author: By KLOEB, D. J.

text:
    GREEN BAY AUTO DISTRIBUTORS, INC., v. WILLYS-OVERLAND MOTORS, INC.
    United States District Court N. D. Ohio, W. D.
    No. 6512.
    Decided December 28, 1951.

      Smith & Ells, Toledo, for plaintiff.
    Milton C. Boesel, Toledo, for defendant.
   OPINION

By KLOEB, D. J.

This matter is before the Court on motion of defendant for summary judgment, directed to the first and second causes of action of the second amended complaint, on the ground that the said complaint fails to show that there is a genuine issue as to any material fact and that the defendant is therefore entitled to judgment as a matter of law.

The motion is governed by the provisions of Rule 56, Fed. Rules Civ. Proe., 28 U. S. C. A., which provides:

“(b) A party against whom a claim, * * * is asserted * * * may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
“(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * (Emphasis added.)

This rule was construed in Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 1942, 130 F. 2d 1016 at page 1018 and the Court there said: “It is now well settled that summary judgment may be entered for either party if the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Civil Procedure Rule 56. Stated conversely, a substantial dispute as to a material fact forecloses summary judgment. Mc-Elwain v. Wickwire Spencer Steel Co., 2 Cir., 1942, 126 F. 2d 210; Miller v. Miller, 1941, 74 App. D. C. 216, 122 F. 2d 209; Whitaker v. Coleman, 5 Cir., 1940, 115 F. 2d 305. Upon a motion for a summary judgment it is no part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Ramsouer v. Midland Valley R. Co., D. C. Ark., 1942, 44 F. Supp. 523. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Weisser v. Mursam Shoe Corporation, 2 Cir., 1942, 127 F. 2d 344 [145 A. L. R. 467].”

In the case of Sartor v. Arkansas Natural Gas Corp., 321 U. S. 620, at page 627, 64 S. Ct. 724, at page 728, 88 L. Ed. 967, the Court said on this subject: “The Court of Appeals below heretofore has correctly noted that Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, -where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try. American Insurance Co. v. Gentile Brothers Co. [5 Cir.] 109 F 2d. 732; Whitaker v. Coleman [5 Cir.] 115 F. 2d 305. * * *”

It appears from the allegations of the second amended complaint that, on August 31, 1945, the plaintiff entered into an exclusive “Distributor Sales Agreement” with the defendant, which was intended to cover the distribution by plaintiff of motor vehicles, parts, accessories and equipment manufactured by the defendant, in twenty-four counties in Wisconsin and fifteen counties in Northern Michigan, a copy of which contract is attached to the second amended complaint as Exhibit A.

It is alleged that the plaintiff met the conditions preliminary to the execution of the contract imposed upon it by the defendant, including acquiring a building in Green Bay, Wisconsin, for the purpose of housing sales and display facilities, a parts and accessory department and a service garage, in conformity to plans and specifications of the defendant, and, in doing so, the plaintiff expended large sums of money.

The first cause of action alleges that, as an inducement to plaintiff to enter into the said distributor sales agreement, the defendant, through George Harold Bell, its Director of Sales, and other executives, employees and agents, made the following representations to plaintiff:

1. That it “had developed a two-door five-passenger sedan on short wheel base, with economical fuel consumption, superior riding qualities and advanced styling for introduction into the large post-war low-priced motor vehicle market;”;

2. That “said passenger sedan was engineered, tested, approved and ready for production;”;

3. That “said sedan was designed to be delivered in the One Thousand Dollar ($1,000.00) to One Thousand Two Hundred Dollar ($1,200.00) price class;”;

4. That “high volume production of said post-war two-door five-passenger sedan would begin as soon after the cessation of World War II as tooling could be completed and materials were available;”;

5. That defendant “would build up its production to three hundred thousand (300,000) motor vehicles per year within three years, most of which would be two-door five-passenger sedans;”.

The plaintiff further alleged that the said passenger automobile “was not placed in production as represented.” It also alleged that the said representations “were false and were made for the fraudulent purpose and intention of inducing plaintiff to enter into and to continue in said exclusive distributor sales agreement;”; that defendant “at no time intended to produce a conventional five-passenger vehicle as represented;”; that plaintiff “was misled and fraudulently deceived by the aforesaid misrepresentations inducing plaintiff to enter into said exclusive distributor sales agreement”; that plaintiff “relied and acted upon all of - said false and fraudulent representations and promises to manufacture and deliver to plaintiff said two-door five-passenger sedan”; and that plaintiff suffered damages in loss of business and profits thereby in the sum of $200,000.

For a second cause of action plaintiff alleged that it duly performed all of the terms and conditions of said distributor sales agreement on its part to be performed, and utilized its entire facilities, personnel, capital and credit, in distributing the defendant’s Jeeps and Jeep-type motor vehicles in large numbers at retail and at wholesale, and that the defendant “arbitrarily, wrongfully, without just- cause and in bad faith” cancelled plaintiff’s exclusive distributor sales agreement, causing injury and damage to plaintiff in loss of business, capital investment and profits in the sum of $100,000.

The contract contains the following pertinent provisions with reference to rights of cancellation, the superseding of all prior negotiations, representations and understandings, and its construction according to the laws of the State of Ohio, which govern the rights of the parties thereto: “21. Duration, Termination and Cancellation — This Agreement supersedes any and all sales agreements between the parties hereto and shall continue in force and govern all relations and transactions between the parties hereto until cancelled or terminated. It is agreed that either party shall have the right to cancel and terminate this agreement at any time upon thirty (30) days written notice to the other party, given by Registered Mail or personal delivery thereof, and such cancellation shall operate as a cancellation, as of the date of such notice, of all unfilled orders and requisitions. * * *”

The sales agreement in question, in paragraph 24 thereof, has a provision which is important as bearing upon the right of action, if any, of the plaintiff against the defendant based upon representations or understandings made prior to the date of the agreement, reading, as follows: “24. Prior Memoranda Superseded Hereby — There are no verbal agreements, representations or understandings affecting this agreement or ,any supplement thereto or the subject matter thereof, and all negotiations, representations and understandings are merged herein, and this agreement supersedes, cancels and annuls all contracts, understandings and agreements of prior date between the parties hereto and shall continue in force and govern all transactions between the parties hereto until the expiration hereof or the cancellation or termination hereof by either party, and Distributor hereby releases and forever discharges Manufacturer, from any claims, demands, or causes of action which it may have against it arising out of or by reason of any matter or thing occuring prior to the date hereof, except as to credits heretofore approved and allowed in writing by Manufacturer arising under any preceding agreement in effect at the time of execution of this agreement.

The agreement contains the following clause as to under the laws of what State the contract should be construed:

“27. * * * It and all of its terms shall be governed by and construed according to the laws of the State of Ohio; * * There have been filed on behalf of plaintiff on this motion the affidavits of Albert Ginsberg, president and principal shareholder of plaintiff, and George Harold Bell, who was sales manager for defendant prior to and at the time the agreement sued upon was entered into.
The affidavit of Mr. Ginsberg states, in substance, that, during the latter part of the year 1944, he took up negotiations with the defendant with the aim of securing a distributorship for its motor vehicles for Northern Wisconsin and received a letter from Mr. Bell, defendant’s General Sales Manager; that, in the course of the negotiations, on or about August 9, 1945, Mr. Bell represented to him that Willys-Overland as its first postwar products was coming out with a civilian Jeep, an all steel body Jeep station wagon and a line of Jeep trucks; that Mr. Bell stated, with reference to a conventional passenger car “that the company was definitely coming out with a small conventional passenger sedan; that the company had completed most of the engineering and design work on its small conventional passenger sedan and that the date of going into production would depend in large part upon the availability of steel and other materials; that a ‘mock-up’ model of the passenger car was complete as were several engineering features of advanced design; that the passenger car would be powered with either a four or six cylinder engine, the latter having been completely engineered and tested; that the company would build its yearly production up to 300,000 units annually, at least 200,000 of which would be conventional passenger car units; that with such volume the entire line would undersell anything on the market.”

Mr. Ginsberg further stated that he asked to see the model of the new small conventional passénger car and that Mr. Bell had deponent taken to a building across the street from the main office building of defendant where he was shown a plaster full sized model of a conventional two-door sedan; that thereafter deponent told Mr. Bell he was sold on the WillysOverland post-war program and would return to Green Bay that night and complete all arrangements to meet their requirements, and details in his affidavit the things he did in pursuance thereof. He further stated that his relations with Willys-Overland proceeded “on a sound, amicable and mutually profitable basis until the latter part of the year 1948.” (The agreement continued in force until it was cancelled by defendant by letter received by plaintiff in December 20, 1949.)

As to his knowledge of the intention of the defendant not to manufacture a conventional passenger car, Mr. Ginsberg stated that “he first learned that Willys-Overland had been deceiving its distributors, and that it had never intended to manufacture a conventional passenger car as represented to all distributors shortly after March 30, 1950, slightly more than two months after the cancellation of his contract by WillysOverland had become effective, when he received a copy of the Toledo Blade which reported the speech of Delmar G. Roos, at that time acting president of Willys-Overland, who told a gathering of distributors and dealers that the company’s many previous announcements concerning a conventional passenger sedan had not been made with any intention of placing such car in the company’s production program, but that now, since the previous management had been replaced, the company was actually going to produce such a car which would be ready early in 1951; * * * that plaintiff would not have signed the exclusive sales agreement nor provided the cápital, facilities and personnel to perform such agreement but for Willys-Overland promises to manufacture and produce a postwar conventional passenger car.”

As to the subject of the cancellation of the plaintiff’s agreement, Mr. Ginsberg stated in his affidavit that his contract was cancelled by defendant by a letter which he received on December 20, 1949, after his refusel to consent to a cancellation of his exclusive distributor sales agreement.

There are attached to this affidavit Exhibit A, a photostatic copy of part of the Annual Report of Willys-Overland Motors, Inc. for the year ending September 30, 1945, and Exhibit B, photostatic copy of the first page of the Toledo Blade of March 30, 1950.

The affidavit of Mr. Bell consists almost entirely of the inclusion of a copy of a letter which he wrote on April 20, 1951 to Mr. Boesel, of counsel for defendant, in response to a letter asking for information regarding the facts involved in this law suit, dated April 12, 1951. In that letter he stated, in substance, that “the company’s projected building program” was scheduled to reach 300,000 units in a relatively short time — “as soon as the flow of raw materials would permit it”; that “This volume, of course, embraced Barney Roos’ new two-door sedan which it was anticipated would sustain the company’s manufacturing volume as the Jeep market leveled off after the necessity-transportation buyers dwindled.”

As to his negotiations with Mr. Ginsberg, he stated: “It is true that I handled ail of the negotiations with Ginsberg and after receiving assurances from him that he would furnish such capital as the factory deemed necessary and that he would build us a new building, properly handle our account, we made him an exclusive Willys distributor for Northern Wisconsin and later certain specified counties in the Upper Peninsula of Michigan. If my memory serves me correctly, I first met Ginsberg at Chicago in 1944, at a time when I interviewed a considerable number of applicants for distributorships. Ginsberg came to Toledo on a number of occasions after that, and I am reasonably certain that he was introduced at one time or another to most of our then top executives, as I always made it my business to treat all prospective distributors with courtesy and deference and to introduce them to our key people. * * *” (Emphasis added.)

As to his discussions with prospective distributors (presumably including the plaintiff), involving the production of a small conventional two-door sedan, Mr. Bell stated: “The subject of the planned production of a small conventional two-door sedan was discussed and stressed with all prospective distributors. As a matter of fact, it was the chief subject of discussion at all times. With a few possible exceptions, I cannot recall a single prospective distributor who was willing to gamble the necessary $100,000 to $200,000 investment on the prospects of the Jeep alone. I was certainly in agreement with them in my own mind, because I never considered the Jeep and the Jeep line as being a satisfactory ‘permanent’ product line through which Willys-Overland could ‘cash-in’ and retain the splendid reputation it made as a producer of war material.” (Emphasis added.)

It would not appear from Mr. Bell’s affidavit that there was any lack of good faith on his part or on the part of the defendant at the time of the negotiations, but rather the contrary. He states that the production of a small conventional two-door sedan was the chief subject of discussion with all distributors; that he made his position on this very clear at many meetings; and that, with his assistance, Mr. Hopkinson, who apparently was Vice President and Treasurer, prepared a report of the company’s postwar possibilities, which was presented at a Board meeting in the Autumn of 1944, which told of the postwar plans of the company and urged concentration on the passenger car field. Mr. Bell further stated that he remembered “that development work on the passenger car went forward and that tooling and material requirements dictated that the company produce the Jeep until such time as the passenger car could be manufactured”; that the Engineering Division, under the guidance of Barney Roos, completed a first proposed postwar two-door, five-passenger sedan early in 1944, which was set up on the second floor of the Research Building, and that this car was shown from time to time to selected distributor applicants to convince them that they were going into the passenger car field and to obtain their reaction as to its saleability.

It appears from the sales agreement (Exhibit A to the complaint) that the defendant in paragraph one granted to the plaintiff “the exclusive privilege of selling at wholesale, * * * the Manufacturer’s automotive products and its parts and accessories (in accordance with its then current parts policy) within the territory described in Schedule 1 hereto attached and made a part hereof.”

It further provides that the distributor has “the privilege of selling at retail new Willys-Overland products specified in Schedule A * * *” within the limits of Green Bay, Wisconsin. Schedule 1 lists twenty-four counties in Wisconsin and fifteen counties in Michigan, opposite which is the “Estimated Unit Allotment” for each, totaling 1333 units. Temporary Schedule A attached provides, with reference to the products of the defendant agreed to be taken by the distributor, as follows:

“(A) It is agreed between the Manufacturer and the Distributor that the estimated requirements for the territory assigned under this Agreement shall be 1333 units for the period of twelve months from the date when the Manufacturer resumes shipment of motor vehicles for civilian consumption.”
“(B) The Distributor agrees to place firm orders with the Manufacturer and pay for and accept delivery of motor vehicles in body types which the Manufacturer is able to ship. It is understood and agreed, however, that the number of motor vehicles which the Manufacturer shall ship in any one month will not exceed ten percent (10%) of the Distributor’s requirements for twelve months.”

The 1333 units above mentioned would seem to refer to the Jeep type vehicles then manufactured by the defendant. No mention is made in the agreement of a new passenger sedan to be manufactured and delivered by the defendant in the future.

The plaintiff was so well satisfied with this agreement the business under which, as above quoted, Mr. Ginsberg said was “on a sound, amicable and mutually profitable basis until the latter part of the year 1948,” that it felt itself aggrieved when the defendant, pursuant to the express terms of paragraph 21 of the agreement, cancelled the same on or about December 20, 1949, and for which it is asking damages in this case. It seems likely that had the agreement not been can-celled this action would not have been brought.

The First Cause of Action

The first cause of action is based on the alleged fraud and deceit of the defendant in fraudulently inducing the plaintiff to enter into the distributor sales agreement set up in this case by oral promises which it did not intend at the time to perform. It is not a cause of action on contract, based on the failure of the defendant to perform an oral promise to do something in the future which would be covered by the written agreement between the parties; evidence of such an oral agreement would be inadmissible under the parol evidence rule, and in our opinion the authorities cited on that point of law are not applicable to the issue involved here. The tort here alleged consists in the fraudulent representation of an intention to do something, not mentioned in the written agreement, in order to induce the making of the- agreement by the plaintiff. The misrepresentation alleged consists of representing to plaintiff, as an inducement to its entering into the agreement, that the defendant intended to manufacture a new passenger car which the plaintiff would have the opportunity to handle as distributor under its distributor sales agreement, when at the time the defendant had no such intention. Representations and promises made after the making of the written agreement are manifestly not pertinent to this issue.

The law upon which the plaintiff bases this cause of action is quoted by counsel for plaintiff in their brief as follows:

"* * * According to the weight of authority, if the person making the promise or statement as to a future event is guilty of an actual fraudulent intent, and makes the promise or misrepresentation with the intention of deceiving and defrauding the other party, and accomplishes this result, to the latter’s injury, fraud may, under many circumstances, be predicated thereon, notwithstanding the future nature of the representations. * * *”
“The weight of authority holds that fraud may be predicated on promises made with an intention not to perform the same, or, as the rule is frequently expressed, on promises made without an intention of performance. It has been said that when a promise is made, the promisor, by necessary implication, asserts a present and bona fide intention to perform, and if, therefore, the intention to perform does not exist, there is a misrepresentation of a fact upon which fraud may be predicated, the gist of the fraud in such a case being not the breach of the agreement to perform, but the fraudulent intent of the promisor and the false representation of an existing intention to perform, when such intent did not in fact exist; * * *.”

(Note in 51 A. L. R., page 63. See also 23 Am. Jur., par. 37, page 798, to the same effect.)

The law of Ohio as to what it is necessary to prove to recover in an action for fraud or deceit is stated in Lucke v. Kobison & Co., Inc., 1937, C. A. Lucas County, 58 Oh Ap, 242, at page 244, 9 O. O. 339, at page 340, 10 N. E. 2d 283, at page 284, as follows:

“The action being one based upon alleged false and fraudulent representations, the elements required to be proved to entitle plaintiff to recover are: (1) That there was a representation as to an existing or past fact, material to the transaction; (2) that such representation was false at the time it was made; (3) that the representation was made in bad faith with knowledge that it was false; (4) that it was made with the intent of misleading plaintiff into relying upon it; (5) that plaintiff must have relied upon the representations with a right to so rely; and, (6) injury must have resulted as a consequence of such reliance.
“All of these ingredients must be found to exist, and the absence of any of them is fatal to a recovery. 19 O. Jur., 336, and cases there cited.”

The alleged false representations of defendant may be separated into statements of existing facts and promises of future performance. The statements of existing facts are:

(1) that the defendant “had developed a two-door five-passenger sedan on short wheel base, with economical fuel consumption, superior riding qualities and advanced styling for introduction into the large post-war low-priced motor vehicle market”;

(2) that “said passenger sedan was engineered, tested, approved and ready for production”;

(3) and that “said sedan was designed to be delivered in the One Thousand Dollar ($1,000.00) to One Thousand Two Hundred Dollar ($1,200.00) price class.”

Mr. Ginsberg, in his affidavit, states that he was shown a model of the passenger car and some of its mechanical features, and it appears, so far as indicated, that he was satisfied with it and returned to Green Bay to complete arrangements to meet the requirements of the defendant to act as distributor.

The promises of future performance alleged are:

(1) that “high volume production of said post-war two-door five-passenger sedan would begin as soon after the cessation of World War II as tooling could be completed and materials were available”; and

(2) that defendant “would build up its production to three hundred thousand (300,000) motor vehicles per year within three years, most of which would be two-door five-passenger sedans.”

It is on these alleged representations that this cause of action is based. Plaintiff alleges these representations were false, were made for the purpose of inducing the plaintiff to enter into the said exclusive distributor sales agreement; that defendant at no time intended to produce a conventional five-passenger vehicle as represented; and that plaintiff was misled and deceived by the said misrepresentations to enter into said agreement; and that plaintiff relied and acted upon said representations to its damage.

The gravamen of this complaint, therefore, is that defendant, at the time plaintiff' was induced to enter into the agreement by reason of those representations, had no intention to produce a post-war passenger car as represented.

Mr. Bell in his affidavit states that he handled all of the negotiations for an agreement to act as distributor with the plaintiff, and Mr. Ginsberg in his affidavit seems to confirm this. Nowhere in the affidavit of Mr. Bell is there any statement that he made any representation as to future manufacture and delivery of the two-door five-passenger sedan they discussed with intent to deceive the plaintiff or that he did not intend that his principal, the defendant, should perform. There is nothing in his affidavit but evidences his entire good faith in dealing with the plaintiff.

On a motion for summary judgment, the court will take the affidavits submitted thereon at face value. Begnaud v. White, 6 Cir., 1948, 170 F. 2d 323.

We do not believe the position of the plaintiff is helped by Exhibits A and B, attached to the affidavit of Mr. Ginsberg. Exhibit A is a copy of the Annual Report of the defendant for the year ending September 30, 1945, two days after the plaintiff’s Distributor Sales Agreement was executed by defendant. It clearly indicates the policy and intention of the defendant at that time with regard to a new passenger car. It states:

“* * * Lastly, there will be an entirely new passenger car designed for sale in the low priced field.
“* * * A completely new, low cost, small passenger car, embodying features and basic improvements never before offered in a car in this class has been designed, engineered, developed and thoroughly proved. Your management is confident that this revolutionary small passenger car, along with the other motor vehicle offerings, will enjoy an unprecedented degree of mass public acceptance.”

Exhibit B attached to the affidavit is a copy of the first page of the “Toledo Blade” dated March 30, 1950, in which the following appears:

‘.‘Some 2,000 dealers over the nation also heard Mr. Roos disclose that W-O will put on the market a new conventional, 5-passenger automobile early in 1951.”
“The speaker declared no actual passenger car program was provided in the company’s policy until last May when new management took over.”

There is nothing in the statement of Mr. Roos, quoted, if admissible, which to our mind indicates that at the time the negotiations for the agreement here were in progress the defendant had no intention of manufacturing and delivering to its distributors the new passenger car.

A case somewhat similar on the facts is Tamm v. Ford Motor Co., 8 Cir., 1935, 80 F. 2d 723. In that case, Tamm, as trustee in bankruptcy of Herb Ford, Inc., sued the Ford Motor Company for damages, claiming that, in the latter part of July, 1931, the defendant through its branch manager, one Brown, represented to said bankrupt, its dealer or agency, that the defendant would by the 10th day of September, 1931, have in production and deliver to its dealers, including the bankrupt, a new model car, which new car could and would meet competition and and ñnd a ready sale; that said representations were made to said bankrupt for the purpose of inducing it, among other things, to continue as a dealer under its dealership contract, and to continue the advertising and sale of defendant’s products, and that said bankrupt relied upon said representations, expended a large sum of money by reason thereof in moving its business and equipping new premises and making installations therein; that the defendant failed to have its new car for delivery on September 10, 1931, nor until the month of June, 1932; that the said representations ‘'‘were false to the knowledge of the said defendant, or were made recklessly, it knowing at the time of the making of said representations that the new model car would not'and could not be made ready for delivery within the times represented.” The trial court sustained the demurrer to the plaintiff’s third amended petition. This action was affirmed by the Court of Appeals, that Court stating, 80 F. 2d at pages 729, 730:

“Plaintiff in the petition under inquiry does not aver that the alleged false representations were made with the intention of deceiving bankrupt, or that they were made without any intention of performance. If they were not. then, of course, they fall into the category of mere promises touching future events. Fraudulent misrepresentations ordinarily must be, in order to be actionable, representations as to past or existing facts, and not statements as to what will occur in the future. We think the whole context of the petition and the whole situation which it attempts to picture indicate quite conclusively that the representations made were not made with any intent to deceive the bankrupt, but that they were made as to a situation which Brown firmly believed would come to pass. Cases urged upon our attention such as Wendell v. Ozark Orchard Co. (Mo. App.) 200 S. W. 747, loc. cit. 749, and Stonemets v. Head, 248 Mo. 243, 154 S. W. 108, are obviously cases involving not only a prophecy for the future, but statements as to both a past and existing situation known to the speaker from past and present observation and experience. * * * But likewise, obviously, the decisive question in the above cases is not the decisive question here, which, as said already, consists in the failure of the pleader to aver that Brown made the alleged false representations with the intent to deceive the bankrupt without any intent to perform, and that bankrupt was deceived. Both allegation and proof of this fact are prerequisites to a recovery in a case of fraud and deceit. Nor does the case of Philadelphia Storage Battery Co. v. Kelley-How-Thomson Co. [8 Cir.] 64 F. 2d 834, herein much relied on, at all aid plaintiff; but as we read it, it reiterates the necessity for the presence of two constituent elements nowhere pleaded in the petition before us, for it says: ‘Promises and representations regarding future events, made with fraudulent intent to deceive, and without any intent to perform, are actionable.’ (Emphasis ours.)
“Nowhere in this petition can there be found any allegation that the false representations were made by Brown with the intent to deceive the bankrupt, or that Brown did not intend that his principal, the defendant, should perform.
“If the petition shall be considered as an action based on a breach of a written contract, of which it bears some earmarks, then plaintiff fares no better. For the contract of which only a fragment is set out in the petition does not, we repeat, bind the defendant to sell any given number of cars, trucks, or parts thereof to the bankrupt, nor does it fix any period whatever to its duration. In these respects it is difficult to distinguish the contract in the case at bar from those held unenforceable in the cases of Ford Motor Co. v. Kirkmyer Motor Co. [4 Cir.] 65 F. 2d 1001; Huffman v. [Paige-Detroit] Motor Car Co. [8 Cir.] 262 F. 116; Nebraska Aircraft Corp. v. Varney [8 Cir.] 282 F. 608; Du Pont De Nemours & Co. v. Claiborne-Reno Co. [8 Cir.] 64 F. 2d 224, 89 A. L. R. 238; Chevrolet Motor Co. v. McCullough Motor Co. [9 Cir.] 6 F. 2d 212; Ford Motor Co. v. Maddox Motor Co., 123 Tex. 608, 73 S. W. 2d 517. Indeed a mere glance at the four petitions and the exhibits thereto, which being printed in the record we should be allowed to read, as a basis for the prediction, even off the record, confirms the view, that when all of the facts shall have been developed before a court on a trial on the merits, recovery by plaintiff on the law, and the facts now visible and pleaded is not possible.
“This may under the facts involve a hardship, but the time to guard against such hardships is when men make improvident contracts, and not when such contracts come before the courts. * * *”

In the case before us, there is no allegation in the complaint that the alleged false promise of the delivery of the new passenger car by Mr. Bell was made with intent to deceive the plaintiff, or that Mr. Bell did not intend that his principal, the defendant, should perform. No such statement appears in the affidavit of Mr. Bell; so far as appears from his affidavit, he acted in entire good faith.

The plaintiff relies on the cases of Arnold v. National Aniline & Chemical Co., Inc., 2 Cir., 1927, 20 F. 2d 364, 56 A. L. R. 4; Thomas A. Edison, Inc., v. Blackman Distributing Co., Inc., 2 Cir., 1933, 66 F. 2d 722; and Holcomb & Hoke Mfg. Co. v. Auto Interurban Co., 140 Wash. 581, 250 P. 34, 51 A. L. R, 39. It seems to us each of these cases can be distinguished on the facts from the case at bar.

It appears to us that the complaint is insufficient because it does not allege that the false representations by Mr. Bell were made with intent to deceive the plaintiff and that the motion to the first cause of action should be sustained.

The Second Cause of Action

The second cause of action is based upon the claim that the defendant wrongfully and in bad faith cancelled the agreement. The allegation in this respect is that the defendant “arbitrarily, wrongfully, without just cause and in bad faith cancelled plaintiff’s exclusive distributor sales agreement,” to the damage of the plaintiff in the sum of $100,000.

Under the express terms of the agreement it was provided in paragraph 21, above quoted, that “Either party shall have the right to cancel and terminate this agreement at any time upon thirty (30) days written notice to the other pary,”.

It appears that the defendant cancelled the agreement in accordance with this provision. Such a provision would seem from the cases to be common in agreements between manufacturers and distributors or dealers and have been frequently before the courts. According to the weight of authority, this, provision gave the defendant the unqualified right to .cancel and terminate the agreement according to its terms without liability to the plaintiff. Studebaker Corp. v. Wilson, 3 Cir., 1918, 247 F. 403; Huffman v. Paige-Detroit Motor Co., 8 Cir., 1919, 262 F. 116, 118; Chevrolet Motor Co. v. McCullough, 9 Cir., 1925, 6 F. 2d 212; Curtiss Candy Co. v. Silberman, 6 Cir., 1930, 45 F. 2d 451, 452; Du Pont De Nemours & Co. v. Claiborne-Reno Co., 8 Cir., 1933, 64 F. 2d 224, 89 A. L. R. 238; Ford Motor Co. v. Kirkmyer, 4 Cir., 1933, 65 F. 2d 1001, 1003; Motor Car Supply Co. v. General Household Utilities Co., 4 Cir., 1935, 80 F. 2d 167; Bushwick-Decatur Motors, Inc., v. Ford Motor Co., 2 Cir., 1940,116 F. 2d 675, 676; Myers Motors, Inc., v. Kaiser-Frazer Sales Co., 8 Cir., 1949, 178 F. 2d 291, 303.

Plaintiff relies on the case of Watkins Co. v. Rich, 254 Mich. 82, 235 N. W. 845, but we are of the opinion that that case is not applicable here. It was not followed by Judge Picard in the case of Martin v. Ford Motor Co., D. C. Mich. 1950, 93 F. Supp. 920, at page 921, in which he stated:

“The agreement in this case was not for a fixed period but was terminable at any time at defendant’s will upon compliance with the requirement as to notice. It is beyond the power of the judiciary to engraft conditions upon the exercise of such a contractual right.
“The court concurs with the holding in Bushwick-Decatur Motors, Inc. v. Ford Motor Co., 2 Cir., 1940, 116 F. 2d 675 as properly applying the law of Michigan with respect to the right of termination under a similar agreement, and with the holdings in Buggs v. Ford Motor Co., 7 Cir., 1940, 113 F. 2d 618. The Supreme Court of Michigan by its decision in J. R. Watkins Co. v. Rich, 1931, 254 Mich. 82, 235 N. W. 845, did not overrule prior decisions such as Koehler v. Buhl, 1893, 94 Mich. 496, 54 N. W. 157; Garlock v. Motz Tire & Rubber Co., 1916; 192 Mich. 665, 159 N. W. 344; Schmand v. Jandorf, 1913, 175 Mich. 88, 140 N. W. 996; Fuchs v. Standard Thermometer Co., 1913, 178 Mich. 37, 144 N. W. 484. Also McClintock Co. v. Truxall Sales & Service, Inc., 1941, 297 Mich. 284, 297 N. W. 493.
“In the instant case it is clear that Martin’s dealership was to continue no longer than either he or the Ford Motor Company desired it to continue and that its right to terminate it was subject to no conditions as to good or bad faith, motive, intent or results, except as to the requirement of advance notice if such termination was desired by the Ford Motor Company.” (Emphasis ours.)

As said in the case of Motor Car Supply Co. v. General Household Utilities Co., 4 Cir., 80 F. 2d 167, 171, supra: “Such contracts as those we have here, between manufacturers and distributors of goods, reserving to the manufacturer an arbitrary and unrestricted right of cancellation, are not uncommon. And while, as we said in the Kirkmeyer [Kirkmyer] Case, there is a natural impulse to be impatient with the form of contract which places the comparatively helpless dealer at the mercy of the manufacturer, we do not make the contracts for the parties, and we cannot protect them against lawful agreements and conditions which they may see fit to make for themselves. * * * Our function is to interpret and enforce contracts, not to make or extend them.”

We are of the opinion that the motion to the second cause of action is well taken and should be sustained.

An order is drawn accordingly.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    AMERICAN LEGION, Tremont Post No. 577, Inc., Cleveland, Appellant, v. DEPT. OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4735.
    Decided April 18, 1952.
    John T. Bilinski, John J. McDermott, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Brown W. Pettit, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal and affirming the judgment for the reason that the appellant has failed to file his assignment of errors and briefs in accordance with Rule VH.

The record reveals that the appeal was on questions of law and notice filed on December 31, 1951; that an assignment of errors was filed at the same time, but no briefs have been filed up to date, to wit, April 14, 1952. Therefore Rule VII has not been complied with.

The motion will be sustained and judgment affirmed.

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


author: By CROSSLAND, J.

text:
    STATE, ex rel. BRUNS COAL COMPANY, INC., Plaintiff, v. UNITED MINE WORKERS OF AMERICA et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 38040.
    Decided November 15, 1952.

      Graham, Graham, Hollingsworth, Gottlieb & Johnston, Ernest B. Graham and Donald Hollingsworth, Zanesville, for defendants.
    Alfred D. Treherne, Columbus, special appearance for defendant United Mine Workers of America, and general appearance for all other defendants except defendant Steve George Kubic, Aubrey Wendt, Columbus.
    Glenn Kreider, Newark, for all defendants except defendant United Mine Workers of America.
   OPINION

By CROSSLAND, J.

Pursuant to the arrest on October 31, 1952, of defendant Steve George Kubic, subsequent Charge of Contempt filed against him the next day, November 1, 1952, and hearing thereon November 7, 1952, the Court finds no satisfactory or sufficient evidence relative to the time or occasion of said arrest upon which to base said Charge, the consideration and determination of which is necessarily confined to said date and occasion of October 31, 1952, and said Charge as so considered and determined is accordingly dismissed, but without prejudice to the later charge of Contempt, filed November 7, 1952, and heard along with that against other named defendants November 12th and 13th, 1952. Said defendant is therefore found Not Guilty of Contempt on and as of October 31, 1952, is discharged as to the same and bond of $500 furnished therefor to the sheriff October 31, 1952, ordered released.

Is the United Mine Workers of America, and the officers and members thereof, Washington, D. C. before the Court as a national or international union or organization in this proceeding for Contempt of the Injunction Order of the Court of May 28, 1952?

Said organization was an original party defendant in this cause at its inception October 1, 1951; on October 2, 1951, was mailed by registered mail with signed return receipt dated October 3, 1951, for “a true and certified copy of this writ, together with a certified copy of the Journal Entry filed in this cause,” which was a restraining order dated October 1, 1951, enlarged in paragraph five thereof by Entry of October 11, 1951, pursuant to which, incidentally, at the previous instance of and with the consent of Attorney Alfred Treherne, appearances were entered on behalf of Adolph Pacifico individually and as president of District No. 6, United Mine Workers of America, Walter Kovaleski, individually and as organizer and member of the United Mine Workers of America, George Waters, individually and as organizer and member of District No. 6, United Mine Workers of America, and for all other defendants who are members of the United Mine Workers of America and who have been made parties to this action and have been served with summons, or have voluntarily entered their appearances herein. (Emphasis by the court.)

Thereafter, pursuant to the Entry of October 11, 1951, and Journal Entry of temporary injunction dated November 1, 1951, answer was filed November 2, 1951, by “one of the attorneys of record for the defendants herein,” Robert G. Tague, and sworn to before the said Alfred D. Treherne, wherein defendants, without any stated exception, filed their First and Second Defenses, thus entering the general appearances for all subsequent purposes of all defendants, including the organization and union of the United Mine Workers of America; to which answer plaintiff replied November 21, 1951.

Later, upon hearing, after assignment for trial upon the issues thus made between plaintiff and all defendants, Journal Entry Granting Permanent Injunction was filed May 28, 1952, and appeal thereof to the Court of Appeals dismissed, with the executed approval by Mr. Treherne of himself and said Tague as attorneys for defendants.

Said Journal Entry Granting Permanent Injunction approved by said Tague, recited as its first and opening paragraph:

“This cause came on this day for hearing upon the petition of the plaintiff for a permanent injunction, the answer of the defendant and the evidence, the parties being present in Court personally or by counsel.” (Emphasis by the court.)

Thus once again and finally, as a determination and final order in this cause, it is agreed and recited by record counsel that the parties are either present personally or by counsel.

At no time and in no way was there ever even a hint or suggestion that any single named defendant was not a party and not before the Court. On the contrary, if not brought in by service all came in by answer and all, including the United Mine Workers of America, became directly charged with full knowledge and the effect of the Court’s comprehensive, detailed and explicit Order of Permanent Injunction, the second paragraph of which specifically directed to the United Mine Workers of America, District No. 6, United Mine Workers of America, and Adolph Pacifico, President of District No. 6, United Mine Workers of America, said:

“The Court finds and considers that aggressive and unlawful disturbances evidenced on the part of defendant organization and its officers actually motivated and inspired unlawful transgressions by individual defendants, which the Court further finds and considers not only an arrogant and unwarranted intrusion upon the personal liberty of plaintiff’s employees, as well as unlawfully violative of plaintiff’s business enterprise and property, but also a deliberate affront and direct challenge to the authority of popular government, which it is a fundamental concern and duty of Courts to help protect;, and that assurance of lawful and peaceful future conduct of defendants requires and justifies the granting of a permanent injunction as hereinafter provided.”

The Court considers that the United Mine Workers of America as a party defendant in and to the within action, being already in and before the Court, is fully amenable to its discipline in the event of a Contempt and subject to being chargeable therewith without the necessary process possibly otherwise attendant upon an original action in order to make it answerable; and that its actual receipt by registered mail on November 3, 1952, of a certified copy of the Summons For Contempt directed to it, together with a certified copy of the Affidavit Charging it with Contempt and Order to Appear on Wednesday, the 12th day of November, 1952, at 9:00 o’clock A. M. of October 31, 1952, under the Court’s Rule No. XXIV, providing therefor pursuant to the provisions and authority of §11297-1 GC, brings the United Mine Workers of America before the Court in this matter.

Motion to dismiss United Mine Workers of America as party defendant in and to this matter of the Charge against it of Contempt of the Court’s Order of May 28, 1952, is therefore overruled and exceptions are noted to it in that regard.

Referring again to the May 28, 1952, Journal Entry Granting Permanent Injunction, immediately preceding the seven paragraphs of the Injunction Order is the third paragraph of the Entry, which reads:

“It is further ordered, adjudged and decreed that the defendants and each of them named and unnamed, and all others associated with them, be and they hereby are permanently enjoined from”: (Emphasis by the court.)

Not only are each and all of the parties defendant who were defendants in the original action and to the final order of May 28, 1952, who are defendants in this matter, before the Court, but also, likewise, are each and all of the defendants in this matter who were not originally parties defendant to the action, and they may be adjudged guilty of contempt of said injunction order if in fact so found.

“One who is not a party to the injunction suit, but who is within the class of persons whose conduct is intended to be restrained or who acts in concert with a party litigant or with a third person, is guilty of contempt. Persons who acts forbidden by the injunction order.” 12 American Juristo the injunction suit may be held guilty of contempt in doing acts forbidden by the injunction order.” (12 American Jurisprudence, 407, Sec. 26, on “Disobedience of Injunctions.”

Did these six defendants herein who were not originally defendants in this action have notice and knowledge of the Court’s order of May 28, 1952?

Under all the facts and circumstances in evidence, of those who were already named defendants herein and those six not originally expressly named, the general, special and specific interminglings and associations shown in union membership and activities, common assemblies both active and passive, unanimity of purpose “to organize the unorganized,” propinquity of employment, proximity of residence, facility and celerity of assembly, established organizational positions, functions and operations of district president Pacifico and organizers Waters, Kovaleski and Kubic and the presence of all defendants other than Pacifico, at one or another of various points effective to close down the mining and transportation of coal in the attempted operation of plaintiff’s business on October 23, 1952 and October 30, 1952 and between and since, leaves no doubt whatever in the mind of the Court that defendants Smith, Headley, Wade, Compton, Kubic and Whitehead equally knew fully the fact, nature and extent of the Court’s Injunction Order of May 28, 1952, long prior to October 23, 1952, and it was entirely logical and natural that no one of them had the temerity to attempt to falsify to the contrary.

Incidentally, defendant Headley was identified by both George Noel and Charles Dupler as the man who struck Bruns, who was unquestionably struck from behind. The court does not believe the testimony of Fred Peyton and Betty Morgan, both of whom were directly approached by Headley and were either afraid or unwilling to tell the truth.

Among other particulars specifically enjoined were:

“From interfering by coercion, intimidation, violence or threats of violence or suggestions of danger to any of the several employees of plaintiff;”
“From using abusive, slanderous or threatening language to any employees;”
“From any unlawful obstructing, delaying or stopping the business of plaintiff;”
“Unlawfully loitering in or near the mining property, operations — or from unlawfully picketing said mining property— or from disturbing in any manner the peace, quiet and order of the mining property, operations or place of business of plaintiff, — or from in any way threatening, intimidating, injuring or attempting to injure or coerce any — employees of plaintiff’s customers — or from threatening, intimidating, injuring or attempting to injure or interfere with plaintiff’s trucks;”
“From suggesting, directing, inciting, abetting or aiding any person or persons in committing any of the acts complained of in this petition or set forth in this restraining order, particularly inducing or inciting large crowds to congregate at or near or upon the mining property, operations or offices of plaintiff;”
“Not more than two pickets at any entrance way used by employees going to and from said mining property — at no time congregate in such manner that there shall be more than one at each side of each entrance and shall stand when picketing individually on separate sides of said entrance; each picket shall remain on the side of the entrance way that he stations himself on and shall remain on that side until he ceases picketing.”

A mere reading of the foregoing, without further statement or application of the facts in evidence, suffices to demonstrate from the evidence beyond any reasonable doubt, the utter, wilfull and wanton disregard of most of the Court’s Order of Permanent Injunction, on the part of every defendant in this matter.

The Actions and conduct of each and all of these defendants was not only wholly unprovoked but a calculated and deliberate disrespect of consummate contumacy, unparalleled in recent Court history, a devastating refutation of the implied professions and protestations of injured innocence, in which the particulars of individual participation, which range from intimidation by mere presence of large numbers to savage animal brutality, are yet far lesser than the over-all pattern and precept of directly attacking and imperiling the fundamental principles that made this country a land of equal freedom for all and of liberty under law.

The activities and acts of all defendants on October 23, 1952, and the recurrent acts and activities of defendants, United Mine Workers of America, District No. 6, United Mine Workers of America, Adolph Pacifico, president, District No. 6, United Mine Workers of America, Kovaleski, Waters and Kubic, on October 30, 1952, each and all constituted reprehensible and inexcusable assaults upon this Court in contradiction of the respect and observance due and owing to its Injunction Order of May 28, 1952.

One issue that transcends all others in this proceeding is whether or not voluntary respect for law, upon which free government largely depends for its continued existence, shall prevail or perish in the coal lands and mining areas of southern Muskingum County.

This Court would be less than forthright in its approach and altogether failing in the trust imposed upon it to speak plainly and directly the conviction it holds from the evidence before it if it did not address itself to the larger issue here engaged.

Shall large bodies of men, many perhaps unwillingly, and with individual misgivings but intelligent perception of the lawless character of their participation, be led or driven by brazen and ruthless leadership into contemptuously flouting duly constituted local governmental authority by the implication or exertion of force and violence?

No legalistic legerdemain or devious hocuspocus, called upon in defense of defiance, will obscure or erase the central fact that such assemblies of men gathered at such points as herein evidenced, whether at the mine or on the public highways, whether menacing production and loading or transportation, all pertinent and pertaining to the dates and events charged, do not just happen. They are contrived, planned and promoted. Furthermore, they are a most shameful and disgraceful repudiation and destruction of the tenets of freedom and liberty, the free choice of free men who want to do lawful work, to work freely, without any outside interference or molestation, and the basic liberty of lawful business that wants to operate without outside private dictation and without having to battle terroristic insurrections.

No equivocation over technical niceties beclouds the fundamental issue underlying this proceeding and which permeates the evidence herein submitted. Plaintiff and its employees were and are denied their inalienable constitutional and legal right to engage in lawful business and employment by the exercise, threat and intimidation of force and violence on the part of lawlessly led men whose arrogant leadership was and is contemptuously intent upon destroying the effect of this Court’s permanent injunction decree.

The limitations of law in the exercise of local governmental authority, wisely designed to prevent captious curtailment of personal liberty, when appealed to and exploited to the end and for the purpose of destroying the liberty and freedom of other persons, become an agency of tyranny in the hands of those who thus wrongly seek to subvert and pervert such limitations to their own impudent demands.

This Court, in maintaining an impersonal, impartial and unbiased view in all matters, causes and proceedings coming before it, is not thereby called upon, in reflecting upon the impact of the evidence herein, to ignore reality, accept the ridiculous and indulge a fallacious presumption that men approaching or converging in concert, do so without design, direction or leadership, or that such leadership is not that assigned to them by the labor organization to which they belong, or that a congregation of such men under such leadership is not designed to or does not impart intimidation and fear in and among those persons against whom it is obviously and patently directed. On the contrary, the Court finds and concludes in this matter that the defendants, each and all of them, intended and effectuated exactly what occurred, including the cessation of business and employment, and that all are blameworthy and responsible for the acts, actions and misconduct of each.

It will be a sorry day for this republic if a judge is not permitted or does not permit himself to measure by his precise utterance the nature and extent of the configuration of his analysis of the evidence and the substance behind it and to express his candid observations pertinent thereto as well as the inferences and conclusions naturally and logically d.educible therefrom.

This Court, in its sworn effort to fulfill its own responsibility to the very comprehensive and detailed injunction order decreed in this case, sought to implement it by directing the hire of additional deputy sheriffs to “prevent violation or frustration of any of said orders in any respect and to make arrests whenever warranted,” which is costing Muskingum County well over $1,000 weekly, upon the postulate that a court is entitled to the enforcement of its lawfully made and promulgated judgment orders.

“The power to maintain order — and to enforce process to the end that effect may be given to judgments; must inhere in every court or the purpose of its creation fails. Without such power no other could be exercised.” (Hale v. State, 55 Oh St 213.)

Gathering assemblies of men in excess of two in number approaching in the direction of mine property entrances, as were these individual defendants, their identified and unidentified fellow unionists, and defendant organizers, on October 23, 1952 and October 30, 1952, and, by and through them and their officers and officials, the defendant organization of the United Mine Workers of America and its defendant official and officer, Adolph Pacifico and his organizers of District No. 6, were each and all acting in determined, wilfull, flagrant and contemptuous disregard and violation of the existing final order and decree of permanent injunction, even though the defendant Pacifico was not personally, physically present. The acts committed on both dates of October 23rd, and 30th, as well as the shut-down between and since, were and is the natural and contemplated consequences of the inmoving parade of vehicles desired, fostered and inspired by the national and district leadership and said district organizers employed and operating for and in their behalf.

The Court finds from the evidence before it in this matter as it found upon the evidence in the injunction hearing, as stated in its said Entry of May 28, 1952, to-wit:

“that aggressive and unlawful disturbances evidenced on the part of defendant organization and its officers actually motivated and inspired unlawful transgressions by individual defendants.”

The Court, reiterating the explicit language of that part of its within order of October 25, 1952, directed to the .Sheriff “to prevent violation or frustration of any of said orders in any respect and to make arrests whenever warranted,” fully expects that no further such intrusions within the area, if attempted, be permitted, and further orders, in view of the violence already occasioned in defiance of the Court’s injunction order and the unwillingness thereby manifest to picket peaceably and in the respect and number stipulated, that the right of any further picketing whatever, heretofore accorded in the injunction order of May 28, 1952, in this cause and in causes numbers 38039, 38043 and 38066 and in the temporary orders of October 21, 1952, in causes numbers 38580 and 38582, is clearly forfeited and is therefore revoked, and that also in order to further clarify and simplify obedience to enforcement of and compliance with the protection which the injunction order was intended to provide, it is now ordered and the duty and obligation henceforth of all members, officers and organizers of the United Mine Workers of America to remain entirely out of the area and vicinity of these various plaintiffs’ premises and all the surrounding highway approaches thereto and the corresponding duty and responsibility of the sheriff to effectuate all existing injunction orders as therein provided and herein modified.

It is also ordered that the United Mine Workers Union of the Misco Mine, its officers and members be made a party defendant in all said causes, by appropriate service upon its president Kelly King, who along with all other members now present are expected to acquaint and inform any and all such others, as are similarly interested and affected, with notice and knowledge of the foregoing restrictive order, and it would now seem to this Court, with the event and conclusion of this matter, its attendant publicity and the attending members, officers and organizers, a reasonable presumption that by not later than the beginning of working hours Monday, November 17, 1952, all or at least substantially all other members of the United Mine Workers of America will be fully aware and cognizant of the injunction order of May 28, 1952, as it exists effective as of now and govern themselves accordingly.

Journal Entries in said causes numbers 38039, 38043, 38066, 38580 and 38582 may be prepared by plaintiff counsel in each said cause and submitted to opposing counsel therein and then to the Court for its approval for filing, modifying former orders therein in accordance herewith, making the Misco Mine Union party defendant and causing service upon it.

It is the further view of the Court, pertinent to the issues hereof and the orders heretofore and herein made, that the enforcement arm of an Ohio county is not rendered impotent in the fact of a witnessed violation of an existing order of a Common Pleas Court, but, on the contrary, that the County sheriff, to whom is entrusted the preservation of the peace, is empowered not only to repel and repress any attempted violation of such order but to arrest, detain and incarcerate such person or persons as persist in seeking to do so, informing the person or persons arrested of his authority and cause of the arrest. (Sec. 13432-5 GC.)

The Court holds that the law of the case as enunciated by a common pleas court is as much a part of the law of this state to be observed and enforced as is a state statute, or city or village ordinance, the language of §13432-1 GC using the general and generic term “law” and not the word “statute” whose, meaning is restricted to legislative law, and that this Court’s said order herein may and should be maintained in the manner expressly accorded laws and ordinances. It ill becomes those of contemptuous behavior, toward whatever law, to complain that their contempt or violations cannot continue uninterruptedly merely because it is persistent and determined.

This Court, in the exercise of its equity powers and the authority inherent in its right to maintain order with respect to exacting compliance with an injunction order, would be derelict in its public duty if it did less than to insist upon the constitutional and legal right and obligation of its enforcement arm to effectuate its orders effectively.

The Sheriff and his deputies in acting under the direct and explicit order of the Court to exact compliance with its injunction decree thereby and in that respect represents the presence of the Court and any commission of violation in their presence is constructively in the Court’s presence and may and will be hereafter dealt with and punished summarily.

If there is any risk entailed in the choice between abject submission of duly constituted county governmental authority to self-proclaimed outlawry and insistence upon full and effective performance of official duties in support of judicial determinations relied upon to protect and secure the freedom and liberty of law abiding citizens in going about their daily tasks, this Court prefers to err on the side of law and order, if any holdings of the Court should be deemed error.

It is the further intention of the Court to instruct the Grand Jury upon its reconvening next Tuesday, November 18th, to inquire into all questions of statutory law violation, beginning Wednesday morning November 19th, including assault and battery, malicious destruction of and taking motor vehicle without owner’s consent, the latter penitentiary offenses, and to that end counsel for plaintiff are instructed to furnish the Prosecuting Attorney with the names and addresses of all witnesses essential for such investigation, for issuance of necessary subpoenas.

Upon the Court’s conclusion that each of the defendants is guilty of contempt of the Court’s permanent Injunction order herein of May 28, 1952, as found and determined from the evidence in this matter beyond.a reasonable doubt, it is ordered and adjudged:

1. That defendant United Mine Workers of America pay a fine of Five Hundred Dollars ($500.00) for its violation of October 23, 1952, and that it pay a fine of Five Hundred Dollars ($500.00) for its violation of October 30, 1952.

2. That defendant District No. 6, United Mine Workers of America, pay a fine of Five Hundred Dollars ($500.00) for its violation of October 23, 1952, and that it pay a fine of Five Hundred Dollars ($500.00) for its violation of October 30, 1952, and the costs of this proceeding.

3. That defendant Adolph Pacifico, as President of District No. 6, United Mine Workers of America, be imprisoned in the jail of Muskingum County, for a period of ten (10) days for his violation of October 23, 1952, and that he be imprisoned in the jail of Muskingum County, for a period of ten (10) days for his violation of October 30, 1952, and that said terms be served consecutively; suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

4. That defendant Walter Kovaleski pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days, for his violation of October 23, 1952 and that he pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days, for his violation of October 30, 1952, and that said terms be served ponsecutively; said terms suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

5. That defendant Delvin Smith pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days, for his violation of October 23, 1952, said term suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

6. That defendant George Headley pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days for his violation of October 23, 1952, said term suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

7. That defendant Clem Wade pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days, for his violation of October 23, 1952, said term suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

8. That defendant James Compton pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days, for his violation of October 23, 1952, said term suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

9. That defendant Chris Whitehead pay a fine of Five Hundred Dollars ($500.00) and that be imprisoned in the Muskingum County jail for a period of ten (10) days, for his violation of October 23, 1952, said term suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

10. That defendant George Waters pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days, for his violation of October 23, 1952, and that he pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days, for his violation of October 30, 1952, and that said terms be served consecutively; said terms suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

11. That defendant Steve George Kubic pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail for a period of ten (10) days for his violation of October 23, 1952, and that he pay a fine of Five Hundred Dollars ($500.00) and that he be imprisoned in the Muskingum County jail, for a period of ten (10) days, for his violation of October 30, 1952, and that said terms be served consecutively; said terms suspended only upon the express conditions hereinafter set forth as applicable to all other defendants similarly sentenced.

It is further ordered and adjudged that in the event of non-payment of any of the fines imposed against the defendants Walter Kovaleski, Delvin Smith, George Headley, Clem Wade, James Compton, Chris Whitehead, George Waters and Steve George Kubic, within the period of their respective term or terms of jail imprisonments, then such one or ones so in default therefor at and upon the expiration of the period of imprisonment imposed, then and thereupon stand committed to said Muskingum County jail until said fine or fines of any such defendant is paid, or until he is discharged according to law; and that in the event of the non-payment of either or both of the fines and costs imposed against defendant District No. 6, United Mine Workers of America, within the period of the jail imprisonment terms of defendant Adolph Pacifico, then at the expiration thereof, he, said defendant Adolph Pacifico, as President of District No. 6, United Mine Workers of America, then and thereupon stand committed to said Muskingum County jail until said latter fines and costs are paid, or he is discharged according to law.

All defendants, personally named, 1. Adolph Pacifico; 2. Walter Kovaleski; 3. Delvin Smith; 4. George Headley; 5. Clem'Wade; 6. James Compton; 7. Chris Whitehead; 8. George Waters; 9. Steve George Kubic; will be remanded into the custody of the Sheriff for execution of their respective jail sentences, subject to release otherwise only upon the express conditions which follow; and said such suspensions of jail terms, as so conditioned, may become effective today only and otherwise are inoperative.

The first express condition for the suspension of any of said ten (10) day terms is that the total of all fines, aggregating Seventy-five Hundred Dollars ($7,500.00) and the costs of this proceeding be paid forthwith.

The further condition is that of the complete, implicit and unqualified observance of and obedience to all existing orders in all said six causes as herein and heretofore made and provided, on the part of all members, organizers, officers and officials of the United Mine Workers of America, faithful compliance with which the Court alone shall hereafter determine to its own independent satisfaction and without notice or further hearing as to whether or when it may consider such condition broken, where upon all sentenced defendants will merely be notified to report to the Sheriff for execution of sentences within twenty-four (24) hours or thereafter be subject to arrest and return for execution of sentence forthwith; and upon said defendants’ personal assurances thereof in open court this date.

In the event of appeal upon and after written notice of intention to do so, appeal bond to stay execution of sentences is fixed in the sum of Two Thousand Dollars ($2,000.00) for each separate defendant, an aggregate amount for all of Twenty-two Thousand Dollars ($22,000.00) with sureties to the acceptance of the Clerk, and in the instance of each defendant conditioned that if judgment be given against it or him it or he will abide and perform the order or judgment.

Exceptions are saved and'noted for and in behalf of each separate defendant with respect to each separate adverse ruling, holding, finding, determination, judgment and imposition of sentence, and to the Journal Entry and its contents generally.


author: By PHILLIPS, J.

text:
    CUNNINGHAM, Plaintiff-Appellant, v. OGRESOVICH, Defendant-Appellee.
    Ohio Appeals, Seventh District, Belmont County.
    No. 875.
    Decided December 13, 1951.
    Thomas F. Joseph, Martins Ferry, for plaintiff-appellant.
    Thornburg & Lewis, St. Clairsville, for defendant-appellee.
   OPINION

By PHILLIPS, J.

Plaintiff appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for defendant in plaintiff’s action filed in that court to recover damages for personal injuries sustained by her, allegedly as the result of defendant’s negligence in the operation of his automobile, during the season of darkness, on March 30, 1949, on an improved, duly dedicated public highway in Belmont County.

At the time stated plaintiff was walking in a westerly direction on the southerly side of that highway, and defendant was operating his automobile, as he testified in the common pleas court, “not over thirty-five” miles an hour, in an easterly direction on the same side thereof. When defendant observed plaintiff “at least a hundred feet” ahead of his automobile walking toward him on that highway he operated his automobile to the northerly, or his left, side thereof. While' so travelling his automobile struck a defect in the highway, which caused it to swerve and to travel diagonally across that highway, allegedly striking plaintiff and injuring her. Thereafter his automobile came to a stop along a bank situated on the southerly side of the highway, about twenty feet from the place “where I left the road,” and turned over. At that time plaintiff was approximately twenty-five feet to the west, or rear, of the automobile defendant was driving.

For the purposes of illustration and explanation and “to show us a picture of hypertrophic osteoarthritis” defendant’s physician witness, who examined and x-rayed plaintiff for defendant, testified, over plaintiff’s objections, from x-ray pictures taken by him of the body of a sixty year old former coal miner.

Plaintiff’s physician testified from x-rays of plaintiff’s body that she suffered from hypertrophic-osteoarthritis; and defendant’s physician testified from x-ray pictures of her body that she did not suffer from hypertrophic-osteoarthritis.

Plaintiff contends that the trial judge erred to her prejudice in permitting defendant’s physician to testify from the x-ray photographs of the body of “an unknown” sixty year old former coal miner (a person other than plaintiff), who was suffering from hypertrophic-osteoarthritis at the time such x-ray photographs were taken, for the purpose of illustrating what hypertrophic-osteoarthritis is and what it looks like in an x-ray photograph, and, as he contends, comparing such x-ray photographs of his body with those of her body.

Further plaintiff contends that the trial judge erred to her prejudice in permitting defendant’s counsel “to use the x-ray photographs referred to for comparison or illustration purposes during his argument to the jury,” and in permitting her counsel in closing argument to refer to such photographs but not use them, the court saying “but it is not in evidence and you can’t use it.” With reference to that assignment of error her counsel argues:—

“Not only do we find authority which very definitely provides that x-rays similar to the one used for comparison in this case are not admissible, but we find authority that documentary evidence which is not made a part of the record cannot be referred to by a witness when testifying concerning same.
“The court below, in overruling the motion for new trial, stressed the fact that maps, plats, photographs, etc., were used for comparison or illustrative purposes. If such an x-ray, map, plat or skeleton were used for such purpose, then certainly counsel would have the right to refer to such map, plat, etc., during argument.”

Finally, plaintiff contends that the trial judge erred to her prejudice in his general charge to the jury in which he said to the jury, among other things:—

“The issues, therefore, in the case are these:
“First (and one of the important issues in the case) is: Did the automobile of the defendant strike the plaintiff? That is an issue in this case which you should first determine. If the automobile did not strike the plaintiff, the sole claim made by the plaintiff in her petition being that said automobile did strike her, then you need go no further in your consideration of this case and your verdict must necessarily be for the defendant. * * *
“Lawsuits, such as this one, are determined by the jury on the probabilities deduced from the evidence, but it is never permissible to guess. That is to say, if you get to the point where you must decide any issue in this case by the guessing route, then your finding as to that issue should be in favor of the defendant. * * *.
“First, There must be the existence of a duty on the part of the defendant to protect the plaintiff from injury or damage of which plaintiff complains. * * *.
“Now, that Ladies and Gentlemen, disposes of the allegations of negligence. In the event that you find that the defendant was guilty of negligence in one or more of the respects claimed in the petition, then you would go to another issue in this case; but in the event that you should fail to find that the defendant was guilty of negligence in any respect, that would be an end to your deliberations and your verdict must necessarily be for the defendant. * * *
“It is needless to say that if you fail to find for the plaintiff as to any of these issues, that will be the end of your deliberations and your verdict should be for the defendant.
“In the event that you find for the plaintiff, you will write in the amount of your finding. In the event you find for the defendant, the verdict is ready for your signature, except the matter of date. * * *
“The mere fact, standing alone, that plaintiff wasninjured, if you find it to be a fact, is no proof of negligence whatever, no difference how severe or how slight the damage or injury may have been. It could have been caused without negligence on the part of anyone.”

Plaintiff’s counsel contends that by such charge the trial judge unduly “emphasized the fact that if certain conclusions were arrived at then they need go no further in their considerations of the case and their verdict must necessarily be for the defendant,” which was prejudicial to her and misleading and confusing to the jury.

With reference to the last stated paragraph in the charge of the trial judge plaintiff’s counsel contends:—

“Defendant’s main contention was that the plaintiff was not struck by the automobile and one of the very important features of plaintiff’s case, in proving that she was struck by the automobile, was the fact that she was injured, and had marks upon her person. This was a most important element for the jury to consider in determining whether or not the defendant was negligent in striking the plaintiff, but the court took this issue away from the jury entirely and instructed them to disregard it.”

We support our conclusion that the trial judge did not err to plaintiff’s prejudice in the admission of evidence, especially in permitting defendant’s physician to testify from x-ray photographs of the body of the sixty year old former coal miner for the purposes he testified — illustration and explanation — by the following authorities cited by the trial judge in his opinion: 17 O. Jur., Sec. 474, page 583; Jones Commentaries on Evidence, Vol. 3, page 2575-6-7; Vol. 4, Sec. 1750-51, pages 3214-15, and the following pages of Jones Commentaries on Evidence; State v. Knight, 43 Maine 11, Bruce v. Western Pipe and Steel Company, 169 Pac. 660; DeMartini v. McDonnell, 58 Pac. 2nd, 170; McIllwain v. Gaebe, 128 Ill. App., 209; Haywood v. Dering Coal Co., 145 111. App. 506; Boddington v. Kansas City, 148 Pac. 252; McGrath v. Fash, 139 N. E., 303; Draxten v. Brown, 267 N. W., 498; Torelli v. Eastman Kodak Company, 23 N. Y. S. (2nd) 895; Chicago R. I. and G. R. v. Smith, 197 S. W. 614; and Virginia Railway v. Bell, 87 S. E., 570. “The use of skeletons, charts and diagrams to show the normal structure of the human body was common in trials even before photographs were used,” or the‘photographic science developed. Scott on Photographic Evidence, page 717, Section 795.

Whether defendant’s automobile struck plaintiff, as she claims, which claim is not supported by the testimony of any witness other than herself, presented a question for the determination of the jury, which as the trial judge said in his opinion, and in which statement we concur, “might very well conclude from the evidence submitted, the absence of medical testimony by the attending physicians who had treated plaintiff, and the fact that no injuries were apparent upon inspection that the defendant’s car did not strike the plaintiff.”

In our opinion the evidence submitted to us for review warranted the trial judge charging the jury with reference to it, as he did in the language plaintiff claims was prejudicial to her.

We conclude that the trial judge did not err to plaintiff’s prejudice in any of the respects urged by her in her assigned grounds of error.

The judgment of the common pleas court is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By THOMAS, J.

text:
    LOCKARD v. LOCKARD.
    Common Pleas Court, Geauga County.
    No. 10917.
    Decided September 18, 1951.

      Earl C. Petterson, Painesville, for intervenor.
    Willard Barry, Cleveland, for plaintiff.
   OPINION

By THOMAS, J.

Edward William Stubbe is the natural father of Edward William Lockard, a minor child.

He moves to intervene and to modify the order which gave custody of this child to Joseph H. Lockard, the adoptive father of the child, as part of a decree of divorce from Margaret Lockard, who is the mother of the child and the former wife of Edward William Stubbe.

After her divorce from Edward William Stubbe in the Common Pleas Court of Cuyahoga County, which court presumably gave her custody of the child, she married Joseph Lockard.

Joseph Lockard subsequently adopted the child in the Probate Court of Lake County.

In April of this year he was granted a divorce from Margaret Lockard. With reference to this child, Edward William Lockard, and to a second child (born of the marriage), Joseph Lockard, the plaintiff, was given sole custody, the defendant having been found to be “an unfit person to have custody of the two minor children of the parties.”

The motion to intervene and to modify was called for hearing on September 6, 1951. At the commencement of the hearing counsel for the plaintiff produced proof that the plaintiff and the defendant were remarried the day before, viz., September 5, 1951. Because of this remarriage the further jurisdiction of this court oyer the custody of the child has been challenged by the plaintiff.

Where a decree of divorce makes provision for the custody, care, control, and support of minor children of divorced parents, during their minority, or during a less period named in the decree, the jurisdiction of the court over custody continues during such period, even though there is no express reservation of jurisdiction in the decree. Corbett v. Corbett, 123 Oh St 76, 174 N. E. 10.

The need to continue the jurisdiction is essential in view of the express provision of §8905-3 GC giving parents living separate and apart equal rights to custody insofar as parenthood is involved. “When husband and wife are living separate and apart from each other, or are divorced, and the question as to the care, custody, and control of their offspring is brought before a court of competent jurisdiction, they shall stand upon an equality as to the care, custody, and control of such offspring, so far as parenthood is involved.”

With parents living separately their individual claims of custody must be reconciled. The welfare of the children requires the court to regulate their custody in their best interests.

But if the parties remarry they no longer have separate rights of custody which require supervision by the court. Instead there is a resumption of the same joint right to custody which antedated the separation and the divorce.

With the parties reunited in marriage, and with their several rights of custody remerged into one common right of custody, the basis for the court’s further jurisdiction ceases.

It is generally the law that remarriage of the parents terminates a divorce court’s jurisdiction over the parties and their minor children. Thus it is said in Nelson Divorce and Annulment, 2nd Edition 15.40 that “* * * if the divorced parents of minor children are reunited in lawful marriage to each other, the parental rights of each parent are restored the same as if no divorce had ever been granted, even though the custody of the children was awarded to one of the parents by the divorce decree.” Citing McAlhany v. Allen, 195 Ga. 150, 23 S. E. 2d 676.

And similarly see 27 C. J. S., Divorce, §323, page 1253, 17 Amer. Jur. 527, and McDaniel v. Thompson, Tex. Civ. App., 195 S. W. 2d 202.

Moreover the previous finding of this court that the defendant was an unfit person to have custody of the minor children, cannot prolong the jurisdiction of this court beyond remarriage. A finding of unfitness may be superseded by changed and improved conduct. Here from the remarriage it must be presumed that the plaintiff has concluded that his wife has reformed and that she is no longer an unfit custodian for his children.

Nor does a denial of further jurisdiction in this matter set the child adrift without protection should either or both of these reunited parents neglect the child. Should that situation arise, as in any other case of serious parental neglect, the Juvenile Court is vested with ample power to rescue the child.

For the foregoing reasons it is found that the remarriage of the parties ends this court’s jurisdiction over the custody of the two minor children of these parties.

The motion to intervene and to modify is therefore denied.


author: By THOMPSON, J.:

text:
    ENGLUND, Plaintiff-Appellee, v. ENGLUND, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22376.
    Decided February 18, 1952.
    Woodle <§z Wachtel, S. S. Simms, Cleveland, for plaintiffappellee.
    Jewitt & Jewitt, Cleveland, for defendant-appellant.
   OPINION

By THOMPSON, J.:

This is an appeal on law from the order of the Common Pleas Court of Cuyahoga County awarding temporary alimony to the plaintiff wife in a divorce action brought against the defendant appellant. Under date of October 9, 1951, the court awarded temporary alimony to plaintiff in the sum of $18.00 per week. The parties at the time of the motion for temporary alimony were and still are residing under the same roof. Various grounds of error are alleged as to the trial court’s action, but since the decision of the trial court in this case, the Supreme Court of Ohio has decided the case of McMahon v. McMahon, 156 Oh St 280 (decided November 28, 1951) holding that an order for temporary alimony is provisional in its nature, subject to modification at any time and not a judgment or final order from which an appeal on questions of law may be taken. In view of that decision, the only ground of error able to be considered by this court is the fifth assignment of error that the order of the trial court constituted an abuse of discretion.

Counsel for appellant argued in this court that it was an abuse of discretion for the trial court to award any temporary alimony to plaintiff since the evidence showed that the parties were living under the same roof. Whereas this court believes that the fact that husband and wife continue to live under the same roof, after a divorce petition has been filed, should constitute one of the elements in the ease to be given most careful consideration by the trial court, this circumstance should not necessarily and ipso facto require a denial of temporary alimony to the wife. It is true that where temporary alimony is awarded to the wife under such circumstances, an incongruous and inconsistent situation may develop in view of possible condonation of the parties and a return to cohabitation. On the other hand, the circumstances of each case should nonetheless be considered and where the financial or other circumstances of the parties furnish practical reasons for the continuance of residence by husband and wife under the same roof, despite the pend-'ency of a divorce action, we feel that temporary alimony may be warranted.

The facts in the present case furnish explanation enough as to why the parties have continued to reside under the same roof. The husband and wife in this case are joint owners of the dwelling house. There is no more reason for the wife to have to vacate and look for other quarters than for her husband to do so. On the basis of the two or three dollars per week which her husband had been voluntarily allowing to her, she could scarcely rent quarters elsewhere and if, upon filing her divorce petition, she had chosen to vacate the premises, because of acts of agression of her husband, she would have been entitled on motion for temporary alimony to an allowance sufficient to cover her rent and food. This amount would undoubtedly have been in excess of the $18.00 per week allowed the wife by the trial court in this case.

It seems-to us, also, that the circumstances of the present case negative the possibility of any misrepresentations or fraud upon the court in connection with the parties living under the same roof. The husband is 68 years of age and the wife 64, and the evidence indicates their full estrangement. She apparently has been in the habit of obtaining most of her meals and spending most of her time at the home of her son only a few blocks away, within easy walking distance. Under this arrangement, it is undoubtedly more convenient for the wife to live in the residence of which she is half owner and we see no reason why she should not do so. The theory of temporary alimony is that a husband is responsible for his wife’s support, by virtue of the marriage relationship, until such time as a divorce is granted. Under the circumstances of this case it would be more expensive to the husband if his wife had chosen to live elsewhere and we cannot say that the trial court abused its discretion in allowing her $18.00 per week during the pendency of the action.

We deplore the hasty actions of married couples who unthinkingly proceed as hastily into the divorce court as they may have proceeded into marriage. We cannot agree, however, with the argument of counsel for the husband in this case that the policy of permitting wives, under any circumstances, to obtain temporary alimony while living under the same roof as their husbands necessarily encourages the breakup of the home. We grant that temporary alimony should not be allowed, unless there is evidence of a true severance of the matrimonial relationship, but the financial exigencies which may cause husband and wife to live under the same roof during the pendency of a divorce action may help to provide the steadying wisdom and the period for reflection which' may bring the parties again together. We are not as much worried about the possibility of fraud on the court where temporary alimony is granted and the parties continue to reside under the same roof as we are hopeful that the continuance of the marriage relationship may be thereby more possibly re-established.

In further answer to the argument of counsel, we might add that our desire for some yardstick of certainty which we should like to be able to apply to situations in an uncertain world should not blind us to the advantages of our system of jurisprudence which permits a court to consider each case in the light of its own peculiar circumstances. That, at least, is the theory of the common law.

There being no abuse of discretion, the appeal is dismissed. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, concur.