author: By THE COURT:

text:
    PATRICK, Admrx., Plaintiff-Appellee, v. BALDRIDGE, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 296.
    Decided March 20, 1958.

      Ray W. Davis, Circleville, for plaintiff-appellee.
    W. S. Paxson, Washington c. H., Emory F. Smith, Portsmouth, E. S. Young, West Union, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from a judgment óf the Common Pleas Court in behalf of plaintiff in the amount of $80,000.00, entered upon the verdict of a jury. '

The action instituted by Marie Patrick, Administratrix of the Estate of Irvin J. Patrick, as plaintiff, against the defendant was for. damages for the wrongful death of plaintiff’s decedent claimed to have been caused by defendant and was on behalf of Marie Patrick, the wife, and three children of the parties as heirs and next of kin of plaintiff.

Plaintiff charged that while her husband was serving as Game Protector of Fayette County, Ohio, under employment of the Department of Conservation, Division of Wildlife of the State of Ohio and while he was making an arrest of one, Donald Butler, for the possession of a hen pheasant and “while her decedent was taking his prisoner from the farm of defendant” the defendant pointed a loaded shotgun at plaintiff’s decedent and ordered him not to take said prisoner; that while said decedent was being so assaulted and obstructed in the execution of his office, “said defendant, George S. Baldridge, wrongfully, intentionally, willfully and purposely shot and killed plaintiff’s decedent, Irvin J. Patrick.”

Defendant admitted the capacity of plaintiff to sue; that plaintiff’s decedent was a Game Protector of Fayette County; that on the date alleged, November 15, 1955, he received a gunshot wound and thereafter denied generally the other averments of the petition and specifically denied “that he intentionally, willfully and purposefully shot said Irvin J. Patrick and says that Irvin J. Patrick was injured as a result of his own aggression in attempting to wrest defendant’s shot gun from him while it was lawfully in defendant’s possession.”

Appellant assigns six errors:

1. Error in giving Special Charge No. 2 given to the jury before argument at the request of plaintiff.

2. Error in the rejection of evidence offered by appellant.

3. Refusal to direct a verdict for defendant at the close of plaintiff’s case.

4. In failing to grant a remittitur by reducing the excessive verdict.

5. Verdict contrary to law, not sustained by sufficient evidence and

6. Other errors apparent upon the face of the record.

We will first consider the errors assigned other than the first.

The second assignment is directed to the refusal of the trial judge to permit a witness, W. R. Allen, to answer the question “How did he act there that morning?” The reference was to the action of plaintiff’s decedent at about 8 o’clock on the morning of the day when Patrick was shot. The objection to the question was sustained and this answer was prof erred: “If this witness were permitted to answer, he would say that Mr. Patrick was in a very bad mood at that time.”

This testimony could properly have been admitted but, in our opinion, its admission was a matter for the discretion of the trial judge, and the refusal to admit it was not prejudicial. Especially is this true because witnesses were permitted to testify fully as to the mood of decedent at the time of the occurrences immediately connected with the shooting.

The third assignment questions the overruling of defendant’s motion for a directed verdict in his behalf at the conclusion of plaintiff’s case. This claim is predicated upon the contention that upon the testimony of the witness, Kamman, a Game Protector, who was with Patrick at the time of the arrest of Butler and the shooting of Patrick, it did not appear that the shooting was wrongful, intentional, willful or purposeful. The facts appearing at the time of the arrest and shooting, the manner of handling the gun which killed Patrick, the manner in which he was killed, the threat attributed to the defendant and his statement to the witness, Craig, were such that the jury could infer from them that the shooting was done by the defendant as alleged in the petition, if such proof was enjoined on plaintiff. The court did not err in overruling defendant’s motion.

The fourth assignment is that the court erred in refusing to grant a remittitur from the amount of the verdict rendered, namely, $80,000.00.

The earnings of plaintiff’s decedent were definitely established. The extent to which he provided for his wife and children was inferable from the testimony adduced. The amount of the verdict is not beyond a reasonable computation of the sum which the heirs and next of kin of plaintiff’s decedent, in probability, would have received from him had he lived his normal span of life, their pecuniary loss by reason of decedent’s death. These were jury questions. Cincinnati Street Ry. Co. v. Altemeier, Admr., 60 Oh St 10, 16, 17; Chester Park Co. v. Schulte, 120 Oh St 273, 291; Karr, Admr. v. Sixt, 146 Oh St 527.

Nothing appears in the record in the trial of the cause to indicate that the verdict was returned under the influence of passion or prejudice. The fifth and sixth assignments will be overruled without comment.

We come, then, to the one substantial and material assignment, namely, the giving of Special Charge No. 2, to the jury before argument at the request of plaintiff. This charge reads:

“If you find from a preponderance of the evidence that the plaintiff’s decedent, Irvin J. Patrick, had lawfully in his custody under arrest, one Donald Butler, and that the Defendant, George Baldridge, attempted to hinder or obstruct the said Irvin J. Patrick, from executing his duties, I charge you that as a matter of law, the said Irvin J. Patrick, had then and there the right to disarm the said Baldridge, and if you further find that said defendant shot and killed the said decedent, Irvin Patrick, then the said Defendant, George Baldridge would be liable for damages for said act.”

The trial judge had also given Charge No. 1 to the jury before argument which reads:

“If you find that the discharge of the gun in the hands of the defendant was accidental, without fault of the defendant, then your verdict should be for the defendant.”

Plaintiff alleged that the shooting of her decedent by the defendant was wrongful, intentional, willful and purposely done and offered testimony tending to support the averment. The trial judge in the general charge instructed the jury that to return a verdict for the plaintiff, it should find that the defendant shot decedent as alleged in plaintiff’s petition, that is, wrongfully, intentionally, willfuly and purposely done, and that if they did not so find, they should return a verdict for the defendant. The Special Charge No. 2 authorizes a finding for the plaintiff, if Patrick had Butler in his custody and if defendant attempted to hinder or oppose Patrick from executing his duties and while so doing, shot Patrick. That is to say, if the jury found that Baldridge shot and killed Patrick, Baldridge was liable in damages if Patrick then had Butler lawfully in his custody and Baldridge was committing an unlawful act at the time of the shooting.

If the general charge of the court was correct, then, manifestly, Special Charge No. 2 was improper and prejudicial.

Was it incumbent on plaintiff to make proof that the killing of her decedent was done by defendant in the manner charged in the petition? Manslaughter, in Ohio, is defined (§2901.06 R. C.), as the unlawful killing of another “except in the manner described in §§2901.01 to 2901.05, inclusive, R. C.”

The exception statutes, insofar as applicable, are, purposeful and malicious killing of another. Murder in the second degree, §2901.05 R. C.; and purposeful killing of another with deliberate and premeditated malice. Murder in the first degree, §2901.01 R. C.

The definition of manslaughter, as now found in §2901.06 R. C., has been in substantially the present form for more than a hundred years. Prior to that time, it was defined as “The unlawful killing of another without malice either upon a sudden quarrel or unintentionally, while in the commission of an unlawful act.” Page 1724 Chase Statutes (1831).

Although the phraseology is different in the present section of the Code than formerly, it is probable that manslaughter at present includes both voluntary and involuntary manslaughter. State v. Carter, 75 Oh Ap 545; State v. McDaniel, 103 Oh Ap 163. It is evident that under the statute, §2901.06 R. C., whether or not it includes voluntary and involuntary manslaughter, as formerly defined, does make an unlawful killing manslaughter. The cases which so hold are many. Sutcliffe v. State, 18 O. 469; Nichols v. State, 8 Oh St 435; State v. Thrash, 93 Oh Ap 458; 113 N. E. (2d) 675; Johnson v. State, 66 Oh St 59. This last case holds, page 63 of opinion, that manslaughter may be found where the killing, if in the commission of an unlawful act, was accidental.

In testing the correctness of Special Charge No. 2, we examine the record. Beginning at page 250, defendant testified:

“Q. Mr. Baldridge, there when you were at or about the car that Mr. Patrick was riding going out the lane, did you ever point the gun at him?
“A. I didn’t point the gun at nobody.
“Q. Did you ever aim this gun at Mr. Patrick or anyone else?
“A. No.
“Q. Did you, Mr. Baldridge, ever pull the trigger on this gun, to your knowledge?
“A. No, sir.
“Q. Did you ever intend at that time for this gun to be discharged?
“A. No, sir.
“Q. Do you know, Mr. Baldridge, whether or not the trigger on this gun was pulled at the time of this explosion?
“A. No, sir.
“Q. If the trigger on this gun was pulled, do you know who pulled it?
“A. No, sir.
“Q. In which direction was Mr. Patrick pulling the gun, toward himself or toward you?
“A. Toward himself.
“Q. Mr. Baldridge at any time while Mr. Patrick was taking his prisoner, that would be Donald Butler, from your farm, did you point a loaded gun at him?
“A. No, sir.
“Q. Did you, Mr. Baldridge, at any time order Mr. Patrick not to take his prisoner?
“A. No, sir.
“Q. Did you at any time there on your farm assault Irvin Patrick?
“A. No, sir.
“Q. Did you at any time object in the execution of his duties?
“A. No, sir.
“Q. Did you, Mr. Baldridge, ever intentionally fire a shot at Mr. Patrick?
“A. No, sir.”

The factual development in this case from the quoted testimony and the evidence on behalf of the State presents an issue (1) If the defendant was in the commission of an unlawful act when the shooting occurred. Sec. 2917.33 R. C., makes it an offense to resist or obstruct an officer in the execution of his office. Assault and battery is an offense. (2) Did the defendant do the shooting, viz., pull the trigger of his gun either accidentally or intentionally. (3) Did Patrick shoot himself. If he did, then the shooting was an accident for which the defendant could not be held responsible.

Special Charge No. 1 given before argument saying to the jury that it could find for the defendant, if the discharge of the gun was accidental, included the qualification “without fault of the defendant.” If the defendant while in the commission of an unlawful act pulled the trigger of the gun thereby shooting Patrick even though unintentional or accidental, he committed manslaughter and would be liable for damages.

So viewing the law of this case, we hold that Special Charge No. 2 as given, was a correct statement of thé law. It required the jury to find that at the time of the shooting, the defendant was in the commission of an unlawful act and that he, not Patrick, shot Patrick. There was a distinct issue as to the unlawful conduct of the defendant at the time of the shooting and whether he or Patrick pulled the trigger of the gun. Defendant’s witness, Everett Holcomb, testified that he was unable to discharge the gun without pulling the trigger. Even so, it may have been pulled accidentally in a scuffle between defendant and Patrick. This issue, as well as the others heretofore defined, was for the resolution of the jury which found in favor of the plaintiff on all material matters as is evidenced by the general verdict.

We find no error prejudicial to the defendant in any of the particulars assigned.

The judgment will be affirmed.

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


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    HUNTINGTON NATIONAL BANK, Trustee, Plaintiff, v. ALADDIN CRIPPLED CHILDREN’S HOSPITAL ASSOCIATION, INC. et, Defendants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5831.
    Decided March 17, 1959.
    Roger F. Day, for plaintiff.
    John H. Summers, for defendant, Aladdin Crippled Children’s Hospital Assoc., Inc.

      Benjamin L. Clark, for defendants, Chester H. Cook and Dorothy D. King.
    Mark McElroy, Atty. Geni., for defendant, state of Ohio.
    (HURD, PJ, SKEEL, J, of the Eighth District, sitting by designation in the Tenth District.)
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law and fact from a decree entered by the Court of Common Pleas of Franklin County after trial of the issues on the merits. The case is one praying for a declaratory judgment by the plaintiff as trustee, seeking construction of a testamentary trust established by the last will of Chester C. Cook, now deceased. Such trust instrument appointed the plaintiff trustee of the assets of the estate to be administered for the benefit of decedent’s son, Chester H. Cook, and a foster daughter, Dorothy D. King, each to share equally in the benefits.

The case was presented to this court on stipulations of fact filed with the papers in the case, which included a transcript of the proceedings in the Court of Common Pleas of Franklin County. The trustee, following out the provisions of the trust agreement, divided the assets therein equally between the beneficiaries, the total assets being $84,792.09.

Since the death of Chester C. Cook on September 6, 1951, his son, Chester H. Cook, has become totally incapacitated and was compelled to leave his employment in 1953 and is now residing in Florida. His total disability is clearly established by the evidence. His income from pensions, insurance funds and this trust totals a little more than four hundred dollars per month which he finds inadequate for his support and that of his family in the station in life to which he has become accustomed.

The trustee thereupon applied the income from his share of the trust fund and some part of the principal to provide what it determined to be necessary for his adequate support.

The defendant, Aladdin Crippled Children’s Hospital Association, Inc., as the residuary beneficiary of the trust, questioned the trustee’s right to make such determination and that circumstances existed to justify the use of principal for the support of Chester H. Cook.

The provisions of the will creating the trust and the powers of the trustee, provided for in Item IV, bequeathed and devised the estate in trust, directed the trustee to divide the fund into two equal parts, one part for the benefit of his son, Chester H. Cook and one part for the benefit of Dorothy King, a foster daughter.

The will then provided in Item IV, in part, as follows:

“H. From the net income of that part of the trust fund held for the benefit of my son, Chester H. Cook, there shall be paid to him by the trustee during his lifetime such amounts in monthly installments as will, when added to the income from certain policies of insurance on my life, the proceeds of which are payable directly to Chester H. Cook, provide a total monthly income of Two Hundred Dollars ($200.00).
s¡s *
“J. In the event of illness or incapacity of either Chester H. Cook or Dorothy D. King, I hereby authorize my trustee in its uncontrolled discretion to consume so much of the income or principal of that part of the trust estate held for the benefit of Chester H. Cook or Dorothy D. King as may be necessary to pay any expenses resulting from such illness or incapacity.
“K. Upon the death of Chester H. Cook or Dorothy D. King and in addition to the authority conferred on my trustee by paragraph (J) above, I hereby authorize my trustee in its uncontrolled discretion to consume so much of the income or principal of that part of the trust estate held for the benefit of such deceased person as may be necessary to pay any expenses resulting from the illness or incapacity of the survivor.
“L. Upon the decease of my son, Chester H. Cook, and Dorothy D. King, the trust shall terminate and the principal of the trust then remaining and any accumulated income shall be paid over to the Aladdin Crippled Children’s Hospital Association, Inc., Columbus, Ohio, absolutely and in fee simple.”

Until his unfortunate illness in 1952 from the results of which he became totally incapacitated, Chester H. Cook was accustomed to a substantial income as President of the Sunday Creek Coal Company, having succeeded his father in that office. From the record, he used almost all his income in the support of himself and family. The will indicates .that the testator did not want his son to benefit to any great extent from his estate unless illness or incapacity required it. The decision as to when, if in fact illness or incapacity should befall Chester H. Cook, and if so, how much was to be used beyond that directed to be paid monthly in any event, was left entirely to the judgment of the trustee.

We agree with the holding of the Court of Common Pleas that the testator intended his son to have the right to receive all of the income and portions of the principal, when necessary, in the judgment of the trustee, to sustain him and his family in a reasonable fashion in the event illness or incapacity should befall him. The judge of the circumstances which would put this power into effect, and the amount necessary to pay any expense resulting from illness or incapacity, were the trustee’s in the exercise of its sound discretion.

We, therefore, order a decree as entered in the Court of Common Pleas for the reasons generally stated by that court in its opinion filed in the case.

HURD, PJ, SKEEL and DUFFY, JJ, concur.


author: BY HUNSICKER, J

text:
    CUYAHOGA HEIGHTS (Village), Plaintiff-Appellee, v. CLEVELAND (City) et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24405.
    Decided March 20, 1959.
    Walter & Haverfield, for plaintiff-appellee.
    Ralph S. Locher, Director of Law, Joseph H. Crowley, Andrew R. Sarisky, for defendants-appellants.
    (DOYLE, PJ, HUNSICKER, J, of the Ninth District, RADCLIFF, J, of the Fourth District, sitting by designation in the Eighth District.)
   OPINION

BY HUNSICKER, J

The village of Cuyahoga Heights, Ohio, herein called “village,” filed its action against the city of Cleveland, Ohio, and various public officials of that city, herein called “city,” wherein the village asked that an order be issued against the city and its employees, restraining it and them “from issuing water bills with service charges added thereto and from shutting off water to any users of water within the village of Cuyahoga Heights who refuse to pay sewer charges * *

The village claims that it succeeded to all of the benefits of a contract entered into between the village of Newburgh Heights and the city on August 11, 1916, whereby the city granted to that village the right to connect, at its sole cost and expense, any and all of its present or future sanitary sewers to an intercepting sewer which the city proposed to construct through the village, which interceptor sewer ran to a sewer treatment plant which the city sought to maintain in the village.

The village says that the terms of the contract further provided that sewage of the village would be disposed of by the city in like manner as other sewage conveyed through the intercepting sewer, and without cost or expense to the village.

The village further asserts that the validity of the contract was the subject of litigation in the courts of Cuyahoga County, in which litigation the contract was declared to be a valid and binding agreement; that the village had succeeded to the rights and benefits conferred upon the village of Newburgh Heights under said contract; and that since August 11, 1916, the city has, without charge or expense to the village or any of its residents or inhabitants, disposed of the sanitary sewage which was discharged into the intercepting sewer by the residents or inhabitants of the village.

The village claims that, without prior notice of any kind, the city sent water bills to all industrial plants within the vilage, which included, for the first time, a sewer service or rental charge; that domestic users were not sent bills with a sewer rental charge added to the bill; that the industrial users refused to, pay the sewer rental charge; and that the city then threatened to shut off the water to such industrial plants.

This threat led to the filing of the instant action in the Common Pleas Court of Cuyahoga County, Ohio.

The city, by way of answer, admits that: the village of Newburgh Heights had entered into a contract with the city; the village of Cuyahoga Heights has succeeded to the rights of the village of Newburgh Heights under this contract of August 11, 1916; the contract was the subject of litigation in the Common Pleas Court of Cuyahoga County in case No. 566906, decided February 18, 1947, and, in the Eighth District Court of Appeals, in case No. 20692, decided June 16, 1947 (City of Cleveland v. Village of Cuyahoga Heights, 81 Oh Ap 191); and, the city has disposed of sanitary sewage discharged into the intercepting sewer by the village.

The city further says “that the contract does not provide for the city of Cleveland to accept and dispose of sewage and industrial wastes of residents or inhabitants of the village of Cuyahoga Heights without cost or expense to the residents or inhabitants of said village.”

The amended reply of the village “denies that the contract of August 11, 1916, does not require the city of Cleveland to accept and dispose of sewage and industrial waste of residents or inhabitants of the village of Cuyahoga Heights without cost or expense to the residents or inhabitants of said village, and further says that all of the matters and questions raised in the answer of the defendant were fully tried, determined and adjudicated between the parties hereto in the former suit referred to in plaintiff’s petition.”

The trial in the Common Pleas Court resulted in a judgment in behalf of the village; and, from that judgment, the city perfected an appeal to this court on questions of law and fact. We have the matter before us de novo, with a stipulation that the cause be submitted to this court on the pleadings, the stipulations, and the evidence contained in the testimony and exhibits presented, in the trial court.

It was further stated in the stipulation that this court shall take judicial notice, as did the trial court, of the official records of the case of City of Cleveland v. Village of Cuyahoga Heights et al, Common Pleas No. 566906, of Cuyahoga County (37 O. O. 1); Case No. 20692 of the Court of Appeals of the Eighth Judicial District of Ohio (81 Oh Ap 191); and case No. 31323 in the Supreme Court of Ohio (motion to certify overruled 5-12-48); including all pleadings, briefs, exhibits, bill of exceptions, opinions and journal entries.

The instant litigation poses several possible questions, the first of which concerns the claim that all of the matters involved in this litigation were disposed of in the previous action where the city brought suit against the village — i. e., case No. 566906, Cuyahoga County Court of Common Pleas, and the appeal in that case, which is number 20692 in the Cuyahoga County Court of Appeals, for the Eighth Judicial District of Ohio.

If, either by the plea of res judicata, or under the doctrine of estoppel by judgment, we determine that the matters in the instant case have been litigated, then our inquiry ends. If, however, the matters here in issue are not disposed of by the prior. action, then we must concern ourselves with what the parties meant when they said, among other things, in the following paragraph of part “Second” of the contract of August 11, 1916:

“C. The village of Newburgh Heights (Cuyahoga Heights) is hereby given the right to connect, at its sole cost and expense, any and all of its present or future sanitary sewers with said intercepting sewer, or with any portion of the city’s intercepting sewer now constructed, by means of said manholes and said openings, as shown on the said map hereto attached, and to discharge all of its present and future sanitary sewage into said intercepting sewer, subject only to the limitations hereinafter set forth, and said sewage shall be disposed of by said City of Cleveland in like manner as other sewage conveyed through said intercepting sewer, without cost or expense to the village of Newburgh Heights (Cuyahoga Heights).”

On July 23, 1946, the city of Cleveland filed a petition, in the Common Pleas Court of Cuyahoga County, against the village of Cuyahoga Heights and certain of the officers of the village. In that petition, among other things relating to the action of the village, in proposing to connect an interceptor sanitary sewer to the southerly interceptor sanitary sewer of the city, the city alleged that:

“* * *and in addition thereto it (the proposed sewer) would introduce into the sewerage system of plaintiff city, industrial wastes in such great volume as to entirely destroy the useful operation of the biological processes of said disposal plant in the treatment of sewage now being disposed of thereby.
* %
“Plaintiff says that the acts hereinbefore described and threatened to be done by the defendant and defendant’s officers will cause plaintiff Irreparable injury for which plaintiff has no adequate remedy at law."

The answer of the village of Cuyahoga Heights to that petition, among other things, set out the contract of August 11, 1916, claiming thereunder the right to make a connection of its proposed intercepting sewer with the southerly intercepting sewer of the city.

The village further alleged, in that case, that, by the terms of the agreement of August 11, 1916, “sewage of said village would be disposed of by said city of Cleveland in like manner as other sewage conveyed through said intercepting sewer without cost or expense to the village of Newburgh Heights (Cuyahoga Heights).”

The, city of Cleveland filed a reply in that case to the answer as filed by the village of Cuyahoga Heights, which, among other things, said that “there is no valid and existing contract with the village of Newburgh Heights, Ohio, dated August 11, 1916, upon which said defendants (village of Cuyahoga Heights, et al.) may rely, in that said contract was entirely void in its inception as against public policy, and ultra vires of the respective municipalities, particularly the plaintiff; that, by reason of such alleged contract, the defendant village was given no right of any nature whatsoever with respect to the subject matter of the alleged contract.”

It should also be noted, without stating them verbatim, that the claims of the parties to the lawsuit filed July 23, 1946, involved alleged orders of the Department of Health' of the state of Ohio, given to the village of Cuyahoga Heights, to secure a method of disposing of sewage of the village; and that the plan for this interceptor sewer was approved by the Department of Health of the state of Ohio.

The trial of that case resulted in a judgment for the village of Cuyahoga Heights. On appeal of that judgment to the Court of Appeals on questions of law and fact, which means that the case was iried “de novo” by the Court of Appeals, a judgment was again entered in favor of the village of Cuyahoga Heights; the opinion of that court appearing, as heretofore stated, 81 Oh Ap 191. Thereafter, the Supreme Court of Ohio, as also heretofore stated, denied a motion to certify, for review by that court, the record in that case.

The Court of Appeals of Cuyahoga County, in their opinion in that case, at page 194 of Volume 81 Oh Ap, Said, with respect to the then claims of the city of Cleveland:

“It is the claim of the city that the contract is void and against public policy, because by its terms the legislative officers of the city surrender for all times its free, legislative authority; because it grants a perpetual property right in the village to have its sewage disposed of through the southerly intercepting sewer free of charge, and as a burden on the taxpayers of the city and is, therefore, ultra vires; and that the contract fails because no measurable consideration moved to the city for the granting of the right claimed by the village.”

It is thus seen that, not only did the city herein complain about the disposal of industrial wastes through this interceptor sewer, but many other problems were raised concerning the meaning and scope of the agreement of August 11, 1916.

We believe that the judgment then rendered in that case conclusively determines all of the issues now before us. That judgment of the Court of Appeals, in the part pertinent here, said:

“1. The contract of August 11, 1916 between the city of Cleveland, Ohio, and the village of Newburgh Heights, Ohio, is a valid and binding agreement.
“2. The village of Cuyahoga Heights, Ohio, has succeeded to the rights and benefits conferred upon the village of Newburgh Heights, Ohio, in the contract of August 11, 1916.
“3. The city of Cleveland has been, since August 11, 1916, and is now, accepting and retaining the benefits arising under said contract of August 11, 1916.
“4. So long as the city of Cleveland accepts and retains the benefits arising under the contract of August 11, 1916, the village of Cuyahoga Heights, Ohio, has the right, in pursuance of the terms of said contract, to make — at its sole expense — connections of its sanitary sewers to the southerly intercepting sewer of the city of Cleveland and to discharge into said intercepting sewer all of the present and future sanitary sewage of the territory of the village of Cuyahoga Heights, and the city of Cleveland, in pursuance of the terms of said contract of August 11, 1916, has the obligation to dispose of all of said present and future sanitary sewage of the territory of the village of Cuyahoga Heights in like manner as other sewage which is conveyed through said intercepting sewer without cost or expense to the village of Cuyahoga Heights.” (Emphasis ours.)

The original action between these parties — that is, the action filed in July, 1946 — was for an injunction to prevent the village from joining the southerly interceptor sewer, and thereby utilizing the city facilities located in the village for the purpose of disposing of sanitary sewage, which included, as the city alleged, industrial Pastes.

The validity, interpretation and scope of the agreement of August 11, 1916, was directly in issue. What were the rights of the parties under that agreement?

There were but two systems of sewage disposal: storm or surface sewage, which is not treated, and hence passes directly into established watercourses; and sanitary sewage, which consists of human wastes, as well as industrial wastes. These matters were in issue and litigated by the action filed in July, 1946.

“1. A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them.” Norwood v. McDonald et al, Admrs., 142 Oh St 299.

The right of the village to put industrial wastes in the southerly interceptor sewer was put in issue in the former action and determined in favor of the village. It cannot now be relitigated. It is not material herein whether we base this conclusion upon the defense of res judicata, or estoppel by judgment, for the issue of industrial wastes being placéd in the sewer was a fact litigated in the first action.

“3. A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different.” Norwood v. McDonald et al, Admrs., 142 Oh St 299.
“Although ‘res judicata’ and ‘estoppel by judgment’ have been distinguished (see for example Gordon v. Gordon [Fla.], 59 So. [2d], 40), they are certainly akin. Briefly stated, ‘estoppel by judgment’ simply means that the final adjudication of a material issue by a court of competent jurisdiction binds the parties in any subsequent proceeding between or among them, irrespective of a difference in forms or causes of action.”

Mansker v. Dealers Transport Co., 160 Oh St 255, at page 260.

See also: Conold v. Stern, 138 Oh St 352.

We determine, therefore, that the matters of the village permitting industrial wastes to flow into the southerly interceptor of the city has been heretofore concluded favorably to the village; and that hence the city cannot now prevent such sewage from passing from the village sewer system into the city sewer system, and by them treated as other sanitary sewage is treated for final disposal, without cost to the village.

We next consider the question of the right of the city, under the agreement of August 11, 1916, to levy rent, for the use of the sanitary sewer, upon each industrial user of water, which water is supplied by the city to the industries of the village.

The city of Cleveland, by agreement with the village of Cuyahoga Heights, supplies water to the inhabitants, including, of course, the industries located in the village. The city claims the right, since the enactment of §729.49 R. C. (§3891-1 GO, to charge rent for the use of the sanitary sewage services it furnishes to the water users of the village.

The claim is made by the city that this sewer rent is not charged to the village, but to the inhabitants, and hence is not within the free sewer service provided by the contract.

The city cites the case of State, ex rel. Gordon, City Atty., v. Taylor et al, 149 Oh St 427, saying that the determination in that case is authority for the action now taken to collect a sewer rent from the industries using the sewers of the village.

That case determined that, where an easement to build a sewer through the campus was granted to the city of Columbus, by Ohio State University, the consideration for which was the use of the sewer on the campus without cost or expense to the university, the agreement granting the easement did not exempt the university from payment of sewer rental charges thereafter imposed by an ordinance of the city to provide a fund for the payment of the cost and expense of the treatment and purification of sewage.

We must note that, in the above case, the campus of Ohio State University lies wholly within the territorial limits of the city of Columbus. In effect, Ohio State University is an inhabitant of the city of Columbus, and subject to its powers and prerogatives.

In the instant case, Cuyahoga Heights is an independent entity, separate and apart from the city of Cleveland. It has accepted the burden, first, of having sewers of the city of Cleveland placed along and under its streets; and, second, it has accepted the far greater burden of having placed, within the territorial limits of the village, one of the sewage disposal plants of the city of Cleveland.

The city of Cleveland has been casting an increasing amount of sanitary sewage and industrial wastes into these sewers, and hence to the disposal plant. The volume of sanitary sewage and industrial wastes from the village has also increased over the years, but certainly that was in contemplation of the parties when they executed the agreement of August 11, 1916.

This contract of August 11, 1916, has heretofore, by the case filed in July, 1946, been declared to be a valid and binding obligation, and a contract that was not beyond the power of the parties to execute. There is no attempt herein, on the part of an inhabitant of the village, to claim rights as an individual under the contract between the city and the village, as occurred in the case of Blunk v. Dennison Water Supply Co., 71 Oh St 250. The village has brought this action, saying that the contract between these parties does not permit the city to collect, from the inhabitants of the village, a rental charge for sewage disposal.

There can be no question but that it was contemplated in the original agreement, and included in the judgment entry filed by the Court of Appeals in the prior action, that all sanitary sewage from the territorial area of the village, which includes inhabitants, as well as industries, is to be disposed of through the city disposal plant. This judgment entry of the Court of Appeals, a portion of which is set out above, expressly stated that the sewage to be disposed of was all such sewage from the territory within the village.

No question is raised herein as to the right of these municipalities to enter into this contract; our problem concerns the scope of operation of this agreement. Sec. 729.42 R. C. The right of a city or village to construct sewers and sewage disposal works is not raised in the instant case. Sec. 717.01 R. C.

The authority which the city claims permits it to collect the rental charge herein is §729.49 R. C. This statute provides that a failure to pay the rental shall be “a lien upon the property served by such connection and if not paid when due shall be collected in the same manner as other municipal corporation taxes.”

We believe that this statute does not permit one municipality to impose such a burden upon the inhabitants of another municipality, unless an agreement to that effect has been entered into by the municipalities.

The term “without cost” to the village, in the agreement of August H, 1916, means “without cost in money.” Green, etc., v. Thomas, Mayor et al, 37 Oh Ap 489.

We believe that the collection and disposal of sanitary sewage, including industrial wastes, as set out in the agreement, was meant to be a service rendered to the users of such service in the village without further charge upon such users by the city of Cleveland.

We determine herein that the matter of the disposal of industrial wastes of the village of Cuyahoga Heights, through the interceptor sewer of the city of Cleveland, has heretofore been adjudicated, with a result adverse to the city of Cleveland, and that such matter is not now an issue in these proceedings.

We further determine that a study of the contract of August 11, 1916, requires us to hold that, the sewage conveyed through the intercepting sewer by the village of Cuyahoga Heights shall be disposed of by the city of Cleveland, without cost or expense to the inhabitants, including the industries of such village.

The parties may prepare a journal entry in conformity with this opinion, granting exceptions to the city of Cleveland. The costs shall be paid by the appellant city.

Judgment as prayed for. See journal entry.

DOYLE, PJ, RADCLIFF, J, concur.


author: By THE COURT.

text:
    GREEN, Plaintiff-Appellee, v. COLVIN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4848.
    Decided October 31, 1952.
    Samuel Wolman, Columbus, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for failure to file bill of exceptions within 40 days from the date of the overruling of the motion for a new trial as required by §11564 GC. The notice of appeal designates the same as being on both law and law and fact. The motion will be overruled for the following reasons:

(1) A bill of exceptions may not be necessary to exemplify the errors complained of, no assignment of errors being filed. If it is not, there is no need for one to be filed.

(2) An appeal on law and fact requires a trial de novo and there is no need for a bill of exceptions.

We note that the action is one for damages, which is not a chancery case; therefore an appeal on law and fact may not be maintained. The Court on its own motion will dismiss the law and fact appeal and as required by §11564 and §12223-22 GC, retain the same for determination on questions of law only. The appellant will be granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court.

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


author: By GREEN, II, J.

text:
    WEINSTEIN, Plaintiff, v. OHIO BOTTLE GAS COMPANY, Defendant.
    Sixth District County Court, Lucas County.
    No. 73.
    Decided March 17, 1959.

      Clarence E. Beaver, of Counsel, for plaintiff.
    William A. Finn, John A. Pietrykowski, of Counsel, for defendant.
   OPINION

By GREEN, II, J.

The defendant herein has filed his motion for judgment notwithstanding the verdict pursuant to §2323.18 and §2323.181 R. C.

The essence of defendant’s contention is that upon the state of the evidence it cannot legally be inferred that the truck which allegedly backed into the plaintiff was being operated by an agent of the defendant, that it was owned by said defendant, or that the driver, even assuming he was the agent, was operating the vehicle in the course of and within the authority of his employment.

We are in complete agreement with the defendant’s assertion. The within cause falls squarely within the cases cited by the defendant. To allow the trier of fact to determine the question of agency based upon the evidence submitted at trial, to-wit: identification of the driver by name and the fact that the truck had the name of the defendant printed thereon, would be to permit an inference upon an inference.

We concur that a judgment for the defendant should have been directed at the time his motion was made at the trial after the close of the plaintiff’s case.

However a more serious question has arisen as to the efficacy of the use of the procedure of §§2323.18 and 2323.181 R. C., to correct the error made herein. At the end of his case plaintiff entered a motion for a directed verdict whereupon the defendant proffered his motion for a directed verdict based upon the evidence and further requested that the jury be discharged for the reason that simultaneous motions operate to take the question of fact from the jury and lodge them with the court for determination. The court overruled plaintiff’s motion and thereafter incorrectly overruled defendant’s motion for a directed verdict and discharged the jury. After the defendant rested his case a judgment was rendered by the court for the plaintiff for the. amount stated in the petition.

We should note, though it has no bearing on the specific question before us that we were . in error in discharging the jury after the simultaneous submission of the above mentioned motions. The Supreme Court of Ohio on January 22, 1958 in reversing long standing law on this point expostulated the following language in the first syllabus of The Carter-Jones Lumber Company v. Eblen, 167 Oh St 189, 4 O. O. 2d 256:

“Where, at the conclusion of the evidence in a case, each party moves the court to direct the jury to render a verdict in his favor, the parties do not thereby clothe the court with the functions of a jury, but they merely request, by consecutive motions, rulings on separate questions of law, and the sole duty of the trial court at that time is to render its decisions on the motions, unless there is an express waiver of the jury by both parties, as provided in §2315.20 R. C.”

The major question raised by the plaintiff’s memorandum, however, is whether or not a finding of a court and action heard without a jury can be set aside and a judgment rendered notwithstanding the verdict under the provisions of §§2323.18 and 2323.181 R. C. Sec. 2323.18 R. C., in so far as it is applicable reads as follows:

“When, upon the statements and the pleadings or upon the evidence received upon trial or both, one party is entitled by law to judgment in his favor, upon motion of such party, filed as provided in §2323.181 R. C., judgment shall be so rendered by the court although the jury may have failed to reach a verdict or a verdict has been rendered against such party and a judgment entered thereon. . .”

Sec. 2323.181 R. C., in so far as it is applicable reads as follows:

“The motion provided for in §2323.18 R. C. . . shall be filed within ten days after the failure of the jury to reach a verdict and its discharge as evidenced by a journal entry approved by the court in writing and filed with the clerk for journalization, or within ten days after the journal entry of judgment in conformity to the verdict shall have been approved by the court in writing and filed with the clerk for journalization. . .”

The point that must be noted of course, is that the language quoted refers specifically to a verdict and says absolutely nothing regarding a finding or decision of a court sitting without a jury. We are inclined to agree with plaintiff’s attorney to the extent that the technical meaning of the word “verdict” applies only to a determination of fact made by a jury and that factual determinations made by a court are usually designated as “findings.” We have searched the text and the cases in Ohio and we find no instance in which a determination of fact by a court was referred to in terms of a verdict.

Nor have we been able to find any case reported in Ohio bearing directly upon the question of statutory interpretation involved. However, we should like to draw counsel’s attention to two cases which, though they do not examine the question in detail, do at least infer that a motion under these circumstances may be entertained by the court. We refer initially to Magley v. Masonic Temple Assn., 80 Oh Ap 520, 36 O. O. 307. The second syllabus of this case reads as follows:

“In such cases, it is contrary to law for the court to fail to sustain defendant’s motion for judgment notwithstanding the decision of the court made under favor of §11601 GC (now §2323.18 R. C.), where the record does not disclose proof upon the material issue of whether any of the alleged new evidence was discovered after trial.”

The second syllabus of McAtee v. Western and Southern Life Insurance Company, 82 Oh Ap 131, 37 O. O. 512, reads as follows:

“An action commenced prior to September 27th, 1947, motion for judgment non obstante verdicto may be filed after judgment in a case tried to the court without a jury, even though the trial court has journalized the finding for one of the parties.”

It is quite possible that the instant question of interpretation was not drawn to the attention of the courts sitting in the above cases, however they do serve to illustrate that the procedure followed was not so thoroughly shocking, unjust or contrary to reason as to cause counsel to make an issue of the point.

Furthermore we are not inclined to that view which would insist that all statutes be construed in their most technical sense regardless of an obvious intention of the legislature.

Strict construction has its true application in the interpretation of criminal statutes, but such a rule applied to civil procedural law has no basis in reason. We feel we must adopt a more liberal rule of interpretation, not only because it would seem to coincide with the obvious purpose of the statute, but also because we feel that our judicial system is more nearly served when courts interpret ambiguous procedural statutes in favor of flexibility particularly where such flexibility will promote the ends of justice. We must therefore rule that the language in §§2323.18 and 2323.181 R. C., is sufficiently broad to permit this court to correct mistakes of law drawn to its attention after judgment even though the questions of fact were determined by the court.

Beyond this we are inclined to believe that the court has an inherent power to correct its mistakes during term. The court made a gross error in not directing a verdict in favor of the defendant at the trial based upon the evidence which was allowed to be admitted therein and we feel that to do other than enter a verdict in its favor at this time would manifestly act to injure the rights of the defendant.

We therefore rule as a matter of law that upon the evidence allowed to be admitted at the trial of the cause that the plaintiff was unable to sustain his burden of proving the agency of the driver or the ownership of the truck and therefore we respectfully vacate our former judgment and render a judgment in favor of the defendant herein.

This does not however end our recantation. At the trial of the cause the only witness called on either side was the plaintiff who testified as to all phases of his case. At one point the plaintiff was asked whether or not he had called the defendant, Mr. Yaekel and what conversation transpired. The purpose of this line of questioning by plaintiff’s counsel was to establish the agency of the defendant and the driver of the vehicle involved. Such conversation was excluded by this court upon objection of defendant’s counsel on the grounds that such matters were hearsay.

We submit after due reflection that exclusion of the conversation of the plaintiff and the defendant on the grounds of hearsay was in error and prejudicial to the plaintiff.

Statements made by the defendant in conversation with any witness are admissible as admissions against interest and this is the case even though such admissions were made in a telephone conversation.

In our judgment therefore the plaintiff was substantially prejudiced by the .ruling of this court excluding from testimony the telephone conversation of the parties hereto and we therefore order a new trial.


author: By CECIL, District Judge.

text:
    GLOBE INDEMNITY COMPANY, Plaintiff, v. SYKES, Defendant.
    United States District Court S. D. Ohio, E. D.
    Civ. No. 4182.
    Decided October 2, 1957.
    J. Paul McNamara, Columbus, for plaintiff.
    John L. Rittinger, Willis H. Liggett, Columbus, for defendant.
   OPINION

By CECIL, District Judge.

The plaintiff, Globe Indemnity Company, brought this action against the defendant, C. Ray Sykes, to recover from him the sum of $244,091.92, which it claims by reason of an indemnity or save harmless agreement which the defendant signed to guarantee the plaintiff against loss on performance bonds of Hannagan Brothers, Inc.

The case is now before the court on a motion of the defendant for summary judgment and a second motion of the plaintiff for summary judgment. To support its motion the plaintiff has filed several affidavits and depositions.

Plaintiff’s first motion for summary judgment was denied by Judge Underwood. Since that ruling, additional supporting evidence has been furnished the court and the question now presented is whether or not under all of the evidence the plaintiff is entitled to a judgment. . The writer of this opinion would not attempt to review the decision of Judge Underwood. In passing on the motion in the light of the additional testimony, it is not considered to be the same question that was before Judge Underwood.

Undisputed evidence is before the court showing the indemnity agreement of the defendant; the execution of the performance bonds by the plaintiff to guarantee performance of certain contracts of Hannagan Brothers, Inc.; the financial difficulty of Hannagan Brothers, Inc., and its inability to complete its contracts; the financial agreement of the plaintiff with Hannagan Brothers, Inc., for assistance in completing the contracts and the defendant’s consent to the financial agreement without a waiver of any of the rights of the plaintiff against the defendant under the indemnity agreement.

In brief, without enumerating each item in detail, the court considers that there is ample evidence entirely undisputed, to establish liability of the defendant to the plaintiff under the indemnity agreement pleaded in the complaint.

The legal question presented concerns the method' by which the plaintiff is required to prove the amount of the liability.

Undisputed evidence shows that the plaintiff issued drafts for deposit to an account in the Louisville Trust Company in the sum of $311,115.82; that it paid out on behalf of the Hannagan Brothers, Inc., on its bonded contracts which were indemnified by the defendant, the sum of $12,-598.20, and that there was salvage to the amount of $81,150.27 for which Hannagan Brothers, Inc., were entitled to credit.

Checks drawn on the bank account in Louisville were signed jointly by a representative of the plaintiff and a representative of Hannagan Brothers, Inc. This money was used for the completion of the jobs in Jeffersonville, Indiana, which were bonded by the plaintiff. These bonds were indemnified by the defendant.

The money in the second item of payment mentioned in the second paragraph above, was paid out on invoices and expense items, all of which are supported by documentary evidence showing the purpose of the payment. None of these payments, either the drafts for deposit or the payments on invoices, are disputed.

Counsel for the defendant say that the “plaintiff must prove its case.” This is certainly true, but counsel seemingly understand this to mean that the plaintiff must show item by item and by invoice, how the money in the Louisville Bank was used.

The court does not consider that the plaintiff is required to do this in order to carry its burden of proof.

The defendant agreed to indemnify or reimburse and save harmless the plaintiff for any money it had to expend by reason of the default of Hannagan Brothers, Inc., on the contracts bonded by it and indemnified by defendant. The plaintiff apparently considered that the cheapest way for it to fulfill its obligations to the obligees of the bonds was to finance Hannagan Brothers, Inc., in the completion of the contracts. The defendant consented to the finance agreement and he was Chief Engineer of Hannagan Brothers, Inc. The proceeds of the drafts deposited in the bank in Louisville were used to meet the obligations of Hannagan Brothers, Inc., in the completion of its contracts. The particular items for which this money was spent were not primary obligations of the plaintiff. Hannagan Brothers, Inc., was the principal on these bonds. The plaintiff’s obligations were to the obligees of the bonds in the event the principal failed. The plaintiff then need only show the amount it had to pay the principal to enable it to complete its contracts.

The court considers that the plaintiff has shown by evidence which leaves no disputed fact in issue as to the amount paid by it on behalf of Hannagan Brothers, Inc., in satisfaction of plaintiff’s obligations on the bonds in question.

By Mr. Moynahan’s deposition filed July 2, 1957, on page 25, it is shown that the total amount paid out by the plaintiff, less salvage and credit, is $237,519.27. Mr. John P. McCormick, Vice President of plaintiff’s company, in his affidavit of May 11, 1956, arrives at a figure of $242,563.75. According to Mr. Moynahan’s testimony, on page 25 of the deposition, the plaintiff received a check from the Federal Reserve Bank of Cleveland on October 22, 1956, in the sum of $5044.48. Applying this credit to Mr. McCormick’s figure, it leaves the balance the same as Mr. Moynahan’s.

Counsel for plaintiff in his reply memorandum states that he is willing to have the total credits of $86,194.75 deducted from the sum of $247,297.75, an amount alleged to have been admitted by the defendant to have been paid out by the plaintiff on behalf of Hannagan Brothers, Inc., and to take a judgment in the sum of $161,103. Judgment will be allowed plaintiff in this amount, together with interest and costs in accordance with the prayer of the complaint.

Plaintiff alleged in its complaint that it was authorized to do business in the State of Ohio. Although this can hardly be in doubt since the bonds were written and the loss paid by the plaintiff, the court finds no specific admission or proof by affidavit or deposition. Counsel for plaintiff may supply this deficiency, if such it is, by stipulation or affidavit.


author: By CROSSLAND, J:—

text:
    BALLAS EGG PRODUCTS CO., INC., Plaintiff, v. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 41319.
    Decided April 27, 1959.

      Graham, Graham, Gottlieb & Johnston, Zanesville, for plaintiff.
    David dayman, Columbus, for defendants.
   OPINION

By CROSSLAND, J:—

While organizational picketing of a plant or business engaged in interestate commerce, including so-called “stranger picketing,” is now held to be within the exclusive jurisdiction of the federal courts ordinarily, nevertheless the power to enjoin mass picketing, threats to employees desiring to work, physical injury or property damage, obstruction of the entrance to and egress from the place of work, obstructing streets and public roads surrounding such place, and picketing the homes of employees, remains within the realm of concurrent state court authority. However, even this exception is currently challenged by a dissenting minority of the United States Supreme Court.

At the present time state courts retain authority to protect the right of any individual engaged in lawful work or business to proceed unmolested and uninterrupted to and from his or her place of work or business, the only court authority readily available to provide such protection. Without local court authority such basic and constitutional right of local citizens would be illusory because federal court protection would be remote in time and place.

The defendant Union and its officers avowedly would like to be able to discourage attendance at work of plaintiff’s employees to an extent that would completely shut down the local plant and throw the existing employees numbering about eighty, mostly women, out of work, until such time as it can hope to obtain enough of them as its members to be able to act for them in their employment by plaintiff. This the Union is free to try to do, regardless of the wishes of those presently employed, under existing federal law as construed by the United States Supreme Court. The only limitation thereon is to refrain from the use or threat of force.

This case is in this court only because plaintiff claims the defendant Union, officers and members exceeded the bounds of peaceful picketing and created local disorders and disturbances that are presently cognizable under the existing jurisdiction and authority of a state court.

Defendants admit that there were certain incidents on April 16th and 17th, uninspired by them and contrary to their wishes and instructions. They also admit the presence of from fifteen to twenty pickets from the first day of picketing, April 13th, through the 15th and perhaps upwards of but less than thirty-five on the, 16th. The petition herein was filed on the 18th and there have been fewer pickets and- no disorders or disturbances since the 17th.

Plaintiff contends that picketing should be enjoined altogether, while defendants concede that under the circumstances of past occurrences picketing may be restricted and defined but not eliminated.

There are three places or points of entrance and exit for persons and cargoes, two on the east or alley side- and one on the west or street side. Of the former, one, the north or toward Market Street, is for persons entering the office or plant, and the other, the south, is considerably above alley level and is intended and used for cargoes. The west entrance and exit is much wider, on sidewalk level, and is used by both pedestrians and motor vehicles. It is here that most trouble occurred, the principal focal point of controversy.

For example, four pickets in close file were proceeding northerly across the line of vehicular traffic into the plant parking lot, aware of the impending turn into said lot of a passenger automobile of employees approaching from the south and either ignored or disputed its intended entrance, with ensuing violence upon its driver by the foremost picket. This occurred during the afternoon of the 16th. After dark a truck undertaking to deliver eggs was stopped and. turned back and during the night its cargo loosened and a tire slashed. A second truck was jumped and window broken. Some employees were cursed and berated. Altogether there was unquestionable provocative and disruptive conduct on the part of persons engaged or associated in the picketing, plainly calculated to foment strife, incite hatred and instill fear.

The seeds of the disorders and personal violence lay in the inception of mass picketing and for this the Union and its officers were and are directly responsible, as the event of the picketing itself was brought about by these defendants and they directly superintended and directed the picketing operation. It is quite likely that they hoped to achieve a quick and effective shut-down in order to effectuate their declared purpose of putting plaintiff’s local plant out of business or operation before counter measures could be devised or invoked. Illustrative of such hope is the fact that employees were telephoned Sunday that the plant would not open Monday.

When the defendant Union and its officers caused and created picketing at plaintiff’s premises for its own organizational purposes the Union thereby assumed full responsibility for the events and occurrences that ensued therefrom, whether intended by or knowledgeable to it or not. The picketing was its and their own project and undertaking, for the Union’s own objectives, and the Union will be considered and held answerable herein throughout for all matters and events in any way relating to or eminating therefrom. That is the only logical and responsible way to have and to maintain accountability in the Union’s self-instituted project of seeking to discourage non-union work or employment at plaintiff’s Zanesville plant.

The Court is making its position clear in this respect in advance so that there will be no occasion for equivocation in the future if acts or conduct violative of law or court order should occur for which the Union might seek to disclaim knowledge or intention. Union responsibility will be presumed from the fact that it instigated, directs and operates the picketing for the openly avowed and declared purpose of seeking to put plaintiff’s local plant out of business if it cannot organize the plant’s employees so as to represent them in their employment by plaintiff. Hence, any future such violation act or conduct, as may be shown and found by the Court to have occurred, will result in complete and enforced abandonment of whatever limited picketing may be permitted meantime, and defendants are put on present notice thereof by this written Opinion.

This Court has heretofore held that:

“Mass picketing is unlawful per se and unallowable;
“When ingredients are present that will probably result in consequences occasioning injury or damage, the anticipated consequences need not first occur in order for a complainant to be entitled to injunctive relief;
“Public alleys and sidewalks, intended primarily for vehicular and pedestrian travel, can not otherwise be utilized to the exclusion or restriction of either.” (Zanes, Pub. Co., v. Int. Typ. Union, 75 Abs 173.)

There is no sidewalk whatever on or along the east side of plaintiff’s premises and the two openings on that side into and out of plaintiff’s plant can be approached and reached only by proceeding some little distance into Beech alley from Market Street on the north and for a considerable distance from Main Street on the south. The nearest sidewalk fronts and abuts the Rogge Hotel and business rooms therein of The American Railway Express. A public alley, no more than a public street, may not be utilized for regular and concerted standing and walking of persons whose business is to parade placards before and in front of another’s premises. It may be traversed only to the limited extent necessary to move quickly and directly over or across and into or out of in order to reach or leave an off-alley destination. This Court has heretofore declined to undertake to dispute with the City of Zanesville the proper and intended use of its streets and alleys and will not do so in this or any other case. Accordingly, there can be no picketing legitimately in Beech Alley, even with Court order, but this Court affirmatively disapproves of any such street or alley misuse and will not permit picketing therein in any event.

There is then in question only one place of ingress and egress, the particularly troublesome one of considerable width and area on Second Street, somewhere midway between Market Street and Fountain Alley. There is a sidewalk on this east side of North Second Street, which extends across the front of the parking and main delivery area and in and out of which many employees enter and leave. Two pickets, each with a Union sign, were observed on that sidewalk last Friday by the undersigned judge of this Court shortly after the conclusion of the within hearing. In fact, they were the only two persons observable at all at that time on any of the four sides of plaintiffs premises. They were seated together on the walk, immediately south of said entrance, but arose to their feet and began to walk as the undersigned approached and passed. A few other persons, apparently interested or allied, were seated in an automobile in the parking ground on the other side of Second Street, facing the two women pickets.

It is the Court’s conclusion, that while the Union and its officers possessed full knowledge of the responsibility and limitation of peaceful picketing at the very outset and should have made certain the avoidance of mass picketing and the incidents and violence that were calculated to arise by the very nature of its own immediate designs unless it acted affirmatively to obviate and prevent them, if it really wanted to do so, it would possibly be an abuse of discretion to deny picketing altogether before first making an appropriate order of limitation.

Two pickets only will be permitted at any one time, entirely south of the street entrance to plaintiff’s premises and at no time or under any circumstance to cross or pass in front of any part or portion of the front of the area entrance. Each of such pickets shall walk from opposite ends of the sidewalk between said south, entrance line and Fountain Alley and pass each other approximately midway between, being and remaining separate at all times and neither stopping singly nor together, at all times moving along only one side of the walk, so as to provide ample passing room for any of plaintiff’s employees arriving or leaving over or along said walk.

Henceforth, before any person may act as either such picket, a regularly scheduled, authorized list of names, home addresses and hours of picket duty, shall be prepared, followed and retained by the Union, available at the request of the Court at all times and if not done or if departed from and unamended as to any specific departure, picketing shall thereupon cease in all respects and not be resumed unless and until full and entire compliance .herewith.

Defendants, their agents, servants, representatives and employees, are ordered and temporarily enjoined generally and specifically from interference in any manner, directly or indirectly, expressly or impliedly, at work or homes with plaintiff’s employees or employment, at or in its business or work operation, by any means, excepting only the peaceful persuasion of ordinary civil and courteous conversation in'. addressing them. For the purpose of a formal Order and Journal Entry the specific restrictions and limitations herein stated may be supplemented by the usual particular items and paragraphs deemed proper and adequate for assured effectiveness, such as were contained in the earlier case number 40597, and with bond to be furnished by plaintiff in the amount and sum of One Thousand Dollars.

Filing of this Opinion shall be notice to the defendants of its contents, for whom copies are available upon call at the office of the Clerk.


author:
By YOUNGER, PJ.
      GUERNSEY, J

text:
    DEFIANCE (City), Appellee, v. NAGEL, Appellant.
    Ohio Appeals, Third District, Defiance County.
    No. 204.
    Decided February 13, 1959.

      John E. Kissner, John W. Winn, for appellant.
    Charles A. Bakle, Alner D. Ryan, for appellee.
   OPINION

By YOUNGER, PJ.

The defendant, on June 21, 1958, was found guilty in the Municipal Court of Defiance of violating the “Green River” Ordinance of the city of Defiance, No. 1354, enacted on July 19th, 1949, and, from such judgment of conviction, this appeal is prosecuted upon questions of law.

The material part of Ordinance No. 1354 is the first paragraph, which is as follows:

“1. The practice of going in and upon private residences in the City of Defiance, Ohio, by Solicitors, Peddlers, Hawkers, Itinerant merchants and transient vendors of merchandise, not having been requested or invited so to do by the owners or occupant or occupants of said private residences, for the purpose of soliciting orders for the sale of goods, wares and merchandise, and/or for the purpose of disposing of and/or peddling and hawking the same, is hereby declared to be a nuisance, and punishable as such as a misdemeanor.”

The case was tried upon an agreed statement of facts which is as follows:

“It is stipulated between the parties to this cause that the following statements are true and that they include (except for facts of which the court may properly take judicial notice) all of the facts material to a determination of the matters here at issue:—
“1. Alfred Nickles Bakery, Inc., is a corporation organized under the laws of the State of Ohio, with its principal place of business in the Village of Navarre, Ohio. Said corporation operates several bakeries in which are produced bread, rolls, cakes and cookies and other like baked goods, which are the products or goods, and the only products or goods, which that corporation sells or offers for sale through its employees.
“2. The said products of Alfred Nickles Bakery, Inc., are sold by it at retail, largely door-to-door, from trucks owned by it which are operated or driven by its employees over more or less regular routes established in various municipalities, including the City of Defiance, Ohio. These retail sales are generally made to housewives who are regular customers of Alfred Nickles Bakery, Inc. These customers are, in large part, ac-' quired by preliminary interviews with housewives in the municipalities in which said routes are, or are to be, established.
“3. These preliminary interviews are conducted by employees of Alfred Nickles Bakery, Inc., to whom that duty is assigned by it. The persons so soliciting customers are not expected to make actual sales nor to carry out Nickles Bakery products with them but, if the person interviewed indicates an interest or possible interest in becoming a customer of the bakery, her name is given to one of the company’s route drivers who thereafter, as long as she approves, makes regular calls upon her, accepting and filling her orders as given.
“4. The defendant, Carl J. Nagel, is, and on May 2, 1958, was an employee of Alfred Nickles Bakery, Inc. On May 2, 1958, the defendant, then acting in the course or scope of his- employment, made and completed an uninvited call upon the housewife at the residence property, known as 907 Perry Street, Defiance, Ohio, and then and there attempted to persuade her to become a regular customer of Alfred Nickles Bakery, Inc. products.
“It is further stipulated that this matter may be heard and determined upon this agreed statement of facts without other evidence and that the issues or questions which the Court is called upon to decide include (a) whether it is proper to construe said ordinance as an attempted prohibition of an uninvited solicitation of the type so made by the defendant and (b), if said ordinance is to be so construed, whether it is constitutional or otherwise legal and enforcible.”

The affidavit herein charges:

“. . . . that on or about the second day of May, 1958 .... one Carl J. Nagel being an employee of the Nickles Bakery Company, Bryan, Ohio, did unlawfully solicit orders for bakery products at 907 Perry Street in the City of Defiance.”

Upon the agreed statement of facts, we hold:—

1. The single act set forth in thé affidavit, namely of soliciting orders for bakery products at 907 Perry Street, on May 2, 1958, is not a violation of the Ordinance which attempts to prohibit the “practice of going in and upon private residences in the City of Defiance.” (Emphasis added.)

As used here, the noun “practice” means an actual performance habitually engaged in: often, repeated, or customary action; usage; habit; custom; or the usual mode or method of doing something. Therefore, in this instance, the practice of doing something cannot be proven by the proof of or the admission of one single act. Criminal statutes and ordinances are to be strictly construed.

2. If, by the provisions of paragraph number 2 of the stipulations it may be assumed that on May 2, 1958, the Alfred Nickles Bakery, Inc., had more or less regular routes in the City of Defiance, and that the customers on such routes had been secured by the defendant in the same manner by which he attempted to secure the patronage of the wife of the Chief of Police on the second day of May, we would still have grave doubts as to the guilt of the defendant under the ordinance. The provisions of §715.63 R. C., which provide that “no municipal corporation may require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, a license to vend or sell, by himself or his agent, any such article or product,” and the provisions of §715.64 R. C., which state: “This section does not apply to persons selling by sample only, nor to any agricultural articles or products offered or exposed for sale by the producer,” would seem to require a holding that by inference at least, in Ohio, producers and manufacturers and their agents, so far as the sale of their own produce or articles is concerned, cannot be restricted or hindered even to the extent of requiring the obtaining of a license, no matter how nominal or reasonable the fee for such license may be. Since it is here admitted in the penultimate paragraph of the stipulations that the defendant was acting in the course or scope of his employment, and that his employer was the producer or processor of the baked goods in which he was attempting to interest the housewife at 907 Perry Street, it would certainly appear that the ordinance is in conflict with such statutory provisions. These statutory provisions confer a preferential status upon a producer or processor in the sale of his own product whereas the ordinance does not.

The defendant-appellant in his brief argues strenuously that ordinance No. 1354 is unconstitutional as being in violation of Article I, Sections 1 and 16, and Article XVIII, Section 3, Ohio Constitution.

It has long been the practice of the courts of Ohio not to pass upon the constitutionality of an act where the case may be disposed of upon tenable grounds. Although a constitutional question may be legitimately presented by the record, yet if the record also presents some other and satisfactory ground upon which the Court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course- will be adopted, and the question of constitutionality will be left for consideration until a case arises which cannot be adjudicated without considering it and when, consequently, a decision upon such question would be unavoidable. (10 O. Jur. 2d, 198, par. 116. Wiggins v. Babbitt, 130 Oh St 240. Motor Freight v. Bowers, 164 Oh St 122.)

Therefore, since, in our opinion, this case can be and has been disposed of upon other and satisfactory grounds, we express no opinion as to the constitutionality of the ordinance under consideration as to the actions of solicitors other than the defendant, or as to the acts of the defendant upon occasions oher than the second day of May, 1958.

For the reasons given above, the judgment of conviction is reversed and the defendant discharged.

MIDDLETON, J, concurs.

GUERNSEY, J

(concurring in part and dissenting in part):

I concur in the judgment and in only so much of the foregoing opinion as relates to the failure to prove that the defendant here has violated the provisions of the ordinance in question. I consider that this completely disposes of the question of defendant’s guilt or innocence.

I am of the opinion that the recital in the majority opinion with reference to §§715.63 and 715:64 R. C., that “it would certainly appear that the ordinance is in conflict with such statutory provisions” is a consideration, if not determination, that the ordinance is violative' of Section 3, Article XVIII, Ohio Constitution, providing:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Since there is another and satisfactory ground upon which this Court may rest its judgment, and thereby render the constitutional question, thus considered, immaterial to the case, I cannot concur in all that part of the majority opinion dealing with a consideration of whether or not the ordinance in question conflicts with §§715.63 and 715.64 R. C.