author: By MILLER, PJ.

text:
    TIPTON, Petitioner, v. ALVIS et al, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4329.
    Decided December 8, 1949.
    Paul W. Martin, Columbus, for petitioner.
    Hon. Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By MILLER, PJ.

This is a habeas corpus proceeding originating in this ■court. The petitioner alleges that he is illegally and unlawfully incarcerated in the Ohio Penitentiary under a sentence the trial court had no jurisdiction to pronounce against him.

The record discloses that an indictment was returned again'st the petitioner by the grand jury of Clinton County as follows:

“The jurors of the grand jury of said County, on their oaths, in the name and by the authority of the State of Ohio, do find and present that Clark Tipton and Paul Tipton on the 24th day of December, in the year of our Lord one thousand nine hundred and forty-three, at the County of Clinton aforesaid, unlawfully and by force and violence * * * robbed one Frank Tener of Forty Dollars ($40.00) in United States Money contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

The judgment entry recites:

“This day came the prosecuting attorney on behalf of the-state of Ohio, and the defendants, Clark Tipton and Paul. Tipton, came into court accompanied by the Sheriff and for plea to said indictment charging the said defendants, Clark Tipton and Paul Tipton, with armed robbery, the said Clark: Tipton sayeth he is guilty. * * ⅜ it is ordered, adjudged and decreed by the Court that the said Clark Tipton be sentenced to the Ohio Penitentiary at Columbus, Ohio, for an indefinite period of not less than ten years nor more than, twenty-five years ⅜ * *.”

It will be noted that a plea of guilty was entered to “armed robbery” while the indictment charged the petitioner only with “robbery”. These are two separate and distinct offenses, under the General Code of Ohio, the same being defined in. §§12432 and 12432-1 GC. These two sections are identical with the sole exception that §12432-1 GC requires the accused to be “armed with pistol, knife or other dangerous weapon”. Therefore, when the plea of guilty to armed robbery was entered there was also an admission of guilt to all the other-material elements of the offense, to wit, the stealing of something of value from the person of another by the use of. force or violence or by putting in fear. The plea of guilty entered admitted all of the material averments contained in the indictment and in addition admitted the use of a dangerous weapon, which was not charged. All of the material, averments of the indictment being admitted the court had jurisdiction to impose sentence, but the sentence pronounced, was not in conformity with the charge in the indictment. Clearly, this was error which was subject to attack on appeal, but it does not go to the jurisdiction of the court.

In Ex parte Van Hagan, 25 Oh St 426, the petitioner had. been sentenced under a statute not in force although another statute covered the offense. The punishment inflicted was for a term longer than that authorized by the then existing; statute. It was held:

“Habeas corpus is not the proper mode of redress, where-the relator has been convicted of a criminal offense, and sentenced to imprisonment therefor * * *; if errors or irregularities have occurred in the proceedings or sentence, a. writ of error is the proper remedy.
The punishment inflicted by the sentence, in excess of that prescribed by the law in force, was erroneous and voidable but not absolutely void. It follows that a writ of error to reverse the proceedings or sentence is the remedy that the relator should have resorted to in order to obtain a discharge from illegal imprisonment, and not habeas corpus, which is not the proper mode of redress where the relator was convicted of a criminal offense and erroneously sentenced to excessive imprisonment therefor by a court of competent jurisdiction. Ex parte Stephen M. Shaw, 7 Oh St 81, approved and followed on this point.”

In the case of In re Allen, 91 Oh St 315, Judge Newman, speaking through the court, used the following language, at page 325:

“The trial court in the instant case had jurisdiction of the person of the petitioner. It had jurisdiction to try him for the offense charged and to sentence him to a term in the penitentiary under §12672 GC. Instead there was an indeterminate sentence imposed of which the petitioner complains. If this were erroneous, the error committed by the court related to the sentence and punishment only and was not a jurisdictional one. The court merely entered and enforced a wrong judgment. Admitting then, for the purpose of this case, that there was no authority to impose the sentence, either by reason of the repeal of the indeterminate-sentence law or its unconstitutionality, the punishment inflicted was erroneous and voidable but not void. The sentence and punishment could have been corrected in a proceeding in error challenging the judgment of the court. The petitioner had ample opportunity to avail himself of the objections as to the sentence which he attempts to make here. A habeas corpus proceeding cannot perform the functions of a writ of error.”

The subject of excessive sentences is discussed in 25 Amer. Jur., Section 59 at page 188, where it is said:

“Contrary to some early decisions, it is now well settled that in the case of a sentence which was merely excessive, if the court which imposed it had jurisdiction of the person and subject matter, such sentence was not void ab initio because of the excess, but was good in so far as the power of the court extended and was invalid only as to the excess, and, therefore, a person in custody under such sentence cannot be discharged on habeas corpus until he has suffered or performed as much of it as was within the power of the court, to impose.”

We are therefore of the opinion that since the court had jurisdiction to impose sentence, and also since the sentence for robbery as defined by §12432 GC has not been fully complied with, the petitioner is entitled to no relief from this court. His only remedy at this time is through error proceedings upon leave being first obtained.

HORNBECK and WISEMAN, JJ, concur.


source: Caselaw Access Project

author: By HILDEBRANT, J.:

license: Public Domain

text:
    TRITSCH, Plaintiff-Appellee, v. BACH, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7144.
    Decided October 24, 1949.
    Harry Kasfir, Cincinnati, for appellee.
    Burke & Cooney, Cincinnati, for appellant.
   OPINION

By HILDEBRANT, J.:

This law appeal is from the Common Pleas Court, wherein the plaintiff recovered a verdict and judgment for damages for breach of an oral contract to form a partnership.

In his petition, plaintiff alleges, in substance, that defendant importuned him to leave his employment, continuously held for the past 9-½ years, and if he would do so, he, the defendant, would make him a full partner in his business; that, relying on said promise, plaintiff quit his employment and on July 8, 1947 started to work at defendant’s place of business, where he continued to work until March 26, 1948— a period of some nine months, when defendant denied the existence of any agreement to form a partnership and advised plaintiff he was no longer able to employ him. Plaintiff also alleged that during the period between July 8th, 1947 and March 26th, 1948 he made numerous requests on defendant to consummate a partnership agreement, but that defendant evaded, made excuses for delay until the time of openly denying the agreement. The petition then details plaintiff’s claims for damages, totaling $2470.92.

Prom his petition, it is clear that plaintiff conceived his cause of action to be at law for damages for the breach of an executory contract to form a partnership. It is well established that such an action at law will lie in a proper case, and the court has no quarrel with citations made to that ■effect.

It is also firmly established, so as not to require citation, that ■once the legal relationship of partners is established, one may not sue the other in an action at law for violation of the rights of a partner, but is remitted to the equitable action ■of accounting and dissolution to determine the rights and liabilities between partners.

The record here is so meagre, as to make it very difficult lor the courts to determine exactly what the agreement was, if there was a meeting of the minds at all.

However, the plaintiff’s own testimony supplies the legal •solution by reason of its being subversive to his declared cause of action at law for damages for breach of an executory contract to’form a partnership.

Plaintiff testified at page 15 of the record that he believed .he was a partner all the while between July 8th, 1947 and March 20th, 1948; that each man had an equal drawing account; that he deposited bonds with the defendant for safe keeping and to be available for use in the business, although lie was to contribute no cash but payment for half the assets was to be taken from profits to be determined at the end of the year, and that he had asked for such an accounting, which was postponed by the defendant, and that he had asked to see the books, which was refused.

Plaintiff’s testimony, therefore, amounts to an admission that the actual partnership relation according to his belief started when he quit his former employment and went to work at defendant’s place of business. Taking this admission to be true, it is subversive of the cause of action declared upon and required final judgment for the defendant.

It is stated in 53 Am. Jur„ p. 298:

“Where 'a party’s own testimony, if true, would defeat his right to a verdict, and such statements are not modified or explained, a verdict may be directed against him.”

39 O. Jur., 819, states:

“When a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony, and cannot successfully complain if he is nonsuited or the court directs a verdict against him.”

In Hodges v. Ettinger, 127 Oh St, 460, at 462, Stephenson, J., says:

“The testimony of a party to an action necessarily subversive to his interests in the particular action is regarded in all courts as conclusive.”

In Winkler v. City of Columbus, 149 Oh St, 39, it is stated in the syllabus:

“Where, in an action for personal injury, plaintiff’s testimony amounts to an admission that she was guilty of negligence at the time and place, which contributed directly to her injury, it is the duty of the trial court to sustain a motion for a directed verdict in favor of defendant.”

And, at page 44, Turner, J., states:

“The Court of Appeals assumed that because plaintiff testified one way in chief and contrarily on cross-examination, the case should be left to the jury to choose between her conflicting statements. That would be proper in the case of an ordinary witness, but where the testimony 'involved is that of the plaintiff and the plaintiff’s testimony whether in chief- or cross-examination, discloses negligence on the part of plaintiff contributing directly to her injury the fact has been settled and the matter becomes a question of law to be determined by the court.”

Other cases in accord are: N. Y. Cent. Rd. Co. v. Stevens, Admr., 126 Oh St, 395; 185 N. E. 542; 87 A. L. R. 884; E. Kahn Sons’ Co. v. Ellswick, 122 Oh St, 576, 579; 172 N. E. 668; C. C. C. & St. L. Ry. Co. v. Lee, Admr., 111 Oh St, 391; 145 N. E. 843.

The judgment is, therefore, reversed, and the cause remanded, with instructions to render final judgment for the defendant.

While we find error in the instructions as to the measure of damages, in view of the foregoing, no further comment is necessary here.

We find no other error, prejudicial to the appellant in the record.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: By DOYLE, J:

text:
    GLAZE, Plaintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21705.
    Decided February 27, 1950.
    Hedrick & Hedrick, Cleveland, for plaintiff-appellant.
    Robert J. Shoup, Jos. F. Lombardo, Cleveland, for defendant-appellee.
    (CONN, PJ, of the 6th District; HUNSICKER, J, DOYLE, J, of the 9th District, sitting by - designation in the 8th District.)
   OPINION

By DOYLE, J:

This is an action of tort by a passenger upon an electric car operated as a public carrier under the authority and responsibility of the City of Cleveland. The injury for which damages is sought was sustained because of a window in the car falling upon the complainant’s arm.

It appears that the injured lady boarded the car in downtown Cleveland and sat in the rear of it with her arm resting on the frame at the bottom of an open window. After proceeding about forty blocks, the window suddenly dropped upon and injured her arm. A fellow passenger then raised the window from her arm and after an attempt to secure it and being unable to do so lowered it to a “shut” position.

The above statement is a summary of the material facts given by the complainant herself. There was no other evidence offered to prove the alleged tort.

The sole question before this court is whether the trial court erred in taking the case from a jury and rendering judgment for the defendant as a matter of law.

It is ancient learning that courts do not permit juries to find material facts without evidence or from conjecture. If the rule were to the contrary, a jury could select one or two more equally probable or possible causes or theories each having different legal results.

As shown by the summary of facts there is no direct evidence of negligence. Such a showing, however, is not necessary in tort actions because in certain cases the existence of negligence may be inferred from existing circumstances.

In this state, we do under proper circumstances, recognize the rule of evidence known as res ipsa loquitur, which rule permits a jury, but not the court, in a jury trial, to draw an inference of negligence when the instrumentality causing the injury was under the exclusive management and control of the defendant and the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.

Kaltenbach v. C. C. & C. H. Inc. 82 Oh Ap 10; Fink v. N. Y. C. R. R. Co. 144 Oh St 1; Glowacki, minor, v. N. W. Ohio Ry & Power Co. 116 Oh St 451.

Are the facts before us sufficient for us to say that under the rules of law extant there is presented a jury question?

The window which fell on the lady’s arm fell because the person who raised it left it unsecurely fastened, or because the fastening device was insufficient. In the one case, the person who opened the window may have been in default; in the other, the operator of the traction line.

It is common knowledge that windows in ordinary street cars are opened by the passengers as well as by the traction company employees. It, therefore, cannot be found, except by mere guess and speculation, that an employee of the defendant negligently raised and fastened the window. It could have been any passenger. Neither can the'defendant be held liable upon the ground of a defective condition, because there is no evidence of any defect. It cannot be inferred in the absence of some evidence of a defective condition, that such a condition caused injury to the plaintiff.

See: Boucher v. Boston & Maine R. R. Co. 76 N. H. 91, 79 Atl. 993; Faulkner v. Boston & M. R. R. Co. 187 Mass. 254, 72 N. E. 976; Murphy v. Boston & Maine R. R. Co. 229 Mass. 38, 118 N. E. 191; Chadwick v. Louisville N. R. Co. 213 Ky. 831, 281 S. W. 1018.

It therefore appears to this court that the complainant’s damages may have resulted from any one of several different causes and a selection of one of such causes would be reached only by guess and speculation. Also the rule of res ipsa loquitur cannot be invoked to aid the plaintiff because it is not shown that the opening and closing of the window was under the exclusive control of the defendant.

In conclusion it is proper to say that although the petition pleaded specific negligence against the defendant, there was offered no proof on the allegations and, as a result, the rule res ipsa loquitur could be invoked if the circumstances justified. We specifically find, however, that the circumstances shown in the record before us do not justify the invocation of the rule.

Judgment affirmed. Exc. Order see journal.

CONN, PJ, HUNSICKER, J, concurs.


author: By HORNBECK, J:

text:
    SEABOLD, Plaintiff-Appellant, v. DAYTON (City) et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2079.
    Decided November 30, 1949.
    Jacobson & Durst, Dayton, for plaintiff-appellant.
    Herbert S. Beane, City Atty., M. J. Gilbert, Asst. City Atty., Dayton, for defendants-appellees.
   OPINION

By HORNBECK, J:

The plaintiff in its petition joins the City of Dayton and the City Railway Company as defendants. It recites that the plaintiff was a passenger on a bus of the City Railway Company and while standing in the vestibule of the bus, a tree, located between the curbstone and the sidewalk of Richard Street in the City of Dayton, fell on the bus, causing plaintiff’s injuries. The charge against the City of Dayton was that with knowledge it permitted a tree which was in a rottened condition to remain at the place where it was struck by the bus of the City Railway Company which had gone beyond the curbstone and struck the tree. The City of Dayton demurred to the petition on the ground of misjoinder of parties-defendants, which demurrer was sustained. Plaintiff electing to plead no further, judgment was entered in behalf of defendant, the City of Dayton.

Upon the case law as it stands in Ohio we are of opinion that the demurrer was properly sustained. Bello v. City of Cleveland, 106 Oh St 94; Village v. Gilbow, et al., 81 Oh St 272, 273; Agricultural Society v. Brenner, 122 Oh St 560, 3d syl. and page 574; Dash v. Fairbanks, Morse & Co., 49 Oh Ap bottom page 62 and top page 63.

Appellant cites and relies upon two cases, Garbe v. Halloran, 150 Oh St 476, and Cleveland Railway Company, et al. v. Heller, 15 Oh Ap 346. In the former case, although there was a dissent by three members of the court, all were agreed that the defendant, who was sued, and the other automobilist, whose negligence it was claimed jointly caused the plaintiff’s injury, could properly have been joined as parties-defendant. But in this case the want of care of each of the parties responsible for plaintiff’s injuries was of the same character. This was also true in Cleveland Railway Company, et al. v. Heller, supra, because by the terms of a contract between the Railway Company and the City, the Company assumed responsibility in damages for any defect arising by want of repair of the tracks at the place where the accident occurred. This obligation was identical with that of the City which could not by contract avoid its liability to the plaintiff. The contract between the City and the Railway Company was held to be for the benefit of third persons, among whom was the plaintiff, and thus both parties sustained the same character of liability toward the plaintiff.

The first and second propositions of the syllabus in Garbe v. Halloran, supra, lend considerable support to the claim of the appellant here. But, inasmuch as the court did not mention the case of Agricultural Society v. Brenner, 122 Oh St 561, and particularly the third syllabus, and Village v. Gilbow, supra, or Bello v. City of Cleveland, supra, we must assume that there was no purpose to change the law as therein announced.

The claim of appellant to the right to join the defendants here would likewise be supported by Restatement of the Law of Torts, Par. 875.

In 39 Am. Jur. 912, after stating the proposition that in the absence of statutory authority, damages may not be recovered in a joint action against several wrong-doers acting separately, it is stated:

“However, because the only way of satisfactorily settling the question as to who should be held liable has been held to be to permit the persons implicated to be sued as joint tort-feasors, decisions may be found holding persons to be joint tort-feasors who are really not joint tort-feasors, but whose liability might more properly have been held to be alternative or concurrent.”

Citing 41 A. L. R. 1223.

Notwithstanding the strength of appellant’s position, as we have said before we do not feel justified in holding counter to the Ohio cases heretofore cited wherein the question seems to have been resolved against the appellant’s claim.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By DOYLE. J:

text:
    FAWICK AIRFLEX COMPANY INC., Plaintiff-Appellee, v. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL 735 et, KRES, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21486.
    Decided March 6, 1950.

      (CONN, PJ, of Sixth District; HUNSICKER, J, DOYLE, J, of Ninth District sitting by designating in the Eighth Appellate District of Ohio.)
    Marshman, Hollington & Steadman, Cleveland, for plaintiff-appellee.
    Davis, Davis & Handelman, Cleveland, for defendant-appellant.
   OPINION

By DOYLE. J:

Joseph Kres was found guilty of summary contempt of the Court of Common Pleas of Cuyahoga County, as a consequence of his refusal to answer certain questions propounded to him upon cross-examination, while a witness in a trial in which he and another were charged with violations of a restraining order of the Court of Common Pleas of Cuya-hoga County, which, inter alia, restricted picketing

“other than peaceably and by not more than two pickets at not more than three designated places in and about the premises”

of the Fawick Airfiex Company Inc., during a strike and work stoppage brought about by Local 735 of the United Electrical Workers Union.

In the course of the hearing, on the charges of violating the restraining order, Kres, a Union official, testified in his own behalf, and, on cross-examination, was asked the following questions:

“Are you a member of the Communist Party?”
“Have you ever been a delegate as the representative at a Communist Party meeting in the State of Ohio?”
“Did you attend a State convention of the Ohio Communist Party on April 30, 1944, held at Public Hall?”

Following the objections of counsel, the trial court ordered them answered, and, the refusal of the witness to answer each of the three questions, furnished the basis for the three adjudications of guilt of summary contempt and the accompanying penalties.

An appeal on questions of law now brings the judgments before this court for review.

1. It is urged that:

“the court committed error prejudicial to the defendant and abused its discretion in permitting irrelevant and immaterial questions to the defendant as to his political affiliations and activities, to which defendant duly objected and excepted at the trial.”

The record before us is replete with evidence of cruel and vicious assaults and batteries upon employees of the plant in their attempt to proceed to their respective jobs; personal property was sabotaged and destroyed; and many other acts of violence of the same general character is shown to have occurred. The entire affair had all of the aspects of a dangerous and subversive revolt against law and order and especially against one of this country’s most cherished institutions — the judicial branch of the government. The appellant, Kres, was on trial, charged with contempt of court, in that he participated in the rioting.

It has long been the law of this state that a witness on cross-examination may be asked questions tending to disclose his own character and may be interrogated on specific acts or affiliations in his past life if they have a legitimate bearing upon his credit as a witness. It is the essence of a fair trial that reasonable latitude be-given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination may develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the trier of the facts cannot fairly appraise them. It is likewise the law that irrelevant questions should be excluded, if such questions are uncalled for by the circumstances of the case. The limits to which such witness may be cross-examined rests generally in the sound discretion of the court.

Under the circumstances of this case, in the administration of justice, it was a proper field of inquiry to examine into the question of the witness’ membership or non-membership in the present Communist Party in America, and the order of the court to the witness to answer the questions was not an abuse of discretion.

The “circumstances of this case” as heretofore set forth, indicated an active, preconceived and planned revolt against law and order, and had all the indications of a subversive demonstration against the orders of the judicial department of the government.

In litigation involving the violation of orders of the court made in the exercise of their jurisdiction in which such circumstances are shown to exist, we hold the question to be proper on the cross-examination of one who is on trial for having violated the said court’s order and who has taken the witness stand in his own defense.

Certainly, in this year of 1950, judges of the courts of America cannot shut their eyes to things well known to every intelligent layman.

The. Communist Party abroad, with its American counterpart, is presently the powerful force which has caused and is causing the destiny of nations to hang in the balance in the ideological struggle between the communistic-thinking and democratic-thinking peoples of the world; the party in its struggle for power would make “merchandise of * * * American principles” and, in the process of forging ahead, it is well known that the sanctity of the truth and an oath may be, and is, pushed aside with impunity if warranted by the occasion.

Over and beyond the view expressed above, that the court did not abuse its discretion and acted legally within the limits of its authority, a witness, or a party and a witness who are identical, cannot be permitted to refuse to answer a question on the ground that it is irrelevant. To declare a rule to the contrary that a witness could decide for himself upon the relevancy or competency of a question, against the opinion of the judge presiding, would be subversive of all order in judicial proceedings. The rights of the litigants are preserved against an erroneous ruling by the trial judge through the process of asserting prejudicial error on appeal.

2. The second assignment of error is as follows:

“The court erred to the prejudice of the defendant and abused its discretion in permitting questioning of defendant and ordering him to answer such questions when he asserted his constitutional rights against such inquiry and his privilege against self-incrimination.”

Under the general heading of “Privilege Against Self-Incrimination” in VIII Wigmore on Evidence (Third Edition) and especially under Sec. 2271 thereof, the author has, in his inimitable way, discussed the question of “Who may determine the Claim.” He quotes from the masterly opinion of Mitchell, Judge, in State v. Thaden, 43 Minn. 253, 45 N. W. 447, as follows:

“The problem is how to administer the rule so as to afford full protection to the witness, and at the same time prevent simulated excuses. All the authorities agree to the general proposition that the statement of the witness that the answer will tend to criminate himself is not necessarily conclusive, but that this is a question which the Court will determine from all the circumstances of the particular case, and the nature of the evidence which the witness is called upon to give. But the question on which the cases seem to differ is as what we may call the burden of proof; some holding that the statement of the witness must be accepted as true, unless it affirmatively appears from the circumstances of the particular case that he is mistaken, or acts in bad faith, while other cases hold that, to entitle a witness to the privilege of silence, the Court must be able to see from the circumstances of the case and the nature of the evidence called for, that there is reasonable ground to apprehend danger to the witness, if he is compelled to answer. * * * The difference is theoretical, rather than practical; for it would be difficult to conceive of an instance where the circumstances of the case, and the nature of the evidence called for, would be entirely neutral in their probative force upon the question whether or not there was reasonable ground to apprehend that the answer might tend to criminate the witness. After consideration of the question and an examination of the authorities, our conclusion is that the best practical rule is that laid down in some of the English cases, and adopted and followed by Chief Justice Cockburn, in Reg v. Boyes (1 B & S 311) * * *. To this we would add that, when such reasonable apprehension of danger appears, then, inasmuch as the witness alone knows the nature of the answer he would give, he alone must decide whether it would criminate him. This, we think, is substantially what Chief Justice Marshall meant by his statement of the rule in the Burr trial.” (Aaron Burr’s Trial, Robertson’s Rep. I, 243.)

See also: McGorray, Sheriff v. Sutter 80 Oh St 400.

The members of this court are in complete accord with the statement of Professor Wigmore that:

“This summing-up of Mr. Justice Mitchell leaves nothing to be added, and ought to remain the last word in the development of the rule.”

In the case under consideration, it was for the court to determine from the circumstances of the case and the nature of the testimony sought, whether there was reasonable ground to apprehend danger to the witness from being compelled to answer. The court’s ruling that there was not reasonable ground to apprehend self-crimination was sound in fact and law. It is not a crime to be a member of the Communist Party. If the witness were not a member, no ignominy would touch him because of that connection. If he were a member, his membership in the intransigent group was of his own choosing, and, as such member, he could not complain on the ground of being degraded in the eyes of the community, if his answer had a legitimate bearing on his credibility as a witness.

It is claimed by the appellant that:

“To inquire into and to require answers from the defendant, or any witness for that matter, as to his political faith or belief, affiliation or activity, is an infringement upon his constitutional rights of freedom of speech; press, assembly, thought and association, that is guaranteed him by the first amendment to the United States Constitution. These essential freedoms are protected under the Fourteenth Amendment to the United States Constitution from infringement or interference by any state of the Union.”

It is no longer open to doubt that, liberty of speech and of the press, and liberty of silence, are within the liberties safeguarded by the clauses of the first and fourteenth amendments of the Constitution of the United States. These general guarantees are safeguarded ,in the Constitutions of the various States of the Union. But the guaranteed personal liberty is not an absolute right, and never has been, giving immunity for every use or abuse of it. Things evil in their nature or dangerous to the public welfare have never been protected from the public glare under the liberty of silence guaranteed by the Constitution.

We find nothing in the record before us indicating a- denial to the appellant of the guarantees embraced within the Constitution of the State or Nation.

See: Lawson v. United States 176 Fed. (2d) 49.

3. The third assignment of error is in the following language:

“The court erred, to the prejudice of the defendant and abused its discretion, in finding the defendant guilty of summary contempt of court.” .

The inherent power of courts to punish contempts committed in the presence of the court during the proceedings of a trial is supported by authorities too numerous to mention. It is no longer open to question that the refusal of a witness to testify or to answer pertinent questions which do no violence to a witness’ privileges and immunities, constitute summary contempts and may be punished as such.

«* * ⅜ gygh power, although arbitrary in its nature * * * is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty’ of administering them.”

Ex Parte Terry, 128 U. S. 289, 313; 32 L. Ed. 405, 412.

See also: Fisher v. Pace, Sheriff, 9 L. Ed. (U. S.) 435.

In the matter of Lands, 146 Oh St 589 at p. 595.

We find the claims under this assignment of error to be not maintained.

4. The fourth assignment of error alleges that:

“The proceedings of the lower court were .irregular and unauthorized by law, and constituted abuse of discretion, by which defendant-appellant was denied a fair trial.”

The record before this court indicates a difficult trial. In fact, all trials of this kind in recent years seem to have been attended with vigorous challenges and denials, in which sometimes the patience of the judge presiding in the particular case has been taxed to its limit.

As we view the record, we do not find that the defendant was not accorded a fair trial. Nor do we find that “the proceedings * * * were irregular * •* * unauthorized by law (or) * * ⅜ constituted (an) abuse of discretion” as claimed by the appellant. On the contrary, we find that the proceedings were regular, authorized by law and that the acts of the trial court were all within the limits of its authority with the single exception which will be discussed in the following paragraph.

5. As heretofore noted in this opinion, the appellant was found guilty of three separate acts of contempt based upon his refusal to answer three separate questions.

It appears to the members of this court that the questions were of such character that they should be treated as an inquiry into but a single subject. The first question asked the witness directly was whether he was a member of the Communist Party. When he refused to answer, other questions were then asked, which, if answered in the affirmative, would have established an inference that he was such member. In fact, the entire inquiry was directed toward the establishment of but one fact. The witness’ refusal to answer the three questions under discussion, constituted, in the opinion of the members of this court, but a single contempt, for the reason that they all had to do with the same subject matter.

In accordance with the views expressed, the judgment of contempt based upon the refusal to answer the first question will be affirmed, and the judgments based upon the refusal to answer the second and third questions will be reversed and as to them final judgment will be rendered for the appellant.

CONN, PJ, HUNSICKER, J, concur.


author: By HUNSICKER, J:

text:
    FAWICK AIRFLEX COMPANY INC., Plaintiff-Appellee, v. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL 735 et Krause et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21494.
    Decided March 6, 1950.

      Marshman, Hollington & Steadman, Cleveland, for plaintiff-Appellee.
    Jerome Land, Elsie R. Tareai, Charles Goodwin, Winfred Martindale, Cleveland, for defendants-appellants.
    (CONN, PJ, of Sixth District; HUNSICKER and DOYLE, JJ, of Ninth District, sitting by designation in Eighth District.)
   APPEAL ON QUESTIONS OF LAW

By HUNSICKER, J:

In this appeal on questions of law, the facts disclose that: United Electrical, Radio & Machine Workers of America, Local 735, called a strike at the plant of Pawick Airflex Co. Inc., after alleged violence incident to such strike, an injunction was obtained in the Common Pleas Court of Cuya-hoga County, Ohio, regulating peaceful, picketing of the Fawick plant; certain persons were charged with a violation of such order; some of those so charged were tried and found guilty of the contempt charges on April 8, 1949; others were awaiting trial on such charges; newspaper and radio comment of the outcome of the hearing of April 8, 1949, was widespread throughout the community.

The appellants herein (defendants below) Joseph Krause, Norman N. Derman, Poster L. McCurdy, Dolph M. Barnett, Frieda L. Kreitner and Robert Evans, by prearrangement and prior design, along with ten or fifteen others desiring to display their disapproval of the court order in the contempt cases and to display the attitude of certain groups toward the judge who entered the order, met at and near the home of the trial judge to impress upon him their attitude and that of those whom they sought to represent. The judge called the police to his home, and, before any extended demonstration could begin, the police told the group assembled there to disperse, which they did.

In addition Berman and Krause each wrote letters to the judge setting out in their communications in insulting and scurrilous language their denunciations of the action of the judge in the contempt cases. By direct threats and innuendo, these letters accused the judge of corruption and dictatorial conduct which they, the writers, and those whom they claimed to represent, would correct at some indefinite future time. Berman wrote two of such letters which he mailed to the judge. Krause also wrote two letters, one of which he mailed to the judge, the other (which Krause said was a grammatical correction of the first letter) he gave to a police officer when questioned concerning the first letter.

On April 14, 1949, motions were filed against all of the defendants, named above, directing them to show cause why they should not be punished as for contempt of court for their conduct in demonstrating before the home of the judge, and, in addition, as to Berman and Krause, for writing the letters above referred to.

A hearing was had (before the judge whose home was picketed and to whom the letters were addressed) on these charges of contempt. The trial court found each defendant guilty of various acts of contempt and entered judgment accordingly.

It is from such judgments of guilt that the cause is before this court for review on questions of law.

There is no occasion for this court to make extended comment on the propriety of the trial court hearing the charges as made. The impulse to consider criticism as obstructive is a real danger. A trial court under such conditions may not be wholly objective. The record bears some evidence of a departure from such objectivity, both in the rulings of the court and the summation by the court at the conclusion of the hearing. Nevertheless, we do not find prejudice on the part of the "trial judge which prevented the defendants from having a fair trial.

The evidence, except in the one instance, hereafter set out, will support the judgment of contempt, so that the determinative question before this court is one of law only.

May a judge punish, as a contempt of court (1) one who pickets his home to show a dissatisfaction with a decision of the judge in matters pending before the court over which-such judge presides; (2) one who writes insulting and threatening letters to such judge expressing disapproval of a decision of the judge in matters pending before the court-over which such judge presides?

It is not necessary for us to pass on the legal nature of the alleged contempts, whether summary or indirect, since written charges were filed and a formal hearing was had.

All of the matters complained of herein took place outside of the court room. The people gathered at the home of the judge; the letters were sent to his home. There was nothing done in his presence at the court house; all of the action, was directed to the place where he lived, during an interim in the proceedings.

There were matters related to the decision which the defendants complained about still pending before the court. Only part of the contempt cases against the Fawick strikers had been heard. Others were awaiting hearing and disposition.

The statutes of Ohio (§12136 et seq., GC), give authority to the courts to punish contempts, but such legislative action does not abridge the inherent power of a court to punish a contempt.

Hale v. State, 55 Oh St 210; Steube v. State, 3 O. C. C. 383; Beach, Jr. v. Beach, 79 Oh Ap 397.

There is, of course, no question as to the power to punish as for contempt, disturbances and disorder in the court room. The actions here under review are those actions which by threat, coercion, force and intimidation of the presiding officer of a court seek to produce a disorderly, unfair and distorted administration of justice.

The highest court in our country has, in two very important decisions, defined and restated the test by which the constitutional guarantees of the first and fourteenth amendments of the Constitution of the United States are to be reconciled with the preservation of an independent judiciary.

In Bridges v. State of California, 314 U. S. 252, 86 L. Ed. 192, and Pennekamp v. State of Florida, 328 U. S. 331, 90 L. Ed. 1295, the Supreme Court of the United States adopted the objective test of the clear and present danger rule with respect to contempt of court convictions. The test in matters of this kind is: Are the words used, or the actions engaged in, of such a nature as to create a clear and present danger that they will bring about a substantial interference with the orderly administration of justice?

Where strangers to the neighborhood congregate about the vicinity where a judge resides, with an avowed view in mind to demonstrate their disapproval of the judge and his decision, such conduct, however short its duration, or however peaceful it became in the presence of police officers, is conduct that would bear heavily in the mind of the normal public official.

If a judge is to have hovering over him the possibility that harm or disorder are to be a constant threat to his home and family whenever those who disagree with him decide to engage in such conduct, then judicial decorum and dignity are lowered to the caterwauling of the ill-mannered and depraved.

A person who seeks to influence a judge in matters pending before him, by disturbances to his home and family, by picketing or other like demonstrations thereat, is, in the judgment of this court, clearly guilty of a contempt of the court over which such judge presides and may be punished accordingly.

The appellants claim that it is a denial of free speech for the judge to find Berman and Krause guilty of contempt of court for writing letters of condemnation to the judge concerning the matters set out above.

It should be noted that there is no testimony that the letters which form the basis of the charge of contempt were published by the parties. They were sent to the home of the judge, and, so far as the evidence discloses, would not- have been generally known except for the action of the judge himself.

The letters were more the actions of twisted and distorted minds than those of normal human beings. They were written in bad taste and poor grammar by a person devoid of decency and propriety.

We adopt the view that any language by which it is intended to influence the action of a judge, or language that ■has a tendency to influence him, is a danger to the impartial administration of justice, and, hence, not to be protected by the right of free speech guaranteed by the first and fourteenth amendments of the Constitution of the United States.

It is very important that our courts be not intimidated by litigants or partisans of litigants, but it is equally important that the freedom of tongue and pen be not shackled, unless the danger to an independent and free judiciary is clearly shown.

See Bridges v. California, supra.

“Judicial dignity is an important element of our system and serves a real legal function.- In itself, even when it is without importance for the actual conduct of litigation, it serves at least a social function since we like our high officials-to be treated with respect and judges are high officials. So-is the President of the United States. To be lacking in respect either to a judge or to the President, is a violation of good manners. Gentleman will not be guilty of it. It is,, however, not a legal duty to be well mannered and it may even, be said that it would be unconstitutional to make it one. But there is no reason why the dignity of the court should take such dimensions or assume such character that it demands awe or veneration. There is no crimen laesae maiestatis-in the United States and we need not grant a judge a position that we deny the chief magistrate of the nation. So-long as the judge’s actual functions remain unimpaired, he-must contest himself with the outward respect of his well-bred fellow-citizens and must learn to be indifferent to the abuse of those who are ill-bred.”

36 Illinois Law Review, 599 at pp. 610-611 Freedom of Speech and Contempt of Court, by Max Radin.

When we examine these letters, we find that plaintiff’s exhibit C (the second Berman letter), although written in bad taste, does not, under the test as established by the Supreme Court of the United States, create a clear and present danger to the orderly process of justice and the-courts. We do not believe, in so far as this letter is concerned, that a judgment of guilty of contempt is proper.

The situation as- to Exhibit D (the first Berman letter) and exhibit F (the Krause letter) present a much different state of affairs. The threats to the judge personally, the charges of undue influence exercised by those who, it is claimed, control the courts and this trial judge in particular, and the direct charge of corruption leveled at him, do present a clear and present danger to the orderly administration of justice.

To charge a judge with being corrupt, means, according to Webster’s New International Dictionary, Second Edition, that he is

“2." Changed from a state of uprightness, correctness, truth, etc., to a bad state; vitiated; depraved; debased; perverted, * * * 9>

The charges against the trial judge contained in Exhibit D and Exhibit F, do not bear the slightest resemblance to-honest criticism. Coupled with the threat of possible violence to be meted out to the judge in “much more quicker time to-come” their. evil nature and threat to impartial justice is present and clear.

The record of testimony indicates that these defendants made no offer or attempt to purge themselves of the con-tempts with which they were charged. They did not testify in their own behalf, nor in any manner seek, either personally or by counsel, to clarify their intentions.

The contempt trials out of which developed the actions of. these defendants, were not concluded, a part only had been heard, others remained to be tried before this trial judge. Thus, to all fair-minded persons can readily be seen a clear and present threat to the orderly and impartial administration of justice.

We have examined all other claimed errors, and find none prejudicial to the rights of the appellants.

The judgment is, as to Joseph Krause, Foster L. McCurdy, Dolph M. Barnett, Frieda L. Kreitner, and Robert Evans affirmed. As to 'Norman N. Berman, the judgment is affirmed as to the first letter, and as to the picketing, but reversed as to the second letter, and final judgment rendered for him thereon.

A journal entry will be prepared by the attorneys in accord with this opinion.

CONN, PJ, DOYLE, J, concur.


author: By SKEEL, PJ. McNAMEE, J:

text:
    FAWICK AIRFLEX COMPANY INC., Plaintiff-Appellee, v. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICAN, LOCAL 735 et, KRES, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21497.
    Decided March 6, 1950.

      Marshman, Hollington & Steadman, Cleveland, for plaintiff-appellee.
    Davis, Davis & Handelman, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment of guilty of contempt of court of the defendant, Joseph Kres, for the violation of a temporary restraining order entered in this action on March 12, 1949, restricting picketing “other than peaceably and by not more than two pickets at not more than three designated places in and about the premises” of the relator.

The decree of March 12, also enjoined this defendant and others, including The United Electrical Radio, Machine Workers of America, Local 735, from encouraging or allowing the massing of more than two pickets at any time at any place about the plant or premises of the relator except that one representative of the Union may act ás a supervisor of picketing who “shall not encourage, allow or participate in a massing, congregating, assembling with two or more pickets.” Paragraphs 6, 7, 8, 9, 10 of the decree provided as follows:

“6. Prom interfering with, hindering, threatening or intimidating in any manner whatsoever plaintiffs, officers, agents, employees, representatives, others having business with the plaintiffs or the families or relatives of any of the foregoing;
7. Prom interfering with or hindering access to said plant and premises in a manner reasonably calculated to prevent ingress to or egress from the said plant and premises;
8. From blocking or obstructing plaintiff’s driveway leading from Clinton Road to plaintiff’s plant and premises in any manner whatsoever;
9. From protecting, aiding, abetting or assisting anyone in the commission of said acts;
10. From interfering with or hindering ingress to or egress from said plant and premises, of trucks, automobiles and other vehicles in any manner whatsoever.”

On March 24, 1949, the plaintiff filed a motion to show cause why this defendant with others should not be punished for contempt of court, inasmuch as it was alleged that this defendant, with others, had violated the aforesaid decree, in that:

“1. They had, on several occasions, massed and congregated across Clinton Road in a manner calculated to prevent access to the plant by its employees and others;
2. The defendants on March 23 and 24, 1949, massed and congregated at the entrance of plaintiff’s plant in numbers greater than permitted by the decree and by violence, fighting, hurling of stones, threatened and intimidated and injured plaintiff’s employees as they entered the plant.
3. That the defendants on March 23, 1949, hurled stones at automobiles of plaintiff’s employees as they were entering plaintiff’s plant in violation of 4, 6, 7 and 10 in the court’s order.
4. That the defendants on March 23, 1949, in about the area of West 105 Street and Linnet Avenue hurled stones and bottles at automobiles of plaintiff’s employees, threatening and intimidating said employees with the attempted purpose of preventing them from going to work, in violation of paragraph 6 of the court’s order.
5. That the defendants on the 24th day of March, 1949, placed themselves along Clinton Road driveway leading into plaintiff’s plant, intimidating plaintiff’s employees by hurling rocks and bolts at automobiles of plaintiff’s employees as they entered the plant in violation of 4, 6, 7, 8 and 10 of the court’s order.”

Upon trial of this defendant, insofar as this appeal is concerned, the court found him guilty of five specific acts committed in violation of the temporary injunction and of one act of summary contempt in the presence of the court by “telling a deliberate falsehood while testifying under oath in this proceeding.”

The five specific instances in which it was held that this defendant violated the injunction, are as follows:

“1. He had general supervision and direction of groups of persons composing a mob, who gathered at West 105 Street and Linnet Avenue on the morning of March 23, 1949, and attempted to prevent a group of plaintiff’s employees from going to work;
2. He participated in an attack on the automobile of one Dominic Mayo, in the vicinity of West 105 Street and Linnet Avenue on the morning of March 23, 1949;
3. He led an attack on the automobile' of one Dominic Mayo at the entrance to plaintiff’s plant and premises on the morning of March 24, 1949;
4. He led an attack on the automobile of one John Sine at the entrance to plaintiff’s plant and premises on the morning of March 24, 1949;
5. He led a group of persons that rushed and attacked the automobile of plaintiff’s employees at' the entrance to plaintiff’s plant on the morning of March 24, 1949.”

The defendant by this appeal presents the following alleged errors by which he seeks to reverse the judgments of contempt entered against him:

“1. The court below erred to the prejudice of defendants-appellants and abused its discretion by refusing to grant the motions for a bill of particulars, or to make definite and certain.
2. The court below erred in denying the motion of defendant-appellant for dismissal of the charge against him made at the close of plaintiff’s testimony and renewed at the close of all the testimony.
3. The sentences of the court below were severe, harsh and excessive and without authority under the law;
4. The court below erred in admitting evidence offered by the plaintiff and excluding evidence offered by the defendant;
5. The court below erred to the prejudice of defendant, Kres, and committed grave abuse of discretion, in requiring defendant to deposit security bond, the same not being authorized by law;
6-7. The court below erred to the prejudice of defendant, Kres, and committed abuse of discretion in allowing and participating in a line of questioning of defendant regarding his political activities, affiliations and religious beliefs.
The proceedings of the lower court were irregular and unauthorized by law and constituted abuse of discretion by which defendants-appellants were denied a fair trial.
8. The findings of the lower court and its sentences and orders are not sustained by sufficient evidence are contrary to law and unauthorized by law.
9. The court below erred, to the prejudice of the defendant, Kres, in finding that he told a falsehood in court and finding him guilty of summary contempt of court.
10. For other errors appearing on the face of the record prejudicial to the rights of defendant, Kres.”

The first assignment of error will be overruled for the reason that in open court the defendant through his counsel stated that during the course of the trial he was able to offer all of the evidence there was available to him and he was therefore not prejudiced by the overruling of his request to make the allegations of the motion to show cause more definite and certain.

The fifth claim of error relates to the question of whether or not error was committed in requiring the defendant to give a security bond to abide the decree of the court, under the provisions of §11888 GC: the prosecution of this contempt proceeding being under §12137 to §12142, inclusive, GC.

The right to invoke the remedial provisions of §12137 to §12142, inclusive, GC, for the violation of a temporary restraining order was decided in the case of Castings Company v. Steel Works, 148 Oh St 73. The court held — (syllabus 1):—

“1. Secs. 12137 and 12142 GC, providing for the punishment of a person found guilty as for a contempt by ‘disobedience of, or resistance to, a lawful writ, process, order, rule, judgment or command.of a court or an officer’ authorize the assessment of a fine and the commitment of a person to jail who wilfully violates a temporary restraining order issued in a labor controversy upon written complaint and after hearing.”

Also, in the case of Pilliod v. Searles, 115 Oh St 694, the court in considering whether the provisions of §§11887 and 11888 GC could be enforced in conjunction with §§12137 to 12142 GC, said at page 697:

“Secs. 11887 and 11888 GC prescribing the penalty for disobeying an order of injunction, are not exclusive, but are cumulative with §§12137, 12142 and 12147 GC, relating to contempt and the punishment therefor.”

The trial court in the case now before us did not assess a penalty against the defendant under §11887 and 11888 GC. The fine and jail sentences were imposed under the authority of §§12137 to 12142 GC. The security bond ordered under the provisions of §11888 GC, related solely to the defendant’s future conduct with respect to the temporary restraining order and was not in punishment for past violations. The provisions of §§11887 and 11888 GC authorizing the trial court to require a bond to keep the peace are not without support in other provisions of the statutes of Ohio. Sec. 13451-11 GC provides:

“A person convicted of a misdemeanor may be required by the judge or magistrate to enter into a recognizance, with sufficient surety, in such sum as the judge or magistrate deems proper to keep the peace, and be of good behavior for such time, not exceeding two years, as the court directs.. The court may order such person to stand committed until such order is complied with or he is. discharged by law, but. the court may discharge such person at any time on his own recognizance or cancel such recognizance.”

The provisions of this section can be enforced only upon conviction of a misdemeanor, as for example, the violation of §12423 GC, defining Assault and Battery. The remedies, here provided are cumulative. The fine or jail sentence is. imposed under §12423 GC as punishment for the violation of that section and the bond, if required, under §13451-11 GC, seeking to preserve the peace in the future.

The trial court in the case now before us, therefore acted, within his statutory power. We find no error in requiring the defendant to give a security bond under the provisions. of §11888 GC, after imposing a fine and sentence under §12142 GC.

The defendant’s, claim of error No. 3 cannot be sustained, because such sentences as were imposed were entirely within the provisions of the statutes relied upon as the basis for the prosecution.

Coming now to Assignments of Error Nos. 2 and 8. There is no question in the record but that the defendant had personal knowledge of the court’s temporary injunction. He was, by his own testimony, the local representative of Local 735, United Electrical Radio Machine Workers of America C. I. O. He was a party, named personally, as a defendant, in the case.

The evidence discloses that a strike had been called of' its members by Local 735 employed at Fawick Airflex Corporation Inc., on March 7, 1949, which caused a work stoppage' at its plant on Clinton Road near the westerly boundary of the City of Cleveland. On March 9, 1949, a petition seeking an injunction and equitable relief was filed and upon hearing of a motion for temporary injunction seeking to limit the number of pickets the same was granted and the order of the court granting such temporary injunction was set forth in a journal entry of March 12, which is set forth in part above.

The evidence shows that on the morning of March 23, 1949 shortly before seven o’clock a group of plaintiff’s employees desiring to return to work, met on West 105 Street between Fortune and Linnet Avenues. While they were thus assembling, a number of strikers, probably more than twenty in number, came upon the scene for the unquestioned purpose of preventing the workers assembled from going to the plant of the plaintiff. Beer bottles and other missiles were thrown at the workers and considerable violence ensued. A similar or even more violent scene occurred a short time later as the workers attempted to enter the plant on Clinton Avenue. The distance between the points where these conflicts took place was approximately one mile. Again, on the morning of March 24, a like scene took place in front of the plant of the relator.

In all of these conflicts the police of the City of Cleveland, the sheriff of Cuyahoga County and the officers from Brooklyn Village had to be called to restore peace and quiet and protect the safety of the people desiring to return to work.

On the occasion of each of these disturbances the defendant Kres was near at hand. When the first attack took place on West 105 Street he, according to his own testimony, had just been or was then parked in his automobile across the street. At the time the workers were subjected to the danger of rocks, bolts and other missiles on March 23, at the entrance of the plant, defendant was parked within 300 feet of the plaintiff’s gate. He was also at the lean-to on the morning of March 24 when the disturbance took place.

All that took place was not an unorganized and sudden controversy. The effort of preventing the returning workers from getting to plaintiff’s plant in safety on all of these occasions, had every appearance of pre-planned organization. In all, the circumstances developed by the evidence, was clearly sufficient to show that Kres, the head officer of Local 735, not only was at hand to give directions and encouragement but did in fact direct the activities of his fellow members in violation of the decree of the court.

The trial court’s conclusion that this defendant took part in the disturbance on West 105 Street in the vicinity of Linnet Avenue, on the morning of March 23rd, as found in paragraphs one and two of the court’s journal entry of April 27, is supported by sufficient evidence. The acts described in these two paragraphs, however, involve the same' and one continuous act in violation of the court’s injunction,, and is subject to only one fine of Five Hundred Dollars and sentence of ten days imprisonment, and to that extent the-judgment is modified, and as modified will be affirmed.

Likewise, the trial court’s conclusion as to the .disturbance-at the entrance of plaintiff’s plant on March 24th as set forth in paragraphs 3, 4 and 5, as to defendant Kres, is. sustained by sufficient evidence. The acts described in these three paragraphs however constitute but one continuous act,, in violation of the court’s injunction and is therefore subject to but one fine of Five Hundred Dollars and ten days, imprisonment, and to that extent the judgment is modified,, and as modified will be affirmed.

Coming now to the ninth assignment of error. The court, entered a fine and sentence against the defendant as and. for a summary contempt of court “for telling a deliberate-falsehood” in the- presence of the court, while testifying under oath. The judgment of guilty of a contempt committed, in the presence of the court was upon the authority of §12136 GC, which provides:

“A court or judge at chambers, summarily may punish a,, person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of. justice.”

On direct examination, while testifying on his own behalf the defendant was asked whether or not he was present at any time when stones or missiles were thrown at the plaintiff’s workers or their automobiles as they were attempting-to enter the plaintiff’s plant. His answer was “I did not see anything.”

The record discloses that after such answer, the following took place:

“The Court : Wait a minute. Let him answer your question. He says he didn’t see any, but he doesn’t say whether he was present. Answer that question.
Mr. Davis: Read it back, Mr. Pendell.
The Court: Answer that question, sir.
The Witness: Well, I didn’t — I didn’t see any. I don’t know.
The Court: The question is, — were you present when they were thrown? What do you say to that?
The Witness: Well, if I didn’t see that, I don’t know whether they were thrown or not, Your Honor.
The Court: You wish to argue too, sir? You will not get an argument out of me.
Put the question back again and if that is the best answer you can give, we will let it go at that. Read the question again.
(Question read by reporter)
The Witness: I did not see any stones thrown.
The Court: All right. I will consider that the best answer.”

The basis of the court’s holding defendant for contempt on this assignment of error is that the defendant’s answer as to not seeing any missiles thrown or was not to his knowledge present when such things took place was a “deliberate falsehood.” We have set forth above in some detail the substance of the evidence supporting the plaintiff’s claims as to the throwing of missiles on March 23 both on West 105 Street and in front of plaintiff’s plant, and again on March 24 at the plant entrance and evidence tending to show that the defendant was near at hand on these occasions. There seems to be no dispute in the record but that missiles were thrown nor is there here presented any question but that the throwing of such missiles was a pertinent question in this proceeding. It remains therefore to determine whether the answers of defendant as above quoted were untruthfully given and that the court had “judicial knowledge” that such answers as given constituted perjury or were willfully and knowingly false, and that they had the effect of obstructing the judicial process.

The right of a trial court to hold a witness for summary contempt for testifying falsely is considered in 9 O. Jur. page 55 paragraph 27 as follows:

“* * * of possible acts, few are so antagonistic to the objects of judicial administration as the intentional false swearing which seeks to baffle the search for truth, without which justice is impossible. Such swearing is a flagrant insult to the dignity of the court. In a disbarment proceedings before a federal court it was declared that perjury on the witness stand is a direct and criminal contempt of the court for which, under federal statutes, the offender may be summarily punished. To justify finding one guilty of contempt of court under §12136 GC for contumacious conduct while testifying as witness, giving untruthful, prevaricating and evasive testimony three elements are necessary: (1) That the alleged false answer had an obstructive effect; (2) the question must be pertinent to the issues; (3) judicial knowledge oí the falsity of the testimony, i. e., a patent falsehood, as to which there can be but one opinion; but merely because the court chooses to believe one side in preference to the other, on the ground of greater probability, does not justify the court in holding the witness who supported the losing side guilty of contempt of court. To justify such action by the court the falsity of the witness’s testimony given in open court must be a matter of judicial knowledge.”

By the greater weight of judicial authority in order to hold a witness guilty of summary contempt for testifying falsely, the court must have judicial knowledge that the witness’s sworn testimony was in fact false. A well founded belief of its untruthfulness is not sufficient. Perjury is a crime. Its punishment is provided by statute. Constitutional guarantees provide, among other things, for indictment by a grand jury and a public trial before a jury of the county in which the alleged act of perjury was committed. Likewise, because of the uncertainties which surround the ability of a witness to relate accurately events that have passed, either from faulty memory, inaccuracy of perception or otherwise, one charged with perjury cannot be convicted except upon the testimony of two witnesses or one witness and other corroborating circumstances.

Sec. 13444-32 GC.

In the case of Second National Bank of Sandusky v. Becker et al, 62 Oh St 289, paragraph 2 of the syllabus reads as follows:

“2. Section 5556 of the Revised Statutes and the provisions therein referred to relating to proceedings in contempt must be so construed and restrained in their operation as to avoid conflict with the inhibitions of the constitution and, insofar as they are in derogation of personal liberty, should receive a strict construction.”

It must further be considered that for the protection of the public the penalty upon conviction of the crime of perjury being a felony can result in confinement in the penitentiary and loss of the rights of citizenship until such rights are restored as provided by law. This is not to say that a court should not, where there is “judicial knowledge” of the falsity of the witness’s sworn testimony, exercise the judicial right to impose a penalty in contempt for obstructing the judicial process, when the testimony is material and the purpose of the witness was to obstruct justice.

The author in-the annotation following the case of Riley et al v. Wallace, Judge, etc., 188 Ky. 472, 222 S. W. 1085 (1920) as reported in 11 A. L. R. 337 on page 352 says:

“In cases where the falsity of the testimony is denied, and is a matter merely of inference of opinion, the court, it seems should not weight the conflicting evidence in a contempt proceeding, but should leave the alleged contemner to be punished criminally, if guilty of perjury. In other words, the contemner is entitled to a jury trial if the facts are substantially disputed, and the court cannot take judicial knowledge that the testimony or allegation is false. This appears to be the doctrine sustained by the authorities, although in some of the bankruptcy cases the court seems to have gone a long way in contempt proceedings in weighing conflicting evidence.
“In Ex Parte Hudgings (reported herewith) ante 333 the court said:
“ ‘It is true that there was decided cases which treat perjury, without any other element, as adequate to sustain a punishment for contempt. But the mistake is, we think, evident since it either overlooks or misconceives the essential characteristics of the obstructive tendency underlying the contempt power, or mistakenly attributes a necessarily inherent obstructive effect to false swearing. If the conception were true, it would follow that, when a court entertained the opinion that a witness was testifying untruthfully, the power would result to impose a punishment for contempt with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful; and thus it would come to pass that a potentialty of oppression and wrong would result and the freedom of the citizen when called as a witness in a court would be gravely imperilled.'
“Courts will not ordinarily, when the facts are in dispute it was said in Edwards v. Edwards, (1917) 87 N. J. Eq. 546 100 Atl. 608, punish perjury as a contempt, not because of lack of power, but because sound public policy requires that the offenders should be left to the criminal law.
“But circumstances may arise, it was said in Edwards v. Edwards, (N. J.) supra, which would make it the duty of the court to punish perjury as a contempt, even though it is obliged to weigh evidence, and perjury committed by a petitioner who has induced the court to grant a decree of divorce was said to present a case of this class.”

The case annotated involved a divorce case in which it was claimed a divorce was granted on false testimony of Riley and another witness. Upon motion to vacate the decree, facts came to light that led the trial judge to conclude that the witness had testified falsely. In the third, fourth and fifth paragraphs of the headnotes it is held:

“3. A chancellor cannot proceed against witnesses for contempt in giving false testimony by information and rule unless he knows that such testimony is false.
4. The court may take judicial notice of common knowledge.
5. Judicial knowledge is the cognizance of certain facts which a judge, under rules of legal procedure or otherwise, may properly take or act upon without proof because already known to him or that knowledge which the judge has or is assumed to have, virtue officii.”

In the case of People v. Stone, 181 Ill. Rep. 475, Stone was cited for contempt of court for having testified falsely while under oath in the case of Greenfield v. Stone. The court in reviewing a judgment of guilty said at page 477:

“The substance of the testimony of Stone alleged to be false in the case on trial was that he had paid Greenfield a certain sum of money at a certain time and place. Presumably the court was not there nor in a position to know the actual fact. All it could know in the nature of things was that Stone gave one version of the matter under oath and Greenfield another. It might form a correct conclusion from the entire evidence as to which was telling the truth, but it would not know judicially who had falsified. If false swearing in the presence of the court constitutes direct contempt, then judicial knowledge of its falsity is, in our opinion, indispensable to the right of the court to exercise authority to commit therefor, and there is nothing in the record to disclose that the court knew or could know that the testimony was false. The case will, therefore, be reversed for want of sufficient showing of record to justify entry of the orders referred to.”

In Dangel on Contempt, page 148 parag. 304, the author, after citing authority that contempt may be committed in the presence of the court through wilful and intentional perjury which has the effect of obstructing the court in the performance of its duty (citing Blachenbury v. Comm. 272 Mass. 25, where court spent two weeks in trying the contemnor’s false claim of being a daughter of a decedent whose estate was in process of administration), says:

“For perjury to constitute a direct contempt, the testimony must be of such a character that the judge before whom it is given can know judicially that it is false. Citing: People v. Hille, 192 Ill. App. 139; People v. Stone, supra; Riley v. Wallace, supra; Hegelaw v. State, 24 Oh Ap 103.”

In Corpus Juris Secundum, Vol. 17 p. 31, paragraph 24 in the article on Contempt, the author says in part:

“In determining whether perjury constitutes contempt the court must consider all the surrounding facts and circumstances, including the relation to the court of the one charged as contemnor. Generally, perjury or false swearing by a witness is sufficient to constitute contempt, provided it obstructs the court in the performance of a judicial duty and as hereinafter discussed in Sec. 59, the fact it also constitutes a crime does not affect the court’s power to punish it as contempt, since perjury is an offense against the court as well as the state. However, there is authority to the contrary, and it has been held that perjury, or false swearing by a witness is insufficient to justify a finding of direct contempt unless the court judicially knows that his evidence is false and unless such evidence is pertinent to the issues and obstructive in its effects. While the court will not ordinarily punish perjury as a contempt when the facts are in dispute where the facts are admitted or demonstrated, the court has a clear duty to act and circumstances may arise which make it the duty of the court to act, even though it is obliged to weigh the evidence.”

Citing: People v. Tomlinson, 296 Ill. App. 609; Bowles v. U. S. 44 Fed. 2d, 115; Edwards v. Edwards, 100 A. 108 (N. J. Chan. 1917); Eykelborn v. People, 206 P. 388 (Col. Sup. Ct. 1922); State v. Meese, 200 Wis. 454.

In the case of Hegelaw v. State, supra, this court held in the second paragraph of the syllabus:

“2. That court chooses to believe one side in preference to another, as to issue of fact on ground of greater probability would not justify holding witness supporting losing side guilty of contempt of court which requires patent falsehood not merely one based on opinion of court.”

And in the case of Protective Assoc. v. Roebling, 18 N. P. (N. S.) 385, the court at page 389, referring to a circuit court pronouncement (unreported) says:

“It is the law that a witness cannot be held for contempt where a witness in answer to a question says T don’t remember’ or ‘that’s all I know’ as in this case. Our Circuit Court here has so held and Judge Frank M. Gorman in quoting our circuit court in the case of Morrison and Snodgrass Co. v. Hazen et al 10 N. P. (n. s.) 353 and 361, said:
“ ‘It is true the circuit court has held that Hazen’s answer “I don’t recollect” or “I don’t remember” to questions which it was obvious he could have answered did not constitute contempt.’ ”

See also: 73 A. L. R. 820, note (b).

In the light of the foregoing authorities we are constrained to the conclusion that two of the elements necessary to hold this defendant guilty of contempt committed in the presence of the court by “telling a deliberate falsehood” are missing, that — judicial knowledge of the falsity of the testimony and that it had the effect of obstructing justice. There is, however, sufficient evidence from which the court could conclude that the witness was untruthful or at least evasive.

The claim of error under assignment of error No. 9 must be sustained.

The defendant’s sixth and seventh .claims of error are concerned for the most part with the defendant’s cross-examination. The claims seem to be that such examination was unjust and beyond permissible limits. Cross-examination is permitted first to test the accuracy of a witness’s testimony given in chief and second to test his credibility.

An examination of the record demonstrates that the court held the defendant’s examination well within what is known as accepted practice. The objections particularly stressed by defendant are that he was ordered to answer the question of whether or not he was a member of the Communist Party. The defendant refused to answer the question and the events that followed are claimed to be prejudicial to the defendant’s rights. The defendant refused to answer the question upon claimed constitutional grounds. The court found that such refusal in direct violation of its order to answer the question, was a contempt of court and made an entry finding him guilty of a summary contempt. This finding is the subject of a separate appeal and therefore need not be considered here. But the claim that his rights were thereby prejudiced is here asserted.

Gradually the fundamental principles of the Communist Party have becomes matters of public knowledge. Their social and political theories are vastly different than those understood and supported by the loyal citizens of our democracy. Our fundamental beliefs are held at naught and have no binding effect in directing their social relations. It has been demonstrated times without number in recent years in trials and hearings before constituted public committees and bodies the fact that a member of the Communist Party is not bound by his oath under any circumstances. They feel no binding force to the sanctity of an oath. Judges and courts will not shut their minds to truths that all others can see and understand. It therefore is clearly demonstrated that the question of membership in the Communist Party is competent where there is some' background for it to test the credibility of a witness. We find no merit to the defendant’s claim of error No. 6 and No. 7.

The court finds no merit to all other claimed errors.

For the reasons herein stated the findings and judgment of the trial court are modified as to findings 1 and 2 and also as to 3, 4 and 5, and as thus modified, as hereinbefore stated, said judgments are affirmed. As to the order of contempt as to finding No. 6, defendant’s claim of error is sustained and he is discharged therefrom. Exc. Order see journal.

McNAMEE, J, HURD, J, concur.

McNAMEE, J:

I concur in the judgment which in effect sustains the conviction of the appellant on two separate charges of contempt. While the appellant is not prejudiced by this court’s action in modifying the trial court’s judgment by considering findings 1 and 2 as a single act and in so considering findings 3, 4 and 5. I am of the opinion that this court’s judgment should be:

Judgment affirmed as to trial court’s findings of guilty No. 1 and 5, and reversed as to findings 2, 3, 4 and 6 because of lack of evidence to sustain same.


author: By HORNBECK, J.:

text:
    WATERS, Plaintiff-Appellee, v. WATERS, Defendant-Appellant.
    Ohio Appeals, Second District, Clarke County.
    No. 472.
    Decided November 15, 1949.

      R. Stanley Lucas, Springfield, for plaintiff-appellee.
    William E. Bailey, Springfield, for defendant-appellant.
   OPINION

By HORNBECK, J.:

The appeal on questions of law is directed particularly to an award of alimony to plaintiff in the sum of $1000.00 after a decree of divorce to her based upon the gross neglect of duty of the defendant. The $1000.00 was representative of the value of property of plaintiff found by the trial judge to have been destroyed by the defendant.

Defendant relies upon the .provisions of the statute, §11988 GC, that a judgment for alimony shall not be granted upon the testimony of admissions of a party unsupported by other evidence. Cases construing this section are cited by both parties. Defendant relies upon Brown v. Brown, 50 Abs 90, Geiger v. Geiger, 80 Oh Ap 161, 35 O. O. 490, Detrick v. Detrick, 33 Abs 155, McAllister v. McAllister, 27 Abs 80. Defendant also cites the Geiger case, supra, and Kleinhenz v. Kleinhenz, 22 Abs 568 and Groff v. Groff, 33 Oh Ap 309. There is no difficulty in the law controlling. It is necessary to make an award of alimony that the ground therefor may not be proven upon the testimony of the plaintiff alone but must be corroborated as to any material element essential to the award.

Upon the factual development here, there not only is the direct testimony of the plaintiff to the effect that the defendant on the night of their final separation, while in an intoxicated condition, deliberately drove his automobile into her new Ford automobile damaging it, which is specifically corroborated by another witness, Mrs. Charles Ford who saw the occurrence; but that on the same night the husband, while waiting for a police car to pick him up for disorderly conduct, cut a fur coat of plaintiff into shreds, also cut and practically ruined a raincoat, a spring coat, several new waists, all the suits of plaintiff that were in the bedroom closet, damaged the radio, broke forty-eight pieces of china, cut a chair, damaged the front of a china closet and put holes in the top of at least twenty-four cans of fruit. There was no eye witness to the depredations of defendant at the time that they were committed except the plaintiff but that the wearing apparel and chair were cut, that the dishes were broken and that the tops of the jars holding the fruit were cut into all is corroborated, part of which by a disinterested witness and other parts by daughters of the plaintiff. What, then, is the probability as to who committed these acts? The record abounds with proof that the defendant drank to excess, was many times intoxicated, struck his step-daughter and knocked his wife unconscious, drank openly in his own home.

It also appears that at the conclusion of the difficulty on the night that the parties separated he was taken to jail by the police and afterwards indicted for disorderly conduct. He admits that he cut the fur coat. Is is reasonable to believe that the plaintiff deliberately cut up her own clothes or that she would break up china ware or cut up property belonging to her own daughters, or is it more reasonable to conclude upon all the facts appearing that the defendant was responsible for this destruction of property? It is clearly inferable from the proven facts that he was responsible for the damage. To conclude otherwise would be contrary to common experience. The value of the property destroyed was fixed at $1000.00, which does not seem excessive.

The trial judge who was the trier of the facts, the credibility of the witnesses and the weight to be given their testimony resolved it against the defendant upon the material elements involved. We can not see how he could have done otherwise.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By WATTERS, J.

text:
    CHRISTOPHER, Plaintiff, v. CHRISTOPHER etc., Defendant.
    Common Pleas Court, Summit County.
    No. 154598.
    Decided January 16, 1950.
    Albert F. Schwartz, Akron, for plaintiff.
    Stephen J. Wozniak, Claude Herman, Akron, for defendant.
   OPINION

By WATTERS, J.

On March 17, 1944, this court granted a divorce to Mrs. Violet Christopher from her husband, Hugh Christopher, who was personally served with summons, on the grounds of gross neglect. That was in case No. 145,363 this court.

Now, almost two years later, the defendant there files the instant action (February 6, 1946) asking that said divorce be set aside and the property rights between the parties determined.

Among other things the plaintiff here, Hugh Christopher, claims that the defendant when she married him had a living husband from whom she was never divorced.

He also claims that she told him she wasn’t going through with the divorce, and that they continued to live together until she informed him she was divorced shortly after March 17, 1946.

In the evidence here it was proven and admitted that Mrs. Christopher did have a husband living when she married Christopher, and that she never divorced him, and he is still living, being the defendant,. LeCount, who has filed an answer herein. However the evidence did show that she sued Le-Count for divorce. She paid her attorney seventy-five dollars, and thought that was all there was to it. However the case was dismissed apparently for want of prosecution, and she never was divorced.

This information was not given to the court when the divorce was heard and granted, and in fairness I will say that I believe she thought she was divorced from Mr. LeCount.

My first impression was that her failure to disclose that she was a bigamist constituted a fraud on the court, and that had I known of her conduct I would have dismissed the divorce case. However it appears upon examination of the authorities that even a bigamist is under our divorce statute entitled to come into court and set up such bigamy on her part, and ask for and receive a divorce on that ground alone.

I had always been under the impression that the innocent party only could assert bigamy against the wrongdoer or bigamist as grounds for divorce, but the statute covers both.

See §11979 GC.

(1) “That either party had a husband or wife living at the time of the marriage from which the divorce is sought.”

See 72 Oh Ap, 203, Smith v. Smith.

(3) “Where a marriage ceremony is performed that is void because one of- the parties is married to another at the time, either party may maintain an action for a decree declaring such ceremony a nullity.”

The court holds that the wrongdoer should proceed and ask for divorce and not for annulment. The impression left is that if by annulment, the defendant could set up estoppel, unclean hands and like defenses, but not in a divorce action.

To the same effect see decision of our Court of Appeals, Basile v. Basile, No. 3894, decided January 29, 1948.

Both courts also hold that no property rights can arise out of such a void marriage. In other words neither party could claim alimony, etc., as a result of such void marriage.

The statutory ground above 'and the decisions upholding the right of either to sue for divorce, even the bigamist, are based on public policy.

Therefore had the plaintiff, Mrs. Christopher, in the divorce case, disclosed to the court that she was in fact a bigamist and therefore the marriage in question void, that would not have, in law, given the court any right to refuse the divorce, but on the contrary would have been all the more reason to grant the divorce. So no fraud or misconduct can be predicated on that failure to disclose.

As to the other matters complained of, it is apparent that the plaintiff here and defendant in the divorce case, Hugh Christopher, cannot complain that' the court has divorced him, because on his own allegations and proof the marriage was void ab initio, and the court would have had to grant the divorce even though he contested it. He was lax in not having an attorney and defending when he was personally served, etc. Leaving out the bigamy angle, she was entitled to a divorce for his drinking, etc. But the divorce was for a void marriage, a bigamous marriage really, and no rights of property, rights to alimony or any other rights can arise out of said void marriage. Therefore as to the matter of property the court should not have adjudicated any such rights.

Journal entry may be drawn accordingly. Exceptions to both.


text:
    BOYLE, Treas. etc., Plaintiff-Appellee, v. STROMAN et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21536.
    Decided February 27, 1950.

      Frank T. Cullitan, County Pros., George E. Leddon, Asst. County Pros., Cleveland, for plaintiff-appellee.
    Richard DeNobel, James C. Maher, Cleveland, for defendant-appellant.
    (CONN, PJ, of 6th District; HUNSICKER, J, DOYLE, J, of 9th District sitting by designation in the 8th Appellate District.)
   OPINION

By HUNSICKER, J:

In this appeal on questions of law, the facts disclose that on December 23, 1940, a journal entry was filed with the Clerk of Courts of Cuyahoga County, Ohio, decreeing a foreclosure of certain tax liens against lands of. Walter J. Stroman and James J. Laughlin, Jr., who had been personally summoned in such action. This decree contained therein the following paragraph;

“It is further ordered that upon the sale of the within described premises and confirmation thereof,' such defendants who have failed to file answers or other pleadings thereto, together with such who have right of dower although not a party to this action, shall be forever barred from asserting any right, title or interest therein.”

No order of sale was ever issued to sell such land pursuant to this decree.

James C. Maher purchased the interest of Walter J. Stro-man in 1947 and in February, 1948, filed in behalf of himself and James J. Laughlin, Jr., a petition to vacate the decree of tax foreclosure. Demurrers were filed thereto by the county authorities and the City of Parma, which demurrers were sustained. No further action on such petition to vacate was taken.

On May 14, 1948, James C. Maher filed a motion to modify the decree of December 23, 1940, seeking to establish his priority over certain special assessments liens on which the tax foreclosure in part was based and seeking other changes in the decree.

Upon motion of the county authorities and the City of Parma the motion to modify was ordered stricken from the files. It is from such order to strike from the files the motion to modify the decree of December 23, 1940, that James C. Maher prosecutes his appeal to this court.

The claim of James C. Maher is that by the terms of such decree of December 23, 1940, and in particular that paragraph set out above, the court reserved a final determination of the issues until after the sale and confirmation thereof, thereby making it possible for any of the parties to apply for modification as a matter of right.

With this contention we cannot agree. The §11582 GC, defines a judgment as follows:

“A judgment is the final determination of the rights of parties in action.”

Was the judgment rendered December 23, 1940, of such a character as to constitute a lien upon these lands? The form of the judgment corresponds to a decree in chancery; nothing remained to be done but to execute the judgment and, because of the nature of the action, the parties were permitted to redeem the lands as permitted by law. Sec. 5718 et sequi, GC.

The rights of the parties had been litigated, the action of the court was in no sense interlocutory but was final and conclusive.

The delay of execution provided for in the decree, worked no hardship upon the parties and created no change in the finality of the judgment between the parties.

When we examine the entire journal entry and consider each and every provision thereof, we are impelled to con-elude that the intent of the court was to enter a final judgment and not a conditional or interlocutory order.

The rule concerning the construction of judgments is found in 34 Corpus Juris, Judgments, Sec. 794, page 501, which says:

“The legal operation and effect of a judgment must be ascertained by a construction and interpretation of it. This presents a question of law for the court. Judgments must be construed as a whole, and so as to give effect to every word and part. The entire judgment rule may be looked to for the purpose of interpretation. * * *. The legal effect, rather than the mere languaged used, governs. In cases of ambiguity or doubt, the entire record may be examined and considered * * * » (Emphasis ours.)

The judgment is affirmed. Exc. Order see journal.

CONN, J, DOYLE, J, concur.


author: By THE COURT:

text:
    CARTER, Plaintiff-Appellee, v. CHAPMAN, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2035.
    Decided November 23, 1949.
    James T. Cline, Dayton, for plaintiff-appellee.
    Irvin Carl Delscamp, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming a judgment of the Municipal Court of the City of Dayton on behalf of plaintiff against the defendant in the sum of $175.00 and costs.

Plaintiff’s action was predicated on the claim that as a tenant the defendant had overcharged him the sum of $25.00 per month for a period of seven months in violation of Section 205 (e) Emergency Price Control Act of 1942, as amended. The prayer was for treble damages but the court, finding no willful intention to violate the act, awarded as damages only the amount of the overcharge.

The defense was to the effect that upon the request of the tenant defendant had provided services, furnishings and facilities in addition to those included in the ordinary rental of $75.00 for which the tenant was willing to and agreed to pay the additional sum of $25.00. Upon the issues thus drawn the trier of the facts which were disputed, each party having support for his claim, found for the plaintiff and entered judgment accordingly, which, upon review by the Common Pleas Court, was affirmed.

In this court three errors are assigned and relied upon. First, that, with the exception of the first month’s rental, the payments as they came due each month were made by the plaintiff’s wife and from a joint account in her name and the name of the plaintiff. Defendant therefore contends that there was a failure to join a proper party-plaintiff and that the plaintiff may not recover individually in the form of action here presented. This question was duly raised by motions, the factual development appearing only in the trial of the cause. The second and third assignments of error are to the effect that by the applicable provisions of the Federal Rental Act, if there was a violation thereof, the plaintiff was equally culpable with the defendant and should not be permitted to assert the right of recovery in a court of law.

Upon the first assignment of error, Judge Martin of the Common Pleas Court held that, notwithstanding the fact that the wife signed the checks from a joint account, it reasonably appeared that the primary liability for the rent was that of the husband and that as he was receiving $120.00 per month from the government for rental and sustenance and it not appearing that the wife had any separate means, it was probable that the checks represented the money of plaintiff and were signed by the wife as his agent. The plaintiff made the contract of rental with the defendant. There was no privity of contract between defendant and plaintiff’s wife. We can not hold that the conclusion reached by the reviewing court is without support on this record.

Upon the second and third assignments of error, if the Federal Rental Act was general in terms and accorded the plaintiff no special right to recover overcharges for rental, there would be considerable force in the contention of the appellant but the Emergency Price Control Act specifically reserves the right to institute the proceeding to recover overpayment to the person who has been overcharged. In the light of this specific authorization by the law-making body, it would not be appropriate to defeat such right to invoke a general equitable principle requiring a party to come into the court with clean hands. To so construe the act would be to nullify completely the letter and the spirit of the act.

We find no error assigned well made. The judgment will therefore be affirmed.

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