author: DOYLE, PJ,

text:
    URDANG (RAFAL, Admx., etc., substituted), Plaintiff-Appellee, v. MAHRER, KRAUSE, LUBERT, BERMAN & BENNETT, a Partnership, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24530.
    Decided April 24, 1959.

      A. H. Dudnik, Fred Weisman, for plaintiff-appellee.
    McConnell, Blackmore, Cory & Burke, for defendants-appellants.
    (DOYLE, PJ, HUNSICKER, J, of the Ninth District, RADCLIFF, J, of the Fourth District, sitting by designation in the Eighth District.)
   OPINION

Appeal by defendant from a judgment of the Court of Common Pleas of Cuyahoga County, overruling defendant’s motion for judgment notwithstanding a jury verdict for the plaintiff in the amount of $15,000, and from a judgment for the plaintiff and against the defendant entered on the verdict of a jury.

DOYLE, PJ,

delivered the opinion of the court.

Mrs. Urdang, 7.6 years of age and suffering from stomach diseomforture, traveled alone by bus from her home to the Cleveland Fair-mount Boulevard offices of the defendant doctors, who specialized there in the taking of x-ray pictures, for the purpose of locating and determining ailments of the human body. She went upon the advice of her physician. She was accepted as a patient by the defendants for the specialized services which they rendered.

Shortly after her arrival, she was prepared by the attendants for, and was given, a barium enema, whereupon a full film of x-ray pictures was made, in compliance with standard procedure. Upon the completion of this filming, she was given a clean gown because of the leaking' of barium from her body (she had been given the barium rectally to a point where she could hold no more), and was escorted to the lavatory for the purpose of relieving her intestines of the foreign substance.

The floor level of the lavatory was 7-14 inches higher than the floor level of the floor approach to its door; the door knob on the outside was at a regular height, but the knob on the inside was 7-% inches closer to the floor because of the step. The lighting of the entrance was adequate, and no unusual condition of the area existed.

The patient testified on deposition (she was dead at the time of trial — cancer) that after she entered the lavatory she sat on the toilet for a long time; “it must have been over an hour * '* She said that she got “sick and dizzy,” and called for help three or four times.

“Q. And finally you had reached a point where you were ready to come out; is that right?
“A. Yes.
“Q. And what did you do?
“A. And they never came.
“Q. Did you call them?
“A. I called them and nobody answered. And I was starting to walk myself.
“Q. And how many times did you call? Did you just call once?
“A. I called about three or four times.”

The patient then testified that she opened the door by herself and fell over the step. There were no other witnesss. As a consequence of the fall, her hip was broken, with a resulting confinement of over four months in a hospital.

She testified:

“Q. You opened the door by yourself?
“A. I opened the door by myself.
“Q. And then did you miss the step and fall?
“A. I missed the step and I fell. As soon as I opened the door, I fell. * * *
“Q. Had you forgotten the step was there?
“A. I suppose I must have forgotten. I didn’t realize it.
“Q. You had stepped up that step coming in, of course, but you forgot it when you came out?
“A. I forgot it, I didn’t see it. I fell right away.”

In partial contradiction of the plaintiff’s testimony is persuasive evidence to the effect that: Mrs. Urdang’s appointment with the doctor was for 10:45 a. m.; she arrived about 10:45 a. m. and entered the x-ray room between 11:00 and 11:05 a. m.; the administration and observation of barium, and the procedure of x-ray, took from 11 to 16 minutes; the final x-ray picture, before she was escorted to the lavatory, was completed between 11:15 and 11:25 a. m.; and that the maximum time that she could have been in the lavatory was from 15 to 20 minutes.

There is uncontradicted evidence to the effect that, since the installation of the lavatory in its then condition, no one had ever fallen or tripped on entering or leaving it; and that from seven to eight thousand barium enema patients had used the same toilet room without incident, in addition to an equivalent number of other patients, employees and other persons.

The instant suit, brought by the administratrix of the estate of Mrs. Urdang, for damages for the broken hip injuries suffered by the deceased during her lifetime, charged negligence as follows:

“1. In that when they assisted plaintiff to the washroom they failed and neglected to warn her of the existence and location of the step, or riser, at the entrance way of said washroom.
“2. In that defendants knew that, by reason of her advanced age and the barium x-rays performed upon her person, plaintiff’s physical condition necessitated that she be assisted while within the washroom and in her exit therefrom in order for her to exit from said washroom with reasonable safety, but, nevertheless, defendants failed and neglected to provide plaintiff with assistance to exit from said washroom.
“3. In that defendants failed and neglected to make the entrance way of said washroom reasonably safe for the exit therefrom by their business invitees and more particularly this plaintiff.”

At the close of the evidence in the trial, various motions were made by counsel for the defendants. The court sustained the motions directed to striking from the petition the first and second allegations of negligence set forth above.

The case was eventually given the jury on the third allegation alone; and, on that charge of negligence, the jury returned its verdict for the plaintiff.

Pertinent comments of the trial judge at the time of the rulings on the first and second allegations of negligence were:

In respect to allegation No. 1:

“* * * i think the law in Ohio is to the effect that, a person being once aware of an existing danger of some sort, there is no obligation upon the property owner involved in this particular instance or person in control, to advise them (sic) of the existing danger. I think that she observed it, and it is clear from the testimony of the decedent herself that she was aware of the step; and certainly her answer in response to the fact that she had forgotten about it indicates clearly * * * that she was aware that a step was there; and, clearly, under the law there is no reason why that particular ground * * * should be submitted to this jury.”

In respect to allegation No. 2:

“* * * the ground of - malpractice certainly leaves the burden upon the plaintiff to establish such malpractice; and I think in this instance the question of whether or not the burden has been sustained — I don’t think that any evidence has been offered to indicate any malpractice, and for that reason the second ground of negligence will be stricken as it appears on * * * plaintiff’s petition, and it will be withdrawn from the consideration of this .jury.”

The defendants, the appellants here, assign errors as follows:

“1. The court erred in failing to grant defendants’ motion for a directed verdict at the conclusion of all the evidence for the reason that defendants were entitled to a verdict in their favor as a matter of law.
“2. The court erred in failing to grant defendants’ motion for judgment notwithstanding the verdict for the reason that, upon the evidence, defendants were entitled to a judgment in their favor as a matter of law.”

The plaintiff, the appellee, to the contrary, speaks of the sole issues as:

“Whether in considering all of the evidence (and pleadings) * * * in its most favorable light, in favor of the plaintiff, reasonable minds could only reach the conclusion that the jury was wrong and that the defendant is entitled to judgment in its favor as a matter of law”; and that the issues, separately stated are:
“1. Could reasonable minds differ as to whether or not the defendants exercised reasonable care under the circumstances? 2. Could reasonable minds differ as to whether or not the plaintiff exercised reasonable care for her own safety under the circumstances? If the answer is ‘yes’ to both questions * * *, the verdict and judgment * * * (should) be affirmed.”

Attention will be first directed to the second allegation of negligence which the trial court characterized as a charge of malpractice. It is again observed that this allegation was stricken from the case and not submitted to the jury.

The great weight of authority supports the view that, ordinarily, expert evidence is essential to support an action for malpractice against a physician, a surgeon, a roentgenologist, or other expert practicing in a similar field, on the theory that what is or is not proper practice in the examination and treatment of a patient, or what is or is not the standard of practice, or the usual practice and treatment in the community, is a question for experts, and must generally be established by their testimony. See: Annotation of cases in 141 A.'L. R. 5, “Necessity of expert evidence to support an action for malpractice against a physician or surgeon.”

There are, however, many situations and conditions which do not require expert opinion evidence to establish a case of negligence. Zimmerman, J., in Hubach, a minor, v. Cole, 133 Oh St 137, at p. 142, has well said that:

“In a malpractice action, the issue as to whether the defendant physician has proceeded in the treatment of the particular ease with the requisite standard of care and skill is a matter which must ordinarily be determined from the testimony of medical experts. But the statements and acts of the defendant physician, as well as external appearances and manifest conditions which are observable by anyone, may be given by non-expert witnesses. And such testimony by lay witnesses may show a course of conduct with ensuing results of such a character as to warrant the inference of want of care. 31 O. Jur., 489, Section 247; Benson v. Dean, 232 N. Y. 52, 56, 133 N. E. 125, 126; DeGroot v. Winter, 265 Mich., 274, 251 N. W., 226; Stockham v. Hall, 145 Kan. 291, 65 P. 2d 348, 349.”

And, see the case of Wiley v. Wharton et al, 68 Oh Ap 345, 41 N. E. 2d 255.

As we view the evidence in this case, the nurses who had Mrs. Urdang in charge, after the x-ray films were made, were in the employ of the defendant doctors. The issues here do not concern their acts, or the acts of the doctors in a professional capacity in administering the barium enema, or in the making of the films, but they do relate to administrative acts and omissions in carrying out the obligations of the doctors and their employees in bestowing adequate attention to the needs of an elderly patient in seeking necessary intestinal relief while in an abnormal physical condition — a necessary consequence of professional services previously rendered. Neither professional skill, nor professional care, in this respect, was involved; and, while doctors and nurses are not insurers of a patient’s safety, they are obligated to use reasonable care and diligence in safeguarding patients who are in their care and charge. Such care and diligence is measured by the capacity of the patient to care for himself.

As in the case before us, when a patient, by reason of age and other physical infirmity caused by the rendering of professional services, suffers an injury entirely unrelated to the rendered professional services, while under the immediate care of a doctor or his nurses, a question of fact is presented as to whether reasonable care was given under the circumstances existing; and it might well be that a jury could reasonably find that the duty of the doctors and the nurses, in the exercise of ordinary care for the patient, required a greater amount of care than would be required in the case of a vigorous person under no unusual disability.

It may be argued that the proof to establish such a case must be furnished by expert testimony. There is no expert testimony on this question in the case before us. It is our thought, however, that while, ordinarily, jurors would find difficulty, without the help of expert medical evidence, in determining the right of a patient to recover against his physician for injury brought about by the actual treatment of the patient by the doctor or his nurses, injuries received during the course of treatment, and unrelated to the treatment itself, may be of such a character as to warrant the inference of want of care from the testimony of laymen, in the light of the knowledge and experience of the jurors themselves.

Certainly lay testimony would be sufficient to establish a lack of ordinary care of a doctor or his nurse who permitted a dazed, semi-normal or semiconscious patient from wandering around the offices unattended, and who then injures himself by falling out of an open window, or on a hot radiator, immediately following skillful professional treatment by the doctor. Indeed, the duty of care does not stop when the operation is terminated. Public consideration requires additional care which is inseparable from the nature and exercise of the profession of healing. The negligence would not be attributed to the presence of the window or the radiator, but might be such as would justify the jury in finding a lack of care of a defendant in protecting the safety of the patient, in the light of his physical or mental capacity to care for himself under the circumstances existing.

The trial court should have submitted the second allegation of negligence to the jury.

Two of the members of this Court of Appeals CJudge Hunsicker and the author of this opinion) were on the court which reviewed the case of Leighton v. Hower Corp., in the Ninth Judicial District. The Supreme Court, in affirming the judgment of the court, in 149 Oh St 72, spoke as follows:

“1. Where plaintiff’s testimony discloses that she was ‘temporarily oblivious’ of the presence of a step which a few minutes before she had used, it shows a want of due care on her part and does not dispel the inference of her own negligence.”

While the facts of the Leighton case were similar to the facts in the instant case, in respect to the necessity of a step up upon entering a toilet room, or a step down upon leaving it, in the Leighton case we based our final judgment primarily on the negligence of the injured plaintifl and did not explore the question of negligent building construction.

It is observed in this connection, however, that the injured lady in the Leighton case was a business visitor in a department store which was open to the public, and that she suffered from no physical impairment, or at least none which was known to the proprietors of the store.

In the instant case, the injured lady was in the care of the defendants as a patient, whose physical condition was, or should have been, known to them. Under these circumstances, unlike the ruling on the plaintiff’s negligencce in the Leighton case, the question of whether Mrs. Urdang was negligent, which proximately caused or contributed to cause her injuries, is indeed one for a jury to determine.

We proceed now to the claimed negligence of construction in the single specification of negligence submitted to the jury, to wit:

“In that defendants failed and neglected to make the entrance way of said washroom reasonably safe for the exit therefrom by their business invitees and more particularly this plaintiff.”

There was nothing unusual about the entrance to the lavatory, excepting only the step as has been heretofore noted.

While we find no Ohio authorities treating specifically this factual situation, we are impressed with the principles of law stated in several out-of-state cases.

In Wessner v. Blue Ridge Transportation Co. et al., 338 Pa. 161, a toilet, compartment floor six inches higher than a restroom floor, in a terminal of the transportation company, triggered the fall of a business visitor who fell as she emerged from the toilet room. The court, in holding for the defendants, said:

“1. A possessor of land who provides facilities for the convenience of his business visitors which are constructed in a manner which is customarily regarded as sufficient for their protection by reasonably careful persons is not negligent.”

In the opinion there appears the following observation:

“To contend that the jury should have been allowed to say that this construction unreasonably exposed users of these premises to danger, is to divorce the law from reality. * * * The same construction is used in many of the larger office buildings and department stores in this city, and indeed, throughout the country. Common observation is enough to satisfy us that the defendants’ rest room did not deviate from the standard customarily regarded as requisite by other reasonably careful persons under like circumstances * * *.
“There is no evidence of inadequate lighting * * •*. It is not contended that the step was worn, slippery, or defective in any manner. The platform was of only ordinary height. Under these circumstances, it would be thoroughly pernicious to permit the jury to speculate with the rights of the defendants.”

In Pierce v. Burlington Transportation Co., 139 Neb. 423, 297 N. W. 656, the injured plaintiff was a passenger on a bus, and was directed to use a restroom in a hotel adjacent to the bus station. The floor level of the restroom was six to seven inches higher than the floor of the anteroom, thus making it necessary for the plaintiff to step up as she entered. Upon leaving the toilet room, she slipped over the edge of the restroom floor. The court held that there was no negligence shown to exist on the part of the transportation company, nor indeed of the hotel. When referring to the hotel, the court observed:

“The premises upon which the plaintiff was invited to enter and where the accident happened was a hotel which must be kept reasonably safe for all persons invited to use its facilities. * * * The mere fact that there was a step which plaintiff would have to ascend and descend in going to and from the rest room does not evidence a want of due care on the part of the hotel proprietor. Such steps are usual and customary in hotels. Main v. Lehman, 294 Mo. 579, 243 S. W. 91 There is nothing inherently dangerous in having the floor of a toilet and lavatory raised six or seven inches above the floor of the anteroom. Viles v. Thunberg, 164 Wash. 190, 2 P. 2d 666; Albachten v. Golden Rule, 135 Minn. 381, 160 N. W. 1012.”

In consideration of the allegation of negligence, as set out above, and the only one submitted to the jury, we find no evidence to justify its submission, and the court erred in so doing.

Recapitulating our observations, we find error prejudicial to the rights of the appellants, the doctors, in the submission to the jury of allegation of negligence No. 3. We find error in the court’s refusal to submit to the jury allegation of negligence No. 2. We find no error in not submitting to the jury specification of negligence No. 1, As to the allegation No. 1, no mischief resulted through- failing “to warn her of the existence and location of the step or riser’’ when she was assisted to the lavatory; she stepped up the step and entered the room without incident.

The appellants have appealed from the ruling of the trial court in its refusal to enter judgment for them notwithstanding the verdict, as well as from the judgment rendered in favor of the appellee and against the appellants. The appellants have not asked for a new trial. The appellee has not appealed, seemingly satisfied with the judgment in her favor rendered in the court below.

We find no error in the court’s refusal to enter judgment for the appellants on its motion for judgment notwithstanding the verdict. We find error prejudicial to the rights of the defendants (appellants) in the judgment entered for the plaintiff (appellee) on a verdict based solely on an erroneously-submitted allegation of negligence. We find error in the court’s refusal to submit to the jury allegation of negligence No. 2, upon which there was evidence of sufficient worth to justify its submission.

In our search of the record, we find that justice can only be accorded by the granting of a new trial, even though neither side has requested one.

The judgment for the appellee, and against the appellants, will be reversed, and the case remanded to the Court of Common Pleas for a new trial, and a journal entry will be prepared in form and substance not inconsistent with this opinion.

Reversed and remanded.

HUNSICKER and RADCLIFFE, JJ, concur.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    GRAFF, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6135.
    Decided March 24, 1959.
    Frederick S. Graff, Columbus, for himself.
    Mark McElroy, Atty. Geni., William M. Vance, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By MILLER, J.

Submitted on motion of the respondent seeking an order dismissing the plaintiff’s petition for the reason that all matters in controversy between the parties hereto relating to the legality of the petitioner’s restraint were fully adjudicated by this court in case No. 6078, an action in habeas corpus, heard by this court on January 21, 1959. The petitioner concedes in his brief filed with the petition that he appeared before this court on January 21, 1959, but urges that the instant petition raises questions not presented in the previous proceeding..

An examination of the petition in the pending action reveals that the petitioner alleges that “he is being illegally detained within the confines of the Ohio State Penitentiary of Columbus, Ohio, contrary to the Constitution and the laws of the State of Ohio and the 5th and 14th Amendments of the U. S. Constitution.” Now conceding, for the purposes of argument, that the grounds set forth herein were not considered in the prior action, do they set forth additional valid grounds which may be considered in a habeas corpus proceeding? It will be noted that the petitioner is seeking his release for the reason that his constitutional rights have been violated.

In the case of State, ex rel. Focke v. Price, 165 Oh St 340, the petitioner was seeking his release from prison because of an alleged violation of his constitutional rights. The writ was denied for the reason that the petitioner had an adequate remedy at law by way of appeal, citing Yutze v. Copelan, 109 Oh St 171, 142 N. E. 33, 32 A. L. R., 1048.

The petitioner admits in his brief that he prosecuted error to the Court of Appeals, Eighth Appellate District, wherein judgment was affirmed on September 30, 1958. Having an adequate remedy at law and having exercised the same, the petitioner has set forth no valid additional grounds for his release on habeas corpus. He is, therefore, estopped from proceeding .in this action.

In the case of In re Knight, 144 Oh St 257, the court said in Branch 1 of the syllabus:

“The allowance of a writ of habeas corpus operates as a bar and estoppel only as to the particular proceeding then under review and is res judicata only upon the same question presented under the same state of facts.”

See also Bowman v. Alvis, 79 Abs 508.

The motion to dismiss will be sustained.

BRYANT, PJ, DUFFY, J, concur.


author: By MILLER. J.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. GUIDOTTI, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5852.
    Decided May 6, 1958.
    Russell Leach, City Atty., William T. Gillie, Davis J. Myers; Asst. City Attys., Columbus, for plaintiff-appellee.
    Simon P. Dunkle, William E. Edwards, Columbus, for defendant-appellant.
   OPINION

By MILLER. J.

This is a law appeal from a judgment of the Municipal Court finding the defendant guilty of disorderly conduct in violation of Section 29.20 of the Ordinance of the City of Columbus, Ohio. This ordinance provides as follows:

“Whoever disturbs the good order and quiet of this city by any clamor or noise, the ringing of gongs for advertising purposes, or by intoxication, drunkenness, fighting, using obscene or profane language in any street or other public place to the annoyance of any of the citizens, or otherwise violates public peace by indecent and disorderly conduct or by lewd and lascivious behavior shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than three dollars ($3.00) nor more than twenty dollars ($20.00) or be imprisoned not more than thirty days, or both.”

The record reveals that at the time and place alleged in the affidavit certain police officers were engaged in investigating an alleged robbery in the vicinity of Fulton and High Streets; that the defendant Louis J. Guidotti was seen running for a short distance and entering a nearby restaurant where he purchased a package of cigarettes and as he was leaving the premises he was accosted and stopped by three police officers dressed in plain clothes. In order to detain the defendant physical force was used upon him, who thereupon used certain vile and offensive language. He was overpowered by the officers, handcuffed and placed under arrest, at which time the officers identified themselves. He was later charged with disorderly conduct as alleged in the affidavit.

The defendant’s evidence revealed that he was a citizen of good character, a resident of Sunbury, Ohio, having a place of business in Galena, and other business connections in Columbus and Westerville; that at about 6:30 P. M. he drove to Chillicothe, Ohio, accompanied by his wife and several friends in order to inspect a bowling alley which he was considering purchasing; that he returned to Columbus about 11:00 P. M. and when he reached Fulton and High Streets he parked his car near the corner and ran into a nearby restaurant in order to purchase a package of cigarettes. This attracted the attention of the officers who proceeded to act as previously set forth.

There is not a scintilla of evidence that the defendant had committed any violation of law prior to the time of his detention by the police officers. The defendant testified that he had the sum of $960.00 on his-person and that he feared he was being robbed. After he had been arrested he explained to the officers why he had entered the restaurant, told them that his friends were waiting for him in the parked automobile and asked them to investigate his statement, which request was refused. He was then taken to the police station and the charge preferred against him.

We are of the opinion that it was because of the provocation by the officers that he resisted their interference with his freedom by force and language which was not complimentary to their organization. Since the defendant had committed no offense prior to his detention, no grounds existed for his arrest and he was justified in resisting them by any manner or means which may have been reasonably necessary to retain his freedom. See 5 O. Jur. 2d, 61. We recognize that under §2935.04 R. C., an arrest may be made without a warrant when the officer has reasonable grounds to believe that a felony has been committed, but he was not arrested for this reason but only upon the charge of disorderly conduct. In the case of City of Jacksonville v. Headen, 48 111. App., 60, we think the court made an appropriate statement when it said in paragraph 2 of the syllabus:

“It is not the law that any threatening or insulting word, gesture or motion amounts to disorderly conduct. It may be of such a character or so provoked or conditioned as to be fully justified.”

It is our conclusion that the conduct of the defendant was occasioned by the manner in which he was accosted by the officers and that the same was justifiable. It is indeed quite natural for a respectable citizen to become aroused and excited when accosted in the manner in which he was and the things which he did under such circumstances should have been overlooked.

The judgment is therefore against the manifest weight of the evidence and the motion for a new trial should have been sustained.

The second assignment of error is not well taken and will be overruled.

The judgment is reversed and cause remanded for further proceedings according to law.

PETREE, PJ, BRYANT. J, concur.


author: By DAVIES, J.:

text:
    McDONALD, Estate of, In re.
    Probate Court, Hamilton County,
    No. 202907.
    Decided November 18, 1957.
    William Saxbe, Atty. Geni., Gerald A. Donahue, Asst. Atty. Geni., for Department of Taxation of Ohio.
    Harry B. Reese, for the executors of the estate of George McDonald, Deceased.
   OPINION

By DAVIES, J.:

This matter came before the Court upon exceptions filed by the Department of Taxation of Ohio to a determination of the Court that a bequest valued at two hundred sixty-five thousand, seven hundred sixty-two dollars and thirty-eight cents ($265,762.38) under Item III of the Last Will and Testament of George McDonald, deceased, to The Walter A. and George McDonald Foundation, was exempt from the payment of an inheritance tax under the laws of Ohio.

George McDonald died, a resident of Cincinnati, Ohio, on December 24, 1955, survived by his widow, Jeanne McDonald, his sole heir at law In 1951, the decedent and his brother, Walter A. McDonald, executed a trust agreement whereby The Walter A. and George McDonald Foundation was established. Included in the trust agreement was a provision that three named trustees, and their successors in office, should hold, use, manage, administer, and dispose of all income, revenues, and profits derived from the trust estate exclusively “for the charitable, religious, scientific, and educational purposes, in the manner, and upon the terms and conditions” set forth in trust agreement.

The trust agreement also contained the following provision: “Without limiting or restraining in any manner or to any extent whatsoever the complete and absolute discretion which the Donors herein vest in the Trustees, the Donors request the Trustees to give careful consideration to the needs of those religious, charitable, scientific, and educational institutions in which the Donors by membership, association, or contribution, have manifested special interest, or to which the Donors may hereafter direct the attention of the Trustees.”

The testator, in Item III of his Will, left the residue of his estate in trust with a provision that his wife should be paid all income from the trust for her life, and, upon her death, the corpus of the trust should be paid over to the trustees of the Walter A. and George McDonald Foundation to be “held, managed and expended in accordance with the provisions of the trust agreement creating said Foundation.”

According to the joint federal income tax return filed by the decedent, George McDonald, and his wife, Jeanne McDonald, for the years 1951-1954, inclusive, these taxpayers expended a total of $22,823.41 for charitable purposes. The federal income tax returns of Walter A. McDonald, unmarried, for the years 1951-1956, inclusive, show that he expended a total of $184,784.99 for charitable purposes. Almost all of said contributions were made to charitable organizations located in Cincinnati, Ohio.

During the years 1952-1956, inclusive, the Walter A. and George McDonald Foundation expended $26,718.00. 85% of the total contributions made by the Foundation were made to charitable institutions in Ohio.

Sec. 5731.09 R. C., provides that “the succession to any property passing to or for the use of,---any public institution of learning or any public hospital not for profit, within this state, or institution of learning or any public hospital not for profit within any state of the United States, which state does not impose an inheritance, estate, or transfer tax on property given, devised, or bequeathed by a resident thereof to an institution of learning, or any public hospital not for profit within this state, or to or for the use of an institution for purposes only of public charity, carried on in whole or in a substantial part within this state, — - shall not be subject to §5731.02 R. C.,” under which taxes are levied upon those successions to property which, under the law, are subject to the imposition of inheritance taxes.

Practically all of the contributions made by Jeanne McDonald and George McDonald, during his lifetime, and all of the contributions made by the Walter A. and George McDonald Foundation, were made to public institutions of learning, public hospitals not for profit, within Ohio, or institutions of learning or public hospitals not for profit within states which do not impose an inheritance, estate, or transfer tax on property given, devised, or bequeathed by residents thereof to institutions of learning, or public hospitals not for profit within Ohio, and to or for the use of institutions for purposes only of public charity, carried on in whole or in a substantial part within Ohio.

The Department of Taxation does not deny that the Walter A. and George McDonald Foundation is an institution organized “for purposes only of public charity,” but contends that the residuary bequest to the Foundation is not exempt from the imposition of an inheritance tax because there is no specific requirement in either the testator’s will or in the McDonald Trust Agreement that the residuary bequest made to the Foundation be expended “for purposes only of public charity, carried on in whole or in a substantial part within” Ohio.

In the case of Tax Commission of Ohio v. Paxson, Admr., et al., 118 Oh St 36, Mary W. Millikan left $20,000.00 to trustees as a memorial to her father, Dr. John G. Wilson, from which fund “members of his profession may be compensated for alleviating the suffering of the unfortunate, needy, afflicted and thus rendering a service which he in his lifetime took great pleasure in rendering personally.” The will provided that the trustees should be “the sole judges as to the persons qualified and entitled to have the benefits of said fund, and the purposes for which said expenditures shall be made.” The Court (p. 40) pointed out that the trustees, under the wide discretion given them, might pay the income to one beneficiary only, in which case the use of the beques would not be for public purposes only, and the trustees might also decide to pay the income wholly to a beneficiary or beneficiaries in Indiana, California, or Alaska, in which case the charity would not be “carried on in whole or in substantial part within this state.” The Court held that the succession to such property was not exempt from the inheritance tax imposed under §5334 GC (now §5731.09 R. C.).

When a testatrix bequeathed a portion of her residuary estate to the American Bible Society, which was incorporated under the laws of New York, to publish and promote the general circulation of the Holy Scriptures throughout the United States and the world, the Court held that the bequest was taxable under the provisions of §5334 GC (now §5731.09 R. C.), because a charitable institution claiming exemption from the payment of inheritance taxes must prove that it is an institution for purposes only of public charity carried on in whole or in a substantial part within Ohio, which the taxpayer was unable to do. In re: Estate of Taylor: American Bible Society v. Department of Taxation of Ohio, 139 Oh St 417.

In the Julian ease (In re: Estate of Julian, 93 Oh Ap 221), the testatrix left money to the Archdiocese of Cincinnati, in the State of Ohio, “to be used for the support and furtherance of such charitable, benevolent, scientific and educational works and activities of said archdiocese as may be designated by said archbishop of Cincinnati.” The Court pointed out that a contribution made at that time for religious purposes, or to a religious society, was not exempt from taxation. The Court stated that there was no question that, if the funds were to be used for benevolent, scientific, and educational purposes, the bequest would be exempt from inheritance tax, but reasoned that the word “charitable” included a religious purpose, and that, when the Archbishop was designated, and it was stated that the money was to be used for such charitable, benevolent, scientific, and educational works and activities of said Archdiocese as may be designated by said Archbishop of Cincinnati, it was intended by the testatrix that the Archbishop would use part of the money bequeathed for religious purposes. For that reason, the Court held that the bequest was taxable. At present, under the provisions of §5731.09 R. C., which became effective on August 30, 1957, a succession to any property passing to or for the use of any established religious organization, within Ohio, is exempt from the payment of an inheritance tax.

In the case of Tax Commission v. American Humane Education Society, 42 Oh Ap 4, a bequest was made to the American Humane Education Society, which was a charitable institution which spent one-forty-eighth of its expenditures in Ohio. The Court held that this bequest was exempt from taxation because such Ohio expenditures constituted a substantial part of its activities.

In a Franklin County, Ohio, case, the testator left a bequest to a bank, as trustee, for the erection and operation of an orphans’ home in a rural section, but not stating specifically that it should be located in Ohio, and further providing that, if there were insufficient funds in the trust, the money should be turned over to the Methodist Children’s Home of Columbus, Ohio, which “is rendering such services as I have outlined herein.” The Methodist Children’s Home carried on its charity within the state of Ohio. The Court held that impliedly, if not specifically, the testator contemplated that the charity he was establishing was to be carried out in Ohio, because he was a resident of Columbus, his trustee was a Columbus institution, and the name he selected for the charity would be meaningless if not carried out in Ohio (The Julia Hurst Cherrington Memorial Home, to be established and erected in or near Franklin County, Ohio, and in no event, be more than fifty miles from the City of Columbus). The Court held that a testamentary trust for the erection and operation of an orphans’ home to be established in a rural section, but not stating specifically that it should be located in Ohio, is exempt from inheritance tax as a public charity under §5334 GC (now §5731.09 R. C.), In re: Estate of Charles S. Cherrington, 31 O. O. 486, 43 Abs 289.

In an interesting case originating in Hamilton County, Mary Emery devised property to the Thomas J. Emery Memorial. The question arose as to whether or not the Memorial was an institution organized for purposes only of public charity to be carried on in whole or substantial part in Ohio. The purpose of the association, incorporated prior to Mrs. Emery’s death, was to bring about the physical, social, civic, and educational betterment on humanitarian lines of residents of the United States, and preferably those residing in the State of Ohio. Before her death, the Memorial received from Mrs. Emery $300,000.00, to be used in the construction of a new wing for the Cincinnati Art Museum. In her will, Mrs. Emery made a bequest to the Memorial, and the question arose as to whether or not the Memorial was an institution for purposes only of public charity carried on in whole or substantial part in Ohio. The Court held that, while the purpose clause of a non-profit corporation did not determine purpose of bequest thereto, it was material on the question of testatrix’s intention, as regards the exemption of the bequest from an inheritance tax as a bequest to charity. The Court held that the Memorial was a public charity, and further stated that, when the testatrix provided in her will that the income therefrom should be used for the physical, social, civic, and educational betterment of residents of the United States, preferably those in the State of Ohio, on humanitarian lines, her preference was expressed for residents of the State of Ohio and was binding upon the trustees. Tax Commission v. Livingood, Exr., 40 Oh Ap 543.

In Central National Bank of Cleveland v. Department of Taxation of Ohio, 162 Oh St 1, it was held that where the residue of an estate was devised and bequeathed to a named trustee, and the income and principal thereof was to be distributed from time to time for “such public charitable or educational uses and purposes as will, in the absolute and uncontrolled discretion” of a specific distribution committee, “most effectively assist and promote the well being of the inhabitants, * * * regardless of race, color or creed,” a trust so established is “an institution for purposes only of public charity,” under the provisions of §5334 GC (§5731.09 K. C.). The Court pointed out that where discretion is given to a specific distribution committee to designate the beneficiaries of a testamentary charitable trust, having a named trustee and established under a will which incorporates by reference as a part thereof a trust agreement entered into by the testator during his lifetime and which provides that the distribution committee shall allocate, from time to time, at least 50 per cent of the income and principal to unnamed Ohio charities, and that not to exceed 50 per cent may be distributed to charities emanating from a specific point without the state, but such distribution not being required, such devise and bequest is a single succession for purposes only of public charity. The Court concluded that where such a testamentary charitable trust contains an overriding geographical limitation that at least 50 per cent of the trust funds must be used for public charitable activities carried on within the state of Ohio, the succession as to such trust is exempt from taxation under §5334 GC (§5731.09 K. C.), as being a succession “for purposes only of public charity carried on in whole or in substantial part within this state.”

A testator residing in Illinois made a bequest of $500,000.00 to the Farm Foundation, which was a national organization, “to aid in solving agricultural problems in the nation.” The question was whether or not this money was to be expended within Illinois. .The Court held it is a matter of common knowledge that the solution of farm problems is of great importance to the nation and that Illinois is one of the largest of the agricultural states, and that that which is of benefit to the farms of one state may equally be of benefit to the state of Illinois. The Court decided that the bequest was not taxable under Illinois law, on, the ground that consideration must be given to the provisions of the trust instrument, the residence of the trustees, the residence, if any, of the beneficiaries, the location of the property, and the location where the purpose of the trust is to be carried on. The People v. First National Bank, 364 Ill. 262.

In Old Colony Trust Co. v. Commissioner of Corporations and Taxation, 331 Mass. 329, 119 N. E. (2d) 175, 182, the law exempted from the payment of inheritance taxes institutions whose purposes were literary, benevolent, charitable, or scientific. The Court stated that the test depends upon the language of the charter or articles of association and upon the objects which it serves and the methods of its administration. The Court also held that it is the character of the charitable institution on the date of the testator’s death which determines whether the property is exempt from taxation.

In a recent Ohio case, Richard P. Bremer bequeathed nearly a million dollars to two named trustees to be used by them for the relief, benefit, medical care, and education of the poor and destitute and for the advancement of the sciences of medicine and surgery — the trustees to have full, sole, and unlimited discretion as to the disbursement of the trust estate, both principal and income, for said charitable purposes. The will further provided that the trustees could form a corporation to be known as “The Bremer Foundation.” This corporation was not in existence at the time of the death of the testator, but was subsequently formed, and it provided that the charitable disbursements were to be made principally in Ohio. The will did not have any such provision. The Court reasoned that, under §5731.09 R. C., two factors had to be present before a bequest was relieved from taxation: (1) It must be “to or for the use of an institution for purposes only of public charity,” and (2) It must be “carried on in whole or in a substantial part within this state.” The Court held that the first test was met, because it was a public charity, but stated that the will had no geographical limitation whatsoever as to where the funds could be expended. The bequest was taxable, the Court stated, in that particular case, because the exemption or non-exemption of a succession must be determined solely by the terms of the will creating the succession, when an “institution” named in the will is not in existence at the time of the death of the testator. The Court concluded that “where a testator devised or bequeathed a gift to an ‘institution’ of public charity not in existence at the time of the testator’s death, without requiring that the benefits of such devise or bequest are to be used or enjoyed in whole or in substantial part in this state, the succession thereby created is not exempt from taxation under the provisions of §5731.09 R. C„ regardless of the actual use of such benefits or the expressed intent as to such use of trustees or of the articles of a corporation created after the testator’s death.” In re: Estate of Bremer, 166 Oh St 233.

Coming finally to a consideration of the application of the law as recorded in the foregoing decisions to the facts in the instant case, we find that the testator and his brother, Walter A. McDonald, created The Walter A. and George McDonald Foundation for “charitable, religious, scientific, and educational purposes.” The trustees of the Foundation had full power and authority to administer the assets of the Foundation, with, however, a request that the trustees “give careful consideration to the needs of those religious, charitable, scientific, and educational institutions in which the Donors by membership, association, or contribution, have manifested special interest, or to which the Donors may hereafter direct the attention of the Trustees.” The Donors were lifelong residents of Cincinnati. Ohio; the Foundation was incorporated in Ohio; the trustees were residents of Cincinnati; and the testator, after the creation of the Foundation, “manifested special interest” in, and, primarily, made contributions to, institutions organized for purposes only of public charity, carried on within Ohio.

For these reasons, the Court finds that the bequest made by George McDonald to The Walter A. and George McDonald Foundation is exempt from the payment of an Ohio inheritance tax, and the exceptions of the Department of Taxation, therefore, will be overruled.


author: By HORNBECK, PJ.

text:
    PICKENS, Jr., Plaintiff-Appellant, v. SWAN, Defendant-Appellee.
    Ohio Appeals, Second District, Madison County.
    No. 237.
    Decided November 27, 1957.

      Buchanan, Peltier & Fuller, Otis C. Buchanan, of Counsel, for plaintiff-appellant.
    Richmond & Richmond, Charles D. Richmond, of Counsel, for defendant-appellee.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment in behalf of defendant entered on a directed verdict of a jury at the conclusion of plaintiff’s case in-chief.

The action instituted by the father and next friend of Darryl Pickens, a minor, and on his behalf was for damages for personal injuries suffered by the minor by reason of his being struck by an automobile driven by defendant.

The minor, a boy of the age of 8 years at the time of the trial and about the age of 7 at the time of the occurrence set out in the petition, was offered as a witness and the Trial Judge upon preliminary interrogation permitted him to be sworn and to testify. Thereafter, and when the boy had been permitted to testify in narrative form all of his testimony was stricken for the reason that he was an incompetent witness under the statute. Sec. 2317.01 R. C.

The father of the boy took the stand and was interrogated as to statements relative to the accident made to him by his son approximately an hour after it occurred and after he had been examined and treated by a doctor and had returned to his home. Upon objection, the trial judge refused to receive this testimony.

After the plaintiff had called and examined the defendant on cross-examination, he sought to recall him and interrogate him further. Upon objection, the Court refused this request.

A witness, Clark, for the plaintiff, was not permitted to point to a spot on Exhibit A, a photograph offered by plaintiff.

These rulings, together with the overruling of plaintiff’s motion for a directed verdict and for a new trial constitute the assignments of error.

The specifications of negligence against defendant are that the defendant, driving his automobile northerly on the east side of Main Street in London, a short distance north of the New York Central Railroad tracks, struck the plaintiff and was negligent in so doing in failing to observe the child or to grant to him the right of way as a pedestrian.

It is basic that a plaintiff must recover, if at all, upon the strength of his own proof. Where negligence is charged, it must be proven. Here, before the defendant could be held to be negligent, the evidence must have tended to show that he was at fault in some particular alleged; that his automobile was in such a position and location in the street before coming in contact with the minor as to charge the defendant with the obligation to see him. If full effect is given to all of the testimony including that of the minor, and his father, it does not appear that at any time he was in front of defendant’s automobile. The point of impact between the boy and the automobile was at the rear right hub-cap. To permit an assumption that the defendant saw the plaintiff before the impact is not permissible from any of the evidence. The plaintiff says in his first statement that he ran out between two parked cars, and as he did not see defendant’s automobile, he does not place himself in front of it. This accident was unfortunate but it would be pure conjecture to draw the conclusion that the boy at any time was in such a place in the street as to enable the defendant to see him before the impact.

If the errors assigned as to the competency of the plaintiff as a witness, the admission respecting the photograph and the testimony of the father of plaintiff were all resolved in favor of the plaintiff’s claim, they could not have supported his right of recovery. We will however, briefly consider the errors assigned.

If we had the decision to make from a reading of the record, we would admit the testimony of the minor. But, it is not within our province to make original determination of his competency as a witness and there were aspects incident to his competency which were open to the observation of the trial judge which are denied to us. There is uniformity in the authorities that the decision whether or not a child, who comes within the age set out in the statute, is competent to testify, is almost exclusively within the discretion of the trial judge. 42 O. Jur. 320, paragraph 110 and cases there cited. We cannot say that the Court abused his discretion in striking the testimony.

Upon the assignment directed to the refusal to allow the witness, Clark, to point to a spot in Exhibit A which was a photograph produced by plaintiff, we note no objection or exception interposed to the ruling of the Court by counsel for plaintiff.

Upon the assignment directed to the failure to permit the father to testify, it is evident that the trial judge was correct in his ruling. The testimony which was sought to be elicited from the father was nothing more than a recitation by him of the narration by the son of a past event. It lacked the spontaneity incident to and resulting from the occurrence when the boy and the automobile came in contact. Stough v. Industrial Commission, 142 Oh St 446; Lyle, a minor v. Olentangy Corporation, 80 Oh Ap 351; State Automobile Mutual Insurance Company v. Kaffenberger, 84 Oh Ap 304.

No error assigned is established to the prejudice of appellant. The judgment will be affirmed.

WISEMAN and CRAWFORD, JJ, concur.


author: By RENNER, J.:

text:
    PANCAKES, INC., an Ohio Corporation, Plaintiff, v. CINCINNATI JOINT EXECUTIVE BOARD, an unincorporated labor association, affiliated with the Hotel & Restaurant Employees and Bartenders International Union (AFL-CIO) et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-169479.
    Decided May 6, 1959.
    Brown & Gettler, Ben Gettler and Jonas B. Katz, of counsel, for defendants.
    J. Mack Swigert, Charles D. Lindberg, for plaintiff.
   OPINION

By RENNER, J.:

The plaintiff, Pancakes, Inc., is an Ohio Corporation which owns and operates a restaurant under the trade name of Peri’s Pancakes at Fifth and Main Streets, Cincinnati, Ohio, and sells pancakes and other food products to the Cincinnati public.

Plaintiff seeks a permanent injunction against the defendants, Cincinnati Joint Executive Board, an unincorporated labor association affiliated with the Hotel & Restaurant Employees and Bartenders International Union (AFL-CIO) and five unincorporated labor associations affiliated with the Cincinnati Joint Executive Board and numerous persons who are sued in their individual capacity and also as officers or agents or members of the defendant Cincinnati Joint Executive Board dr one or more of the unincorporated labor associations named as defendants.

The prayer of the petition asks for an order enjoining the defendants and each of them, their officers, agents, members and employees, and all other persons acting in concert or conspiracy with them from:

(1) picketing or bannering in any way plaintiff’s said restaurant at Fifth and Main Streets, Cincinnati, Ohio, or authorizing, directing, aiding, abetting or otherwise encouraging or participating in said picketing and bannering;

(2) seeking to compel plaintiff to employ only members of defendants’ Unions, or seeking to compel plaintiff to coerce its employees to become dues-paying members of one or more of said defendant Unions, or to join or maintain membership therein as a condition of employment;

(3) attempting in any way to compel persons who either seek or do business with, or are doing business with the plaintiff to cease doing such business, and attempting to compel them or any of them to refuse to enter on the premises of the plaintiff;

(4) threatening, intimidating, interfering with or coercing plaintiff or its employees by threats of trouble, physical violence, or other discriminatory practices;

(5) all other acts or measures seeking or attempting to carry out any of the foregoing.

The defendants filed an answer and a cross-petition in which cross-petition the defendants also pray for an order permanently enjoining the plaintiff and its officers, agents, employees, and all other persons acting in concert or conspiracy with them from:

(1) Bannering or publicizing in any way advising the public that its employees are not on strike, and

(2) From refusing to reinstate defendants James Arrighi, Peter Arrighi and James Brooks with back pay from the date of their discharge.

Plaintiff’s petition alleges that the defendants and each of them have entered into a conspiracy to force the plaintiff to enter into a collective bargaining agreement covering all of its employees and to require all of the employees regardless of their wishes to become dues-paying members of the defendant unions and to maintain such membership as a condition of employment, and requiring any new employees regardless of their own wishes to become dues-paying members of the defendant unions within fifteen days of their employment and thereafter to maintain such membership as a condition of employment.

The petition also alleges that in furtherance of the conspiracy, the defendants and others, acting in concert with them, have through threats of violence driven from plaintiff’s premises many persons who sought to carry on business with the plaintiff.

The petition further alleges that the plaintiff has no iabor dispute with its cooks, dishwashers, waitresses, bus boys and employees in similar classifications.

Counsel for plaintiff contend that the picketing and bannering is for the sole purpose of bringing pressure upon the plaintiff to coerce his employees to join a union, that no labor dispute exists between plaintiff and the defendant employees of plaintiff and that the Court should therefore grant the injunctive relief prayed for.

In support of this contention counsel for plaintiff rely upon the following cases in which injunctions were granted by the Courts of Ohio:

Crosby v. Rath, 136 Oh St 352, 16 O. O. 496. In this case there was no labor dispute. None of the employees were members of a union and they did not desire membership. The facts further disclose that dynamite bombs and stench bombs had been used and that a delivery truck was burned and there were other acts of violence.

Faxon Hills Construction Company v. United Brotherhood of Carpenters and Joiners of America, Court of Appeals for Hamilton County, No. 8224. In this case there was no labor dispute and none of the employees of the plaintiff were on the picket line.

Chucales v. Royalty, 164 Oh St 214, 57 O. O. 431. In this case the facts were similar to the aforementioned cases. There was no labor dispute. None of the employees wished to join the union and none were on the picket line. The Court at page 222 (Oh St) made this observation:

“There is nothing in the record to show what interests of defendants will be advanced by this picketing other than their interest in getting additional members for their union. For example, there is not even any evidence that, because of such things as payment of low wages or long hours of employment, plaintiffs are enjoying a competitive advantage over others, who are engaged in the same business and are maintaining union standards and employing those whom defendants represent. Under such circumstances, Ohio is certainly reasonable in determining that it is against its public policy to permit the use of its streets and sidewalks to stir up industrial strife that does not exist and for the existence of which there is no apparent reason.”

Fairlawn Meats, Inc., v. Amalgamated Meat Cutters etc., 99 Oh Ap 517, appeal dismissed, 164 Oh St 285. In this case, at page 524 (Oh Ap), the Court concluded its opinion with the following statement:

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

Anderson, et al., v. Local Union No. 698, 101 Oh Ap 542, 1 O. O. 2d 451, appeal dismissed, 165 Oh St 512. At page 453 (O. O.), the Court stated:

“A situation, similar to that in the Fairlawn Meats case, supra, and in the Bean case, supra, exists here. No dispute with the employees existed after the expiration of the contract, for even the three union members continued to work; and they testified they had no dispute with their employer. The market became a non-union establishment by the statement of the employer, and the majority of the employees desired that no union represent them in their dealings with the employer. The purpose of the picket line was to coerce the employees into rejoining the union and to force the employer, against his will, to accept the union as the bargaining agent of the employees.
“In such a situation, the picketing became unlawful under the public policy of this state.”

Johnson Bros. Furniture v. Retail Clerks, et al, 51 O. O. 122, Lucas County Common Pleas Court. In this case seven out of eight of the employees were not members of a union and refused to join. There is nothing in the opinion of the Court which indicates that the eighth employee who was a member of the union was on a strike against the plaintiff. The statement of the Court in its opinion indicates that he was not on a strike, and at page 124 found that “the facts in this case are parallel and identical with the facts in the case of Crosby v. Rath.”

In Crosby v. Rath, supra, the Supreme Court stated at page 496 (O. O.):

“There is no dispute between the plaintiff and her employees.”

Harry Brown, d. b. a. Thriftway Super Market v. Amalgamated Meat Cutters, etc., 33 Labor Cases, Sec. 71,098, is a case which originated in the Clermont County Common Pleas Court, was affirmed by the Court of Appeals and an appeal to the Supreme Court was dismissed. CP 77 Abs 81, OA 77 Abs 85. In that case, 12 of the 13 clerks employed by plaintiff who were eligible for membership in the Clerks Union on June 29, 1956, signed applications for membership in the union. Some 6 or 7 hours later on the same day a union representative entered the store to engage the plaintiff in conversation as a representative of his clerk employees. Upon refusal of the plaintiff to discuss the matter, the union representative left the premises followed by all 12 of the employees who had signed the applications. A picket line immediately formed outside the store with banners. Within a few minutes one of the employees who had signed an application for membership in the union returned to work. The next day 5 more of the 12 clerks returned to work and on July 10 6 more returned to work. This would seem to account for all of those who had gone out but the Court in its opinion stated that the remaining 2 clerks continued to picket plaintiff’s place of business carrying the banners referred to until a temporary injunction was issued. Some time prior to the walk-out, some of the employees had requested higher wages which were promised as soon as plaintiff was able to do so. After the walk-out Sunday operations were discontinued about which the Court said there apparently had been some complaint on the part of some of the employees and some wage increases were granted but not to all of the employees who returned to work.

Petitions were signed by all of the retail clerks, except the 2 who remained on the picket line, by July 10th, rescinding the authority which they had given to the union to represent them and they plainly and strongly expressed their unwillingness to belong to the union or to have it represent them.. The Common Pleas Court concluded that there was no dispute or disagreement between the plaintiff and his nonstriking employees; as to the 2 employees who had not returned to work the Court stated that it was driven to the conclusion that their, only • grievance was the fact that plaintiff had refused to sign a union agreement with the defendant clerks union by which all of their fellow clerks would have been required against their will to be members of the union. The Court further found that the sole object of the picketing on the part of the defendant union was to organize plaintiff’s store contrary to the express wishes of about 85% of his employees who had been eligible for membership in the union.

Bean v. Local Union No. 698, et al, 51 O. O. 153. This case was decided by the Summit County Court of Appeals. In that case the Court of Appeals found that the evidence failed to disclose any labor dispute and enjoined picketing on the part of the union.

The syllabus reads as follows:

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

Anderson Sons Co. v. Local Union 331, et al, 156 Oh St 541, 46 O. O. 460. Syllabus 1 of that case reads as follows:

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

However, in this case the Supreme Court found that the acts and conduct of the union constituted a secondary boycott and were unlawful and it sustained the judgment of the trial court which had granted an injunction to Anderson Sons Company, the appellant.

Yakumithis v. Vending Machine Service Employees, Local Union 410-T, 51 O. O. 126. This case was before the Court on a motion for a temporary injunction. An order was made by the Court granting a temporary injunction against all forms of picketing, peaceful or otherwise. The headnotes in that case indicate the basis upon which the Court granted the relief. They read as follows:

“1. No picketing can be lawful unless it is established first by the evidence that a legitimate trade dispute exists.
“2. In the absence of a legitimate trade dispute, picketing by a union organized for the purposes of controlling the juke box industry will be enjoined.”

In all.of the foregoing cases cited by plaintiff’s counsel, the Courts found that no labor dispute existed between the respective employers and employees. In the instant case, plaintiff claims that the sole or major purpose of the strike and picketing is to compel the plaintiff to grant a closed shop or a union shop but the evidence in the case fails to sustain such contention.

The evidence discloses that from December 4, 1958, when the restaurant opened for business, to the date of the strike on April 1, 1959, the scale of wages paid by the employer to the employees, with few exceptions, was considerably less than the prevailing wages paid by the great majority of the restaurants within the radius of 5 or 6 squares from plaintiff’s location; that the hours of employment in many instances exceeded 8 hours per day and a total of 40 hours per week and that an 8 hour day and 40 hour week was in effect in the great majority of restaurants within the area; that no compensation over the regular hourly wage was paid for overtime or holidays whereas in the great majority of restaurants in the area time and a half was paid for overtime, and that no grievance procedures were set-up for plaintiff’s employees whereas in the majority of other restaurants in the area those advantages were granted to their employees. These disparities alone presented a continuing basis for legitimate grievances.

The evidence further shows that dissensions did exist between the plaintiff and some of its employees from sometime prior to January 9, 1959, when the vote was taken to ascertain whether the employees wished union representation, to the beginning of the strike and thereafter. The result of the balloting discloses that at that time there were 11 out of 29 of the employees in favor of the union.

Although Walter Schwartz, the President and General Manager of plaintiff’s restaurant, informed the employees that he would abide by their wishes, his words and his course of conduct indicated that he was averse to a union shop or closed shop.

The evidence also discloses that he was aware of efforts made by Peter Arrighi, James Arrighi and James Brooks to influence other employees in favor of union representation and that he also accused Rosemary Baker of being a union sympathizer. Miss Baker was discharged on March 23rd and the two Arrighis on March 30th. Walter Schwartz testified that he discharged Miss Baker because of a petty cash discrepancy and that he discharged Peter Arrighi for failing to keep a clean kitchen and also because of the rise of 8% in food costs in the month of February. He testified that James Arrighi was discharged for not being attentive to his duties. Mr. Schwartz stated that James Brooks was discharged on a date shortly prior to March 23.rd for drunkenness and absenteeism. Whether or not the reasons assigned by Mr. Schwartz were the main of sole reasons for the discharge of those 4 employees, the action taken by him added to the unrest and dissension and resulted in the walk-out and strike within two days after the two Arrighis were discharged.

Ten of the employees who are now on strike and Peter Arrighi and James Arrighi who were discharged by the manager were called as witnesses to testify on behalf of the defendants. In general, their testimony was to the effect that they struck and were picketing plaintiff’s restaurant to obtain higher wages, shorter hours, job security and improved labor relations with the plaintiff.

From the foregoing facts as disclosed by all of the evidence in the case, the Court concludes that legitimate grievances and labor disputes existed between the plaintiff and the defendants during the period of time heretofore indicated and that by reason thereof the defendants were and are entitled to strike and peacefully picket the plaintiff’s restaurant.

Coming now to consider the cross-petition, the defendants allege that plaintiff on April 1, 1959 at about 10.00 A. M. placed a banner in its window stating:

“The employees of Peri’s Pancakes are not on strike.”

The plaintiff admits that such sign was placed in the window at or about the time mentioned and there is in evidence marked Exhibit “M” a photograph of the front of the restaurant showing the sign displayed in the window. No evidence was presented to indicate that the sign has since been removed.

In W. E. Anderson Sons Company v. Local Union 311, 156 Oh St 541, 46 O. O. 460, syllabus paragraph 1 reads as follows:

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

And at pages 553 and 554 (Oh St) the Court states:

“Presently, the weight of authority seems to be that workers may lawfully by means of pickets, banners, circulars, newspaper announcements, radio broadcasts or any other appropriate method announce their grievances to the public in order to persuade prospective employees as well as prospective customers to refrain from dealing with their employers. . * * * However, the privilege of picketing or bannering is limited to peaceful persuasion and is lost when there is resort to violence, intimidation, falsehood, defamation, obstruction of highways, obstruction to means of access to employer’s place of business or other unlawful means.” (Emphasis added.)

And at page 561 the Court states:

“Court decisions now seem to firmly establish the rule that picketing or bannering as a means of the exercise of the right of free speech will be afforded constitutional protection so long as it is lawfully conducted, but if it becomes unlawful then it falls within the category of a civil wrong and must be governed by the law of torts. In other words, the constitutional guaranty of the right of free speech is predicated upon the lawful exercise of such right and if, through conspiracy or unlawful conduct, the result of its exercise unlawfully injures another in his property rights, the guaranty ceases and the exercise of the claimed right by such means may be enjoined or prohibited.”

In Cafeteria Union v. Angelos, 320 U. S. 293 at page 295 the Court states:

“In Senn v. Tile Layers Union 301, U. S. 468, this Court ruled that members of a union might, ‘without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal constitution.’ * * * To be sure, the Senn case related to the employment of ‘peaceful picketing and truthful publicity.’ 301 U. S. at page 482.” (Emphasis added.)

This rule which requires truthfulness in banners used on a picket line must apply with equal force to signs or banners displayed by employers in labor disputes. The sign which plaintiff displays prominently in the window of the restaurant is a misstatement of fact and therefore must be removed by the plaintiff.

In the prayer of the defendants’ cross-petition they ask that plaintiff be enjoined from refusing to reinstate the defendants James Arrighi Peter Arrighi and James Brooks with back pay from the date of their discharge.

The evidence discloses nothing other than an employer-employee relationship between the plaintiff and said three defendants which relationship, so far as the record shows, was subject to termination at the will of the plaintiff or the defendants respectively. Counsel for defendants have cited no authority and the Court is not aware of any which would empower this Court to compel the plaintiff to reinstate those defendants with back pay.

In conclusion, as to plaintiff’s petition, the Court finds that:

(a) The relief asked for in the prayer of plaintiff’s petition, paragraph numbered one, namely that the defendants, and each of them, their officers, agents, members and employees and all other persons acting in concert or conspiracy with them, be enjoined from picketing or bannering in any way plaintiff’s restaurant at Fifth and Main Streets, Cincinnati, Ohio, or authorizing, directing, aiding, abetting or otherwise encouraging or participating in said picketing and bannering, should be denied.

(b) In paragraphs 2, 3, 4 and 5 of the prayer of plaintiff’s petition the plaintiff asks the Court to enjoin the defendants and each of them, their officers, agents, members and employees and all other persons acting in concert or conspiracy with them from:

Par. “(2) seeking to compel plaintiff to employ only members of defendants’ Unions, or seeking to compel plaintiff to coerce its employees to become dues-paying members of one or more of said defendant Unions, or to join or maintain membership therein as a condition of employment:
“(3) attempting in any way to compel persons who either seek to do business with, or are doing business with the plaintiff to cease doing such business, and attempting to compel them or any of them to refuse to enter on the premises of the plaintiff;
“(4) threatening, intimidating, interfering with or coercing plaintiff or its employees by threats of trouble, physical violence, or other discriminatory practices;
“(5) all other acts or measures seeking or attempting to carry out any of the foregoing.”

The evidence discloses an incident which occurred since the strike commenced when tempers flared between Gerald Baker, the night manager for plaintiff, and James Arrighi, one of the defendants, and that James Arrighi threatened to strike the manager with a banner which he was carrying on the picket line.

There was other testimony as to incidents of interference on the part of some of the defendants with patrons of the plaintiff.

The evidence of these incidents is insufficient to deny the defendants the right to peacefully and lawfully picket and banner.

Cafeteria Union v. Angelos, supra, 320 U. S. 293:

Syllabus par. 3:

“The right to peaceful picketing cannot be taken away merely because in the course of the picketing there may have been isolated incidents of abuse falling short of violence.”

However, in order to protect the rights of the plaintiff and those who are now working for the plaintiff, the patrons and others having business with the plaintiff, other persons who may enter plaintiff’s restaurant and persons lawfully using the sidewalks or streets at or near plaintiff’s restaurant, the relief sought in said paragraphs numbered two, three, four and five should be granted but only to the extent of enjoining the defendants and each of them, their officers, agents, members and employees and all other persons acting in concert or conspiracy with them from the commission of any unlawful acts but in no way to abridge the rights of the defendants and the others last mentioned to peacefully and lawfully engage in picketing, bannering or such other acts of peaceful persuasion.

However, in the lawful pursuit of their objectives the defendants and each of them, their officers, agents, members and employees and all other persons acting in concert or conspiracy with them should be restrained and enjoined from permitting more than two persons at any one time from congregating or assembling or carrying banners or distributing literature in front of or adjacent to plaintiff’s restaurant or from deliberately blocking any persons from entering or leaving such place of business.

As to the defendants’ cross-petition the Court finds that:

(c) The plaintiff should be enjoined from advising the public by banners or signs that its employees are not on strike as prayed for in defendants’ cross-petition (Par. 1):

(d) The relief asked for in the prayer of defendants’ cross-petition numbered paragraph two, namely, that the plaintiff be enjoined from refusing to reinstate the defendants James Arrighi, Peter Arrighi and James Brooks with back pay from the date of their discharge, should be denied.

The costs of this action are to be equally assessed, one-half against the plaintiff and one-half against the defendants.

Counsel will please present a judgment entry accordingly.


author: By THE COURT.

text:
    CAFE TIA JUANA, INC., Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5433.
    Decided October 25, 1956.
    Leonard J. Stern, Columbus, for appellant-appellee.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee-appellant.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court reversing an order of the Board of Liquor Control revoking the appellee’s class D-l, D-2, D-3 and D-3a Liquor permits.

The judgment entry recites that the “cause was heard upon the transcript of the proceedings taken before the Board of Liquor Control, additional testimony offered by the appellant and admitted by the court and briefs submitted by counsel for appellant and appellee. * * * That the order of the Board of Liquor Control is not supported by reliable, probative and substantial evidence and is not in accordance with law.”

It will be noted that the cause was heard upon a transcript of the proceedings had before the Board and additional testimony taken in the Common Pleas Court. However, the proffered transcript of the proceedings had before said court has not been signed and allowed by the trial judge; hence it is not a bill of exceptions. Therefore, this court does not have a record of the complete hearing had in the cause and is not qualified to pass upon the determinative question of whether or not the court erred in its judgment. We have examined the opinion of Judge Reynolds, find no error in his legal conclusions upon his statement of the facts, but we are not able to pass upon his factual conclusions because of the incomplete state of the record.

We find no prejudicial error and the judgment will be affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By BRYANT, J.

text:
    HAMILTON, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6089.
    Decided February 25, 1959.
    Robert Hamilton, Columbus, on behalf of himself.
    Mark McElroy, Atty. Geni., William M. Vance, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By BRYANT, J.

Robert Hamilton, an inmate in the Ohio Penitentiary, on January 13, 1959 filed a petition for writ of habeas corpus in this court naming R. W. Alvis, Warden of the Ohio Penitentiary, as respondent.

The facts, it would appear, are that Hamilton “as a result of a conviction on or about October 10, 1958, in the Court of Common Pleas of Cuyahoga County, Ohio, of the second count of the instant alleged indictment purportedly charging larceny” was sentenced to the Ohio Penitentiary according to the allegations in the petition.

After the filing of the petition, a return was filed by the Warden as follows:

“I hereby return this writ and represent that I have the said Robert Hamilton in my custody and that I have had the custody of the said Robert Hamilton since October 17, 1958, by virtue of a certain mittimus issued by the Common Pleas Court of Cuyahoga County, Ohio, copies of which are hereto attached and made a part of this return.”

Attached thereto are copies of the indictment and a certified copy of the sentence.

Upon this state of the record the case came on for hearing before the full court with Hamilton present and appearing on behalf of himself. The Warden was represented by an assistant attorney general.

The full court by unanimous decision, after hearing the statements and arguments on both sides, found that the petitioner had failed to sustain the allegations in his petition and that he was lawfully in the custody of the Warden to whose custody he was remanded.

Hamilton has filed an application for rehearing and has asked for a separate finding of facts and conclusions of law.

We find that the grand jury of Cuyahoga County, Ohio at the April 1958 term returned an indictment against William Sisk, Edward Zaranko and Robert Hamilton charging that on or about the thirtieth day of March 1958, at the said county they committed burglary of a store house in the night season with a separate count charging the same three persons with grand larceny for the theft of five thousand dollars worth of television sets, radios and other appliances. Further, that Robert Hamilton pleaded guilty to the charge of grand larceny in the second count of the indictment and was sentenced to the Ohio Penitentiary and ordered to pay the costs of prosecution amounting to $138.07 on October 16, 1958.

Three objections are made by Hamilton as the basis for his petition for writ of habeas corpus. The first is that the larceny count in the indictment is fatally defective because it fails to allege the acts were “unlawfully” done and that it omits to charge the defendant did “feloniously take and carry away” the property stolen.

In Ohio, all criminal procedure is statutory and has been so regulated at least since 1929 when the Uniform Code of Criminal Procedure was enacted. See Municipal Court of Toledo et al v. The State, ex rel, Platter, 126 Oh St 103, the first branch of the syllabus of which is as follows:

“1. Criminal procedure in this state is regulated entirely by statute, and the state has thus created its system of criminal law covering questions of crime and penalties, and has provided its own definitions and procedure.”

See also Eastman v. The State of Ohio, 131 Oh St 1, the ninth branch of the syllabus of which reads as follows:

“9. In the exercise of the legislative power vested in it by the Constitution of Ohio, the General Assembly has preempted the fields of both substantive and procedural criminal law in this state. (Paragraph one of the syllabus in the case of Municipal Court of Toledo v. State, ex rel. Platter, 126 Oh St 103, approved and followed.)”

In the code of criminal procedure, §2941.07 St. C., provision is made for forms to be used in charging offenses and in the case of larceny the statutory form authorized is as follows:

“Larceny. A. B. stole from C. D.......of the value of one hundred dollars.”

The indictment in this case fully complies with the above section and, omitting the purely formal allegations, the second count reads as follows:

“AND the Jurors of the Grand Jury of the State of Ohio, within and for the body of the County of Cuyahoga, aforesaid, on their oaths IN THE NAME AND BY THE AUTHORITY OP THE STATE OF OHIO,
“Do Further Find and present, That William Sisk, Edward Zaranko and Robert Hamilton on or about the 30th day of March 1958, at the County aforesaid stole from The Atlas Radio and Furniture Store 19 Portable Television Sets, 16 Portable and or Table Radios, 8 Clock' Radios, 3 Record Players, 1 Whirl Beater, 1 Leather Radio Case, all of the total value of $5,000.00.”

It is apparent therefore that the claimed defects in the larceny count of the indictment are not defects at all. The indictment concludes with the allegation that the criminal acts described were “contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.” This is a clear allegation that the acts were unlawful.

The second objection is that the indictment being defective as set forth in the first objection therefore failed to apprise Hamilton of the nature of the offense charged against him. In as much as we have held that the larceny count of the indictment was sufficient, this objection also must fail. Sec. 2941.07 R. C., above referred to, gives a defend-' ant the right to ask for a bill of particulars if he feels that he is prejudiced for want of sufficient information. If a defendant fails so to do, he will of course be deemed to have waived that right.

The third and final objection to the indictment is that the petitioner contends he did not authorize the court to plead him guilty to the charge contained in the second count of the indictment. However, the certified copy of sentence prepared by the clerk of the Common Pleas Court of Cuyahoga County shows that Robert Hamilton and not the court for Robert Hamilton entered the plea of guilty to grand larceny. We quote from that document as follows:

“THE STATE OF OHIO ) Indictment for Burglary
vs. ) R C 2907.10 w/c
Robert Hamilton ) Grand Larceny R C 2907.20
“The said Robert Hamilton having made a plea of guilty to Grand larceny the 2nd count of the indictment. It is therefore the sentence of the Court that he be imprisoned in the Penitentiary * * *”

This objection is also without merit and is therefore overruled.

In the application for rehearing reference is made to temporary custody allegedly given to the Federal Government, but in as much as that was not made a part of the pleadings, this court is without power to consider it. The application for rehearing will therefore be denied, the previous decision of this court denying the writ of habeas corpus will be adhered to and Hamilton may be retained in the custody of the Warden of the Ohio Penitentiary until released in accordance with law

MILLER, J, concurs.

DUFFY, J, not participating. .


author: By WISEMAN, J:

text:
    CLARK, Plaintiff-Appellee, v. CHAMBERS, Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 146.
    Decided December 12, 1957.

      Richard P. Faulkner, Urbana, for plaintiff-appellee.
    William Chambers, Urbana, for self.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Champaign County in an action for an injunction in which the defendant was permanently enjoined from interfering with the attachment of a wire fence and from removing said fence wires from said corner post.

In his petition, plaintiff alleges that he and the defendant own adjoining farms, the farm owned by the defendant lying east of plaintiff’s farm, said farms being on the south side of a roadway and separated by a partition fence. The defendant was obligated to construct and maintain the north half of said partition fence, the northernmost point being the end post at the roadway. The defendant failed to construct a portion of said fence near the roadway and thereafter the trustees of the township issued an order for the construction of said portion of the partition fence, with which the defendant refused to comply, and that thereafter said township trustees let a contract for the construction of said fence upon a legal bid by a contractor. Plaintiff further alleges that thereafter in the Common Pleas Court of Champaign County the defendant brought an action for an injunction against said trustees and the said contractor to prohibit the construction of said fence, and that upon hearing, an injunction was denied the defendant and on appeal to this Court the judgment of the Common Pleas Court was affirmed. Plaintiff further alleges that the fence was constructed by the contractor as ordered, including the installation of an end post at the north end of said fence at the road line, with the corner junction of the adjoining lands of plaintiff and defendant. Plaintiff further alleges that he has attempted to attach the end of his road fence to said post in order to complete the enclosure of his field. Plaintiff alleges that the defendant has removed the fence wires of plaintiff from said end post so that said field can not be enclosed and refuses to permit the plaintiff to attach his said fence to said post. Plaintiff claims he has no adequate remedy at law and prays for a permanent injunction.

To the petition defendant filed a demurrer, which was overruled. The defendant then filed an answer in which he claims he is the exclusive owner of the northern half of the partition fence and admits that he has removed the wires of said field fence of the plaintiff which were attached to the end post. Defendant alleges that plaintiff, without the consent of the defendant, entered upon the premises of the defendant and attached plaintiff’s wire fence to said end post. Defendant prays for damages.

Upon hearing the trial court in the judgment entry found that the right of the plaintiff to attach fence wires to said corner post had already been determined by the Common Pleas Court of Champaign County in the former action, which was affirmed by this Court of Appeals, and granted to plaintiff injunctive relief as prayed for, and denied defendant relief as prayed for in his answer.

On appeal to this Court on questions of law and fact, the matter is submitted to this Court on the transcript of the record in the lower court, and additional evidence submitted by both parties which was taken before a Special Master Commissioner. All objections to the admission or exclusion of evidence, and motions to strike, are overruled. Evidence was admitted which we consider to be inadmissible, irrelevant and immaterial, but which we do not find to be prejudicial.

The defendant-appellant in his brief in this Court claims the petition does not state a good cause of action and that the demurrer should have been sustained by the court below, and that the lower court erroneously struck certain allegations from the defendant’s answer. This matter is presented to this Court de novo. We do not review the rulings of the court below. We try the case anew on the same or amended pleadings. No question pertaining to the pleadings has arisen in this Court. We are not concerned with the rulings on the pleadings by the court below. The defendant could have raised questions on the pleadings in this Court, but did not do so. The parties went to trial in this Court on their pleadings as they came from the lower court. The question whether the petition states a good cause of action can be raised at any time and will be considered by this Court in determining the issues on the merits.

Defendant claims that usage and custom, on which there was evidence taken, can not be shown without pleading it; that plaintiff can not assert the doctrine of res judicata; and that plaintiff has no legal right to attach wires to a corner post installed and maintained by the defendant.

Plaintiff claims, and introduced some evidence in support thereof, that there is a general custom which permits adjoining land owners to attach fence wires to a corner post installed by only one of such land owners. The defendant presented evidence denying existence of such custom. Evidence as to a general custom is admissible without being specially pleaded. Vol. 40, O. Jur., Sec. 38, page 806. It must be established by clear and satisfactory proof. Vol 40, O. Jur.; Sec. 41, page 811. The testimony of the witnesses on which the plaintiff relies to prove a general custom is very unsatisfactory. In most instances the witnesses stated that the matter was usually settled by agreement of the land owners. After Weighing all of the evidence we can not conclude that plaintiff has sustained the burdn of proof on this factual issue.

The plaintiff pleaded and submitted proof on the question of res judicata. At one stage in the controversy between the parties, after the township trustees had viewed the premises and assigned the partition fence as provided in §5808 GC, et seq, the plaintiff complained to the trustees that the defendant had not constructed the partition fence, at least the one panel near the road, and the end post as ordered by the trustees. The trustees proceeded, under §5913 GC, to sell the contract to build the fence as formerly ordered by the trustees. The contract was let to one Barker. At this juncture the defendant, Chambers, brought an action to enjoin the trustees and Barker from constructing the fence, contending that he had complied with the order of the trustees. The action is entitled Chambers, Plaintiff, v. Barker, et al., Defendants, Case No. 23298, Common Pleas Court of Champaign County. The validity of the orders of the trustees was litigated in that action. The Common Pleas Court held that the order of the trustees was valid, and refused the injunction. On appeal, this Court affirmed the judgment. The plaintiff in this action was not a party in Case No. 23298. Under the doctrine of res judicata, the judgment is binding upon all parties to the proceeding in which it is rendered and all persons in privity with them. The plaintiff in this action was not a party, nor in privity to any party in that suit. The operation of the rule is mutual. See Vol. 23, O. Jm\, page 1008, Sections 792, 793. In our opinion the doctrine of res judicata has no application. However, the doctrine of stare decisis has application and we are disposed to follow our former unreported opinion dated October 19, 1954.

The defendant’s claim in this action is that the trustees had authority to assign the partition fence, but had no authority over the road fence of the plaintiff and, therefore, had no statutory authority to require the wires of the plaintiff’s road fence to be attached to the end post of the partition fence. The pertinent part of the assignment order of the trustees is as follows:

“William A. Chambers shall have his end post at north end of line at road on line. Said line to be agreed upon by both parties to be 18 or 20 inches west of present fence. Floyd S. Clark shall not set his end post for his road fence running west from north end not closer than two feet from line running north and south. William A. Chambers shall allow Floyd S. Clark to use William A. Chambers end post to close short space between Floyd S. Clark’s and William A. Chambers end post.”

Later the trustees instructed Barker to use a steel end post and set it in concrete, which was done. The concrete footing was described as three feet or more in width. It will be noted that the trustees ordered the end post to be set on “at road on line.” In later instructions to Barker this order was clarified by the trustees in ordering the end post set “so that north side of end post will be in line with the fence along road.” The evidence is undisputed that the end post of the partition fence was ' set by Barker as ordered. It is also undisputed that because of the concrete base in which the end post was set, the plaintiff was not able to place the end post of his road fence closer than 21 to 24 inches from the partition fence end post. Thus, an opening of approximately 2 feet existed between the two posts which permitted cattle and hogs of the plaintiff to escape the enclosure. It will be observed that this controversy revolves around the closing of this 2 foot opening in plaintiff’s road fence. It must be noted, too, that the plaintiff is not using the end post of the partition fence as an anchor post. Only 2 feet of wire stretched by hand across the opening from one post to the other is involved in this dispute.

The trustees are practical men, and must have known that because of the concrete base of the partition fence end post, the plaintiff would not be able to set another post close enough to the partition line to close the field. For this reason the trustees provided that plaintiff would be permitted to attach about two feet of his wire fence, extending from his road fence end post to the end post of the partition fence. This was a common sense approach to the problem and was in all respects a reasonable solution. But the defendant contends the trustees had no legal authority over plaintiff’s road fence. The trustees exercised their statutory authority over the partition fence and the end post and could determine where the end post should be placed, the manner of construction, how it was to be used, and what burdens it would bear. In our opinion, the order of the trustees was valid, as we have heretofore determined in the former appeal, and the plaintiff will be granted the injunctive relief prayed for. The defendant will be denied the relief prayed for in the answer.

A decree may be drawn in conformity herewith.

HORNBECK, PJ, CRAWFORD, J, concur.