained-of portion of the instruction was erroneous and operated to the prejudice of appellants.

Appellants’ first four assignments of error are related, all in effect having to do with the claimed inadequacy of the verdict. It is undisputed that the property here involved is located in close proximity to the city of Bowling Green and in a rapidly developing area. All witnesses, whether for appellants or the state, conceded that in fixing values they appraised it as commercial property, the same constituting its highest and most advantageous use. The record amply justifies the property being so characterized and acceptance of such as its most probable* use. The developed commercial use of the area immediately adjacent warrants such conclusion. It is likewise clear that the establishment of a “limited access” highway, confining the owners to the entrances as presently proposed, seriously affects the value of the residue of the property, requiring, as it inevitably must, no matter how subdivided, the construction of “service roads” on each parcel in order to connect with the means of ingress and egress provided. So far as the record discloses, the cost of this construction must be borne by the owners and is a material factor in determining the damage to the residue. It is fundamental that the owner of land possesses an easement of access to the abutting highway at any or all points included within his frontage on such highway until such easement is extinguished by proper legal process. When such easement is sought to be extinguished, the owner is entitled to reasonable compensation, just as he is when land is actually taken. While the convenience of through vehicular traffic and the safety of travelers along the highway merit substantial consideration, the serving of these purposes can not be dignified to the extent of defeating the rights of the landowner without his being compensated. Base and facility of access constitute valuable property rights for which the owner is entitled to be adequately compensated. While the interests of the general public are to be considered as dominant, it does not follow that such circumstances can operate to deny a substantial right of the property owner. The principle is recognized by legislative provision and holdings of the courts. Section 1178-21, General Code. The duty of fully protecting the rights of the property owner in the instance where a limited access highway is created is emphasized in Burnquist, Atty. Genl., v. Cook, 220 Minn., 48, 19 N. W. (2d), 394.

The finding of the jury that the residue of the property on the west side of the highway was not damaged is against the weight of and contrary to the evidence. While the record discloses emphasized conflict in the testimony, not only as to the value of the parcels appropriated, but likewise as to the damage to the residue, we are convinced that when the cost of constructing necessary service roads and the limitation of access and all other circumstances, as revealed by the record, are considered with respect to their effect, especially, upon the reasonable value of the residue, the verdict is grossly inadequate and can not be reconciled with the evidence in this case. In view of this fact, the principles expressed in Sherer v. Smith, 85 Ohio App., 317, 88 N. E. (2d), 426, apply.

We have considered all other assignments of error and find therein nothing resulting to the substantial prejudice of appellants.

Because of the error found in the charge and the inadequacy of the verdict, it follows that the judgment of the trial court must be and is reversed and this cause remanded for a new trial and for such further proceedings as are required by law.

Judgment reversed.

Fess and Conn, JJ., concur.


author: Griffith, J.

text:
    Reilly, Appellee, v. Conti, Appellant.

      (No. 3495
    Decided March 20, 1952.)

      Mr. William A. Mason, for appellee.

      Mr. Joseph E. Julius, for appellant.
   Griffith, J.

The council of the city of Campbell enacted ordinance No. 50-1534 on October 31, 1950, as an emergency ordinance. At that time, there was pending in the Court of Common Pleas, an action wherein the court had temporarily enjoined the defendant from using the property in question as a funeral home, such use being in violation of the 1939 zoning ordinance of the city.

The Common Pleas Court, on September 30, 3950, found the 1939 ordinance invalid. On the same day, the city council published its 30-day notice, as required by Section 4366-11, General Code, of a public hearing to be held on October 31, 1950, as to a proposed new zoning ordinance. On October 31, 1950, an emergency clause was inserted in the ordinance, and it was thereupon passed as an emergency measure, effective immediately. Subsequently, the Common Pleas Court held the ordinance valid and permanently enjoined the defendant from the use desired.

In the case of Geletka v. City of Campbell (unreported), No. 3436, Court of Appeals for Mahoning County, this court held that an ordinance could have no retroactive force to prevent relator from having his full rights and use of the property up to the effective date of the ordinance. To quote:

“The question presented here is whether relator, at the time he instituted this mandamus action, which was before the zoning ordinance was attempted to be enacted, was then entitled to the writ prayed for.”

In the case at bar, the Common Pleas Court found ordinance No. 50-1534 to be a constitutional, valid exercise of the police power of the city of Campbell, and that the defendant had not established a use of his residence as a funeral home before the effective date of the zoning ordinance.

Even though the emergency provision in ordinance No. 50-1534 did not state a reason for such emergency and it, therefore, lacked validity as an emergency enactment, nevertheless, if no proceedings to institute a referendum or other challenge is made until after the expiration of the time limited for such attack, such ordinance takes effect in the same manner as other regular ordinances after legal publication is made. City of Youngstown v. Aiello, 156 Ohio St., 32, 100 N. E. (2d), 62; and Vansuch, Dir., v. State, ex rel. Fetch, 112 Ohio St., 688, 148 N. E., 232.

No referendum or other challenge having been made, it became a valid ordinance 30 days after its publication. The defendant contends that he challenged the ordinance by his pleading in this case. This is not the type of challenge contemplated in the court’s expression in its opinion in City of Youngstown v. Aiello, supra.

Prom the record in this case, the defendant could not be said to be a nonconfirming user. The Court of Common Pleas was not in error in granting an injunction, and the judgment is affirmed.

Judgment affirmed.

Nichols, P. J., and Phillips, J., concur.


author: Hunsicker, P. J.

text:
    State, Appellee, v. Sharier, Appellant.
    (No. 4250
    Decided June 4, 1952.)

      Mr. Alva J. Bussell, prosecuting attorney, and Mr. Alfred E. Vuillemin, for appellee.

      Mr. William B. Young, for appellant.
   Hunsicker, P. J.

Joseph Sharier, appellant herein, in propria persona, filed an appeal on questions of law from a judgment on his plea of guilty to an indictment returned against him by the grand jury of Summit county, Ohio. This indictment contained six counts. The first four counts charged that Sharier did “unlawfully and willfully neglect and refuse to provide” proper home, care, food and clothing for his minor children. Each count refers to a separate child. Count number five charged that Sharier did “unlawfully and willfully neglect and refuse to provide” proper home, food, care and clothing for his wife, who then was pregnant. Count number six charged that Sharier “did unlawfully and willfully” abandon his wife, who then was pregnant.

The judgment entry reads in part that Sharier “on April 25, 1951, entered a plea of guilty to the charges of nonsupport of minor children, nonsupport of pregnant woman, and abandoning a pregnant woman, as contained in the six counts of the indictment returned against him herein, which plea was accepted by the court.”

The trial court thereupon sentenced Sharier to the Ohio State Penitentiary at Columbus, Ohio, “for an indeterminate period of not less than the minimum of one (1) year and not more than the maximum of three (3) years on each of the first, second, third, fourth and fifth counts of the indictment, as provided by Section 13008 of the General Code of Ohio for the punishment of the crimes of nonsupport of minor children and nonsupport of a pregnant woman, and not less than the minimum of one (1) year and not more than the maximum of three (3) years as provided by Section 13009 of the General Code of Ohio for the punishment of the crime of abandoning a pregnant woman, said second, third and fourth counts of the indictment to run concurrently with each other, but consecutively with the first count of the indictment, and said fifth and sixth counts of the indictment to run concurrently with each other, but consecutively with the first, second, third and fourth counts of the indictment * * *.”

On November 1, 1951, Sharier filed his appeal, and some months later secured the services of counsel to present his appeal to this court. Leave to file the appeal was granted by this court, the prosecuting attorney of this county consenting in writing thereto.

No briefs were filed by the state, and counsel for Sharier filed a motion to grant the relief prayed for in the appeal and to enter an order “nihil dicit.”

At the hearing on the motion to enter an order “nihil dicit” filed by counsel for Sharier, all parties agreed that the matter be also submitted on its merits.

We overrule the motion of Sharier to grant the relief he seeks, and proceed to a determination of the case on its merits.

Sharier contends that, although he pleaded guilty to the indictment that he did “unlawfully and willfully neglect and refuse to provide home, food, care and clothing” for each of his four children and his wife, and did “unlawfully and willfully leave” his pregnant wife “with intent to abandon her,” he was guilty of but two offenses — to wit, one of neglecting his children, and the other of neglect or abandonment of his pregnant wife.

Sharier, through his counsel, insists that “the court was excessive in his sentence and penalty, for the reason that each count was considered a separate criminal act,” whereas in fact there was but one criminal act, such act being a violation of Section 13008, General Code.

An examination of the statutes discloses that Section 13008, General Code, makes it a crime to fail, neglect or refuse to provide the “necessary or proper home, care, food and clothing” for a child or a man’s pregnant wife, whereas Section 13009, General Code, makes it a crime for a husband to leave, with intent to abandon, his pregnant wife.

Sharier’s contention as to the fifth and sixth counts of the indictment are not sound. Two separate offenses are charged, based upon separate sections of the statutes. It is also to be observed that, when the trial court sentenced Sharier on these two counts, such sentences were to run Concurrently.

The statute (Section 13008, General Code) upon which the first four counts of the indictment are based specifically uses the word child; it does not say “child or children.” We think this is significant and means that, for each child coming within its terms, a separate offense is committed.

In the case of Baker v. State, 6 Ohio App., 339, where an indictment in one count stated that the defendant therein had failed to support his two minor children, the court in discussing this form of indictment said, at p. 343, as follows:

“While we feel that it would have been in better form to have made two counts in the indictment, yet, when the accused did not take advantage of this by motion or demurrer, and went to trial upon the indictment as returned, we do not think that he was in any way prejudiced when he was found guilty of failing to support one of the children and discharged as to the other. ’ ’

In the instant case, we have the four children of Sharier, whom he has failed to support. A separate offense as to each child has been committed. They are not the same criminal acts, and therefore the provisions of Section 13437-31, General Code, do not apply. The trial court in the situation herein, upon the plea of guilty, had authority to impose the sentence set forth in the judgment.

Judgment affirmed;

Doyle and Stevens, JJ., concur.