author: By CRAMER, J.

text:
    MILLER v. PIQUA TRANSFER & STORAGE CO.
    Common Pleas Court, Butler County.
    No. 57459.
    Decided March 29, 1950.
    Mark T. Brown, Hamilton, for plaintiff.
    Rendigs, Fry & Kiely, Cincinnati, for defendant.
   OPINION

By CRAMER, J.

This cause is before the court upon the motion of the defendant to set aside the verdict of the jury herein and for a new trial. The jury in this cause returned a unanimous verdiet in favor of the plaintiff and against the defendant in the sum of $10,000.00 under the first cause of action and the-sum of $454.00 under the second cause of action.

Plaintiff’s action was based upon claimed negligent conduct on the part of the defendant, through its driver, which resulted in personal injuries to himself and property damage.

While the defendant assigns several grounds for the sustaining of its motion for a new trial, it only urges one with any seriousness. That ground is that the court erred in. rejecting evidence offered by the defendant upon surrebuttal. The rejection of this evidence came about as a result of the-following developments in the trial:

Plaintiff contends that the truck and trailer outfit driven by the defendant’s agent collided with the rear of his automobile as he was passing a bus which had stopped to discharge passengers. The defendant contended that plaintiff' cut around to pass this bus and then when the front of plaintiff’s car was about even with the front end of the bus,, that plaintiff applied his brakes and stopped suddenly and without signalling, and that the collision then occurred between plaintiff’s car and the defendant’s equipment.

The bus driver testified that the plaintiff made such a stop' and that the collision was almost simultaneous with it. On cross-examination he was asked as to a prior statement made by him, inconsistent with his statement on the stand, made a few days before the trial to plaintiff, plaintiff’s friend, and Mr. Brown, counsel for plaintiff. This witness denied making any such inconsistent statements. In rebuttal, both the plaintiff and his friend testified that a few days before trial they went to the scene of the accident with the bus driver and that at that time he stated to them that the plaintiff did not stop.

In surrebuttal, the defendant offered to read into evidence certain questions and answers in a deposition of the bus driver, which was taken some time in 1944 when the bus driver was stationed in an Army Camp. The answers to those questions put to the bus driver in the deposition were consistent with the testimony given by him from the witness stand. The court, over the objection of the plaintiff, rejected the statements made by the bus driver in the deposition. The defendant contends that the refusal of the court to permit the introduction of this evidence offered by it on surrebuttal constituted prejudicial error against it, requiring the setting aside of the verdict of the jury.

In support of that contention counsel for defendant has submitted a memorandum wherein, among the authorities cited, are found Wigmore on Evidence, 3rd Edition, Volume 4, Section 1126, and an exhaustive note in Volume 140, A. L. R., commencing at page 22. This A. L. R. note is likewise cited by counsel for plaintiff in his memorandum. Furthermore, both parties cited, as supporting their respective contentions, the case of Cincinnati Traction Company v. Stephens, 75 Oh St page 171, 79 N. E. 235.

It is the claim of the plaintiff that Ohio is listed both by Wigmore and in the A. L. R. note as following the general weight of authority rejecting the evidence proffered by the defendant. In addition, plaintiff contends that the Traction Company case supra establishes Ohio as following the general rule and is authority for the rejection of this evidence.

The defendant contends that this case is by no means authority for that proposition since the decisive factor in the case was the fact that the witness admitted making statements prior to and inconsistent with her testimony on the stand.

There is considerable merit to this contention of the defendant in view of the following language of the court found on page 182 of 75 Oh St, on page 237 of 79 N. E.: “Under the circumstances of this case, the making of the inconsistent statements being admitted by the witness, proof of prior statements consistent with the statement of the witness on the trial, for the purpose of corroborating and sustaining the credit of the witness, is irrelevant, because it would not prove the truthfulness of the witness, nor the reliability of her recollection, nor that there was no inconsistency between the two statements.”

It has been held: That an admission by a witness of the making of an inconsistent- statement precludes the admission of prior consistent statements to rebut the making of self contradictions since, under such circumstances, the only purpose of the prior consistent statement would be to corroborate the present testimony on the theory that its repetition is conducive to the truth of its assertion, which would certainly violate the hearsay evidence rule. See Sweazey v. Valley Transport, 6 Wash. 2d 324, 107 P. 2d 567, 111 P. 2d 1010, 140 A. L. R. page 1.

It is interesting to note that the lower court in the Traction Company case supra (7 Ohio Cir. Ct. R., N. S., 454) had admitted the evidence — which the Supreme Court rejected— on the theory of refuting a charge of recent fabrication. However, it should be noted m this connection that the consistent statements made by the witness were made after and not before the self contradictory ones.

It is true that the weight of authority is to the effect that when the credibility of a witness is assailed because, on some former occasion, he has made statements that differ from his statements under oath at the trial, his sworn testimony may not be corroborated by proof that on other occasions, and at other times his statements were in harmony with his testimony. 140 A. L. R., page 49; Jones on Evidence, 4th Edition, Vol. 3, Sec. 869, p. 1612; 41 L. R. A., N. S., p. 878; 58 American Jurisprudence, Sec. 817, p. 457; Vol. 39, Harvard Law Review, p. 259; 46 Harvard Law Review, p. 1157, 58, 59.

However, certain exceptions to the general rule that prior consistent statements of a witness are not receivable in evidence to corroborate or support him are recognized generally in the case of an impeached witness, at least where the impeachment takes the form of recent fabrication, etc., as distinguished from impeachment by prior inconsistent statements. Vol. 58, American Jurisprudence, page 459 and 60; Jones on Evidence, 4th Edition, Vol. 3, Sec. 870; 140 A. L. R. page 93; 41 L. R. A., N. S., page 889.

The great weight of authority is to the effect that the principle exception to this general rule of inadmissibility is the one that where the testimony of the witness is assailed as a fabrication of recent date, in order to repel such imputation, proof of prior declarations of the witness consistent with his testimony may be received.

The collision between the vehicle of the plaintiff and that of the defendant took place in 1943. The bus driver’s deposition was taken in 1944 and he testified in this case which was tried in January 1950. It thus appears that his prior statement consistent with his testimony was made some six years before the trial and within a year following the accident and some six years prior to the time when he is alleged to have made inconsistent statements. It would therefore appear that his testimony in the trial was assailed “as a fabrication of recent date,” which constitutes one of the exceptions to the general rule of exclusion of declarations made out of court. As is stated in Volume 58, American Jurisprudence, at pages 464-5, “A charge of this character (a recent fabrication) need not necessarily be made by an express statement to that effect. It may be enough to impute or insinuate that the testimony is of recent fabrication or is given with improper motives.”

“There need be no express attack upon the witness’ story as a recent fabrication; it is sufficient if the evidence discloses an attempt to impeach.” Sweazey v. Valley Transport, 6 Wash. 2d 324, 107 P. 2d 567, 572, 111 P. 2d 1010, 140 A. L. R. 1, and the cases therein cited.

It therefore appears that the court would have been warranted in permitting the proffered prior consistent statements of the defendant’s witness. However, it is our view that the trial judge — and there is ample authority to sustain this view — is allowed a reasonable discretion in receiving or rejecting evidence of prior consistent declarations of a witness; and that only where the rejection of such evidence clearly appears as an abuse of discretion should such rejection constitute error.

We are further of the opinion that even if the court were in error in rejecting this proffered evidence, that such action was not prejudicial to the extent that this verdict should be set aside and a new trial granted. The most that could be said for the testimony of the bus driver given in chief was that it corroborated the testimony of the defendant’s driver who likewise testified that the plaintiff stopped without signalling. It is true that the bus driver is disinterested, but that of course neither strengthens nor weakens his testimony as such. The defendant’s driver was not a party to the action and to that extent was disinterested also.

In addition, even though it was shown that plaintiff stopped without signalling while in the act of passing the bus, it ■doesn’t follow as a matter of law that such conduct on his part constituted contributory negligence so as to defeat a recovery by plaintiff. In that event it still remained for the jury to determine whether or not such negligence of the plaintiff proximately contributed to the injuries and damages he claimed to have received.

Furthermore, the fact that the bus driver made prior statements consistent with his testimony would not corroborate that testimony, but would merely tend to support his denial of having made inconsistent statements. In other words, the rejected evidence was not vital to support the defendant’s defense, but' if received would have been merely accumulative since it was merely a reiteration of what the bus driver had already testified to.

It is our opinion, therefore, that even if the court was in ■error in refusing to allow the proffered evidence on surrebuttal, that such error was not prejudicial. The motion for new trial will, therefore, be overruled.


source: Caselaw Access Project

license: Public Domain

text:
    INTERNATIONAL BROTHERHOOD OF TEAMSTERS UNION, et al., v. HANKE et al. AUTOMOBILE DRIVERS & DEMONSTRATORS UNION et al., v. CLINE.
    United States Supreme Court.
    Nos. 309, 364.
    Decided May 8, 1950.
    Samuel B. Bassett, Seattle, Wash., for petitioners.
    J. Will Jones, Seattle, Wash., for respondents A. E. Hanke- and others.
    C. M. McCune, Seattle, Wash., for respondent George E.. Cline.

      Mr. JUSTICE FRANKFURTER announced the judgment ■of the Court and an opinion in which The Chief Justice, Mr. .JUSTICE JACKSON and Mr. JUSTICE BURTON concurred.
   OPINION

These two cases raise the same issues and are therefore ■disposed of in a single opinion. The question is this: Does the Fourteenth Amendment of the Constitution bar a state from use of the injunction to prohibit the picketing of a business conducted by the owner himself without employees in •order to secure compliance by him with a demand to become ,a union shop?

In No. 309, respondents A. E. Hanke and his three sons, •as copartners, engaged in the business of repairing automobiles, dispensing gasoline and automobile accessories, and selling used automobiles in Seattle. They conducted their entire ■enterprise themselves, without any employees. At the time the senior Hanke purchased the business in June, 1946, which .had theretofore been conducted as a union shop, he became a member of Local 309 of the International Brotherhood of Teamsters, which includes in its membership persons employed '.and engaged in the gasoline service station business in Seattle. .Accordingly, the Hankes continued to display in their show window the union shop card of their predecessor. Local 309 also included the Hankes’ business in the list of firms for ■which it urged patronage in advertisements published in the Washington organ of the International Brotherhood of Teamsters, distributed weekly to members. As a result of the use of the union shop card and these advertisements, the Hankes received union patronage which they otherwise would not have had.

Automobile Drivers and Demonstrators Local 882, closely affiliated with Local 309 and also chartered by the International Brotherhood of Teamsters, includes in its membership persons engaged in the business of selling used cars and used car salesmen in Seattle. This union negotiated an agreement in 1946 with the Independent Automobile Dealers Association of Seattle, to which the Hankes did not belong, providing that used car lots be closed by 6 p. m. on weekdays and .all day on Saturdays, Sundays and eight specified holidays. This agreement was intended to be applicable to 115 used •car dealers in Seattle, all except ten of which were self-employers with no employees.

It was the practice of the Hankes to remain open nights, ■weekends and holidays. In January, 1948, representatives of both Locals called upon the Hankes to urge them to respect the limitation on business hours in the agreement or give up their union shop card. The Hankes refused to consent to abide by the agreement, claiming that it would be impossible to continue in business and do so, and surrendered the union shop card. The name of the Hankes’ business was thereafter omitted from the list published by Local 309 in its advertisements.

Soon afterwards the Local sent a single picket to patrol up and down peacefully in front of the Hankes’ business between the hours of 8:30 a. m. and 5 p. m., carrying a “sandwich sign” with the words “Union People Look for the' Union Shop Card” and a facsimile of the shop card. The picket also wrote down the automobile license numbers of the Hankes’ patrons. As a result of the picketing, the Hankes’ business fell off heavily and drivers for supply houses refused to deliver parts and other needed materials. The Hankes had to use their own truck to call for the materials necessary to carry on their business.

To restrain this conduct, the Hankes brought suit against-Local 309 and its officers. The trial court granted a permanent-injunction against the picketing and awarded the Hankes a judgment of $250, the sum stipulated by the parties to be the amount of damage occasioned by the picketing. The Supreme Court of Washington affirmed. 207 P. 2d 206.

The background in No. 364 is similar. George E. Cline engaged in the used car business in Seattle, performing himself the services of his business here relevant. He was induced by the threat of picketing to join Automobile Drivers Local 882 in 1946, and in that year he also became a member of the Independent Automobile Dealers Associaton of Seattle which negotiated with Local 882 the agreement as to business-hours to which reference has been made.

On August, 1947, Cline advised Local 882 that he did not intend to continue membership in the union and that he was no longer a member of the Independent Automobile Dealers Association. He announced that he did not consider himself bound by the agreement as to business hours and that he intended to operate on Saturdays. When Cline proceeded to do so Local 882 began to picket his business.

The picketing was conducted peacefully, normally by two pickets who patrolled up and down carrying “sandwich signs” stating that Cline was unfair to the union. The pickets took down the automobile license numbers of Cline’s patrons, and when inquiry was made by patrons as to why they were doing so, their reply was: “You’ll find out.” Because of interference by the pickets with the use of one of Cline’s driveways, he was forced to close it to avoid the possibility of one of the pickets being run over. As a result of the picketing, Cline’s business fell oft and, as in No. 309, drivers for supply houses refused to deliver parts and other needed materials. Cline had to use his own vehicle to call for supplies necessary to carry on the business.

Local 882 reached a new agreement with the Independent Automobile Dealers Association in April, 1948. As a condition to removal of the picket line, the union demanded that Cline agree to keep his business closed after 1 p. m. on Saturdays and to hire a member of the union as a salesman to be compensated at the rate of seven percent of the gross sales regardless of whether they were made by Cline or this employe. Suit by Cline to restrain patrolling of his business resulted in a permanent injunction against the union and its officers — Cline waived his claim for damages — and the Supreme Court of Washington, relying on its decision in the Hanke case, affirmed. 207 P. 2d 216.

In both these cases we granted certiorari to consider claims of infringement of the right of freedom of speech as guaranteed by the Due Process Clause of the Fourteenth Amendment. 388 U. S. 903, 70 S. Ct. 305.

Here, as in Hughes v. Superior Court, 338 U. S. — , 70 S. Ct. (57 Abs. 298) 718, we must start with the fact that while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech. Our decisions reflect recognition that picketing is “indeed a hybrid.” Freund, On Understanding the Supreme Court 18 (1940). See also Jaffe, In Defense of the Supreme Court’s Picketing Doctrine, 41 Mich. L. Rev. 1037 (1943). The effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and “the power of the state to set the limits of permissible contest open to industrial combatants.” Thornhill v. State of Alabama, 310 U. S. 88, 104, 60 S. Ct. 736, 745, 84 L. Ed. 1093. A state’s judgment on striking such a balance is of course subject to the limitations of the Fourteenth Amendment. Embracing as such a judgment does, however, a state’s social and economic policies, which in turn depend on knowledge and appraisal of local social and economic factors, such judgment on these matters comes to this court bearing a weighty title of respect.

These two cases emphasize the nature of a problem that is presented by our duty of sitting in judgment on a state’s judgment in striking the balance that has to be struck when a state decides not to keep hands off these industrial contests. Here we have a glaring instance of the interplay of competing social-economic interests and viewpoints. Unions obviously are concerned not to have union standards undermined by non-union shops. This interest penetrates into self-employer shops. On the other hand, some of our profoundest thinkers from Jefferson to Brandéis have stressed the importance to a democratic society of encouraging self-employer economic units as a counter-movement to what are deemed to be the dangers inherent in excessive concentration of economic power. “There is a widespread belief * * * that the true prosperity of our past came not from big business, but through the courage, the energy, and the resourcefulness of small men * * *and that only through participation by the many in the responsibilities and determinations of business can Americans secure the moral and intellectual development which is essential to the maintenance of liberty.” Mr. Justice Brandeis, dissenting in Liggett Co. v. Lee, 288 U. S. 517, 541, 580, 53 S. Ct. 481, 502, 77 L. Ed. 929, 85 A. L. R. 699.

Whether to prefer the union or a self-employer in such a situation, or to seek partial recognition of both interests, and, if so, by what means to secure such accommodation, obviously presents to a state serious problems. There are no sure answers, and the best available solution is likely to be experimental and tentative, and always subject to the control of the popular will. That the solution of these perplexities is a challenge to wisdom and not a command of the Constitution is the significance of Senn v. Tile Layers Protective Union, 301 U. S. 468, 57 S. Ct. 857, 81 L. Ed. 1229. Senn, a self-employed tile layer who occasionally hired other tile layers to assist him, was picketed when he refused to yield to the union demand that he no longer work himself at his trade. The Wisconsin court found the situation to be within the state’s anti-injunction statute and denied relief. In rejecting the claim that the restriction upon Senn’s freedom was a denial of his liberty under the Fourteenth Amendment, this court held that it lay in the domain of policy for Wisconsin to permit the picketing: "Whether it was wise for the state to permit the unions to do so is a question of its public policy — not our concern.” 301 U. S. at page 481, 57 S. Ct. at page 863.

This conclusion was based on the court’s recognition that it was Wisconsin, not the Fourteenth Amendment, which put such picketing as a “means of publicity on a par with advertisements in the press.” 301 U. S. at page 470, 57 S. Ct. at page 862. If Wisconsin could permit such picketing as a matter of policy it must have been equally free as a matter of policy to choose not to permit it and therefore not to “put this means of publicity on a par with advertisements in the press.” If Wisconsin could have deemed it wise to withdraw from the union the permission which this court found outside the ban of the Fourteenth Amendment, such action by Washington cannot be inside that ban:'

Washington here concluded that even though the relief afforded the Hankes and Cline entailed restriction upon communication that the unions sought to convey through picketing, it was more important to safeguard the value which the state placed upon self-employers, leaving all other channels of communication open to the union. The relatively small interest of the unions considerably influenced the balance that was struck. Of 115 used car dealers in Seattle maintaining union standards all but ten were self-employers with no employees. “From this fact,” so we are informed by the •Supreme Court of Washington, “the conclusion seems irresistible that the union’s interest in the welfare of a mere •handful of members (of whose working conditions no complaint at all is made) is far outweighed by the interests of individual proprietors and the people of the community as a whole, to the end that little businessmen and property owners shall be free from dictation as to business policy by an outside group having but a relatively small and indirect interest in such policy,” 207 P. 2d at page 213.

We are, needless to say, fully aware of the contentious nature of these views. It is not our business even remotely to hint at agreement or disagreement with what has commended itself to the state of Washington, or even to intimate that all the relevant considerations are exposed in the conclusions reached by the Washington court. They seldom are in this field, so deceptive and opaque are the elements of these problems. That is precisely what is meant by recognizing that they are within the domain of a state’s public policy. Because there is a lack of agreement as to the relevant factors and divergent interpretations of their meaning, as well as differences in assessing what is the short and what is the long view, the clash of fact and opinion should be resolved by the democratic process and not by the judicial sword. Invalidation here would mean denial of power to the Congress as well as to the forty-eight states.

It is not for us to pass judgment on cases not now before us. But when one considers that issues not unlike those that are here have been similarly viewed by other states and by the Congress of the United States,” we cannot conclude that Washington, in holding the picketing in these cases to be for an unlawful object, has struck a balance so inconsistent with footed traditions of a free people that it must be found .an unconstitutional choice. Mindful as we are that a phase of picketing is communication, we cannot find that Washington has offended the Constitution.

We need not repeat the considerations to which we adverted in Hughes v. Superior Court that make it immaterial, in respect to the constitutional issue before us, that the. policy of Washington was expressed by its Supreme Court rather than by its legislature. The Fourteenth Amendment leaves the States free to distribute the powers of government as they will between their legislative and judicial branches. Dreyer v. People of State of Illinois, 187 U. S. 71, 83-84, 23 S. Ct. 28, 32, 47 L. Ed. 79; Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 225, 29 S. Ct. 67, 69, 53 L. Ed. 150. “[Rjights under that amendment turn on the power of the state, no matter by what organ it acts.” State of Missouri v. Dockery, 191 U. S. 165, 170-171, 24 S. Ct. 53, 54, 48 L. Ed. 133, 63 L. R. A. 571.

Nor does the Fourteenth Amendment require prohibition by Washington also of voluntary acquiescence in the demands of the union in order that it may choose to prohibit the right to secure submission through picketing. In abstaining from interference with such voluntary agreements a state may rely on self-interest. In any event, it is not for this court to question a state’s judgment in regulating only where an evil seems to it most conspicuous.

What was actually decided in American Federation of Labor v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855; Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178, and Cafeteria Employees Union, Local 302, v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58, does not preclude us from upholding Washington’s power to make the choice of policy she has here made. In those cases we held only that a State could not proscribe picketing merely by setting artificial bounds, unreal in the light of modern circumstances to what constitutes an industrial relationship or a labor dispute. See Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv. L. Rev. 1, 30 (1947). The power of a State to declare a policy in favor of self-employers and to make conduct restrictive of self-employment unlawful was not considered in those cases. Indeed in Wohl this Court expressly noted that the State courts had not found that the picketing there condemned was for a defined unlawful object. 315 U. S. 774, 62 S. Ct. 818, 86 L. Ed. 1178.

When an injunction of a State court comes before us it comes not as an independent collocation of words. It is defined and confined by the opinion of the State court. The injunctions in these two cases are to be judged here with all the limitations that are infused into their terms by the opinions of the Washington Supreme Court on the basis of which the judgments below come before us. So read, the injunctions are directed solely against picketing for the ends defined by the parties before the Washington court and this Court. To treat the injunctions otherwise — to treat them, this is, outside the scope of the issues which they represent —is to deal with a case that is not here and was not before the Washington court. In considering an injunction against picketing recently, we had occasion to reject a similar claim of infirmity derived not from the record but from unreality. What we then said is pertinent now: “What is before us * * * is not the order as an isolated, self-contained writing but the order with the gloss of the Supreme Court of Wisconsin upon it.” Hotel & Restaurant Employees’ International Alliance, Local No. 122, v. Wisconsin E. R. B., 315 U. S. 437, 441, 62 S. Ct. 706, 708, 86 L. Ed. 946. Our affirmance of these injunctions is in conformity with the reading derived from the Washington court’s opinions. If astuteness may discover argumentative excess in the scope of the injunctions beyond what we constitutionally justify by this opinion, it will be open to petitioners to raise the matter, which they have not raised here, when the cases on remand reach the Washington court. Affirmed.

Mr. JUSTICE CLARK concurs in the result.

Mr. JUSTICE BLACK dissents for substantially the reasons given in his dissent in Carpenters & Joiners Union of America, Local No. 213, v. Ritter’s Cafe, 315 U. S. 722, 729-732, 62 S. Ct. 807, 810-812, 86 L. Ed. 1143.

Mr. JUSTICE DOUGLAS took no part in the consideration or decision of these cases.

Mr. JUSTICE MINTON, with whom Mr. JUSTICE REED joins, dissenting.

Petitioners in each of these cases were “permanently restrained and enjoined from in any manner picketing” the places of business of respondents. The picketing here was peaceful publicity, not enmeshed in a pattern of violence as was true in Milk Wagon Drivers Union of Chicago, Local 753, v. Meadowmoor Dairies, 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, 132 A. L. R. 1200; nor was there violence in.the picketing, as in Hotel & Restaurant Employees’ International Alliance; Local No. 122, v. Wisconsin E. R. B., 315 U. S. 437, 62 S. Ct. 706, 86 L. Ed. 946. The decrees entered in the instant cases were not tailored to meet the evils of threats and intimidation as Cafeteria Employees Union, Local 302, v. Angelos, 320 U. S. 293, 295, 64 S. Ct. 126, 88 L. Ed. 58, indicates they might have been; nor were they limited to restraint of picketing for the purpose of forcing the person picketed to violate the law and public policy of the state, as were the decrees in Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684, and Building Service Employees Union v. Gazzam, 338 U. S.-, 70 S. Ct. 784. The abuses of picketing involved in the above cases were held by this Court not to be protected by the Fourteenth Amendment from state restraint.

It seems equally clear to me that peaceful picketing which is used properly as an instrument of publicity has been held by this Court in Thornhill v. State of Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Carlson v. People of State of California, 310 U. S. 106, 60 S. Ct. 746, 84 L. Ed. 1104; American Federation of Labor v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855; Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178; and Cafeteria Employees Union, Local 302, v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58, to be protected by the Fourteenth Amendment. I do not understand that in the last three mentioned cases this Court, as the majority in its opinion says, “held only that a State could not proscribe picketing merely by setting artificial bounds, unreal in the light of modern circumstances, to what constitutes an industrial relationship or a labor dispute.” If the states may set bounds, it is not for this Court to say where they shall be set, unless the setting violates some provision of the Federal Constitution. I understand the above cases to have found violations of the federal constitutional guarantee •of freedom of speech and the picketing could not be restrained because to do so would violate the right of free speech and publicity. This view is plainly stated by this ■Court in Cafeteria Employees Union, Local 302, v. Angelos, 320 U. S. at page 295, 64 S. Ct. at page 127: “In Senn v. Tile Layers Protective Union. Local No. 5, 301 U. S. 468, 57 S. Ct. 857, 81 L. Ed. 1229, this Court ruled that members of a union might, ‘without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.’ 301 U. S. at page 478, 57 S. Ct, at page 862, 81 L. Ed. 1229. Later cases applied the Senn doctrine by enforcing the right of workers to state their case and to appeal for public support in an orderly and peaceful manner regardless of the area of immunity as defined by state policy. A. F. of L. v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855; Bakery and Pastry Drivers and Helpers Local 802 v. Wohl, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178.”

All the recent cases of this Court upholding picketing, from Thornhill to Angelos, have done so on the view that “peaceful picketing and truthful publicity” (see 320 U. S. at page 295, 64 S. Ct. at page 127, 88 L. Ed. 58) is protected by the guaranty of free speech. This view stems from Mr. Justice Brandéis’ statement in Senn that “Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.” 301 U. S. 468, 478, 57 S. Ct. 857, 862, 81 L. Ed. 1229. In that case Justice Brandéis was dealing with action of Wisconsin that permitted picketing by a labor union of a one-man shop. Of course, as long as Wisconsin allowed picketing, there was no interference with freedom of expression. By permitting picketing the State was allowing the expression found in “peaceful picketing and truthful publicity.” There was in that posture of the case no question of conflict with the right of free speech. But because Wisconsin could permit picketing, and not thereby encroach upon freedom of speech, it does not follow that it could forbid like picketing; for that might involve conflict with the Fourteenth Amendment. It seems to me that Justice Brandéis, foreseeing the problem of the converse, made the statement above quoted in order to indicate that picketing could be protected by the free speech guaranty of the Federal Constitution. Whether or not that is what Justice Brandéis meant, I think this Court has accepted that view, from Thornhill to Angelos. It seems to me too late now to deny that those cases were rooted in the free speech doctrine. I think we should not decide the instant cases in a manner so alien to the basis of prior decisions.

The outlawing of picketing for all purposes is permitted the State of Washington by the upholding of these broad decrees. No distinction is made between what is legitimate picketing and what is abusive picketing. “[H]ere we have no attempt by the state through its courts to restrict conduct justifiably found to be an abusive exercise of the right to picket.” Angelos case, 320 U. S. at page 295, 64 S. Ct. at page 127, 88 L. Ed. 58.

Because the decrees here are not directed at any abuse of picketing but at all picketing, I think to sustain them is contrary to our prior holdings, founded as they are in the doctrine that “peaceful picketing and truthful publicity” is protected by the constitutional guaranty of the right of free speech. I recognize that picketing is more than speech. That is why I think an abuse of picketing may lead to a forfeiture of the protection of free speech. Tested by the philosophy of prior decisions, no such forfeiture is justified here.

I would reverse the judgments in these two cases.

      . It is relevant to note that the Alabama statute held unconstitutional in the Thornhill ease had been construed by the State courts to prohibit picketing without “exceptions based upon either the number of persons engaged in the prescribed activity, the peaceful character of their demeanor, the nature of their dispute with an employer, or the restrained character and the accurateness of the terminology used in notifying the public of the facts of the dispute.” 310 U. S. at page 99, 60 S. Ct. at page 743.

      . The Court said: “In declaring such picketing permissible, Wisconsin has put this means of publicity on a par with advertisements in the press.” 301 U. S. at page 479, 57 S. Ct. at page 862. To assume that this sentence is to be read as though the picketing was permitted by Wisconsin not as a matter of choice but because the Fourteenth Amendment compelled its allowance is to assume that so careful a writer as Mr. Justice Brandéis, the author of the Court’s opinion, meant the above sentence to be read as though it contained the bracketed insertion as follows: “In declaring such picketing permissible, Wisconsin [recognized that the Fourteenth Amendment] has put this means of publicity on a par with advertisements in the press.” In other words, it is suggested that the bracketed interpolation which Justice Brandéis did not write is to be read into what he did write although thereby its essential meaning would be altered.

      . Of course, the true significance of particular phrases in Senn appears only when they are examined in their context: “Clearly the means which the statute authorizes — picketing and publicity — are not prohibited by the Fourteenth Amendment. Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution. The state may, in the exercise of its police power, regulate the methods and means of publicity as well as the use of public streets.” 301 U. S. at page 478, 57 S. Ct. at page 862.

      . See, e. g., Bautista v. Jones, 25 Cal. 2d 746, 155 P. 2d 343; Dinoffria v. International Brotherhood of Teamsters and Chauffeurs, 331 Ill. App. 129, 72 N. E. 2d 635; Saveall v. Demers, 322 Mass. 70, 76 N. E. 2d 12, 2 A. L. R. 2d 1190.

      . Section 8 (b) (4) (A) of the Labor Management Relations Act, 1947, makes it an unfair labor practice for a union “to engage in * * * a strike * * * where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization.” 61 Stat. 141, 29 U. S. C. Supp. 1 §158 (b) (4) (A), 29 U. S. C. A. §158 (b) (4) (A). See also §§10 (1) and 303 of this Act. 29 U. S. C. A., §§160 (1), 187.

      . As to the Court’s duty to restrict general expressions in •opinions in earlier cases to their specific context, see Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 399 — 400, 5 L. Ed. 257; Armour & Co. v. Wantock, 323 U. S. 126, 132 — 133, 65 S. Ct. 165, 168, 89 L. Ed. 118.


author: By THE COURT.

text:
    HOROVITZ, Plaintiff-Appellee, v. SHAFER et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4277.
    Decided January 24, 1950.

      David Ralph Hertz, Cleveland, Leonard Stern, Columbus, for plaintiff-appellee.
    Robert Dow Hamilton, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is a law and fact appeal to which the defendants have submitted a demurrer to the third amended petition based.upon the following grounds:

1. That it appears on the face of the petition that the court has no jurisdiction of the subject matter of this action.

2. That it appears upon the face of the petition that the cause of action therein set forth did not accrue within the time set forth by the statute pertaining to the limitation of actions.

3. That it appears upon the face of the petition that the facts therein contained do not constitute a cause of action in favor of plaintiff and against this defendant.

Plaintiff in his petition claims to have been a stockholder of the Ohio Colprovia Company whose corporate franchise was cancelled for nonpayment of tax by the Ohio Tax Commission in 1933. The action is by plaintiff for and on behalf of that corporation, its stockholders and creditors, if any. It is alleged that in 1932 an action was brought in Lake County by the Wagner Quarries Company against the Colprovia Company; that in said action the Wagner Quarries Company obtained a judgment against the Colprovia Company, issued execution on property of the Colprovia Company and sold the property at judicial sale; that at such sale the property was acquired by the Wagner Quarries Company and later by the Ohio Road Improvement Company which is owned by the defendant, Richard H. Shafer. Fraud is alleged in the manner of execution and sale of the assets of the Ohio Colprovia Company. The petition alleges that the defendants agreed to cause and did cause the levy of an execution under said Lake County judgment upon the plant of said the Ohio Colprovia Company including building, machinery, etc.; and agreed to cause and did cause the sheriff of Lake County to sell said assets under such execution levy and agreed to conceal and did conceal from the directors, officers and shareholders of the Ohio Colprovia Company as are not parties defendant herein, including the plaintiff, the fact of such execution levy and the imminence of said sale thereunder; that said defendants caused the Wagner Quarries Company to purchase said assets at execution sale for the sum of $100.00, although they were of the reasonable value of $50,000.00; that such purchase by the Wagner Quarries Company was made under a prior agreement among the defendants that said assets should be promptly transferred to the Ohio Road Improvement Company, and that such transfer was later made.

It is further alleged that the defendants agreed to withhold and did withhold from the said Ohio Colprovia Company notice or information of said execution sale in order to prevent and thereby did prevent any measures to preserve said assets for the Ohio Colprovia Company from being taken and in order to prevent competitive bidding at said sale.

The record discloses that the action was instituted on August 4, 1941. The amended petition states that the articles of incorporation of the Ohio Colprovia Company were cancelled on November 15, 1933, and that on or about said date the company was abandoned by these defendants, officers and directors. It was therefore on this date that their duty to account to the shareholders arose. When it appears upon the face of the petition that a cause of action arose at a time beyond the period allowed by the statute of limitations, the pleader must plead facts which take it out of the statute. Combs v. Watson, 32 Oh St 228. The first cause of action which is one seeking an accounting from these defendants as members of the last board of directors fails to meet the statutory requirements, as §11224 GC requires that such an action be instituted within four years after the cause thereof accrued.

The next question for consideration concerns the jurisdiction of this court over the subject matter of the action as set forth in the second cause of action which is the one setting forth the alleged fraud in the judicial sale. The plaintiff urges that he is not attacking any of the proceedings in the Common Pleas Court. We agree that no direct attack is being made, but are in accord with the ruling of Judge King of the Common Pleas Court who held that the procedure adopted constituted a collateral attack upon the judgment. If the relief sought in the plaintiff’s petition were granted, the judgment confirming the sale would be completely nullified and the plaintiff would thereby obtain a reversal of the judgment confirming the sale without an appeal or without a motion to set aside the judgment for good cause shown to the court. This, we think, constitutes a collateral attack upon the judgment. The nature of the attack the plaintiff may maintain depends upon the character of the judgment. If it is void a collateral attack may be maintained; otherwise, not. But the judgment is not void, for there is no allegation of any lack of jurisdiction of the subject matter or of the parties, and it is not contended that any fraud was practiced upon the court in rendering a judgment against the Ohio Colprovia Company in the sum of $10,269.00. In the absence of proof to the contrary the regularity of all judicial proceedings must be presumed. The Common Pleas Court cited the case of Dahms v. Swinburne, 31 Oh Ap 512, as .authority for permitting an attack upon a judgment procured by fraud. We think this case is distinguishable on the facts from the case at bar in that it was a direct attack on the judgment and not a collateral attack as we have here. At page 514 in the Dahms case, supra, the court said:

“The instant proceeding was brought to declare said judgment null and void, on the ground it was secured through fraud, and to enjoin the levying of execution upon said judgment.”

It is an elementary principle of law that a void judgment is a nullity and is subject to collateral attack. Judge Marshall clearly states the law applicable in Tari v State, 117 Oh St 481, at page 493:

“This decision must turn in its last analysis upon the distinction to be made between a void and a voidable judgment. If it was a void judgment, it is a mere nullity, which could be disregarded entirely, and could have been attacked collaterally, and the accused could have been discharged by any other court of competent jurisdiction in habeas corpus proceedings. If it was voidable, it is not a mere nullity, but only liable to be avoided by a direct attack and the taking of proper steps to have its invalidity declared. Until annulled, it has all the ordinary consequences of a legal judgment.”

The plaintiff cites Seeds v. Seeds, 116 Oh St 144, and Morton v. Petitt, 124 Oh St 241, which we do not regard as controlling. In each of these cases a fraud was perpetrated upon the court in the obtaining of the judgment by offering a forged or spurious will for probate. A judgment grounded upon such a foundation is void and not voidable. We have no such fraud alleged here. The only irregularity pleaded is that the defendants conspired to keep the plaintiff from obtaining knowledge of the fact that an execution had been issued. There is no allegation in the petition that the claim of the Wagner Quarries Company was fictitious or that the subject matter of the action was fraudulent or that representations were made to the court with intent to deceive. We find support for our conclusion that the second cause of action is demurrable in numerous foreign jurisdictions. In the case of State of Missouri, ex rel. v. Ellison, 12 A. L. R. 1157, it is-said:

Syllabus 2:

“A temporary injunction suspending action under a public improvement contract, pending a proceeding to determine the validity of the ordinance under which the improvement was undertaken, is not subject to collateral attack as having been collusively procured by parties to such proceeding or persons-in privity with them.”

Syl. 4:

“A collateral attack is an attempt to impeach a judgment, whether interlocutory or final, in a proceeding not instituted for the purpose-of annulling the judgment.”

In Shultz v. Shultz, 136 Ind. 323, it was held that an action for damages for fraudulently obtaining a judgment cannot be maintained by a party thereto so long as such judgment stands, for a judgment for damages would operate as an impeachment of the first judgment. So long as the judgment stands, it imports absolute verity as to every proposition of law and fact essential to its existence against all the partiés to it.

In White v. Merritt (7 N. Y. [3 Selden], 352), 57 Am. Dec. 527, it was held that a judgment cannot be impeached collaterally, in a subsequent action for damages, by proving that-the plaintiff in it, while suit was pending, practiced deceit upon defendant, whereby the latter was led to forbear interposing a defense fraudulently concealed from him.

See also, Dunlap v. Glidden, 31 Me. 435; Gusman v. Hearsey, 28 La. Ann. 709; Stevens v. Rowe, 59 N. H. 578.

The demurrer will be sustained as heretofore indicated.

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


author: By WISEMAN, J:

text:
    DICKEY, Estate of, In re.
    Ohio Appeals, Second District, Montgomery County.
    No. 2071.
    Decided December 19, 1949.
    Cowden, Pfarrer & Crew, Shaman, Winer & Shulman, Landis, Ferguson, Bieser & Greer, Dayton, for appellant.
    Pickrel, Schaeffer & Ebeling, Dayton, for Executor of Estate of Arthur C. Dickey, deceased.
    Harshman & Young, Dayton, for Gertrude Fisher Coiner.
    Munger & Kennedy, Dayton, for The Dayton Foundation.
    William M. Harrelson, Troy, for Riverside Cemetery and City of Troy.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the judgment of the Probate Court of Montgomery County, Ohio, charging against the estate of the decedent the total expenses incident to the successful defense of a will contest suit.

The decedent, Arthur C. Dickey, left a will in which he left numerous specific and general legacies and a specific devise of real estate, and then left all the rest, residue and remainder of his property to the Third National Bank and Trust Company, Dayton, Ohio, in trust, the remainder of the corpus of the trust eventually to be paid over to the Miami Valley Hospital Society of Dayton, Ohio.

An action was brought to contest the will. The principal beneficiaries retained counsel in the will contest suit, but it is conceded that counsel for the executor, The Third National Bank and Trust Company, carried the burden in the defense of this action.

After the will was sustained an application was filed in the Probate Court of Montgomery County, Ohio, for the allowance of compensation to counsel representing the executor in the will contest suit and other expenses in defending the suit. The court allowed compensation to counsel for the executor and charged the amount allowed and other expenses incurred in the defense of said action against the general assets of said estate. The total amount so charged amounted to $35,274.77. Under the order of the Probate Court the payment of this charge would result in a reduction to that extent of the value of the residuary estate. The entire estate was appraised at $336,842.19. A substantial amount will remain in the residuary estate after the payment of the charge.

Several grounds of error have been assigned, all of which relate to the same question raised by appellant, to-wit: That the judgment of the Probate Court was erroneous in that it charged the total expense involved in the defense of the will against the estate as a part of the costs of administration without equitably apportioning said expense among the legatees and devisees under said will.

No question is raised relative to the amount fixed by the court as counsel fees for legal services rendered the executor in the will contest suit, or other expenses incident to the defense of this action. It is conceded that under the law of this state counsel fees may be allowed the executor in' a successful defense of a will contest suit. See Andrews’ Ex’rs. v. His Adm’rs., 7 Oh St 143; Union Savings Bank and Trust Company v. Smith, et al., 4 C. C. N. S. 237, affirmed without opinion by the Supreme Court in 74 Oh St 505, 78 N. E. 1137; Weir v Weir, 7 C. C. N. S. 289; In re Estate of Raichley, 10 Abs 298; Vol. 18 O. Jur. P. 440, Sec. 344.

The sole question for determination is; Should the compensation allowed counsel for the executor in the successful defense of a will contest suit, and other expenses incident to the defense of said action, be charged against the general assets of said estate, or should such compensation and expenses be apportioned equitably among the several legatees and devisees? The question presented is not whether the Probate Court in the instant case was authorized to apportion such compensation and expenses equitably among the legatees and devisees mentioned in the will of the decedent, but whether the court, under the law, was required to do so. We find no reported opinion in Ohio deciding this precise question.

It is conceded that the intention of the testator, if expressed in the will, would control. The trial court, in construing the will, found that it was the intention of the testator to impose the expense of administration, including all the expense incident to the defense of the will contest suit, on the residuary estate. We examine the will to determine the intention of the testator. In Item I he directs his executor

“to make payments from my estate, as soon as found practicable, of all my just debts, expenses of my last illness and burial, and of any and all estate and inheritance taxes which may be levied on my estate or which may be imposed on any devise or bequest made by me herein, together with the “necessary expense of administering my estate.” (Emphasis ours.)

In Item XI he creates the residuary estate, as follows:

“All the rest, residue and remainder of my property, real and personal, * * ", in trust * * *.”

Two sections in the Probate Code bear notice. Sec. 10504-76 GC, provides:

“If, by making a specific devise or bequest, the testator has exempted a devisee or legatee from liability to contribute to the payment of debts, or if the will makes provision for the payment of debts, different than those prescribed in the next preceding section, the estate must be applied in conformity with the will.”

The next preceding section (§10504-75 GC), provides that when real or personal property devised or bequeathed is taken from the devisee or legatee for the payment of a debt of the testator the other devisees and legatees must contribute their respective proportions of the loss to the person from whom it was taken so as to make the loss fall equally on all devisees and legatees according to the value of the property received by each of them. The effect of the contention of the appellant herein is to require an order apportioning the expense among the several beneficiaries as required under §10504-75 GC when it is necessary to effect a contribution among the several beneficiaries. To do so would be to ignore the provisions of §10504-76 GC. Under the latter section a specific devisee or legatee is exempt from the liability to contribute to the payment of debts when there is a residuary estate out of which the debts may be paid.

In the case at bar the intention of the testator to exempt the specific legatees and devisees from the liability for payment of his debts and expense of administration is clearly shown in Item I of said will, wherein he provides that all his just debts and the necessary expense of administering his estate should be paid by the executor out of the estate. It has been held that the word “debts” as used in a will includes costs of administration. Bane v. Wick, 14 Oh St 505, 514; Harbeson, Admx. v. Mellinger, et al., 2 Oh Ap 75, 78.

We have examined the exhaustive and well-considered opinion of Probate Judge Love and are in accord with his reasoning and conclusions. In our opinion the trial court was correct in holding that it was the intention of the testator that all expenses incident to the administration of the estate, including expenses arising by reason of the will contest suit, should be paid out of the general assets of the estate and that the specific legatees and devisees should not bear any portion thereof.

The judgment of the trial court was based solely on the intention of the testator. We could very properly rest our affirmance on this theory of the case. However, since counsel for appellant contends that the will is not subject to the construction given and that the residuary legatee was entitled to an order equitably apportioning the expense incident to the defense of the will contest suit .among all the beneficiaries, we are disposed to meet this question squarely.

The appellant concedes that the ordinary expenses of administration of the estate are properly chargeable against the general assets of the estate, the result being that the residuary legatee would bear the burden of such expenses; but appellant contends that compensation paid to counsel representing the executor in the successful defense of a will contest suit, and other expenses incident to the defense of said action, are in the nature of extraordinary expenses and that a distinction should be drawn between ordinary and extraordinary expenses in determining how such compensation and expenses should be charged.

In our opinion no such distinction can be made relative to the compensation allowed counsel for legal services. Sec. 10509-193 GC in part provides: “When an attorney has been employed in the administration of the estate, reasonable attorney fees paid by the executor or administrator shall be allowed as a part of the expenses of administration.”

This is the only section in the Probate Code which controls the payment of compensation to an attorney who represents, the fiduciary in the administration of the estate. No distinction is made in this section between ordinary and extraordinary services rendered by an attorney. This section was amended effective August 22, 1941 and prior to the amendment provided that when the attorney had been employed in the administration of the estate reasonable attorney fees paid by the executor or administrator “shall be included in such further allowance” to the executor or administrator. One purpose of the amendment was to eliminate the provision that the attorney fees should be allowed as a “further allowance” to the executor or administrator and, further, to provide that such fees, when allowed, should become “a part of the expense of administration.” In the absence of a contrary intention expressed in the will the general rule is that all expenses of administration are chargeable against the estate and that when the estate is being administered under a will wherein specific or general legacies or specific devises are given and a residuary estate is created, the expense of administration falls on the residuary estate, exempting the specific legacies or devises. Y. M. C. A. v. Davis, 106 Oh St 366, 140 N. E. 114: Vol. 69 C. J., Page 1227, Sec. 2571; Page on Wills, Lifetime Edition, Vol. 4, P. 324, Sec. 1497. But the appellant here contends that an exception to the general rule should be made whereby compensation paid to counsel for the executor in successfully defending the will contest suit should be equitably apportioned among the several beneficiaries. The case of In re Account of Ullman, Executor, 12 C. C. N. S. 340 (1909) is cited in support of this contention. In that case the court, on page 344, held:

“In this particular case, however, the allowance to the executor generally out of the estate for money paid by him as attorney fees in the contest of this will results in placing the entire burden upon the residuary legatees * * *. Yet, notwithstanding that we do not think it equitable that the entire costs of this contest should be paid by them, but all the interested parties should have been compelled to contribute thereto in equitable proportions, and the executor ought to have intervened with a motion to that effect in the probate court, before distribution. True, the expense of attorneys in the settlement of an estate must be paid out of the residuary fund. It is only to the extraordinary expenses in the contest of a will that the devisees and legatees under the will should have been compelled to contribute, * *

On page 346 the court holds:

“We are not unmindful of the fact that whatever is allowed comes out of the residuary fund, and therefore we are not disposed to allow the full amount of these counsel fees, although, as we have heretofore stated, we are of the opinion that they were just and reasonable, and we think the executor ought to have credit for a larger sum than that given him by the common pleas court.” (Emphasis ours.)

It is apparent that the statement of the court that counsel fees should be equitably apportioned among the beneficiaries was purely obiter dictum. This case was decided before the amendment of §10509-193, GC. Prior to the enactment of the Probate Code (effective date January 1, 1932) there was no statutory provision relative to the payment of attorney fees for legal services rendered in the administration of an estate.

We are not disposed to follow the obiter dictum made in the Ullman case. While we find no reported case in Ohio deciding this precise question, in other jurisdictions where the question has been squarely raised courts have charged the expenses incident to the successful defense of a will contest suit against the estate and have refused to apportion such expenses among all the beneficiaries. Powell v. Labry, 210 Ala. 248; Ex Parte Landrum, 69 S. C. 136; Baugh’s Estate, 12 Pa. Dist. 303; In Re Chapin’s Estate, 144 P. 2d (Wash.) 738.

In our opinion where the testator gives specific legacies and a specific devise and creates a residuary estate he does so with the knowledge that all expenses of administration and litigation which may arise in the settlement of his estate will be chargeable against the general assets of the estate as part of tlie administration costs. The value of the estate passing under the residuary clause may be enhanced or reduced in value, depending upon the expenses of administration. In the settlement of many estates, particularly large estates, questions arise which involve litigation in which only certain heirs or beneficiaries under the will are benefitted. Nevertheless, the rule that all expenses of administration are chargeable against the general assets of the estate is universally accepted. To subject the different beneficiaries to the payment of the costs of administration on the basis of benefits received would be a departure from the established law on this subject. In Baugh’s Estate and In Re Chapin’s Estate, supra, the court rejected the theory of apportioning the expenses among the beneficiaries on the basis of benefits received. This theory was rejected also in Mclntire v. Mc-Intire, 192 U. S. 116, 48 L. Ed. 369, Justice Holmes writing the opinion.

Counsel for the appellant contends that the Probate Court should have exercised its equity powers in apportioning counsel fees among the beneficiaries under the will, and cites the last paragraph of §10501-53 GC, which provides:

“The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

The Probate Court does not have conferred upon it general equity powers under this section. This section gives the Probate Court, in matters within its jurisdiction, the authority to exercise equity powers in disposing of matters where there is no legal remedy or where the legal remedy is inadequate. Equity follows the law, and is not invoked to destroy or supplant a legal right. In our opinion the beneficiaries under the will of Arthur C. Dickey to whom were given a specific or general legacy, or a specific devise, of real estate, had a legal right to receive such property exempt from the burden of the cost of administration, since there was a residuary estate out of which the costs of administration could be paid.

Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


text:
    WARE, Plaintiff-Appellant, v. SHARTLE, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4262.
    Decided November 14, 1949.
    John F. Cianflona, McGhee, Rowe & Evans, Arthur L. Rowe, .of Counsel, Columbus, for plaintiff-appellant.
    Porter, Stanley, Theffinger & Platt, Bruce G. Lynn, of Counsel, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law and fact appeal from the Common Pleas Court for Franklin County. The action seeks to set aside certain deeds because of want of consideration, failure of consideration and mental incapacity of the grantor. The trial court found that there was not even a preponderance of the evidence tending to establish the plaintiff’s claim of mental incapacity; that this fell far short of the requirement that the evidence tending to support the incapacity must be clear and convincing.

We have read the entire record and are of the same opinion as the trial court on the factual conclusions. Judge Leach, in a well considered opinion, has made the proper legal conclusions with which we fully concur. It would serve no useful purpose for us to discuss them further.

On the issues joined our judgment is the same as that in the trial court.

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


author: By PHILLIPS, J.

text:
    STATE, Plaintiff-Appellee, v. McKINNEY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3272.
    Decided March 21, 1949.
    William A. Ambrose, Pros. Atty., H. H. Hull, Asst. Pros. Atty., Youngstown, for plaintiff-appellee.
    W. M. Howard, J. Maynard Dickerson, Youngstown, for defendant-appellant.
    JACKSON, J, of the Third District sitting by assignment in the Seventh District.
   OPINION

By PHILLIPS, J.

A jury in the court of common pleas of Mahoning County found defendant guilty of murder in the second degree (see §13448-2 GO, and acting under §12403 GC, the trial judge sentenced him to be imprisoned and confined in the Penitentiary at Columbus, Ohio, during life. Defendant appealed from that judgment of conviction and imprisonment to us on questions of law.

Robert L. McKinney, appellant here, was defendant in the court of common pleas. The parties will be referred to in this opinion as they stood in the court of common pleas, the appellee State of Ohio as the State, and appellant McKinney as defendant.

Defendant, together with others named in the indictment, was indicted by the grand jury of Mahoning County in the first degree for the murder of Cyril L. Runk upon the following indictment laid under §12400 GC:—

“Indictment for First Degree Murder (Felony)

The State of Ohio, Mahoning County, SS.

“In the court of Common Pleas, Mahoning County, Ohio, of the Term of May in the year of our Lord one thousand nine hundred and forty eight.

“The Jurors of the Grand Jury of the County of Mahoning and State of Ohio, then and there duly empaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their said oaths, in the name and by the authority of the State of Ohio, do find and present:

“That Robert L. McKinney, Thomas Williams, George Williams, Howard Harris, James Wesley Hardret and John Williams late of said County, on the 22nd day of April in the year of our Lord one thousand nine hundred and forty-eight, at the County of Mahoning aforesaid did jointly, unlawfully, purposely and while attempting to perpetrate a robbery, kill Cyril L. Runk, contrary to the statutes in such cases made and provided and against the peace of the State of Ohio.”

Upon this indictment the case we review went to trial before a jury in the court of common pleas and was submitted to the jury upon a charge of first degree murder, second degree murder, first degree manslaughter, assault with intent to rob, assault and battery and acquittal, and resulted as stated.

About 1:30 o’clock on the morning of April 22, 1948, Cyril L. Runk, a locomotive engineer, reference to whom hereafter will be made as Runk, and Lola Harrison Early, likewise a locomotive engineer, were walking in an easterly direption on the southerly sidewalk of Arlington Street in the. City of Youngstown, Mahoning County, Ohio, and as they approached a residence situated thereon known for street numbering purposes as number 271 Arlington Street they met defendant and those indicted with him and others, who were walking in a westerly direction thereon, and to permit them to pass unmolested Runk and Early left the sidewalk and Runk walked behind Early on the lawn on the property side thereof.

Defendant testified that he and Thomas Williams left a dance hall, where the group of which he was a member had spent the evening, and were walking in a westerly direction on Arlington Street; that Hardret, Harris, John Williams, George Williams and Hopson preceded them, and as they approached a driveway situated between the second and third houses on the south side of Arlington Street he noticed “a fight”, and that one of the two men who were approaching them ran past him, and that he walked around the fighters and stood on the sidewalk west of them and watched the fight, and that when it was over the other boys caught up with him and he told them they should not have molested Runk. The evidence discloses that he owned an honorable discharge from the armed services, had a good service record, and had accumulated a savings account of $300.00.

Defendant’s statement, State’s Exhibit 4, introduced in evidence reads as follows:—

“I, Robert Lee McKinney, age 26, 1215 Central Avenue, give the following statement to Officers Clyde Reid and Ted O’Connor of my own free will, voluntarily, without any threats or promises. I have been advised that I may have the service of an attorney, if so desired. This may be used in Court.

“On April 21, 1948, I attended a dance at the Nu Elms Ballroom. I left the dance at about 1:30 a. m„ April 22, 1948, walked south on Elm Street to Arlington Street, west on Arlington on south side of the street, in company with Thomas Williams, alias ‘Tony’, Arthur Hopson, alias ‘Sonny Man’, Howard Harris, alias ‘Sooner’, James Hardret, alias ‘Smokey’, John Williams, George Williams, alias ‘Georgia Boy.’ I was walking with Thomas Williams, alias ‘Tony’., Arthur Hopson, alias ‘Sonny Man’ was walking a little ahead of us. Howard Harris, alias ‘Sooner’ and George Williams, alias ‘Georgia Boy’, James Hardret, alias ‘Smokey’ and John Williams were walking in a bunch ahead of ‘Sonny Man.’ As we came to a point near Fifth Avenue, I noticed two white men walking east on Arlington Street towards us. They met the bunch ahead of me, and a fight started. I don’t know what started it. I saw Howard Harris hit the man. I saw George Williams hit the man. At that, one man broke loose and ran past me. I walked around the bunch that were fighting. I did not see the man knocked down. I walked on, on the same side of the street. Arthur Hopson, ‘Sonny Man’, walked out in the street and towards the other side of the street. I crossed Fifth Avenue and when past Fifth Avenue, Arthur Hopson joined me, and then the other boys ran and caught up with us. Howard Harris, alias ‘Sooner’ and Thomas Williams, alias ‘Tony,’ were the last ones to catch up with us. While this fight was going on, I heard some bad language, such words as: * * * and ‘Bitch’. I don’t know who was using this language. After the boys caught up with us, I told them they shouldn’t have done that. We all went to Bill Robinson’s. I knew it was wrong to beat up these men. I heard about the man dying on Saturday, April 24, 1948. I figured it was the same man whom the boys had fought with. I left Bill Robinson’s with Bennie Cobbs, Thomas Williams and Sammy Stevenson, and went down to the Rainbow Lunch. I went in and called a cab, did not get any answer. One of the boys knocked on the window and said, ‘Here is a cab’. When we got in the cab going to Campbell, Ohio, there was a lady in the cab when we got it. The lady got off on Poland Avenue, and we went to Campbell, Ohio. We all paid for the cab. This is the truth to the best of my knowledge. I have read the above two pages and had it read to me.

Signed,

Robert Lee McKinney

(Written by Det. Ted O’Connor, April 29, 1948,

Question Room, Fourth Floor, City Jail)”

Testifying in his own defense defendant denied that he struck Runk.

A resident of 271 Arlington Street, an eyewitness to “the fight from beginning to end,” testified that as Runk and Early passed defendant’s group Runk was “elbowed,” “shouldered” by one of the group; that he heard a cry “what do you want the whole damm sidewalk?” and almost immediately Runk, testimony concerning whom was that he was a peaceful man, was knocked down by one of defendant’s group, picked up, knocked down a second time, kicked and stamped upon by some members of the group, again lifted up and brushed off as if they were feeling his pockets and then thrown down near a fir tree at the west side of the lot directly east of his residence, where he found him lying in a stupor and moaning near a spot of blood 4 or 5 inches in diameter; that he saw two men stoop down over him, one of whom apparently “riffled” or “searched his shirt,” and vest pockets; that before the arrival of the police, whom he summoned, two men came along lifted Runk up and took him east on Arlington Street.

Runk (who “came to his death by homicide”) died later that day from shock and hemorrhage due to bilateral fractures of the skull and other injuries resulting from such attack, which injuries the coronor testified would take terrific force to produce.

One of the police officers, who was called to the scene of the fight and found a knife and keepsake coin at the place where Runk was lying, testified that Runk and Early told him no one had or had attempted to rob them.

Runk’s companion Early, who was only able to identify McKinney, verified the testimony of other witnesses as to what happened, as described supra, and the almost unidentifiable condition of Runk’s badly swollen, battered and bruised face as testified to by some witnesses, and testified that he walked around defendant’s group as he met it; that as he turned around he saw one member of the group knock Runk down and kick him; that he walked back and all of them were kicking Runk, requested the group not to strike nor kick Runk further, “for God’s sake boys don’t do this I will take care of him,” and then the group kicked him and knocked him down; that Runk’s face was “turned sideways and his mouth was twisted.”

Harris, indicted but permitted to plead to a charge of manslaughter, generally testified, as did other witnesses, as to what happened, placed the position of the members of the group a little differently than other witnesses placed them as they walked along; and verified the testimony of other witnesses that Runk was “elbowed” by McKinney, who kicked him in the head four or five times (to whom he was doing nothing) as he passed the group walking in the grass, and that he (Harris) struck Runk as he was shoved or whirled around into him, who was struck then by George Williams, Thomas Williams, other members of the group and defendant; that Thomas Williams picked Runk up and “brushed him off in front,” “frisked him in front.”

Witness Good testified that he loaned Runk $25.00 at five minutes past one o’clock on the morning of April 22, 1948, giving the money to him in two ten dollar bills and one five dollar bill, and witnesses Tinkler and Capuano, nurses who searched Runk in the emergency room at the hospital, did not find the money.

Briefly but substantially such is the evidence upon which we are urged to conclude that the trial judge erred to the “prejudice of defendant in overruling the motion for a directed verdict of acquittal as charged in the indictment at “the close of all the evidence; in overruling the motion of the ■defendant at the close of all the evidence to reduce the ■charge from first degree murder to first degree manslaughter, ■and to submit that to the jury plus lesser included offenses; in overruling defendant-appellant’s motion for a new trial; and in entering sentence of judgment upon the verdict”; and ■because “the verdict is contrary to the manifest weight of “the evidence” and “to law”; and for “errors manifest of record in the trial of this cause”; and on the ground of prejudicial misconduct of counsel for the state, disposition of all of which •will be made later.

Counsel for defendant contend that “throughout this entire trial the conduct of the prosecutor was prejudicially erroneous,” and contend “the prosecutor (R. 297-298) went outside the record to incite class hatred.” On those pages it is reported that in argument to the jury counsel for the ■state said, and in oral argument counsel for defendant states is what he refers to, that:—

“Well, my answer to that it must be found in your experience in life and in mine; the answer to that that it is a symptom, it is a sign that has become more and more apparent wherever the public generally gathers. If you will think back and think hard, perhaps not so hard, you will know that you have noticed that symptom of that sign in indignaties that have been practiced but this is the culminating act. Now, I say wherever people generally gather, any public place, theatres and stores and busses, and unless you by your verdict forever warn people like McKinney and his gang, unless you by your verdict here and now forever warn those who think like McKinney did and his gang that night, warn them they will pay with their own miserable misguided life if they attempt to defy and violate even the common decencies of mankind, not to say anything about the constitution of the United States of America, where free men and women have equal rights and they have equal rights regardless of color, — I am not saying there is a right for one kind and a right for the other, there is a right for both under the law of God and man, but both have to observe the right, both of them. I can cry and whine to you for rights but if I am not intellectual enough to understand and appreciate that you, too, have rights that I must respect then I am not entitled to those rights. That to me is a plain fact.

“Now, and while we are on that, in a lot of respects this is one of the most brutal affairs I have ever heard of and if McKinney and Williams, George and Tommy and John, and Harris and Hardret were seeking rights, and that is the plan, they have been enforcing those rights, then they are not. seeking equal rights, ladies and gentlemen, they seek exclusive rights and kill you in addition to that. Now, how long, do you think free-born men and women can live under an intolerable situation like that, live in peace and quiet? You know the answer as well as I.”

Counsel for defendant contends that such an argument-was prejudicial to his rights because counsel for the state thereby injected into his argument hate stirring statements, and in other parts of his argument not quoted “went outside the record to incite prejudice, passion and class hatred,” which it is contended was highly improper and not condoned; that it was the duty of the trial judge, which duty it is contended he did not discharge, to prevent such argument.

Further counsel for defendant contend that counsel for the state offered Harris, a defendant jointly indicted in the case we review, as a witness against defendant when he knew Harris was not telling the truth for the purpose of protecting himself, which testimony helped to convict defendant, and that defendant’s “conviction secured by the use of perjured testimony, known to be such by the prosecuting attorney, is a denial of the ‘due process of law,’ White v. Ragen, 65 S. Ct. 978, 324 U. S. 760, 89 L. Ed. 1348.”

It is observed that in the forepart of his closing argument the prosecuting attorney said:—

“This case is a peculiar case and in my treatment of this case I shall have to be so very, very careful because if I say the slightest word out of the way this constitution under which we live, which this defendant forgot and violated, that some constitution would come to his rescue and all we have done would come to naught; so that I must be careful.”

In our opinion by such words counsel clearly indicated that he was not referring to the colored race in general but only to the colored defendant and his fellow indictees and group members, as likewise he was referring to them in the portion of his closing argument to which objection is made.

Further it is observed that neither counsel for defendant nor defendant himself made any objection and took no exception to such argument and in no manner called the attention of the trial judge thereto, which indicates to us that they did not at that time consider it prejudicial.

Certainly under the proper instructions given the jury by the trial judge as to the law applicable in the case we review reasonable minds clearly and equally certainly could reach different conclusions as to the guilt or innocence of defendant of the crime of which the jury found him guilty, whose verdict in our opinion was not “contrary to the weight of the evidence” nor “to law.”

Defendant, together with the others indicted, all participated in some overt act which caused Runk’s death.

“Whefe such unlawful act does naturally and proximately result in death, all who participate in the commission of such unlawful act are in law liable for the commission of such unlawful killing.” Black v. State, 103 Oh St 434.

Under the assigned ground of “other errors manifest on the face of the record in the trial of their cause” counsel for •defendant claim that “while instructing the jury on first degree manslaughter the trial judge” failed to properly divide it and fully cover each division, and cites State v. Carter, 75 •Oh Ap 545, 58 N. E. (2d) 794.

The trial judge correctly instructed the jury relative to the issues involved-, and we find nothing therein prejudicial to the rights of the defendant. If counsel believed at the time •the trial judge charged the jury that he did not fully instruct it in regard to the issues involved it was the duty of counsel for defendant to call the court’s attention to the omission.

Counsel for defendant did not request the trial judge to ■give additional instructions and did not reserve a general •exception to the charge. However even though he had it has been held:—

“* * * that a general exception to the charge is effectual only as to errors of law existing in the charge as given and ■does not bring in review an omission or failure to give further proper instructions. Furthermore, it is the duty of counsel to call the court’s attention to any omission and make a request for further instructions. Columbus Ry. Co. v. Ritter, 67 Oh St, 53, 65 N. E., 613; State v. McCoy, 88 Oh St, 447, 103 N. E., 136; Rucker v. State, 119 Oh St, 189, 162 N. E., 802; 2 O. Jur., 909.” State v. Laswell, 78 Oh Ap 202, 207.

We find no error in this assignment as charged by counsel for defendant.

By brief counsel for defendant ask us the questions “Is the evidence sufficient to show that the defendant was involved in any way in the killing of Cyril Leroy Runk?” and “Is the evidence legally sufficient to prove beyond a reasonable 'doubt, an intent to kill?” In support of their contention they argue-that the conduct of counsel for the state in introducing into evidence one of several statements of Howard Harris taken by two detectives specializing in juvenile delinquency instead of other of his statements then unavailable was highly prejudicial to defendant; that the conduct of counsel for the-state in offering Early was equally prejudicial because he was excited at the time of- the fight and upon examination contradicted himself as to the complexion of defendant, and cite-to us the law they believe applicable to support a negative answer to the second question. We find no error in this, assignment as urged.

By assignment of error counsel for defendant claim that, the trial judge erred to defendant’s prejudice “in overruling, his motion for a new trial, and in entering sentence of judgment upon the verdict.”

“Sec. 13449-5 GC, provides:—

“No motion for a new trial shall be granted or verdict set. aside, nor shall any judgment of conviction be reversed in any court in case of * • *; nor for the admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused; was or may have been prejudiced thereby; * * * nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

In our opinion the trial judge did not err in overruling defendant’s motion for a new trial and entering sentence of' judgment upon the verdict.

Now counsel for defendant contend that all that was shown-in the case at bar was a street fight — an affray, and that-being “fully aware of the vicious, indicting newspaper articles-that had been published regularly since Mr. Runk’s death”' in order to “protect the defendant the motion to acquit the-defendant of first degree murder should have been sustained,” and cites as authority 12 O. Jur 544, Section 530, where it-is said:—

"If the state has closed its case, and the evidence, admitting-it all to be true, does not tend to prove the essential elements of the crime, it is the duty of the court to take the-case from the jury, and instruct them to bring in a verdict of not guilty.”

Counsel for defendant also cite as authority State v. Porello, 138 Oh St 239, in which the supreme court affirmed the .judgment of the court of appeals, which modified the judgment of the court of common pleas by reducing its judgment •of conviction of murder in the first degree to manslaughter.

We find no merit in this assigned ground of error.

The judgment of the court of common pleas is affirmed.

JACKSON, PJ, NICHOLS, J, concur in judgment.