author: By THE COURT. By THE COURT.

text:
    HOME INSURANCE COMPANY, Plaintiff-Appellant, v. ALBERS SUPER MARKETS, Inc., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4307.
    Decided June 16, 1950.
    Joseph M. Harter, Columbus, for plaintiff-appellant.
    T. J. Duffy, Columbus, Dempsey & Dempsey, Cincinnati, for defendant-appellee.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment against the plaintiff on its petition and for $617.91 with costs in favor of defendant on its cross-petition.

Upon issues joined a jury was impaneled and sworn and the testimony of the parties offered. At the conclusion of the case each party moved for a directed verdict whereupon the trial judge discharged the jury and made his finding as carried into the judgment heretofore stated. In entering the judgment the trial judge prepared an extended written decision of which we have had the advantage.

The plaintiff’s cause of action was based upon an account in the amount of $5472.72 for insurance policies and contracts issued by plaintiff to the defendant as shown by itemized statement, Exhibit A, attached to the petition. Exhibit A is based upon computation of premium due on Policy No. 1331 issued by plaintiff to defendant from May 23, 1945, to February 13, 1946, at the rate stated in the policy with a credit because of adjustment of values, as provided in Policy No. 3429 theretofore issued by the plaintiff to the defendant, in the amount of $1890.24, leaving the balance sued upon.

The defendant, by its answer, denied any indebtedness to the plaintiff and denied the correctness of Exhibit A attached to the petition. By its cross-petition it set up what it claimed was the true contract between the paries respecting insurance to be issued by the plaintiff upon certain property of the defendant described in the policies and averred particularly, that the insurance for fire and extended coverage on contents of all locations of the defendant described in the policies was to be written on a three year basis commencing May 23, 1944, at a rate not to exceed $0.40 per $100.00 of insurance. It then sets out by itemization its computation of the amounts due plaintiff and the credits to which the defendant was entitled showing a balance of overpaid premium due from the plaintiff to the defendant in the sum of $1664.15 for which it was averred demand had been made and refused and the prayer was for that amount with interest.

The plaintiff by its reply denied generally the averments of the answer of the defendant and answered at length to the cross-petition and prayed for judgment as in the original petition. The trial judge found with the defendant as to material issues joined except as to the basis of computation of premium due the plaintiff which he held should be figured on an annual basis without reduction.

We have read this record together with the extensive and complete briefs of the parties. Assignment of error No. 1,

“The ‘Parol Evidence Rule’ Bars all Evidence of Parol Negotiations Tending to Vary or Contradict the Terms of the Written Policy.”

(A) The defendant-appellee, Albers Super Markets, Inc., Became Bound by the Policy’s Terms when it Failed to Reject Such Policy.

(Bj The Polipy Stipulates That it May Be Modified Only by a Writing Added to it and that Was not Done Here.

Upon our theory of the law of this case, it is not necessary to discuss either the facts or the law at length in this opinion. In our judgment, the determinative question is whether or not the Parol Evidence Rule should be disregarded and full opportunity accorded to the defendant to offer testimony affecting the rate to be eharged by the plaintiff for the insurance written for the defendant. As we view it, this case comes squarely within the Parol Evidence Rule because the parties had embodied in writing the rate which was to be charged by the plaintiff and required to be paid by the defendant.

The total premium to be paid varied not because of any variation in the rate but because the amount of insurance could not be determined until average valuations were fixed at the end of the policy year upon the monthly report to be made by the insured. See Provisional Amount (1), Limit of Liability (3), Full Reporting (8) clauses, Form 1, Policy No. 3429. The plaintiff company had the full right to issue the policy No. 1331, to establish the rate and to state it in the policy. This is likewise true of the earlier policy No. 3429. If the rate, so fixed, did not meet the approval of the defendant it had full right by the terms of the policy to repudiate it and cancel it and this action should have been taken unequivocally. It threatened to do this but did not legally consummate its threat. The extended controversy, as to the rate to be charged, and if it was to be retroactive to the date when the first policy was written, was merged into the express terms as carried into the policy. To permit evidence the sole purpose of which is to vary these express terms is in violation of the Parol Evidence Rule and not admissible. This was an action at law and not in equity and there was no prayer for reformation of either of the policies. Blosser v. Enderlin, 113 Oh St 121; Insurance Co. v. Titus, 82 Oh St 161; Independent Directory Corp. v. Vandenbrock, etc., No. 2049, Montgomery County, unreported, January 5, 1950.

Assignment of error No. 2:

“There was a failure of proof on the part of the defendantappellee that any representative of the Home Insurance Co had power, as an agent to make the agreement as to the rate of premium for which Albers Super Markets, Inc., contended and which the trial court found was made.”

This assignment is not decisive because, admitting the authority of the agents of the plaintiff to change the rate, it is not established that it was done pursuant to the controlling waiver provisions of the policy. Line 50.

Although it is not necessary to this opinion we think counsel should have the advantage of our opinion that, if we are in error in our conclusion as to assignments of error Nos. 1 and 2, we would support the judgment in the trial court in every particular.

Assignment of error No. 3. It is urged by the plaintiff that to enforce the judgment here under review would cause the parties, and particularly the plaintiff, to violate the provisions of §9592-1 to §9592-18 GC, inclusive, in that it would be required to fix a rate in its policies in behalf of the defendant which would be a discrimination in its favor and unfair between like risks. These sections of the Code were repealed, effective December 31, 1947. They are only persuasive evidentially that the plaintiff would not enter into a contract of insurance carrying rates in violation thereof but they are not conclusive that it could not, or did not, do so, nor do they control the obligation or the right of the insured to contract as to the rates it will pay for insurance. It is conceded that the Continental Insurance Company contracted with the defendant to, and did, provide insurance at a rate lower than that which plaintiff contends was fixed by the authority of the foregoing statutes. To us it does not clearly appear that the Ohio Inspection Board prior to the issuance of the policies here under consideration had fixed a rate governing the particular type of insurance involved. The plaintiff, mistakenly perhaps, in its earlier negotiations with the defendant, accepted as the true rate that which was fixed in the Continental policy and which it assumed had been promulgated by the Interstate Underwriters Board. Assignment of error 3 is not well made.

Assignment of error No. 4 becomes immaterial in view of our decision.

Assignment of error No. 5 is sustained.

The judgment will be reversed and judgment entered for the plaintiff as prayed in its petition and the cause will be remanded.

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

ON APPLICATION FOR REHEARING

No. 4307. Decided August 10, 1950.

By THE COURT.

Submitted on application for rehearing which we have considered. We find nothing in the application which was not given attention in the original opinion. The application will be denied.

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


source: Caselaw Access Project

author: By CROSSLAND, J.

license: Public Domain

text:
    STATE, ex rel. OHIO POWER COMPANY, Plaintiff, v. UTILITY WORKERS UNION OF AMERICA (CIO), Local 138 et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 37913.
    Decided August 30, 1951.

      V. E. Johnson, Zanesville, for plaintiff.
    Ralph G. Marshall, Zanesville, for defendants.
   JOURNAL ENTRY OF FINDING AND JUDGMENT

By CROSSLAND, J.

The Charges of Contempt and the evidence relating thereto as contained in the evidence herein from July 25, 26 and 27, 1951, and upon the additional evidence received August 28, 1951, specifically involve the question and issue of disobedience of a lawful order of this court, to-wit, the Restraining Order or Temporary Injunction of July 22, 1951, reaffirmed July 31, 1951, and amended and supplemented August 8, 1951.

At this time the court will not reconsider its willingness in its Memorandum Opinion and Journal Entry of July 31, 1951, not to proceed further against individual members of the' Union which the July evidence, incorporated as part of the record of August 28, 1951, proved acted contrary to its order of July 22, 1951, for the reason that it is not clearly and convincingly established that any such named and identified individual defendant was a person identified as separately involved individually in any specific subsequent violation. The court is not disposed to assume that individual defendants not originally cited for contempt immediately following the July hearings have since actively participated individually in contempt of the court’s order so as to now merit consideration of punishment not formerly contemplated, in the absence of specific proof of subsequent individual violations established by clear and convincing evidence.

However, the foregoing is not to say that individual defendants are thereby absolved from liability as members of the Union for that organization’s accountability under the Temporary Injunction as amended and supplemented. On the contrary, the court does take into account, in connection with subsequent evidence, the fact that those guilty of early violations were and are members and agents of the Union and that the Union as such should not and can not evade or escape responsibility for their acts and conduct as alluded to in the said Memorandum Opinion and Journal Entry of July 31, 1951.

The court considers and determines that when member acts of proven disobedience such as occurred in ■

1. admittedly following the occupants of a visiting automobile from Duncan Falls to Zanesville, over Zanesville streets and three miles west of Zanesville, driving alongside long enough for words to ensue, cutting around and returning past from west of Zanesville, with ample opportunity for further words, with which admitted facts and circumstances the testimony of the Newark witnesses reasonably accords, while that of the Union members is not only ricidulously incredible but patently false;

2. admittedly following and allegedly driving across the path of a coal truck whose driver obviously was badly scared by what was done and said when accosted at the Ohio Power Company plant entrance and upon the premises of the Bruns Coal Company;

3. admittedly driving across the main plant entrance so as to impede an incoming coal truck, explained as merely turning around, but with no other valid reason for being there so as to be required to turn around in the entrance to company premises, or of any occasion to do so when plenty of public highway in three directions was a few feet west thereof;

4. admittedly walking in past a full complement of four pickets for unwarranted access to railroad right of way at a time and place where railroad employes were engaged in serving their employer’s business with the relator, unsatisfactorily explained as part of an uninvited, self-assumed investigation of an alleged prior day’s stoning incident; the court repeats, when such acts and conduct occurred, among others, several days after the making, issuance, service and private and public communication of the court’s order and, in fact, during the very progress of the court’s first hearings, on the part of members, some of whom were then filling and exercising positions of Union responsibility in the course and conduct of the strike, plus an evident willingness, if not desire, of the chosen and accepted leadership to accept the fruits of such efforts as well as to disavow in behalf of such members any influence or implication of their disobedience to the existing Order, then it is quite clear, positive and convincing to the court that the Union thereby ratified and approved, if it had not already previously authorized, the acts, deeds and conduct of such members as its own, in addition to the Union’s initial responsibility to the court to undertake to prevent and not to permit disobedience of the Restraining Order by any of the membership.

Proceeding to the evidence adduced at Tuesday’s hearing, it is uncontradicted that a number of acts repugnant and contrary to this court’s Temporary Injunction occurred during the night of August 6, and early morning of August 7, 1951, in the immediate or proximate vicinity of Union pickets, none of whom testified and whose names and identity were not disclosed by any Union officer or principal agent nor acknowledged or admitted by any Union member.

Astoundingly, there was not a single syllable of testimony offered by any Union officer or member relative to the name or knowledge of a single Union picket for the three days and nights of August 5, 6 and 7, regarding the events and occurrences charged and complained of by plaintiff.

It is an inescapable inference from complete unwillingness of any picket or Union or picket officer to testify as to the occurrences and events which precipitated the ordered elimination of all picketing that they could not testify truthfully without implicating their Union or its members and perhaps themselves.

In any event, it is utterly incomprehensible and wholly unbelieveable to the court that not one of approximately a half hundred pickets presumably on duty at various points surrounding the well lighted company premises during the hours of that particular night, according to other night picketing schedules, saw or knew nothing whatever, of time consuming sabotage in their immediate vicinity.

The court can only conclude, not only from clear, positive and convincing evidence, but beyond a reasonable doubt, that such related and coordinated activities were planned and executed either by or for and in behalf of the Union, whose members and agents in substantial number admittedly were present nearby throughout the night.

Would these members of the Union have stood blindly and deafly in dumb silence if uninvited or unacceptable persons were “planting” evidence for use against them?

Fear-inspiring communication severances, property damaging transportation hindrances, body endangering rail track tampering, were known to and permitted by Union pickets as surely as night follows day, regardless of the identity of the perpetrators. How could anyone with an iota of intelligence conclude otherwise?

Piecing together the early “thrusts” days following issuance of the original restraining order, Union unwillingness to disbelieve or repudiate the incredibly preposterous explanations of established and evident violations, the well coordinated and calculated conduct of the night of August 6th and 7th, with total absence of any explanation whatever by Union officers or members, and the wilfull persistence in attempting to maintain picketing after it was ordered terminated, and there is an unmistakable pattern of consistent and concerted disobedience by the Union of the court’s Temporary Restraining Order and Injunction, regardless of the number of participating or contributing members.

The complained of occurrences of August 23rd and 24th, as with the cut telephone lines into the three homes, all away from the company plant premises, while understandingly attributable in logical aspect to the above pattern of Union activities, did not occur within the proven presence or immediate nearness of Union members, nor is there other evidence directly, circumstantially or inferentially sufficient to arrive at a finding adverse to the Union by clear and convincing evidence, relative thereto.

As a matter of tempering its judgment, in finding The Utility Workers Union of America (CIO), Local 138, guilty as aforesaid, in contempt of this court’s Temporary Restraining Order and Injunction herein, as charged, the court is disposed to treat the various matters and specifications up to August 8, 1951, as a single aggregate violation by the Union, excepting therefrom the continued picketing in its behalf since August 8, 1951, which is deemed a further and additional deliberately defiant disobedience of the August 8th amendment, an integral part of the law of this case since said date, in that all picketing and not merely all Union picketing was then and thereby ordered eliminated.

It is therefore ordered and adjudged that said The Utility Workers Union of America (CIO), Local 138, pay a fine of Five Hundred Dollars ($500.00) and the costs of this prosecution, taxed at $25.50, for its said contempt preceding August 8, 1951, and a fine of Five Hundred Dollars ($500.00) for its said contempt thereafter, payment of said latter fine being suspended conditional upon immediate, full and continuous compliance with said no picketing provision of said Injunction as amended and supplemented August 8, 1951, and also expressly conditioned upon an immediate apology to the court at this time in open court for said latter contempt, to be offered in behalf of the Union by Joseph Hartman, Robert Baker, W. A. Comer, A. B. Ferguson and Paul Lingo, together with their personal assurances of the fullfillment of the first named condition.

Payment of each said judgment of Five Hundred Dollars ($500.00) and said costs of $25.50 is now due unless effective suspension of said one fine now begins and is of record in this case. Unless payment of said total sum of $1,025.50 is received by the Clerk of this Court this date, subject only to the credit of $500.00 conditioned expressly as aforesaid, the relator herein, plaintiff in the original action, The Ohio Power Company, is hereby ordered to withhold from dues deductions otherwise payable to or for said Union said sum of $1025.50 or so much thereof as remains unsatisfied or unpaid by the Union, out of the first monies so owing the Union and otherwise payable to it by said plaintiff.

Bond for appeal to stay execution fixed at the sum of $2000.00.

Exceptions hereto granted to the said Union.


author: By HORNBECK, J.

text:
    DONEY, Plaintiff-Appellee, v. HARRISON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4378.
    Decided March 9, 1950.
    Brownfield, Schwenker & Teaford, Columbus, for plaintiffappellee.
    Samuel L. Black, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming a judgment of the Municipal Court for the plaintiff and granting to her restitution of certain premises rented by the defendant-appellant.

As a part of the plaintiff’s case, she introduced a certificate of the Area Rent Director of the office of the Housing Expeditor authorizing her to pursue her remedies for the removal or the eviction of the tenant upon the condition that' the premises were to be altered and remodeled.

The appellant, in his brief, states that there is but one question presented upon the record, viz., the refusal of the trial judge to permit the introduction of testimony as to the good faith of the plaintiff in stating the condition upon which she secured the certificate from the Housing Expeditor.

An examination of the bill of exceptions discloses that the question sought to be made was not raised. Practically all of the testimony proffered by the defendant was received by the trial judge and the bill discloses no proffer of any testimony tending to show want of good faith and no specific action of the trial judge respecting such proffer. It may be that the desire of the defendant to introduce the testimony respecting good faith was made known to the trial judge and a ruling had upon it. But if such is the situation, it does not appear in the bill.

The judgment then, must be affirmed primarily upon the proposition that the question sought to be urged in this Court is not exemplified by the record. We might further observe, although it becomes purely obiter, that if the question briefed was before us we would be required to support the action of the tidal judge in refusing the testimony upon the authority of Hile v. Besecker, 82 Oh Ap 301, 50 Abs, 233, 38 O. O. 11, and Jackson v. Richards, et al., 47 Abs 631, which latter case was cited by the trial judge in support of his findings and judgment.

The judgment of the Common Pleas Court will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By PHILLIPS, PJ.

text:
    DeSEIFE, Plaintiff-Appellee, v. FREEDOM-VALVOLINE OIL COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Belmont County.
    No. 862.
    Decided December 9, 1950.

      Waddell & Furbee, St. Clairsville, for plaintiff-appellee.
    Thornburg & Lewis, St. Clairsville, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

In this opinion the parties will be referred to as they stood in the court of common pleas.

In his opinion written in support of his finding made for plaintiff in the case we review, to which opinion the parties are respectfully referred, the trial judge set forth the facts sufficiently fully to understand the questions presented to us for our consideration and determination by defendant’s appeal on questions of law. We quote the facts from his opinion as follows:—

“On July 5, 1946, in case numbered 10,836, this Court ordered, adjudged, and decreed the premises described in plaintiff’s petition duly forfeited to the State of Ohio for the non-payment of taxes duly assessed against the same; that in pursuance of said order, the Auditor of this County, after due proceedings in accordance with law, offered said premises for sale at public auction at the Court House of this County; that at said time and place the plaintiff offered the highest bid for said real estate, and the County Auditor then and there sold the same to him, executing and delivering to plaintiff a certificate of sale therefor; thereafter on February 4, 1948. the County Auditor duly executed and delivered to plaintiff an auditor’s deed for said premises, which deed was filed for record with the Recorder of this County and duly recorded on February 16, 1948, in volume 375, at page 289 of the Records of Deeds; that the defendant filed no objection to said proceedings of forfeiture and sale and did not and has not at anytime attacked the legality of said proceedings; that on September 24, 1947, the defendant in case numbered 11,744, against parties other than the plaintiff, sought foreclosure of a mortgage on said real estate; that on April 12, 1948, the plaintiff herein was made a party defendant, but no further pleading was filed by the defendant in said action and no claim is made therein against the said Joe DeSeife, he simply being made a party defendant, and advised by summons that the plaintiff seeks equitable relief; that the defendant did not appear in said action by answer, demurrer or other pleading; neither was the county auditor or treasurer made parties defendant; that on September 2, 1948, a finding was made in said action numbered 11,744, foreclosing the defendant’s mortgage against the defendants and rendering personal judgment against certain of said defendants for money, further finding that plaintiff, Joe DeSeife, was in default for answer, barring him from setting up any further claim and quieting the title of this defendant against any claim of plaintiff as to said real estate; that neither error nor appeal was prosecuted from said finding and that no action has ever been filed by the defendant herein or other person in an attempt to set aside the sale under the forfeiture provisions of the Statute; that thereafter on the fifteenth day of November, 1948, pursuant to said order of foreclosure and sale in case numbered 11,744, the sheriff offered said premises for sale at public auction; that said Joe De-Seife was present at said sale and bid upon said premises, and the defendant, Freedom-Valvoline Oil Company, was present and made the highest bid and was declared thereby the purchaser thereof, which sale was, on December 10, 1948, duly confirmed and a deed made to the defendant by the sheriff. Previous to this time, on or about the month of May, 1948, the defendant, Freedom Valvoline Oil Company, offered to said Joe DeSeife the sum of $15.00 for said premises as and for reimbursement for the amount paid by him at said tax sale, which was refused.

“The files and records of this Court in said case numbered 10,836 being the forfeited land sale proceedings, and the file and record of this court in case numbered 11,744, being the foreclosure proceedings, was offered and admitted in evidence as mutual exhibits of the parties and said auditor’s deed to Joe DeSeife for said premises was offered and admitted as plaintiff’s exhibit, together with the record of the deed from the sheriff to the defendant.”

The questions presented to us by defendant’s assignments of error are whether the finding and judgment of the trial court that plaintiff is the legal owner of the real estate in question “was sustainéd by sufficient evidence,” and was in accordance with “law and the facts governing” his decision; and whether “the judgment and order of the court should have been for the appellant and against the appellee”; and finally whether, as defendant contends, plaintiff was estopped to contest defendant’s title.

Sec. 5762 GC, as amended in 1943, extinguished all previous title to the forfeited lands by the sale thereof and invested plaintiff with a new and perfect title thereto, free from all liens and incumbrances, save and except certain taxes and pre-existing equitable servitudes. See Gwynne v. Niswanger, 20 Ohio 556; Jones v. Devore, 8 Oh St 430; Kahle v. Nisley, 74 Oh St 328.

Sec. 5766 GC, provides that from the date of his purchase plaintiff, the purchaser of the forfeited lands in question, shall be deemed to be the assignee of the State of Ohio. Reading this section, as it must be read in connection with 5744 GC, and the court decisions on the subject matter thereof, the conclusion is inescapable that the legislature and the courts have said that the forfeited sale of the land in question created a new and perfect title in plaintiff, free from all liens and incumbrances. See Check v. Schultz, 132 Oh St 353. That case holds that a buyer’s title is absolute if the proceedings under which the sale was made was complied with legally (as they were in the case we review, and which have not been attacked), and no constitutional rights of the owner were abridged.

There is ample authority for the statement that a forfeited sale destroys a mortgage. See Beach v. Thrift Investment Company, 20 O. O. 12; Collister v. Kovanda, 51 Oh Ap 43; Dubin v. Greenwood, 139 Oh St 546.

These cases support the legislative fiat contained in §5672 GC, and read in connection therewith are conclusive as to the issues presented in the case we review. See State ex rel Squire, Supt. of Banks v. Knapp, et al, 53 Abs 457; Security Trust Co. v. Root, 72 Oh St 535.

In his opinion the trial judge said:—

“It is further apparent that the Judge or Judges who approved the various entries were not fully informed as to the situation.

“* * * the court is of the opinion that the plaintiff has not been estopped by reason of his own ignorance, even though he paid no attention to the summons served upon him, there being no claim made in the pleadings that he had or claimed any interest in the real estate, there would seem to be nothing for him to answer. So far as this property is concerned, the mortgage was dead, and the court sees no reason why the plaintiff herein should be compelled to attend its funeral.

“Holding as we do, and despite the foreclosure proceedings of a dead mortgage, which could not be foreclosed because dead, the defendant acquired no right, title or interest in this real estate, and accordingly the plaintiffs title is quieted, as prayed for in the petition.”

It is claimed by defendant that the foreclosure proceeding, which was brought within one year from the date of the tax deed, -is such an objection to the validity thereof as prevented such deed from constituting an absolute title thereto; and that the decree in foreclosure invalidated such deed because plaintiff did not attempt to set up or protect his title.

The mortgage foreclosure proceeding was not an action testing the validity of the tax title for irregularity, informality, or omission in the tax foreclosure or forfeiture proceedings. See §5762 GC. No allegation was made in the mortgage foreclosure action challenging the validity of plaintiff’s tax title, and therefore he had nothing to answer.

For the reasons stated supra we find no error in the finding of the trial judge in any of the respects urged by defendant.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By MILLER, PJ:

text:
    RUBIN, Plaintiff-Appellee, v. WASSER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2129.
    Decided December 15, 1950.
    William T. Poliak, Francis S. McDaniel, Dayton, for plaintiff-appellee.
    Pickrel, Schaeffer & Ebeling, Dayton, for defendant-appellant.
   OPINION

By MILLER, PJ:

This matter comes before this Court on appeal from the judgment of the Common Pleas Court affirming that of the Municipal Court of Dayton, Ohio. The action was one for damages arising out of a collision between two automobiles at a street intersection. At the close of the plaintiff’s case and again at the conclusion of all of the testimony the defendant moved for a directed verdict for the reason that the plaintiff was guilty of contributory negligence as a matter of law. These motions were both overruled as well as the one filed later for a judgment notwithstanding the verdict. The pertinent testimony on the question presented is that of the plaintiff who was approaching the intersection from left of the defendant. In other words, the defendant was approaching the intersection from the plaintiff’s right and would therefore have had the right of way providing he was approaching it in a lawful manner. The testimony of the plaintiff reveals that he came to the intersection and stopped; that he looked to his right and observed the defendant approaching at a speed of from forty to fifty miles per hour; that at this time the defendant’s automobile was approximately 100 to 150 feet from the intersection; that he then shifted his car into low gear, and entered the intersection at approximately five miles per hour; that he had his car under control and could have stopped in approximately three or four feet; that he observed the defendant approaching all of this time; that he made no effort to stop his own car as he thought he could get safely across the intersection; that when the front one-half of his car had cleared the same the defendant’s bumper struck the right rear panel of his truck causing the injuries complained of. The plaintiff’s testimony is clear that he recognized the speed of the defendant’s car when he first observed it and continued to observe it bearing down on him at the speed of 40 to 50 miles per hour as he was crossing the intersection. On further examination by the Court he also said that he arrived at the defendant’s speed by the skid marks which of course were determined after the collision, but even after making this statement he renewed his prior statement that he determined the speed of the defendant’s car when he first saw it approaching the intersection.

The question presented is whether or not the plaintiff was guilty of contributory negligence as a matter of law which contributed directly to the injuries he received. From the plaintiff’s testimony it is apparent that the defendant was not approaching the intersection in a lawful manner; therefore he lost the preference given to him by §6307-40 GC. This relegated to each of the parties the common law duty to exercise ordinary care for his own safety.

It is our conclusion that the plaintiff did nothing to avoid the collision after he observed the defendant bearing down on him at a high rate of speed. It would appear that for his own safety he should have done either of the following: (1) Stopped his car and permitted the defendant to proceed; or (2) accelerated the speed of his car and thereby crossed ahead of the defendant.

In the case of Kellar v. Miller, 67 Oh Ap 361, this Court held that failure to look effectively to the right would be such contributory negligence as to warrant an instructed verdict. In the case at bar the plaintiff looked effectively but did not act effectively in that he failed to exercise ordinary care for his own safety. He did absolutely nothing to avoid the collision. He merely proceeded across the intersection at a speed of five miles per hour. Looking without acting is of no consequence; hence the mere fact that the plaintiff looked does not negative his own negligence.

In the case of Willard v. Fast, 75 Oh Ap 225, the Court held that the plaintiff was guilty of contributory negligence even though he looked to his right when he was 100 to 125 feet from the intersection, but failed to look again before entering the same and upon the path of an approaching automobile. At page 231 of the Fast case, supra, Judge Sherick says:

“Plaintiff contends that the law does not prescribe the distance within which one must look in order that such looking may be termed effective. However, if this be true, we now hold in a situation of this kind that such looking ought to be within such a distance that an unfavored driver may safely bring this vehicle to a stop before entering the path of an oncoming car approaching from his right. We believe that such a rule is consonant with the purpose of the statutory intersection rules and the servient driver’s own safety.

Again reverting to Morris v. Bloomgren, supra, 154, it is stated therein that:

‘Ordinarily the operator of a vehicle is able to ascertain before he reaches the intersection whether another vehicle is approaching from his right; but, in any event, after entering the intersection he has a further leeway of some distance between the point of entering the intersection and its center for ascertaining such approach before he drives into the path of the vehicle possessing the right of way.’

“That conclusion ought to be equally true, even if the unfavored driver then learns for the first time that the one on his right is approaching in an unlawful manner. To our notion any other rule would promote insecurity at intersections.

“It follows, irrespective of defendant’s negligence or lack of proof thereof, that plaintiff, by his own testimony, failed to exercise due care, that is ordinary care, for his own safety, and that such negligence forbids him relief.”

In the case of Schaefer v. The Cincinnati Street Ry. Co., 75 Oh Ap 288, syllabi 1 and 2 provide:

“1. Where a driver of an automobile stops before entering a street intersection, looks to the right, sees a trolley bus approaching about 400 feet away, but does not know its speed, then proceeds into the intersection a distance of 40 feet into the path of the trolley bus, without again looking and without listening, no case is presented for submission to the jury for damages to such driver resulting from the collision between the vehicles that occurred at the intersection of their paths.

“2. If evidence does not furnish a reasonable basis upon which it can be inferred that the collision probably resulted through defendant’s negligence without any contributory negligence, the defendant’s motion for an instructed verdict is properly sustained.”

In the case of Edegan v. Cincinnati Street Railway Company, 54 Abs 124, the facts disclose that the plaintiff ran across the street in front of a street car which struck her, causing the injuries. The lower court overruled the motion for a directed verdict but the Court of Appeals for Hamilton County held:

“Where it appears from the evidence that the decedent ran across the street, directly into the path of a rapidly moving streetcar, which, if she used her faculties, she must have seen, and is struck by such car and her body hurled a considerable distance, a court is compelled to find that the decedent was guilty of negligence, and that such negligence was the proximate cause of her death.”

At page 127 the Court said:

“Some contention is made that the operator of the streetcar was guilty of a failure to exercise due care in its operation. Where, however, all the evidence produced at the trial by the parties presents no factual issue as to negligence of the plaintiff’s decedent, and requires the legal conclusion that her negligence was the proximate cause of her death, or even a proximate cause of such death, the negligence of the defendant becomes an immaterial issue, since any negligence of the decedent which proximately contributes to her death prevents recovery by the plaintiff, and requires an instructed verdict for the defendant.”

The case of Williams v. Judd, 23 Abs 450, decided by the First District Court of Appeals, appears to be on all fours with the case at bar. Here the plaintiff was crossing from the left and was struck by the car approaching from the right. On page 454 the Court says:

“However, assuming that there is substantial evidence of defendant’s negligence and that it had a direct causal relation to the collision, the appellee’s position is not improved because it clearly appears from his own testimony that his negligence directly contributed to the collision. Before he entered the intersection, he saw the automobile approaching on his right. At that time, it was less than 200 feet away, probably no more than 150 feet away. Knowing this, he proceeded into the intersection and into the path it would travel and along which it was approaching. Attributing to the appellant the highest speed the evidence suggests — 45 miles an hour — the appellee could have avoided this collision by stopping or changing his speed before entering the appellant’s path. He failed to do anything toward avoiding this collision at the time and place when circumspection and care would have availed. Such failure clearly constitutes a breach of his statutory duty and his common law duty to exercise reasonable care and was such contributory negligence as precluded a recovery.”

See also Winkler v. City of Columbus, 149 Oh St 39; New York Central Railroad Company v. Stevens, 126 Oh St 395.

For the foregoing reasons it is our opinion that the trial court erred in overruling the defendant’s various motions for a directed verdict, for a judgment notwithstanding the verdict, and also in overruling the motion for a new trial. The judgment of the Common Pleas Court and the Municipal Court is reversed, the petition is dismissed and final judgment is entered for the defendant.

HORNBECK and WISEMAN, JJ, concur.


author: By. WATTERS, J.

text:
    GADOSIK, Plaintiff, v. KOLAR, Defendants.
    Common Pleas Court, Summit County.
    No. 169095.
    Decided September 15, 1950.
    Foust & Holden, Paul E. Weimer, Akron, for plaintiff.
    Edward Raab, Akron, for defendants.
   OPINION

By. WATTERS, J.

Plaintiff owns a farm adjoining that of the defendant, Steve Kolar. The defendant, Andrew Kolar, is Steve’s brother, and at the times in question here, particularly the year 1948 and now, raised a large number of geese on Steve’s farm, where both defendants live. The geese are raised by Andrew as a business, and number as high as five hundred or more.

The evidence shows that the defendant Steve, who owns the farm, has no connection with the geese. They are owned by Andrew and are under his control.

During the year 1948 Andrew’s geese went upon the plaintiff’s lands adjoining, and destroyed large quantities of wheat and corn.

In the court’s opinion the plaintiff has not proven by a preponderance of the evidence any cause of action against Steve Kolar, and he is dismissed from this action with exceptions to the plaintiff.

In the court’s opinion the evidence shows that there was no partition fence in the sense contemplated by §5908 GC, which I will cite and discuss later.

Furthermore, in the court’s opinion this statute (§5908 GC) would not apply as between plaintiff and Andrew Kolar, as Andrew Kolar does not own the adjoining farm.

In the court’s opinion, from the preponderance of the evidence, the defendant, Andrew Kolar, was guilty of negligence in allowing his geese to go upon plaintiff’s lands and (proximately) destroying his wheat and corn, and there is no evidence of contributory negligence on the part of plaintiff.

Sec. 5908 GC is as follows:

“The owners of adjoining lands shall build, keep up and maintain in good repair in equal shares all partition fences between them, unless otherwise agreed upon by them in writing and witnessed by two persons. The fact that any land or tract of land is wholly unenclosed or is not used, adapted or intended by its owner for use for agricultural purposes shall not excuse the owner thereof from the obligations imposed by this chapter on him as an adjoining owner. This chapter shall not apply to the enclosure of lots in municipal corporations or of lands laid out into lots outside of municipal corporations, or affect any provision of law relating to fences required to be constructed by persons or corporations owning, controlling or managing a railroad.”

Sec. 5910 GC is as follows:

“Duty of township trustees in controversies over partition fences. When a person neglects to build or repair a partition fence, or the portion thereof which he is required to build or maintain, the aggrieved person may complain to the trustees of the township in which such land or fence is located. Such trustees, after not less than ten days’ written notice to all adjoining land owners of the time and place of meeting, shall view the fence or premises where such fence is to be built, and assign, in writing, to each person his equal share thereof, to be constructed or kept in repair by him so as to be good and substantial.”

Sec. 5919 GC, in the chapter covering Fences provides:

“In this chapter,.the term ‘owner’ shall apply to the owner of such land in fee simple, of estates for life or of rights of way * *

So although the plaintiff would come under §5908 GC, etc. it surely would not apply to the defendant, Andrew Kolar, whose relationship to the owner, Steve Kolar, was really that of licensee.

Further, as I stated before, there was no partition fence in the sense contemplated by these statutes at the time in question. It was not until after the damage was done that the matter was brought before the township trustees who ordered each owner to build and maintain a partition fence, which has been done, and which the evidence shows has eliminated the difficulty.

In the case of Phelps v. Cousins, 29 Oh St, 135, is the following language in substance:

“If the owner of a partition fence fails to keep the part which has been assigned to him in repair, and by reason of such failure, stock from an adjacent enclosure enters upon his land and does damage there, such owner cannot recover for such damage.”

This clearly was a case where there was a partition fence in existence, and the duty to keep up a certain part had been assigned to each owner by oral agreement between them.

The same was true in King v. Nicholson, 31 O. D. (Nisi Prius) 120, cited by the defendants. There there was an oral agreement between the adjacent owners to keep the partition fence in repair jointly’ or in common, although no particular half was assigned to each owner.

In that case plaintiff’s cattle went through a defect in the joint fence and ate spoiled matter on the defendant’s land. The court held that plaintiff could not recover because it was plaintiff’s duty to keep up the fence jointly with the defendant.

Attention is called also to §5809 GC in substance as follows:

“A person * * * being the owner * * * of horses, mules, cattle, sheep, goats, swine, dogs or geese, shall not permit them to run at large in the public road * * *, or upon uninclosed land * *

Sec. 5816 GC is in substance as follows:

“The owner * * * of an animal described in §5809 GC, who permits it to run at large in violation thereof, shall be liable for all damages caused by such animal upon the premises of another, without reference to the fence which may endose such premises * *

See also Drew v. Gross, 112 Oh St 485, and also Pflugfelder v. Convent, etc., 55 Oh Ap 158.

It is interesting to note that the above cases were not brought under any of the statutes we have discussed herein, as to fences or animals, but they were both brought as ordinary negligence cases — the failure to exercise ordinary care. Both stressed the fact that owners of animals are presumed to know and to anticipate the probable and usual conduct of their animals.

Although the situation is apparently remedied now, the plaintiff is entitled to a permanent injunction against the defendant, Andrew Kolar, to keep his geese off plaintiff’s lands.

The claim for damage to clover will not be considered as not pleaded.

The court finds that as a proximate result of the continued negligence of the defendant, Andrew Kolar, plaintiff’s wheat and corn damage was Five Hundred Dollars, for which amount plaintiff shall have judgment against said defendant only, with exceptions to both sides.


author: By THE COURT.

text:
    GREYHOUND CORPORATION, Plaintiff-Appellee, v. COLEMAN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4551.
    Decided February 19, 1951.
    Knepper, White & Dempsey, Columbus, for appellee.
    Russ Both well, John H. Baker, Columbus, for appellant.
   OPINION

By THE COURT.

This is a motion to dismiss the appeal for the reason that the Court has no jurisdiction of the subject of the appeal.

The record reveals that the order appealed from is one overruling a demurrer to the petition. Ths is not a final order from which an appeal may be prosecuted. National Guarantee & Finance Co. v. Russell, 25 Abs 483; Kelly v. Kelly, 74 Oh Ap 225. The appellant cites the case of Spencer v. Miller, 52 Abs 347, but in this case the demurrer was sustained and the action dismissed. The appeal was from the order dismissing the action and not from the ruling on the demurrer. The motion to dismiss will be sustained.

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


author: By THOMPSON, J.:

text:
    CROSSEN et, Plaintiffs-Appellees, v. DUFFY et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 689.
    Decided June 11, 1951.

      Tobin & Tobin, Lisbon, for plaintiff-appellees.
    Brookes, Lynch & McDonald, East Liverpool, for defendants-appellants.
    (SKEEL, PJ, HURD, J, THOMPSON, J, of the 8th District sitting by designation in the 7th District.)
   OPINION

By THOMPSON, J.:

This is the third case to come to this court growing out of various internal controversies of the National Brotherhood of Operative Potters, an Ohio corporation. This case is being decided solely on the facts of this action, but the explanation of the instant case becomes clearer if we have in mind the other litigation.

The first case to reach this court was that of Finlay et al v. Duffy et al, 57 Abs 442, decided by this Court on May 19, 1950. In the Finlay case, the plaintiffs were certain members of the National Brotherhood of Operative Potters and the defendants were national officers of that Union. The membership of the Union comprises operative potters belonging to separate local unions scattered throughout the United States and Canada. These local unions, some 114 in number, with a local membership of more than 28,000 members, are affiliated with and under the jurisdiction of the National Brotherhood of Operative Potters. In the Finlay case, the plaintiff members had sought an injunction against certain salary increases of the national officers, claiming that the increases were unauthorized and in violation of the Constitution of the National Union and of its subordinate locals.

The petition was filed in the Common Pleas Court of Columbiana County and that court granted an injunction against the salary increases but this Court, on appeal on law and fact, reversed the trial court, holding that this Court would not substitute its judgment for that of those authorized to determine questions of policy and internal management of a voluntary association. This Court also stated, in reaching its decision, that the right to seek the power of injunctive relief in a court of equity cannot be invoked unless and until it is made to appear that a property right has been invaded for which there is no other adequate remedy afforded. The increased salary for the national officers had been voted by the Executive Board in early 1947. In May, 1947, a spirited campaign developed within the Union on the part of individual members (Finlay, Whippier et al) campaigning as a slate opposed to the then officers of the National Brotherhood. These members failed of nomination and the officers who for many years had guided the National Brotherhood policies were reelected at the Annual Convention in June, 1947. In that National Convention a resolution was introduced and passed by the delegates amending the Constitution. The language of the resolution was as follows:

“REPORT OF LAW COMMITTEE RECOMMENDATION

“Whereas, The Law Committee has been instructed to offer a solution for unethical tactics and conduct in the past election; and

“Whereas, The dignity of our organization has been lowered; therefore be it

“Resolved, That any member contesting for national office shall conduct himself in a proper manner; and be it further

“Resolved, That any member accused of making false accusations, misrepresentations, untruths or using degrading literature shall be called before the convention following said election, by a majority vote thereof.

“The succeeding convention could try accused member or members or elect a body of five members to try said accused, or set up a special court with power to impose a reprimand, fine, suspension or expulsion.

“Committee recommends adoption.

“Motion by John Thorne that we concur in the report of the committee. Motion carried unanimously.”

Defendants’ Exhibit 1 (Page 21)

Subsequently, in February of 1948, suit in the Common Pleas Court of Columbiana County was filed by Finlay and Whippier to enjoin the officers of the National Brotherhood of Operative Potters from receiving the salaries voted by the Executive Board. The Common Pleas Court granted the injunction in June, 1948. In July, 1948, the National Convention passed a resolution requiring exhaustion of intra-union remedies before resorting to court action to correct intraunion grievances. Subsequently, in the Autumn of 1948, the plaintiffs in the original court action in Common Pleas Court returned to that Court by supplemental petition and presented certain facts based on claims of newly discovered evidence, indicating fraudulent voting by local unions in connection with proposed salary increases to national officers. The Common Pleas Court rendered an opinion in April, 1949, continuing the injunction against salary increases for the officers and it was this decision that this Court reversed, as previously noted, in 57 Abs 442 (July, 1950). In March, 1949, in accordance with the Constitution of the National Brotherhood, the customary primary elections were held to select the national officers for the ensuing year and in May, 1949, run-off elections were held between the two highest candidates for each office at the primaries. In this May, 1949, election there was a slate known as the “Finlay Slate” opposing the then National Officers which we may refer to as the “Duffy Slate.” The Finlay slate was unsuccessful.

In the contest in May, 1949, certain of the supporters of the Finlay slate had circulated a sheet referred to as the “Green Sheet” which is plaintiffs’ Exhibit 7 in this case. The election campaign at the local union levels was decidedly spirited but the Duffy slate was successful. Subsequent to the 1949 Annual Convention and prior to the Annual National Convention to be held in June, 1950, certain of the candidates for office at the May, 1949 primaries and certain of their supporters who had backed them, and who had circulated what, is referred to as the “Green Sheet” received notices to appear for trial at the National Convention to be held in June, 1950. We shall return to a more specific statement of the facts concerning the action taken at the June, 1950 Convention, but at this point we may summarize the events by saying that the National Convention of 1950 tried and punished certain of the candidates for office at the May, 1949, primary and, also, tried and punished certain of their supporters who admitted that they had either signed or circulated the “Green Sheet” or handbill referred to as Plaintiff’s Exhibit 7.

In August, 1950, Finlay and Whippier and various other candidates for national office at the May, 1949, primary, who had been punished by the National Convention in June, 1950, filed suit in the Common Pleas Court of Columbiana County (No. 37226) asking that Court to set aside their fines and suspensions. At the same time, a separate suit was filed in the same Court (No. 37227) by five members of the Union, the plaintiffs appellees in this action, none of whom were candidates for office at the May, 1949 primary, but all of whom had been punished at the June, 1950 National Con-. vention because of their circulation of the handbill referred to as Plaintiffs’ Exhibit 7, which had been used in support of the unsuccessful candidates.

We are, in this decision, in no way concerned with the court suit by the candidates for office and the sole question in this action is the question of the legality of the punishment imposed by the 1950 Convention against the five members of the union who merely circulated handbills in behalf of the unsuccessful slate at the May, 1949 primary.

In order to determine the nature of the action by these five individuals and in order to consider the punishment meted out to them and the relief which they are now requesting in court, a further examination of the facts in this case is required.

We have previously referred to and quoted the resolution adopted at the National Convention in June, 1947. That resolution in modified form, which modification was made by the national Secretary without the authority of a convention of the Brotherhood or a referendum of the members, became embodied in the Constitution of the National Union as revised October, 1947, and is therein set forth as Section 37. That section provides as follows:

“Any member of the N. B. of O. P. who is not a citizen of the United States or Canada shall not be eligible to hold any National Office. Any members contesting for national office shall conduct themselves in a proper manner. False accusations or misrepresentations, untruths, or use of degrading literature shall be brought to the attention of the delegates in Convention following the National election. Any candidate convicted' by a majority vote of delegates in Convention, of enumerated practices may be reprimanded, fined, suspended or expelled after due and proper hearing. If the offending member candidate is not a delegate, the Convention shall by a majority vote elect a body of five members as a special court to hear the case, with power to fine, reprimand, suspend or expel.”

It may be noted that Section 37 was perhaps intended as a condensation of the June, 1947 resolution, but comparison of Section 37 with the resolution shows one or two material differentiations. . Thus, the resolution by its words provides that “any member contesting for National office shall conduct himself in a proper manner.” The resolution also declares that any member accused of making false accusations, misrepresentations, untruths or using degrading literature, shall be called before the Convention following said election by a majority vote thereof. The resolution then proceeds to declare that the succeeding convention could try any accused member or members or elect a body of five members to try them or set up a special court with power to impose a reprimand, fine, suspension or expulsion. Section 37 of the Constitution on the other hand provides that any members contesting for National office shall conduct themselves in a proper manner, and declares that “false accusations or misrepresentations, untruths or use of degrading literature” shall be brought to the attention of the delegates in the next Convention and then states that any candidate convicted by a majority vote of delegates may be reprimanded, fined, suspended or expelled after due and proper hearing.

Section 37 declares that if the offending member candidate is not a delegate, the Convention shall, by majority vote, elect a body of five members as a special court to hear the case.

In addition to Section 37 of the Constitution, it must be noted also that at the 1948 National Convention the following resolution was enacted:

“Recommendation of Law Committee:

“The Executive Board shall be empowered to summon any member or members before our National Convention for examination of any act or conduct in violation of their obligation, or anything in any manner determental (detrimental) to the N. B. of O. P. and its members.

“The delegates in the Convention shall have authority to impose suitable and proper penalty in any ease where guilt is established.

“Failure to present themselves shall not prevent the delegates from disposing of the case in accordance with letter and spirit of this law.

“If proven not guilty, the member or members shall be entitled to transportation and hotel expenses to be paid by the national organization.

“This law to become effective immediately.

“Committee recommends adoption.

“Motion by T. J. Desmond that we concur in the report of the committee. Motion carried unanimously.”

Plaintiffs in this case are Crossen, Gilbert, Cranston, Hammond and Snyder. Of these five plaintiffs, the handbill (Plaintiffs’ Exhibit 7) bears the names of three, namely, Gilbert, Cranston and Snyder, as members of a committee of six urging a change in national officers and setting forth as worthy of election the names of eight individuals which we refer to in this opinion as the Finlay slate. None of the plaintiffs in this case was a candidate on that slate, the offense charged against the plaintiffs in this case and for which they were tried, being that they either published or circulated improper campaign literature.

Prior to the June, 1949, Convention, each of the plaintiffs in this case had received a letter dated June 20, 1949. Gilbert, Cranston and Snyder received similar letters containing the following notice:

“Dear Sir and Brother:

“You are hereby summoned to appear in the National Convention, June 27, 9:30 a. m. Atlantic City Auditorium, Atlantic City, N. J. to defend yourself for the act of publishing malicious misrepresentations regarding present national officials in the last election.

“You are being charged with violating the law adopted in the 1947 Convention, prohibiting malicious political activity within the organization.

“You are to assume all expense in connection with your getting to Atlantic City. If proven guilty you will not be reimbursed for any expense whatsoever. If adjudged not guilty the N. B. O. P. will pay expenses. We remain,

Fraternally,

James M. Duffy, President

Chas. F. Jordan, Secretary-Treasurer”

The letters to Crossen and Hammond also summoned them to appear at the National Convention on June 27, 1949 at Atlantic City, but these two individuals not having signed the handbill, they were summoned to appear to explain their conduct in distributing handbills to local union memberships during the recent election. The last paragraph of the letters to Crossen and Hammond contained the identical language contained in the last paragraph of the letters to Cranston, Gilbert and Snyder, informing them that they were to assume the expenses in getting to Atlantic City and advising them that if proven guilty they would not be reimbursed for any expenses incurred.

It becomes important now to examine the handbill, the publication or circulation of which gave rise to the charges in this case. We reproduce the handbill as follows:

“Election N. B. O. P. Officers First Meeting in May

VOTE

“We believe the present administration should be changed - because of its -

“1. Reluctance to Accept Laws and Courts of U. S. A.

“2. Illegal Salary Increases.

“3. Arbitrary Disregard of Wishes and Opinions of Locals and Members.

“4. Unfair Election Tactics.

“5. Use of Potters Herald for Personal Propaganda Agency and to Impugn Motives and Attack Members.

“6. Inefficiency in Office.

“7. Denial of Help to W. Va. Federation of Labor in Efforts to Increase Silicosis Benefits.

“8. Duffy’s Open Shop Attitude.

“RESTORE DEMOCRACY IN N. B. O. P.

“The following are Honest and Capable — ELECT

PRESIDENT — LARRY FINLAY

SEC. TREAS. — P. K. CALHOUN

FIRST VICE — E. CURRY

SECOND VICE — HAROLD WEST

THIRD VICE — E. C. ARMSTRONG

FIFTH VICE — VERNE PHILLIPS

SEVENTH VICE — CHARLES BOSO

EIGHTH VICE — GEORGE BRUNT

Committee:

NORMAN WHIPPLER — No. 124

E. CRANSTON — No. 9

FRANK APPLEGATE — No. 59

PAUL GILBERT — No. 33

H. SNYDER — No. 133

O. L. SULLIVAN — No. 201”

Plaintiffs’ Exhibit 7

It should be added that in addition to the five plaintiffs in this case who were summoned to appear at the Convention, one other individual not a party to this suit, O. L. Sullivan, had his name on the handbill as a member of the Committee in behalf of the Finlay slate. The latter did not come to the Convention, but he wrote a letter stating his signature had appeared in the handbill without his authorization and he was exonerated by the National Convention.

At the National Convention which commenced on June 27, 1949, the Convention had a number of matters to dispose of and on July 5th, the Convention took up the matter of the alleged misconduct of Crossen, Gilbert, Cranston, Hammond and Snyder pursuant to the summons received by each. The proceedings of this Convention (Plaintiffs’ Exhibit 2) thus summarized the action which then occurred as follows:

“The case of the next accused by the Executive Board for distributing malicious handbills in violation of the Constitution was taken up.

“Secretary-Treasurer Jordan read the accusation against Frank Applegate, Local Union 59, Norman Whippier, Local Union No. 124, Ed Cranston, Local Union No. 9, Paul Gilbert, Local Union No. 33, O. L. Sullivan, Local Union No. 201 and Henry Snyder, Local Union No. 133.

“Frank Applegate, Local Union No. 59, rose and stated that he wanted to go on record that he did not have anything to do with having his name on any handbills, but that he did distribute them because he believed they were true statements.” * * *

“The prosecution stated their charge and rests their case on the presentation of the green document carrying the names of the following members: (Plaintiffs’ Exhibit No. 7) Norman Whippier, Local Union No. 124, Ed Cranston, Local Union No. 9, Frank Applegate, Local Union No. 59, Paul Gilbert, Local Union No. 33, Henry Snyder, Local Union No. 133, O. L. Sullivan, Local Union No. 201.

“The photostatic copy of a letter sent Brother O. L. Sullivan, Local Union No. 201 from Norman Whippier, Local No. 124, was read for the record. Motion by Delegate Morgan, Local Union No. 89 that Brother Sullivan be exonerated in the misuse of his signature on the green sheet. Motion carried 108 to 24.

“Delegate Applegate, Local Union No. 59 pleads not guilty. I knew nothing of the use of my name until I saw it on the green sheet. Motion by Delegate Williams, Local Union No. 4, seconded by Delegate Blake of Local Union No. 172 we exonerate Brother Applegate, Local Union No. 59 of the use of his name on the green sheet. Motion carried 134 yes 3 no.”

The proceedings of the Convention further show that by resolution subsequently adopted, after hearing, a fine of $50.00 was assessed against Gilbert, Cranston and Snyder for putting their names to the green sheet, subject to appeal to the Executive Board. As to the charge of distributing literature on the part of Crossen and Hammond, the fine was originally fixed at $50.00, but the fine as to Crossen was at a later point in the Convention suspended and he was placed on four years probation.

This modification as to Crossen was apparently the result of a statement attributed to Crossen at the Convention and carried in the printed proceedings in which he declared, “I am willing to rub off the war paint and co-operate 100%.”

Thereafter, letters were written to each of the five individuals found guilty by the Convention, advising them of the $50.00 fine. As to Crossen, it was declared that his fine was suspended and he was placed on probation for four years. As to the other four individuals, letters informed them of the fine in the amount of $50.00 each and stated that the fine would be suspended if the individuals appeared before the National Executive Board and gave satisfactory explanation of their recent conduct and assurances of good conduct in the future. The letter closed as follows:

“You must however, satisfy the Executive Board in your explanation before the fine is suspended. The fine must be paid to the National Secretary.”

Under date of September 2, 1949, Gilbert, Cranston, Snyder, Crossen and Hammond filed their petition in the Common Pleas Court of Columbiana County naming as defendants, the National President and the National Secretary of the Union in their individual capacities and as officers of the Union. Plaintiffs alleged that they were members in good standing of the Union, having paid all dues and assessments required by law and regulations of the Union. They recited the fact that in May, 1949, an election for national officers was held by the National Union in which the defendants were candidates for election to the office of National President and National Secretary. Plaintiffs further alleged that the said defendants were opposed by another slate of candidates headed by one L. A. Finlay, and that plaintiffs had campaigned to advance the cause of the slate headed by Finlay. Plaintiffs further alleged that they distributed literature in behalf of the Finlay slate, that their slate lost in the election and that the defendants Duffy and Jordan were re-elected to the office of National President and National Secretary. The petition then recited that plaintiffs were thereafter ordered by defendants to appear at the National Convention of the Brotherhood to be held on June 25, 1949 at Atlantic City, New Jersey and to stand trial. Plaintiffs further recited that at said Convention, and regardless of whether plaintiffs were present or not at the Convention, charges were brought against them for having campaigned against the slate headed by the defendants. Plaintiffs alleged that at no time did they submit to the trial, but that nevertheless each of plaintiffs, with the exception of Crossen, was assessed a fine of $50.00 and that plaintiff, Crossen, was placed on four years’ probation. Plaintiffs further alleged that under the rules and regulations of the National Union, the payment of the fine was required to be made, the same as dues, and that if not paid, plaintiffs would be suspended from their local unions and from the National Union thus preventing them from being bona fide members of the Union and endangering their ability to pursue their trade. Plaintiffs further alleged that-because of the fines assessed against them, the good standing of plaintiffs was thereby taken from them, making them ineligible under union rules to run for any office or to hold any office in the National Brotherhood or in the local unions for a period of five years. Plaintiffs further alleged that any literature distributed by them was merely to enhance the cause of the Finlay slate, which they were advocating, and they denied that they had distributed any literature of a degrading, malicious or vicious nature such as to cast disrespect upon the National Union. Plaintiffs further alleged that the defendants had presented charges and acted as prosecutor before the Convention in June, 1949, to punish plaintiffs for campaigning against them and to prevent any further activities of plaintiffs, by placing plaintiffs in a position where they would not be in good standing in their unions. Plaintiffs further alleged in their petition that the various offices for which they could run, including that of delegate to wage conferences, were valuable property rights, that their good standing in the Union was a valuable property right and that plaintiffs lacked adequate remedy at law. Plaintiffs, therefore, prayed the Court to restrain the defendants from enforcement of the penalties meted out to the plaintiffs at the Convention of 1949 and for such other and further relief as might be just and proper.

The defendants in their answer admitted that at the Annual Convention of the Union in 1949, the plaintiffs were summoned to appear on charges brought against them for conducting a campaign for National Officers of the Brotherhood in a manner contrary to the Constitution and for the act of distributing hand-bills to union members or for publishing malicious representations regarding the National Officers. The defendants in their answer further averred that the charges against plaintiffs, the trial by the Convention and the findings were in accordance with the provisions of the Constitution, rules, regulations, custom and usage of the National Brotherhood of Operative Potters. The answer set forth the allegation that the action of the Convention was in accordance with, and pursuant to, the Constitution and expressly quoted the resolution of July 7, 1948, as authority for the action taken. Defendants asserted that the plaintiffs were found guilty of conducting or causing to be conducted a campaign for national officers in a manner in direct violation of the Constitution of the Union.

In their reply, the plaintiffs denied that they had published or distributed handbills containing malicious representations regarding the national officers and denied' the other allegations of the answer.

On the hearing of this case in the Common Pleas Court, the testimony of the various witnesses called by plaintiffs and defendants consisted primarily of the narration of the events surrounding the trial of plaintiffs in the National Convention in 1949. The trial court was advised of the evidence proffered against the plaintiffs at that time and numerous exhibits were introduced, consisting of the Constitution and By-Laws of the Union, the charges against the plaintiff contained in the letters summoning them to the trial before the Convention, various issues of The Potters Herald, the Union newspaper published under authority of the national officers and the campaign literature distributed by the opposition slate including two copies of the Potters News and the so-called “green sheet” (Plaintiffs’ Exhibit 7) which we have herein-above reproduced.

The testimony of the defendant, Jordan, the National Secretary-Treasurer made it clear that the only evidence presented at the Convention against plaintiffs Gilbert, Snyder and Cranston was that their names were signed to the “green sheet” (Plaintiffs’ Exhibit 7) and that they had ordered the distribution of it. Jordan further stated that none of these three men was present in person at the Convention.

As to plaintiffs Crbssen and Hammond, neither signed plaintiffs’ Exhibit 7, and Hammond was not present at the Convention but there was testimony that both had helped to circulate plaintiffs’ Exhibit 7, and possibly also, plaintiffs’ Exhibits 10 and 11.

It is apparent from the proceedings of the Convention and the testimony of defendants Duffy and Jordan that plaintiffs’ Exhibit 7 was the particular literature to which objection was taken and which furnished the basis for the charges against plaintiffs and trial by the Convention.

The trial court, after analyzing the eight charges contained in plaintiffs’ Exhibit 7, came to the conclusion that to punish plaintiffs for publishing and distributing the handbill in question, as the Convention attempted to do, interfered with the plaintiffs’ freedom of speech and freedom of the press.

In its journal entry, the trial court declared as follows:

“The Court finds that a labor union does have a right to protect itself and its members from slander or libel; the Court further finds that a labor union does not have the right to abridge the freedom of speech or the press of its members; that the literature sponsored or passed out by the plaintiffs George Crossen, Paul Gilbert and Edward Cranston, Raymond Hammond and Harry Snyder, did not amount to slander nor libel and that any punishment that the defendants will mete out to the plaintiffs for sponsoring and passing out the literature introduced in this case would be an abridgement of the freedom of speech and press.”

The Court found that none of the plaintiffs, with the exception of ■ Crossen, consented to be tried by the 1949 Convention and that Crossen consented to accept probation at the hands of the Convention.

As to plaintiffs Gilbert, Cranston, Hammond and Snyder, the trial court held that the action of the 1949 Convention in trying these men, and imposing penalties upon them, was void and of no effect and the court therefore enjoined the defendants, Duffy and Jordan, individually and as President and secretary of the National Brotherhood and also, the National Brotherhood from collecting or attempting to collect the fines imposed upon plaintiffs. The injunction was denied only as to plaintiff, Crossen. The court found that under the Constitution of the Union, failure to pay a fine would subject the members involved to suspension from membership and consequent loss of property rights.

As a result of the appeal on law and fact to this Court by the defendants Duffy and Jordan from the trial court’s judgment, this Court has studied carefully the evidence in this case, including the analysis by the trial court of the eight charges published or distributed by plaintiffs in the handbill referred to as plaintiffs’ Exhibit 7. We do not find that any of these charges falls within the classification of libel. It seems to us rather that the charges complained of fall within the scope of free, if not fair, criticism and the free speech guaranteed by the United States Constitution and the Constitution of Ohio. It is admitted that plaintiffs’ Exhibit 7 was circulated as part of an election contest in behalf of one of two slates of national officers being presented for election, and to be voted on by the constituent local unions. The slate advocated in plaintiffs’ Exhibit 7 failed of election. Each slate was warmly espoused by adherents and, in turn, strongly attacked by its opponents. Defendants, as national officers seeking re-election, had available channels of publicity not open to the slate advocated by plaintiffs, since the defendant President was editor of the official newspaper of the Brotherhood sent to all members, and the columns of that paper understandably advocated the defendants’ slate and vigorously criticized the opposition, terming these individuals “smear artists,” and otherwise belittling them.

In reaching our decision, we recognize that the National Brotherhood of Operative Potters is a strong union, a democratic union. Its record for successful leadership in the industrial field has been outstanding. A strong organization pre-supposes strong leadership. Such leadership calls forth strong adherents and often strong critics and lively contests, not to be found, because not tolerated, in a totalitarian climate. In our political democracy and in our economic achievements a measure of our strength in this country has been our ability to permit, and benefit by, criticism and the competition which nurtures that strength.

The important and apparently original legal question squarely presented in this case is whether a rule adopted by a mutual benefit association of the character of a labor union may infringe upon and take away fundamental liberties otherwise granted by the Constitution of the United States and the Ohio Constitution. It is quite true that by joining a mutual benefit association an individual consents to be bound as a member by rules and regulations not affecting non-members. How far may a mutual benefit association go in restricting the freedom of members? In this case, the Association involved is an Ohio corporation and it is subject to the Constitution of Ohio and the Constitution and laws of the United States. The Constitution of the United States (Amendment I) declares that Congress shall make no law “abridging the freedom of speech, or of the press.” The Constitution of Ohio (Article I, Sec II) declares as follows:

“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.”

Having in mind the foregoing safe-guards, we may consider the provisions of the regulation or by-law, if any, which the plaintiffs in this case may be said to have violated. Examination of Section 37 of the Constitution of the Union as revised in October, 1947, shows that despite the language of the summons to the Convention, plaintiffs could not have been properly tried for violation of Section 37 because it applies only to candidates. Plaintiffs were likewise not properly able to be tried under the resolution of June, 1947, because, under the procedure there outlined, any member accused of making false accusations, misrepresentations, untruths, or using degrading literature, could be called before the Convention following the election, but could be tried only by the succeeding Convention, or by a body of five members or by a special court selected at such succeeding Convention.

We find that despite the letter calling plaintiffs to appear before the June, 1949, Convention to defend themselves for “the act of publishing malicious representations regarding present national officers in the last election,” as in the case of Cranston, Gilbert and Snyder, or to explain their conduct, “in distributing handbills to local union memberships during the recent election for National Officials,” as in the case of Crossen and Hammond, the plaintiffs were actually tried or able to be tried by the June, 1949, Convention only for violation of the resolution adopted at the July, 1948, Convention covering “conduct in violation of their obligation or anything in any manner determental to the N. B. O. P. and its members.” We are loathe to say, in view of the provisions of the Constitution of the United States and the state of Ohio, guaranteeing free speech, that we should construe this indefinite language as intending to deprive members of the union of the right of free and fair criticism, otherwise theirs, although the 1949 Convention appears thus to have construed it and to have punished plaintiffs on that basis. Examination of the facts before us impels us to hold that a member of a mutual benefit association continues to be a citizen of the United States, and the free speech guaranteed by the United States Constitution permits freedom in criticizing his union officials, as well as his public officials generally, subject always to the limitations imposed by the laws of slander and libel. 64 Harvard Law Review 1071. In so declaring, we recognize that it is not generally the function of courts to control the policies or the internal affairs of labor unions, but the courts may and should protect the democratic processes within unions by which union policies and their leaders are determined. Upon this point, see the illuminating article entitled “Legal Limitations On Union Discipline” by Clyde W. Summers, 64 Harvard Law Review 1049, at page 1073 and also, the article by Joseph Kovner entitled “The Legal Protection Of Civil Liberties "Within Unions,” Wisconsin Law Review (1948), at page 18.

Particularly important seems to us the realization that labor unions constitute a special type of mutual benefit association, standing in special relation to their members and to the state. Membership has become a frequent condition of employment, even as the right of every man to work has become increasingly recognized as one of the most valued rights of a free society. Viewing the important role of labor unions in this era, a court may well determine in a particular case that protection of their democratic processes is essential to the maintenance of our democratic government.

The right of free criticism of union officials was recognized in the recent case of Ames v. Dubinsky, 70 N. Y. S. (2nd) 706. The eleventh paragraph of the syllabus announces the following proposition—

“Where a person offers himself as a candidate for office in a union or for re-election, his character for honesty and integrity and his qualifications and fitness for the office are presented as suggestions for fair comment by contrast, comparison or analysis.”

See also, Polin v. Kaplan, 257 N. Y. 277.

In Gleeson v. Conrad, 81 N. Y. S. (2nd) 368, it was held that courts will examine into the internal problems of unions and other associations when the rules of the organization have not been substantially complied with and a member has been damaged by such non-compliance or where the rules are themselves unreasonable or contrary to law or public policy.

We hold that the action of the 1949 Convention in fining plaintiffs because of publication or distribution of the handbills constituted an infringement of the right of free speech on the part of plaintiffs, calling for exercise, under the peculiar circumstances of this case, of the equity powers of this Court to protect the plaintiffs in their property rights and hi their calling. In so declaring, we consider that we are in no wise departing from previous decisions of this Court including Pfoh v. Whitney, 43 Abs 417, decided by this Court on June 25, 1945, and Finlay v. Duffy, 57 Abs 442, this Courts’ decision of May 19, 1950. It is our belief that our present ruling is a logical development of these two cases.

It is to be noted that in the Pfoh case there was no claim asserted by plaintiff that the section of the Constitution of the Union, on the basis of which plaintiff was expelled, was violative of the laws of the land or that it was not a valid part of the Union’s Constitution.

In the Finlay case, the opinion declared that courts will not assume to act in place of those authorized to interpret the Constitution and by-laws of voluntary associations unless those, upon whom the duty is placed, act in an arbitrary and unreasonable manner. The precise question in that case involved the regularity of adoption of a resolution determining the compensation of the national officere and Judge Skeel, in rendering the opinion of the court, expressly pointed out that this matter in no way affected a property right of any of the members. In the opinion, Judge Skeel stated: “The right to seek the power of injunctive relief in a court of equity cannot be invoked unless and until it is made to appear that a property right has been invaded for which there is no other adequate remedy afforded.”

In the present case, we find that a property right on the part of plaintiffs is clearly involved, since failure within thirty days to pay the fines levied would subject plaintiffs under Section 181 of the Union’s Constitution to suspension from the Union. Furthermore, by Section 255 failure to pay .a fine expressly deprives any member of all privileges of local membership thus entailing loss of benefits, loss of right to seek office within the Union and possible loss of work opportunities.

Numerous cases hold that where the expulsion or suspension of a member of the Union affects the individual’s property rights, a court of equity will award relief to a member wrongfully expelled or suspended from the Union by decreeing his re-instatement, at least where a resort to the internal remedies within the union would be futile, illusory or useless, or would not accord to the members in question substantial or practical justice. See the note in 168 A. L. R. 1462 entitled “Exhaustion of Remedies Within Labor Union As Condition Of Resort To Civil Courts By Expelled Or Suspended Member” and particularly the cases cited at page 1479.

In the court below, the trial judge in his opinion pointed out that the matter of exhaustion of remedies within the Union is not a required pre-requisite to court action unless the tribunal is impartial, and in this case it was the Executive Board which brought the charges against plaintiffs and further appeal to that Board would presumably, be unavailing. Particularly, was any such gesture to be deemed futile where the objectionable actions of plaintiffs constituted support of an opposition slate and where, in the companion case being decided by this Court today and involving attempted punishment of candidates on the rival slate, the action of the Executive Board had given evidence of intention of silencing further opposition.

Finding that plaintiffs exhausted their remedies within the Union, to the extent feasible, and finding that plaintiffs’ property rights were involved, we therefore conclude that the injunction prayed for should issue against the defendants in favor of the five plaintiffs in this case.

Injunction granted. Exceptions. Order See Journal.

SKEEL, PJ, HURD, J, concur.