text:
    SCHULTZ, Plaintiff-Appellant, v. UPPER ARLINGTON (City) et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4370.
    Decided May 5, 1950.
    Dargusch, Caren, Greek & King, John W. King, John W. Christensen, of Counsel, Columbus, for plaintiff-appellant.
    Paul A. Griffith, Columbus, for the City of Upper Arlington.
    Lawrence D. Stanley, Columbus, for City of Upper Arlington, defendant-appellee.
    Robert N. Krier, Columbus, Amicus Curiae.
   OPINION

By THE COURT.

This is an appeal on questions of law from the Common Pleas Court of Franklin County, Ohio, which overruled plaintiff’s demurrer to the answer of the defendants. The plaintiff not desiring to plead further, the cause was dismissed.

There is no dispute between the parties as to the facts. The sole question for determination relates to the legal effect of the undisputed facts alleged in the pleadings.

The well-considered and comprehensive written opinion of the trial judge, Honorable Myron B. Gessaman, is found among the papers in the case. The trial court held that Article XVIII, Section 3, of the Ohio Constitution confers on municipalities the “authority to exercise all powers of local self government.” But that Section XV of the Charter of the City of Upper Arlington, which provides for submitting an annexation ordinance to a vote of the electors, did not fall in that category; that the constitutional provision conferring on municipalities the “powers of local self-government,” contemplates and includes only such powers as are local in the sense that they relate to the municipal affairs of the particular municipality; that matters involving annexation of territory to a municipal corporation are not purely local matters and, therefore, are not proper functions of local self-government; such matters are of a general nature and state-wide in their scope. The trial court concluded that Section XV of the Charter of the City of Upper Arlington deals with a subject that is not a function of local self-government; that this section is in conflict with the general laws passed by the Legislature under its constitutional powers and is, therefore, void and of no effect. As a consequence the Commission of the City of Upper Arlington was not required to submit Ordinance No. 1057 to a vote of the electors of the city. Support for this conclusion is found in the following cases which were cited: Fitzgerald, et al. v. City of Cleveland, 88 Oh St 338, 103 N. E. 512; Mansfield v. Endly, 38 Oh Ap 528, 535, 176 N. E. 462; Village of Brook Park v. City of Cleveland, 26 O. O. 536, 538.

After carefully considering all the legal questions raised by counsel in their briefs we have arrived at the same conclusion as the trial court. We find no necessity to restate here the applicable provisions of the law so effectively stated in the excellent written opinion by the trial judge.

Finding no error in the record prejudicial to the appellant the judgment is affirmed.

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


source: Caselaw Access Project

author: By SKEEL, PJ.

license: Public Domain

text:
    CONSUMERS PLUMBING & HEATING SUPPLY COMPANY, Plaintiff-Appellee, v. CHICAGO POTTERY COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21894.
    Decided October 9, 1950.
    Oscar J. Green, Cleveland, for plaintiff-appellee.
    Squire, Sanders & Dempsey, Frank Harrison, of Counsel, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from an order of the common pleas court overruling defendant’s motion seeking to discharge an attachment.

The plaintiff filed its petition setting forth a cause of action based on contract against defendant, a non-resident corporation, which defendant has not qualified to do business in this state under the provisions of §8625-4 et sequi, GC.

The petition was filed on Jan. 3, 1950. Defendant’s address contained in the caption was set forth as being in Illinois and the opening paragraph described defendant as a foreign corporation not qualified to do business in Ohio. A precipe for service was filed with the petition and a summons was issued. The summons was returned, defendant “not found” on January 9, 1950.

With the filing of the petition and the issuing of the summons the plaintiff filed an affidavit in attachment stating that defendant was a foreign corporation which had not qualified to do business in Ohio, and an order of attachment was issued “with notice to garnishee.” Likewise upon the filing of the petition an “affidavit for constructive service” was filed and the first notice of the filing of the action was published Jan. 13, 1950.

It is the claim of defendant that the attachment proceeding was filed prior to the “commencement of the action” and therefore void. The theory advanced by defendant is based on the provisions of §11230 GC which reads as follows:

“An action shall be deemed to be commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him or on a co-defendant who is a joint contractor, or otherwise united in interest with him. When service'by publication is proper the action shall be deemed to be commenced at the date of the first publication, if it be regularly made.”

It is contended that until the date of the first publication of notice as provided by §11292 GC, the action is not “commenced” and that an order of attachment issued prior thereto is void. It will be noted, however, that §11230 GC, defining the time when an action shall be deemed commenced is, by its terms, limited to the subject matter contained in Chapter 2, Division 1, Title 4 of Part Third of the Ohio General Code which deals with “limitations of action.” The manner in which an action is commenced is defined by §11279 GC which is part of Chap. 4, Div. 2 of the same title of the General Code and is designated “Commencement of Action.” This section provides:

“A civil action must be commenced by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon.”

The grounds of attachment are defined in §11819 GC found in Chap. 2 Div. 6 of Title 4, §11819 GC in part provides:

“In a civil action for the recovery of money at or after its Commencement, the plaintiff may have an attachment against the property of the defendant upon any one of the grounds herein stated: * *

The words “at or after its commencement” as used in this section, refer to the manner of bringing the action as defined in §11279 GC supra. Until an action is “commenced” a court is without power to authorize constructive service provided for by §11292 GC. The filing of an attachment proceeding is the only means of “commencing” an action seeking a judgment for money only in cases where personal service cannot be had.

In the case of Distributing Co. v. Galsworthy Inc. 148 Oh St 567 at page 573 the court said:

“That an attachment proceeding- in an ‘action in personam’ is a separate and ancillary proceeding is clear. That an attachment proceeding in an action ‘in rem’ is the action is also clear.”

In the case of Endel v. Leibrock, 33 Oh St 254 at page 267, Chief Justice Johnson says:

“In an attachment proceeding which is ancillary to the action, where personal service cannot be made, service by publication cannot be made unless an attachment is lawfully issued and property taken under it or reached by garnishee process, which the court may act on and no attachment can issue without the requisite affidavit.”

See also: Francis v. Allen, 37 O. O. 362, 79 N. E. (2d) 803; 32 O. Jur. 455, Sec. 66, 445 Sec. 56.

The Supreme Court of the United States in the case of Rorick v. Deven Syndicate Ltd., 307 U. S. 299, 3rd paragraph of syllabus states:

“Under the General Code of Ohio, §§11279, 11819 GC, when a civil action for money has been begun by filing the petition and issuing summons, an attachment or garnishment is not premature because obtained prior to personal service or before commencement of service by publication.”

See pages 306 and 307 for the court’s consideration of the rule as stated in the third paragraph of the syllabus.

The case of Crandall v. Irwin, 139 Oh St 463, upon which defendant relies is one dealing with the subject of “limitation of actions.” In the 1st paragraph of the opinion by Turner, J., he says:

“Appellee made application for a rehearing on the ground that the petition was filed within the six-year limitation, although no service was had within sixty days thereafter. The hearing is limited to this phase of the case.”

This case, therefore, does not deal with the question here under consideration.

Likewise the case of Distributing Co. v. Galsworthy Inc., supra relied on by defendant, is primarily concerned with whether an attachment ordered before a summons was issued was void. The court after disposing of the question of whether the discharge of an attachment before trial on the merits was an appealable order, affirmed the order of the trial court in discharging the attachment for the reason that no precipe for summons was filed or summons issued as disclosed upon the face of the record and therefore the action had not been commenced as provided by §11279 GC. The court in disposing of this question, said, beginning at page 579:

“As no summons was issued or publication made at the time of the levy of the attachment, such attachment was void. The right to an attachment against the property of defendant is a statutory right and unless the conditions of the statute are complied with, no right ripens thereunder. In the case of Seibert v. Switzer, 35 Oh St 661 it was held in paragraph one of the syllabus:
‘An attachment, under the civil code, is an auxiliary proceeding in an action, which may be sued out by the plaintiff, at or after the commencement of such action, by filing a petition and causing a summons to issue thereon.’
“In the Crandall case, supra, we said of the Seibert v. Switzer case:
‘It will thus be seen that the question in that case was the manner of commencing an action. Time was involved only to the extent of showing that the plaintiff had gotten the cart before the horse, i. e., he had filed an auxiliary proceeding before commencing an action in the manner provided by statute. Of course, no jurisdiction could be obtained by attachment until plaintiff had followed the statute as to the manner of commencing a civil action.’
“We are of the opinion that the Court of Appeals committed no error in the instant case by holding that as the attachment was levied before the action was legally commenced, the attachment was void and should be set aside.”

This case therefore supports the plaintiff’s contention rather than that of the defendant.

For the foregoing reasons the judgment of the trial court is affirmed. Exceptions noted. Order see journal.

McNAMEE, J, HURD, J, concur.


author: By THE COURT.

text:
    W. E. ANDERSON SONS COMPANY, Plaintiff-Appellee, v. LOCAL UNION NO. 311, INTERNATIONAL BROTHERHOOD OF TEAMSTERS et, Defendants, LOCAL UNION NO. 311 et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4362.
    Decided May 1, 1950.
    Vorys, Sater, Seymour & Pease, Carl Tangeman, of Counsel, Columbus, for plaintiff-appellee.
    Robert C. Knee, Fred M. Kerr, Dayton, for defendants-appellants.
   OPINION

By THE COURT.

This is an appeal on questions of law and fact from an injunctive order against defendants-appellants. The form of the appeal requires that we consider and determine the issues as though the case originated in this Court.

Plaintiff corporation was engaged in the business of transporting material and merchandise and at the times involved in this suit was delivering gravel and dirt to the site of the Tuberculosis Hospital Health Center Building then being constructed at the Ohio State University. Plaintiff had a contract with H. W. Holt and Son Co., a subcontractor of the James I. Barnes Construction Company, general contractor on the project. Plaintiff did not employ union labor in its business and was moving its material, under its contract to the site of the building under construction with nonunion men.

Defendant-appellant, Don Pfeiffer, was the business agent of Local Union No. 311, Brotherhood of Teamsters, etc., who, for its Local attempted to secure the job which was given to the employees of plaintiff. Phil O’Day, defendant at the time the controversy arose, was president and a member of Columbus Building Trade Council made up of delegates of each of the defendant Local Unions and of numerous other Local Unions connected with the Building Trades and authorized by the Department of the American Federation of Labor.

It is not necessary to set out the names, offices and relation to the controversy of the other named defendants because no order was directed to them and there is no contention by either party on this appeal that we should hold differently than the Common Pleas Court respecting them.

The facts, as developed, are that in February, 1949, the Holt Company, the exacavating subcontractor, was under pressure to deliver gravel and dirt to the building under construction by the Barnes Company. Mr. Tom Holt of the Holt Construction Company contacted Mr. Pfeiffer and Mr. O’Day for the purpose of securing union haulers of the material to be removed. On February 4, they agreed to supply union drivers with dump trucks on the Monday following. Holt, in conversation with Pfeiffer, discussed the necessity of the truckers having P. U. C. O. permits inasmuch as the material was to be moved from a place outside of the city limits of Columbus. The union haulers had no such permits. Some controversy later arose over this situation which controversy has no weight except as it may throw some light on the feeling that may have been engendered between Anderson and Holt, on the one side, and Pfeiffer and O’Day on the other, which might become material if, and when; a combination was shown to exist between Pfeiffer and O’Day representing their respective organizations.

On February 9 the Anderson trucks began to haul material and soon thereafter a banner, with a picket, was placed at the corner of Tenth and Perry Streets, the entrance to the construction project. The banner read: “Anderson does not employ members of Teamsters Local 311, affiliated with the Building Trades Council, A. F. L.” Succeeding the placing of the banner, and the picket, most of the union men employed on the project by the Barnes Company, or its subcontractors, left the job, as a result of which Anderson’s men were ordered withdrawn. Union men, members of Teamsters Local 311, were then employed to do the hauling, returned to the job and had worked but a few hours when an official from the Public Utilities Commission of Ohio came onto the job and stopped operations because the men did not have P. U. C. O. licenses.

As a result of this stoppage, a hearing was had before the ■Public Utilities Commission during which it developed that Holt was a holder of a P. U. C. O. license but that he would not permit the union haulers to operate under it for reasons satisfactory to him. There is the implication that Holt, by his attitude, was favoring Anderson and that he had misled Pfeiffer and O’Day as to his ownership of the certificate. He makes explanation of his statements and conduct respecting this license. Suffice to say that he was under no legal obligation to permit the union haulers to operate under his license.

The union men being unable to continue their hauling, Anderson was again employed and resumed operations whereupon there was a repetition of occurrenses such as had attended his first attempt to carry out his contract. The banner went up again, the picket took up his station, most of the union men on the job left their work. Anderson’s men hauled for some time, when the principal contractor wired him to cease hauling. This was the situation when the petition was filed.

Plaintiff’s petition is based upon the claim that the defendants, by combination in restraint of trade in violation •of the Valentine Act, §6391 et seq, GC, by placing of the banner, the picketing of the site and the conduct and statements of the defendants, caused all members of the defendants’ union working on the site for the Barnes Construction Company and Raymond Concrete Pile Company to cease work on said site for their respective employers and thereby coerced and forced said employers to refuse to permit the plaintiff to deliver dirt and bank run gravel to said site, and that the purpose of said defendants was to bring about the result accomplished.

The order directed to defendants, Labor Union No. 311, Don Pfeiffer, individually and as business agent of said union, Columbus Building Trades Council, and Phil O’Day, individually and as an officer of Columbus Building Trades Council, enjoins them from,

a; Picketing or bannering the site of any building, job or work where plaintiff has or shall have delivered building materials or other commodities, including dirt and bank run gravel, for the purpose of preventing plaintiff from making delivery of materials or other commodities to such site.

b. Instructing, advising or persuading, or attempting to instruct. advise or persuade any member of any of the defendant unions or others to cease working or to threaten to cease working for the purpose of preventing plaintiff from making delivery of materials or other commodities, including dirt and bank run gravel.

c. Interfering or attempting to interfere with' or molest the business of any person, Arm or corporation to whom plaintiff may deliver materials or other commodities, or the customers of plaintiff, or the customers, employees, agents or other persons with whom plaintiff has dealings for the purpose of preventing plaintiff from making delivery of materials or other commodities to any person, firm or corporation.

The foregoing order, in so far as picketing or bannering is concerned, is intended to be only a limitation on picketing or bannering for the specific purposes indicated in Paragraphs a, b and c, and it shall not be construed in any manner to prevent peaceful picketing or bannering, for any other purpose or at any other places than those mentioned in Paragraph a nor for any purpose not set forth in Paragraphs a, b and c.

As we interpret this order, its practical effect, in part, is to preclude the placing of the banner of Labor Union No. 311 at the site of the building project to which place materials were being hauled by that Local. The order is qualified by providing that the site shall not be picketed or bannered “for the purpose of preventing plaintiff from making delivery of materials or other commodities to such site,” but this qualification saves no right to the defendant Local to picket or banner because the judgment finds that the primary purpose of the picketing was to prevent the plaintiff from delivering material to the job site. The order also limits its effect to picketing or bannering for the specific purposes recited and provides that it shall not be construed in any manner to prevent peaceful picketing or bannering, for any other purpose or at any other places than those mentioned in paragraph A, nor for any purpose not set forth in paragraphs a, b and c.

We are unable to find that any right is left to the defendant, Local Union No. 311, by the language of the order to place a picket or a banner such as the one under consideration in this case, unless it might be that such a banner could be placed at some other location than the site of the Barnes Construction project.

In the oral presentation of this appeal, it was urged that the banner should not be permitted at the site where placed but that it might not be objectionable if placed in front of the business office of the plaintiff. We find no merit in this contention. If the Local No. 311 had any right to place the banner, it was appropriate that it do so at the site of the project to which plaintiff’s trucks were moving in the transportation and unloading of the materials delivered to the site.

Coming to the decisive questions in this case, we shall assume, for the purpose of this opinion, that the petition states a cause of action and if its averments are established the plaintiff is entitled to injunctive relief.

There are several questions for determination, one is whether or not under the circumstances developed the defendant Local No. 311 had the right to place the banner and picket the site of the Barnes Company construction project. Second, were the other defendants enjoined parties in combination with Local 311 in placing the banner? Third, did Pfeiffer, as business agent, and O’Day, individually or as president of Columbus Building Trades Council, in combination, use other means than the banner and picket to prevail upon members of other unions who worked on the project to leave their work because of the employment of nonunion men on the Anderson contract? We will not consider these questions in the order stated.

To support a finding of conspiracy on the part of the defendants to commit an unlawful act requires convincing proof and an injunction should not be granted in the absence of such proof. It is said that the injunction in this case requires the observance of no course of conduct other than that which appellants insist they have at all times observed. Manifestly, if they have not engaged in such conduct as is charged against them by the petition they should not be restrained.

Coming to the second and third propositions, viz.: Were Pfeiffer and O’Day in a combination to place the banner; was their conduct toward the union men on the job intended to and did it cause them to leave their work? O’Day testifies, and it is not disputed, that he had no authority as President of Columbus Building Trades Council to place, cause the placing, remove, or cause the removal of a picket or a banner at the building site. That he was actually engaged in the controversy clearly appears. He was consulted by Holt at the outset of negotiations for the hauling, later by representatives of Barnes Construction Company, and was invited into meetings of the parties interested and took part therein. As a matter of fact, it appears that he attended these meetings on invitation of the contractor or a subcontractor, rather than upon his own initiative. He was present on the job during the difficulties respecting the hauling, but it appears that in the ordinary course of his duties he would have been there had there been no such controversy.

Without attempting to quote all of the statements attributed to O’Day, we are satisfied to say there are but two that could be construed as having for their purpose and effect the removal of the union workmen from the jobs. It is testified, though denied by O’Day, that at the job on February 10th, he walked up to a Labor steward and asked him what he was going to do to which reply was made that he did not know, whereupon O’Day suggested that he go home but that he could not make him go according to law; and the testimony of another witness, representative of Barnes, that O’Day called to inquire if Anderson’s men were working and upon being informed that they were said, “Well, if they want a showdown we’ll let them have it.” If the word “they” was broad enough to include not only the plaintiff and his men but also the contractor, or subcontractor or laborers on the job, the statement constituted a threat of interference which was in the nature of a secondary boycott. But this language is susceptible of and indeed should be given a construction consistent with fair dealing, which would imply that O’Day had in mind Anderson’s men and that only such steps would be taken by the union as would be lawful.

This latter statement, imputed to O’Day, is the only evidence in the case which can be found to include even a semblance of a threat to induce the union men to leave the job.

In Maywood Farms Company v. Milk Wagon Drivers’ Union, etc., et al., (313 Ill. App. 24), 38 N. E. (2d) 972, the first syllabus holds:

“A ‘secondary boycott’ exists where evil motive is found accompanied by unlawful acts, and in order to give a court of equity jurisdiction to restrain a secondary boycott, it must contain the elements of coercion, either by threats, intimidation or violence.”

The Court cites and relies upon two cases: Milk Wagon Drivers’ Union v. Meadowmoor Dairies, Inc., 312 U. S. 287, and American Federation of Labor v. Swing, 312 U. S. 321. We do not rely upon these cases, but test the evidence to find if there was a conspiracy in furtherance of which any coercive acts were committed by the defendants independent of threats, Intimidation or violence. In our judgment, no statement or act of O’Day, or Pfeiffer, is found in this record which requires a construction that they were chargeable with any overt conduct unless the picketing was purposed to cause the Union employees to leave their jobs. Upon this issue we cannot find a combination between O’Day and Pfeiffer. It is testified, and not denied, that Pfeiffer alone had the authority to call the men of Local Union No. 311 onto the picket line and to banner the job, and it does not appear that O’Day counselled or advised him to do so. Had he so' advised it would not have been tortuous conduct.

It is claimed that there is no controversy between Anderson and his employees, none between Local Union No. 311 and the employers of the union men on the job. This is true. Does this bar the Local No. 311 from picketing the place where Anderson’s men were working? It may be said that the picketing of Anderson was the cause of the union men, as individuals, leaving their work because of the unwritten rule which many union men observe, that they will not cross a picket line or work back of a banner. No such unwritten rule is involved here.

We held, in Settos v. International Alliance of Moving Picture Operators (1940), 32 Abs, 219, 43 N. E. (2d) 893, that where there was no labor dispute between the union and the •owner of the place picketed an injunction would lie to prevent such picketing. Motion to certify the record in this case was denied in our Supreme Court. However, more recently, (1941) in American Federation of Labor, et al., v. Swing, 312 U. S. 321, 61 S. C. R. 568, third syllabus, it is stated:

“A decree which for purposes of a particular case asserted as the common law of the State of Illinois that there could be no peaceful picketing or peaceful persuasion in relationship to any dispute between an employer and trade union unless the employer’s own employees were in controversy with him, was inconsistent with the guarantee of ‘freedom of speech’ and could not be sustained.”

The first question, viz., the right of Local No. 311 to banner 'and picket the site of the Barnes Company construction project under the circumstances has caused us much concern. That one effect of the placing of the banner was to cause the union men to leave their job is manifest. May a court of equity enjoin the placing of this banner, assuming that the union had the right to picket because of the presence of the nonunion men working for Anderson, by reason of its further effect in drawing the union men off the construction part of the project?

Appellee relies, in part, upon the case of Carpenters’ and Joiners’ Union, etc. v. Ritter’s Cafe, 315 U. S. 722, 62 S. Ct. 807. In the cited case Ritter contracted for the construction of a building a mile and a half away from a restaurant which he operated. The employees were nonunion carpenters and painters and the building to be erected had no connection with the restaurant in which all employees were union members and with whom Ritter had no controversy, nor, had the Carpenters’ and Joiners’ Union any controversy with Ritter at the restaurant. A picket carrying the following placard was placed in front of the restaurant:

“The owner of this Cafe has awarded a contract to erect a building to W. A. Plaster, who is unfair to the Carpenters Union 213 and Painters Union 130, affiliated with the American Federation of Labor.”

The lower courts had found that the Cafe was picketed “for the avowed purpose of forcing and compelling plaintiff (Ritter) to require the contractor, Plaster, to. use and employ only members of the defendant unions on the building under construction in the 2800 block on Broadway.”

In conjunction with the picketing, the restaurant workers’ union called Ritter’s employees out on strike and withdrew the Union card from his establishment. Union truck drivers refused to cross the picket line to deliver food and other supplies to the restaurant. A curtailment of sixty per cent of Ritter’s business resulted. The lower trial court enjoined the picketing holding that the activities of the unions constituted a violation of the anti-trust law of the State of Texas. The decree was restricted to the picketing at the Cafe, and did not forbid picketing elsewhere (including the building under construction by Plaster) nor communication of the facts of the dispute by any means other than the picketing of Ritter’s restaurant. The question presented to the court was whether or not the anti-trust law of the State of Texas, upon which the trial court relied in granting the injunction infringes the freedom of speech guaranteed by the due process clause of the Fourteenth Amendment. We do not see the applicability of the judgment in this case to the facts developed in the instant case. The picketing here was at the place where the work of the employees of the subcontractor, Anderson Company, was being performed. In that particular the decree under review is favorable to the position of the appellant union here, in that, inferentially, at least, it conceded the right of the defendant union to picket the building under construction and to communicate at the site of the job the facts as to the dispute.

Justice Frankkfurter, page 810, 62 S. C. R., in the Ritter case, discussing American Federation of Labor v. Swing, 312 U. S. 321, 326, and Bakery & Pastry Drivers & Helpers Local No. 802 v. Wohl, 315 U. S. 769, said:

“The line drawn by Texas in this case is not the line drawn by New York in the Wohl case. The dispute there related to the conditions under which bakery products were sold and delivered to retailers. The business of the retailers was therefore directly involved in the dispute. In picketing the retail establishments, the union members would only be following the subject-matter of their dispute. Here we have a different situation. The dispute concerns the labor conditions surrounding the construction of a building by a contractor. Texas has deemed it desirable to insulate from the dispute-an establishment which industrially has no connection with the dispute. Texas has not attempted to protect other business enterprises of the building contractor, Plaster, who is the petitioners’ real adversary.”

The Wohl case to which Justice Frankfurter refers, 315 U. S. 769, 62 S. Ct. 816, parallels our facts closely enough to constitute a precedent which we should follow. It was decided on the same day as the Ritter case, supra. In the Wohl case the petitioners were a labor union and certain of its officers, members of which were truck drivers who distributed baked goods. The respondents were Wohl and Platzman who were peddlers of baked goods, and it was developed that there were many other peddlers operating as did Wohl and Platzman. Neither respondent had any contract with the bakeries from which they bought and had no contracts with their customers. The situation developed by the operation of these peddlers was found to be harmful not only to them but to the union with which it was urged they should be affiliated. The union for their group had a requirement that no member should work more than six days per week. The union attempted but had not succeeded to prevail upon the peddlers to join and upon the final refusal to join the union or to employ a union relief man the union placed pickets in the vicinity of the bakeries which sold products to Wohl and Platzman. Each picket carried a placard, one bearing the name of Wohl, the ■other that of Platzman, and under each name appeared a •statement setting fbrth the claim of the union. The trial court issued injunctions restraining the union and its officers and agents from picketing, either the places of business or manufacturing bakeries who sell to the respondents or the places of business of their customers which order had been affirmed by two appellate courts. The basis of the decisions in the lower courts was that no trade disputes were involved between the parties within the meaning of the New York statutes. As to this Justice Jackson, writing the opinion in the U. S. Supreme Court, said:

“one need not be in a ‘labor dispute’ as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive.”

At page 819, 62 S. Ct., deciding the question he said:

“We ourselves can perceive no substantive evil of such magnitude as to mark a limit to the right of free speech which the petitioners sought to exercise.”

The Court held that the injunctions were improperly allowed.

Thornhill v. State of Alabama, 310 U. S. 88, 60 S. Ct. 736, involved the constitutionality of an Alabama statute forbidding picketing a place of business of any person for purpose of hindering, delaying, or interfering with or injuring any lawful business or enterprise of another. The petitioner had been convicted of a violation of the statute, heretofore mentioned, upon a charge that without just cause or legal excuse he did “go near to or loiter about the premises of the Brcwn Wo"d Preserving Co. with the intent or purpose of influencing others” to adopt one of an enumerated courses of conduct and he “did picket the works of the Company for the purpose of interfering with or injuring its lawful business.” The claim of the petitioner was that the statute deprived him of the right of peaceful assemblage, the right of freedom of speech, and the right to petition for redress. The Court so held and reversed the conviction. The freedom of speech and of the press guaranteed by the Constitution is discussed in the opinion, at page 102, 60 S. Ct.:

“In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.”

It is conceded that the Taft-Hartley Act is not applicable to the facts here but some of the principles involved in its interpretation are relevant especially as relate to secondary boycott which has been projected into the field of interpretation because of that Act. It would serve no good purpose to discuss, at length, the cases that have been adjudicated involving secondary boycott under the above mentioned Act, but one of recent date is interesting because of the similarity, in one aspect, of the facts with those presented here. We refer to International Brotherhood of Electrical Workers, Local 501, et al., v. National Relations Board, No. 102 United States Court of Appeals, Second Circuit, Docket No. 21365, decided February 24, 1950, not yet officially reported.

This was an appeal from an order of the Labor Board enjoining the relator from carrying on what the Board had held to be a secondary boycott. There were two questions presented, the second of which reached the question whether or not the Board was correct in holding that the evidence supported the finding of the Board that.the “Local” had engaged in conduct which constituted a secondary boycott. The Court supported the finding of the Board. The facts were that a contractor, Giorgi, had agreed to build a house for the owner of a lot, and let the carpentry to Deltorto and the electrical work to Langer. Giorgi himself did the masonry work. Deltorto had two carpenters on the job, members of a union; Langer, a nonunion employer, had none. Patterson, a business representative of the “Local,” told Deltorto and the two carpenters that the job was unfair because the electrical work was being done by nonunion labor and later bannered and picketed the job. The carpenters, upon reading the banner, quit and went home. Patterson then stopped picketing but called Giorgi and told him that he would have to replace Langer with a union contractor or he could not complete the job. Giorgi told Langer what Patterson had said, whereupon Langer abandoned his contract and quit his work. Shortly thereafter Giorgi told Deltorto what Langer had done and the two carpenters went back to work. Hand, Ch. J., writing the opinion, said:

“The two carpenters quit work because Patterson ‘induced’ them to do so and quit in ‘concert.’ * * * Patterson’s purpose was to force Giorgi ‘to cease doing business with’ Langer; it is enough that the purpose was to put pressure on Giorgi through Deltorto and that Giorgi was certainly ‘doing business with’ Langer. The situation was therefore within par. 8 (b) (4) (A), unless it makes a difference that Giorgi, upon whom the ‘concerted refusal’ indirectly impinged, was at work •on the same job with Langer with whom the union had its •dispute. In short, is a secondary boycott limited to pressure upon third parties who are not engaged in the same venture with the unyielding employer? We can see no basis for such a distinction. The gravamen of a secondary boycott is that Its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.”

Continuing:

“Certain situations are, however, to be distinguished. The work of the employer may be so enmeshed with that of the third party that it is impossible to picket one without picketing the other. The case at bar might have been of that sort, had Langer’s nonunion employees been at work on the job, and Patterson’s only purpose been to induce them to quit. Apparently it is the opinion of the Board that the Act does not forbid picketing the employer, even though that has the incidental effect of picketing a third person.” (Emphasis ours.)

The last sentences quoted are indentical with the situation presented by the facts on this appeal. The picketing was done at the site of the Anderson Company job where the nonunion employees were at work, the same place of operation as the union workers who quit the job. The defendant union had the right to picket where the banner was placed and in so doing the incidental effect was to cause the .union employees to quit their work.

We do not find that the plaintiff has established its claim for injunctive relief. It will, therefore, be denied.

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


author: By THE COURT:

text:
    DAVIS, Plaintiff-Appellee, v. CLELLAND, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 172.
    Decided May 11, 1950.
    Gerald A. Baynes, London, for plaintiff-appellee.
    H. H. Crabbe, London, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment for the plaintiff for $750 and costs.

The action in behalf of the minor was instituted to recover the purchase price of a Chevrolet Town Sedan, 1939 model, for which the minor held the certificate of title, of date January 19, 1948, from Clelland and Mouser, the trade name of the business owned by the defendant. The plaintiff plead a contract of purchase, election to rescind and a tender back of the property. The answer after a general denial, averred that the automobile was purchased by Elmer M. Davis, the father of the minor, Elden Davis, and not by him. At the conclusion of defendant’s evidence the trial judge directed a verdict for the plaintiff on his motion, entered judgment thereon and overruled the motion for a new trial.

As a part of the defense, the defendant offered testimony relating to the transaction and attending the sale of the automobile the purpose of which was to prove that Elmer M. Davis paid the purchase price and that the sale was made to him although the title was made to the minor, Elden Davis. The judge upon objection refused to admit this testimony to which ruling an exception was noted and the record was then completed and this proffered testimony is incorporated in the bill of exceptions.

There are four assignments of error, all of which are included in the claims that the court erred in refusing to admit the proffered testimony and in directing a verdict for the plaintiff.

The contention of the defendant as taken from his brief is that he “was making no claim to the title of the car and claimed no right or interest therein, on the other hand, the plaintiff was seeking to recover money which he claimed he had paid for the automobile and which the defendant claimed was paid by Elmer Davis, the father of the minor. The question of title is not involved. The only question is “who paid the money.” In other words, it is the claim of the defendant that §6290-4 GC does not preclude him from asserting as a defense that the minor-plaintiff had no contract with him and, therefore, there was no contract which the minor could rescind.

If the claim of the defendant was supported by the evidence, it would establish that the father was entitled to take title to the automobile were it not for the fact that §6290-4 GC would intervene to prevent any court recognizing the assertion of any such right, claim or interest in the automobile in as much as the certificate of title from the defendant was made to the minor. The trial judge held that §6290-4 GC had application and precluded the acceptance of the evidence proffered by the defendant.

The material and controlling fact as to both errors assigned is found in the answer to the question to whom was the automobile sold? If the father purchased it, the defendant-dealer was required by law to deliver to him the certificate of title. Sec. 6290-3 GC. The source of the purchase money was immaterial as to the right of the defendant and did not fix the identity of the purchaser. The defendant had the full right to sell or not to sell to the minor but having elected, either personally or by his authorized agent, to make the assignment of the certificate of title to the minor he may not be heard in the absence of fraud, to say that the minor was not the purchaser. The assignment of the certificate of title, a formal written instrument, duly signed and acknowledged by the defendant, recites that he “hereby sells all his right, title and interest in and to” the motor vehicle described to “Elden Davis, (Buyer).”

To permit the defendant to maintain that the father and not the son was the purchaser of the automobile requires not only that the right of the minor to title to the automobile be challenged in contravention of the provisions of §6290-4 GC but also that the terms of a written instrument be varied and the assignment of title including the formal acknowledgment thereon be impeached. Baldwin v. Snowden, 11 Oh St 203, Lemmon v. Hutchings, 1 O. C. C. 388.

Independent of the application of the controlling principles of law which we have just discussed, the facts developed in the record including the proffered testimony of the defendant, would not, in our judgment, make an issue upon the proposition urged by the defendant, viz; that the father advanced the purchase money for the automobile. Hamden Lodge v. Gas Company, 127 Oh St 469. The record is conclusive that the purchase price of the automobile was secured by a check of the minor drawn upon his own funds and by the proceeds of a loan from a finance company for which he signed a note as principal, his father signing the note with him to secure which the minor gave a mortgage on the automobile.

We recognize what seems to be an injustice to the defendant to permit the minor-plaintiff to possess and enjoy the use of the automobile for almost a year, drive it into a telephone pole and wreck it, then haul it into a yard and elect to rescind the whole transaction. However, this is not an equitable proceeding and is controlled entirely by legal principles under which a minor has the right as to contracts made during minority to affirm or disaffirm his contracts other than those for necessaries. Those who deal with a minor must do so charged with the knowledge of this controlling principle of law which, as here, may work some injustice in individual cases but affords, in general, the protection of minors against their own improvidence at a time when they are presumed to be incapable of protecting themselves.

The judgment will be affirmed. .

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


author: By JOHNSON, J.

text:
    BLOOM, Petitioner, v. WILDE, Respondent.
    Common Pleas Court, Greene County.
    No. 26634.
    Decided September 13, 1950.
   OPINION

By JOHNSON, J.

This matter came on to be heard upon an application filed by Marian F.. Bloom for a writ of habeas corpus, claiming that Winifred Wilde was unlawfully withholding from her the custody of two children, to wit: Patricia Ann Skilling and Thomas Giles Skilling, they being the children of Winifred Wilde by another husband. As grounds for the writ of habeas corpus, the petitioner claims that she was awarded the custody of these two children by the ü. S. District Court in Washington, D. C. on an application for a writ of habeas corpus. Before that order was made, Winifred Wilde, then Winifred Skilling, had obtained a decree of divorce in Tompkins County, New York, on February 3, 1942, at which time she was given the custody of the two children. The custody of the children was not granted to Marian Skilling. The entry simply said that:

“said children may be left in the house of the said Marian Skilling of Washington, D. C.,”

and the custody has always been in the defendant, Winifred Wilde.

The decree in part read as follows:

“And it is further ordered, adjudged and decreed that upon this judgment becoming final the . defendant be and she hereby is given the sole, absolute, exclusive and continuous custody of Patricia Ann Skilling and Thomas Giles Skilling, the infant children of the parties, hereto, subject to the provision that until such time as the defendant (now Winifred Wilde) herein is able suitably to maintain said children either with or without the assistance of the plaintiff herein, the said children may be left in the house of the said Marian Skilling of Washington, D. C., pending any further order of this Court.”

That interlocutory and final judgment of divorce was amended later on as follows:

“It appearing to the satisfaction of the court that Winifred Wilde, formerly Winifred Skilling, is able suitably to maintain her children, Patricia Ann Skilling and Thomas Giles Skilling, as shown by the affidavit of Winifred Wilde, sworn to January 17, 1944, and after reading and filing said affidavit, it is
“Ordered that the Interlocutory Judgment of Absolute Divorce granted by Hon. Riley H. Heath, Justice, on January 24, 1942, entered in the office of the Tompkins County Clerk on February 3, 1942, be and the same hereby is amended so that Winifred Wilde, formerly Winifred Skilling, is found to be able suitably to maintain Patricia Ann Skilling and Thomas Giles Skilling, the infant children of the parties to this action; and it is further
“Ordered that the defendant shall have the exclusive, sole, absolute and continuous custody of Patricia Ann Skilling and Thomas Giles Skilling, and is entitled to have said children delivered to her forthwith by Marian F. Skilling of Washington, D. C., with whom said children were placed temporarily.”

In the opinion of this court, Judge Goldsborough, who heard the application for a writ of habeas corpus filed by Winifred Wilde, was bound by the decision of the New York Court. He could not change that in a collateral proceeding such as on an application for a writ of habeas corpus. If Marian F. Bloom wanted the order of the New York Court changed, she would have to file an application with the New York Court to change it, and until the decision of the New York Court is changed it binds every other court before whom the matter is heard. In the opinion of this court, Judge Goldsborough was without any jurisdiction or authority to award custody in a habeas corpus proceeding. The only thing you can determine in a habeas corpus proceeding is whether or not the person making the application is unlawfully restrained of his liberty or the person for whom the application is filed is being held by someone other than the person entitled to hold him. Judge Goldsborough had absolutely no authority to grant custody of the children. That had been determined by the New York Court, and he was bound by it. Therefore, in the opinion of this court, his judgment so far as it awarded custody is absolutely void and without any authority in law. Therefoie, the application for a writ of habeas corpus will be denied.


author: By HURD, J:

text:
    STATE ex JOHNSON, Plaintiff-Appellee, v. RUFFIN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21959.
    Decided November 13, 1950.
    J. P. Dragga, Cleveland, for plaintiff-appellee.
    Jonas Abrams, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

While this is an appeal on questions of law from Juvenile Court in a bastardy proceeding, we have before us for immediate consideration only the motion of the appellant “to compel the trial judge to complete transcript and file same in this court.” This motion is directed to the proceedings held before the Judge of Juvenile Court on May 19, 1950, the day of the preliminary examination of the complainant, under oath, in pursuance of the provisions of §12111 GC.

It should be noted that heretofore the defendant on this appeal filed a Bill of Exceptions containing a transcript of the proceedings held before the trial judge on June 19 and June 26 respectively on a motion by appellant to be permitted to change his plea from “guilty” to “not guilty.” It is claimed by defendant that all of the proceedings of the preliminary hearing of May 19, 1950, were transcribed by a stenographer and court attache and later introduced as part of the evidence and proceedings on June 26, 1950 by the trial judge. Unfortunately for the defendant the Bill of Exceptions containing all of these proceedings was not filed until forty-nine days after the final order and on motion was stricken from the record because not filed within the time required by law.

The transcript filed in this court sets forth the written examination of the complainant in answer to questions propounded by the trial judge, duly subscribed by the complainant, and on its face appears to be regular in all respects.

In addition the transcript of the record shows by journal entry of May 19, 1950 (Journal 43 p. 1077), that the charge was read to defendant to which he first entered a plea of “not guilty” and then upon being ordered to furnish cash bond in the sum of Three Hundred Dollars ($300.00), the minimum amount required by law, the defendant entered a plea of “guilty” as charged in the complaint. Thereafter on the 26th day of May, 1950, the defendant filed a motion to change the plea to “not guilty” and it is from the order overruling the motion to change plea that appeal is had to this court.

Secs. 12111 and 12112 GC provide as follows:

“Sec. 12111 GC: Examination. On the return of the warrant the justice or judge shall examine the complainant, under oath, in the presence of the accused, respecting the cause of her complaint. The accused shall be permitted also to ask her, when under oath, any question he may think necessary for his defense.”
“Sec. 12112 GC: Reduce to Writing. The examination of complainant by the judge or justice, the questions of the defendant and the answers thereto by her, must be reduced to writing in the presence of the judge or justice, and subscribed by her.”

By these sections which are clear and unambiguous, provision is made for the examination of the complainant under oath by the trial judge and the accused and for the reduction thereof to writing which shall be done “in the presence of the judge or justice and subscribed” by the complainant. It is well settled that no witness other than the complainant can be examined upon preliminary hearing and the trial judge is authorized to administer the oath only to the complainant. See Hamm v. Wickline, 26 Oh St 81; Walker v. Chandler, 15 Oh Ap 292.

Obviously the defendant is entitled to have before this court in writing the questions of the trial judge and of the accused (if any) and the answers of the complainant, and in this respect the statutory requirements have been met. But the defendant is not entitled to an order from this court requiring the trial judge to incorporate into the transcript other proceedings had at that time or at a later time by way of substitution for a bill of exceptions.

It is a fundamental proposition of law that a court of record speaks through its records alone. See Section 14. Judicial Records. 35 O. Jur. page 17, where the author, supported by Ohio cases too numerous to cite, states in part as follows:

“A court speaks through its records alone; it is, therefore, a long-established general rule that in judicial proceedings of a court of record of competent jurisdiction, the record is conclusive and imports absolute verity. This is true of a probate court acting as a juvenile court, as well as of a municipal court. * * *.”

Secs. 12111 and 12112 GC, above quoted, do not require the judge of Juvenile Court to include as part of the transcript-all of the proceedings which took place at the preliminary hearing and this court is without jurisdiction to compel the trial judge to do anything other than is provided by law. Therefore, without in any wise determining the merits of this appeal we conclude that the motion to compel the trial judge to add to or complete the transcript of all the proceedings on the preliminary hearing of May 26, 1950, must be and is overruled. Exceptions allowed.

SKEEL, PJ, McNAMEE, J, concur.


author: By THE COURT. By THE COURT.

text:
    GOETZ et, Plaintiffs-Appellants, v. JACOBS et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4326.
    Decided November 4, 1949.
    Matthew L. Bigger, Columbus, for plaintiffs-appellants.
    Binns & Tresemer, Columbus, for defendants-appellees,
   OPINIÓN

By THE COURT.

This is a law appeal from a judgment in favor of each defendant. The judgment followed the sustaining of a motion of counsel for defendants for judgment upon the statements contained in the fourth amended petition of the plaintiffs, motion for new trial having been filed and overruled.

Four errors are assigned:

(1) In the assumption and finding that the contract alleged was not in writing.

(2) In construing the allegations of the petition in favor of defendants and against the plaintiff and thereby finding that the allegations of the petition did not disclose that the plaintiffs were in exclusive possession and control of certain premises described in the petition.

(3) In applying the doctrine of estoppel when it was not pleaded.

(4) In failing to hold that the fact alleged did not constitute part performance of the contract on their part sufficient to take it out of the statute of frauds, which action resulted in denying due process of law and equal protection of the laws contrary to the Federal and State Constitutions.

Without further comment, we hold that the third assignment of error is not involved and that portion of the fourth assignment of error relating to the action of the trial judge does not present any justiciable question under the Federal or State Constitutions.

At the outset it is necessary to examine the judgment and motion, the sustaining of which resulted in the judgment from which the appeal is taken. The motion was not to strike the amended petition because it was a sham pleading. The judgment was not entered for the defendants after the sustaining of a demurrer, plaintiffs electing to plead no further. We resolve it to be the equivalent of the sustaining of a demurrer and a determination that because of the facts set up and averments made in the four petitions preceding the one under consideration, the plaintiffs could not state a cause of action which is not barred by the statute of frauds. This latter conclusion, if sound, would not be unfair to the plaintiffs because they had plead the same basic facts in all of their petitions changed only as required by rulings of the court on prior motions and demurrers.

The fourth amended petition is voluminous. It contains some conclusions not good pleading but we must accord to the plaintiffs the benefit of a liberal interpretation of any facts well pleaded. See. 11345 GC; State v. Ford Motor Co., 114 Oh St 221; Heidle v. Baldwin, 118 Oh St 375.

It is urged that the court erred in holding that the amended petition disclosed that the contract sought to be enforced was in parol. A close reading of the operative language of the contract as plead does not require the conclusion that it was not in writing, although the inducement to the contract clearly was oral. However, the language of the petition, especially in connection with a notation on one of the praecipes, is convincing that the contract was oral. The praecipe was as follows: “Endorse action for specific performance of oral contract to convey specific real estate,” etc. We are satisfied that the judge who passed on the motion was warranted in concluding that the contract sued upon was oral.

As briefly as we may, we set forth enough of the facts appearing in the fourth amended petition upon which to base an understanding of the further questions presented. At the time of the occurrences set forth, Alois Thurn and Mary Thurn were husband and wife, living at 960 Kirby Street in Columbus, Ohio. They were growing old and Mary Thurn had been stricken with a known incurable illness from which she was continuously confined to her bed for a period of six months prior to her death. Francis L. Goetz, plaintiff, and Mary Goetz, were husband and wife. They had two children, Mary Catharine Goetz and Loretta Goetz, also known as Sister M. Cecelia Stella, plaintiffs. Mary Goetz was a niece of Alois Thurn, reared in his home as a member of his family. Mary Goetz and her husband acquired real estate in Columbus where they and their family lived. As Mrs. Thurn was suffering from an incurable disease, the Thurns were in dire need of assistance and were unable to find anyone to employ to serve them. This condition was made known to Mary Goetz and as a result thereof, in addition to taking care of her own household duties, she went into the home of the Thurns, rendered such attention and services as were required during the last sickness and death of Mary Thurn and after her death, for a period of about four years, divided her time between her own home and the Thurns’, and administered to the needs of Alois Thurn and his son. The work which Mary Goetz tried to do in both families resulted in her sickness and she was advised by her physician that she should not longer carry on her heavy duties. These facts were brought to the attention of Alois Thurn by Mary Goetz who indicated a desire to be relieved from the work that she had been doing for the Thurns. Whereupon, the transaction, which is the basis of the claimed contract, took place between Alois Thurn and Mary Goetz and her husband, Francis L. Goetz.

A full statement of the occurrences constituting the contract is set up in the second page of the fourth amended petition by the terms of which Mary Goetz and Francis L. Goetz, her husband, were to sell their own home and with their children move into the home of Alois Thurn at 960 Kirby Street. The proposal of Alois Thurn to the Goetzes was, if they would do as he requested and perform the services suggested, he would deed to them the residence property at 960 Kirby Street and another apartment property. It is further averred that upon the acceptance and performance of the preliminary steps of the contract by the Goetzes that when they had moved into the residence of Alois Thurn he then said to them, “Now ■this is your home,” and put them in possession thereof; that thereafter they exercised possession, control and dominion •of the house and grounds; that by their consent and as a part of the agreement, Alois Thurn and his son reserved two rooms for sleeping purposes. There is further averment as to the terms of the contract respecting the apartment house which it is not necessary to set forth. Performance on the part of the Goetzes is asserted and failure of Alois Thurn to make the deed as agreed is alleged.

It is further averred that as a result of the extraordinary labors incumbent upon Mary Goetz in carrying out her part of the contract she suffered a paralytic stroke about four months before the death of Alois Thurn and that thereafter performance of the contract was carried on by the other members of the Goetz family.

The prayer is for specific performance of the contract to make a deed to the plaintiffs, the Goetzes, and for other relief.

It will be observed that the terms of this contract required the performance of household duties in all of their aspects which services have been in the cases held to be compensable in money. If no other services were contemplated in the agreement between the parties than those which were subject to pecuniary evaluation, then the plaintiffs state no cause of action. But it is manifest that there were other and different services and circumstances in this case, as pleaded, than ordinarily appear in the reported Ohio opinions. Some of them may be suggested: Mary Goetz, a niece of the Thurns, in whose home she had been reared as a daughter, sustained a close and intimate relationship to them. This relation resulted in special confidence being reposed by Mary Goetz in her foster parents, a status which is frequently the subject of consideration and protection in courts of equity. At the time of the alleged contract, Alois Thurn could not secure services such as he desired and so expressed in his proposal to Mary Goetz and her husband. The Goetzes were not the ordinary hired help. They had their own family, had owned their own home for twenty-seven years and as a part of the obligation under the contract, sold it, abandoned their own family life and moved into the Thurn home and devoted their entire time and attention, not only to the manual labor required incident to their services, but as companions and members of the Thurn family. They fully performed their obligations under the contract. It is inferable that the possession and dominion of the property, as averred, was as complete and exclusive as the nature of the services required to be performed by the contract permitted. Such possession is held to be sufficient in Lamb v. Hinman (Mich.), 8 N. W. 709; Burroughs, et al. v. Smith (Tex.), 294 S. W. 948, 952; Woodbury v. Gardner, 77 Me. 68.

No case has been cited from Ohio, nor do we have knowledge of any where specific performance has been decreed in oral contracts to make a will or deed where the facts parallel those appearing here. However, there are well considered statements, some of which are obiter, by members of our highest court who have written the opinions which recognize that there may be in equity enforceable oral contracts to make a transfer of real property, notwithstanding the statute of frauds. Outside of Ohio, there are numerous cases wherein the facts are similar to those here pleaded and where specific performance has been decreed and supported by reviewing courts. Accepting these authorities and the observations of our own judges as sound expositions of the equitable principles controlling, we are of opinion that the fourth amended petition here under consideration states a good cause of action for the relief sought by specific performance of the contract alleged. The facts pleaded would support equitable intervention because of complete performance of the contract by the Goetzes, some of the conditions of which were not intended to be and not susceptible of evaluation in money, and by the further part performance of Alois Thurn in putting the Goetzes in possession of the premises where the Thurns lived.

The latest pronouncement germane to our question is found in the opinion of Judge Stewart in Snyder v. Warde, Admx., et al., 151 Oh St 426, Ohio Bar, May 30, 1949. The court was there considering an oral contract to make a will which it held to be unenforceable because the services to be performed under the contract were compensable in money and that neither performance nor the payment of money took the contract out of the terms of §10504-3a GC. The fourth syllabus of this case is:

“Ordinary services to be noncompensable from a pecuniary standpoint, generally, must be such as involve a detriment or sacrifice upon the part of the one rendering them, motivated by sentiment rather than expectation of payment.”

If the services here performed could be said to be ordinary services, the facts developed in the amended petition, in our judgment, meet the requirements of the quoted syllabus. Judge Stewart quotes from Judge Bradbury in Shahan, Exr., v. Swan, 48 Oh St 25, at page 435 of the opinion, and the second syllabus of Newbold v. Michael, 110 Oh St 588, 144 N. E. 715, as authority for the proposition carried into the fourth syllabus of the Snyder case. At page 438 of the opinion, it is said:

“In order for services to be such as are not compensable in money they must be of a kind which are rendered as a result of a sacrifice by the one performing them', generally being rendered because of love and affection. There are many cases where a relative or a dear friend leaves his own family, home or position to go to work for the other who needs his services, and the services based upon such sentiment are difficult, if not impossible to evaluate in money. As was said by Judge Minshall in the case of Emery v. Darling, 50 Oh St, 160, 167, 33 N. E. 715, ‘The value of the society of one sister to another is incapable of measurement in money.’
“In the present case the only evidence on the matter is that there was no sentiment between plaintiff and Harper and their relationship was strictly on a business basis; * * *. Plaintiff did not give up her home or her family to come to Harper, she advertised for a place and went to work for Harper not only for the money compensation she received but for a home for herself with both her children with her, a status which she had not been enjoying previous to becoming Harper’s housekeeper.”.

These observations of Judge Stewart have special application to the facts developed in the fourth amended petition. At page 440, he continues, citing Whitney v. Hay, 181 U. S. 77, 45 L. Ed., 758, 21 S. Ct. 537:

“is a case where an old childless couple made a contract to leave a home to a younger couple in consideration of the younger couple becoming members of the older couple’s family. The younger couple gave up their home and moved in with the older couple, furnishing the home of the older people and supporting them. The court said, with reference to the younger husband, that his plans of life were materially altered in order that he might take care of Piper and wife during their respective lives. Piper put Hay in actual possession of the premises for execution of his agreement with Hay.”

The facts in this case parallel ours in particulars. At page 441, Puddy v. Sharpe, 248 Mich., 147, 226 N. W. 853, is cited to the effect that the party seeking the remedy, as here, had changed his entire tenor of life in performing his part of the contract. Howe v. Watson, Admr., 179 Mass., 30, 60 N. E. 415, is also cited and helpful.

The subject of enforcement in equity of an oral contract to transfer real property is well considered in 49 Am. Jur. pages 817 to 830, inclusive, and the effect of factual development on such procedure is categorically discussed. Upon change of status of promisee because of the contract it is said, page 824:

“Evidence of such a change bears not only upon the existence of the contract, but it is persuasive proof that any remedy at law would be inadequate, since such change ordinarily would not be taken into consideration in fixing compensation for a breach of the contract.” Citing Best v. Gralapp (Neb.) 96 N. W. 641, 99 N. W. 837.

In this case although the promisee in addition to services rendered incurred considerable expense the promisor lived only twenty months after performance begun under the contract.

* * * “The great weight of authority supports the rule that where personal service has been rendered under an oral agreement for compensation by a devise of real estate, the contract may be enforced irrespective of the question of possession, if the services rendered are of such a character that their pecuniary value cannot be satisfactorily estimated and the contract indicates that the parties did not contemplate possession by the promisee during the lifetime of the promisor.”

See also Carlin v. Bacon, Admrx., etc., (Mo.) 69 A. L. R. 1 to 220, and continuation of annotation following Holsz, et al. v. Stephen, Exr., etc. (Ill.) 106 A. L. R. 737, 742; Jaffee v. Jacobson, 48 Fed. 24; Sears, et al. v. Redick, et al., 211 Fed. 856, 2nd syllabus.

The Ohio eases cited by appellee are not inconsistent with the conclusion which we have reached. The strong language of Judge Williams in Kling, Admr. v. Bordner, 65 Oh St 103, was an action at law for damages for breach of an oral contract to transfer real property. It is recognized that the doctrine of part performance is applicable only in equity, pages 103, 104 of the opinion. In Ortman v. Ortman, 45 Oh Ap 551, the consideration for the oral contract, the usual personal services performed by a farm laborer were found to be “clearly susceptible of being measured by a pecuniary standard,’’ page 557, the opinion. Like situation is found in Nunn v. Boal, 29 Oh Ap 141. Both of these latter cases recognize the principle which we hold to be controlling here.

The motion for judgment as to the individual defendants should have been overruled and the judgment in their behalf was improperly entered.

The judgment will be reversed and cause remanded.

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

ON APPLICATION FOR REHEARING

No. 4326. Decided November 28, 1949.

By THE COURT.

Submitted on an application for rehearing based upon the proposition that the court took no notice of the fact that there is a misjoinder of parties-defendants. This question was not presented nor considered on the appeal on the merits. It is obvious that the Common Pleas Court would not have denied the plaintiffs the right to file another amended petition because it had been held that there was a misjoinder of parties. It is manifest to us that at the time that the Common Pleas judge refused to permit another amended petition to be filed, he had concluded that a cause of action could not be stated against any defendant. We recognize that it had been determined that the executor and the administrator could not be joined as parties-defendants, and with that conclusion we have no controversy. The mere fact that they are carried in the style of the case on the appeal does not change their correct status upon the record as it comes to this court. We are of the opinion that no prejudice could result to the defendants-executor and administrator by the determination which this court has made on the appeal.

The order on the application will be that it be dismissed because the rules of this court make no provision for the filing of such an application.

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


author:
By HORNBECK, J. By MILLER, PJ.
      By WISEMAN, J.

text:
    LUFT, Guardianship in re, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4423.
    Decided June 9, 1950.
    Carl J. Purpus, James M. Hengst, Columbus, for appellant.
    Robert R. Shaw, Guardian, J. Weller Igo, Columbus, for guardian.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law -from a judgment of the Probate Court of Franklin County denying an application of the ward for the termination of the guardianship.

The errors are assigned under four headings which may be encompassed within two: First, in permitting the guardian to appear and contest the ward’s application for termination of the guardianship; second, that the order of the Probate Court is contrary to law, is not sustained by sufficient evidence and is against the manifest weight of the evidence.

The first assignment is not well made. It was discretionary with the trial judge to permit the guardian in the interest of the ward’s estate to appear and contest his removal, introduce testimony and cross-examine witnesses.

To properly appreciate the other questions presented, it will be necessary to examine the proceedings. The order from which the appeal is taken was made pursuant to an application of the ward in which she recites that “Robert R. Shaw was appointed guardian of her person and estate on the ground of physical and mental incompetency, that while she is physically ill and requires medical and nursing service, with all of which she is well provided, she is not mentally incompetent and was and is capable of looking after and taking care of her property; and that letters of appointment of said guardian were improperly issued.” The prayer is for termination of the guardianship.

The trial judge in his written opinion passing upon the application very properly noted, that the statement that the guardian had been appointed for the person and estate of the ward on the ground of physical and mental incompetency, was not supported by the facts. The guardian was named for the estate only of the ward and because she was physically incompetent.

The journal entry further recites “that the said Nina Luft signed a written consent consenting to the appointment” and such written consent admittedly was made in open court and is found among the files in the transcript.

Two facts stand out in this record and one is almost as certain as the other, viz., that at the time the guardian was appointed the ward was not mentally incompetent, and she would have been entitled to a court order to that effect; second, that she is badly physically incapacitated because suffering from Parkinson’s disease.

Although the application for the termination of the guardianship was grounded upon the claim of irregularity in the appointment only, the trial judge in one of the final entries, not only determines that the letters of appointment of the guardian were not improperly issued but also that the necessity for the continuánce of the guardianship still exists. In the presentation of the appeal and the briefs counsel have taken wide latitude and given consideration to both matters determined by the court. We therefore in reviewing the judgment assume that by common consent both grounds for termination of the guardianship provided in §10507-61 GC were tried and adjudicated.

Sec. 10507-61 GC provides in part that upon proper notice

“and satisfactory proof that the necessity for the guardianship no longer exists, or that the letters of appointment were improperly issued, the Probate Court shall order that the guardianship of an incompetent, * * * terminate, and shall make an appropriate entry upon the Journal.”

The guardianship likewise could be terminated if it appeared that there was no necessity for the appointment of the guardian when made.

One unusual aspect of this case is that the person who preferred the original charges against Mrs. Luft affords no testimony of his own or of any other person on the application to terminate the guardianship.

Under the statute §10507-2 GC, which provides that the Probate Court shall appoint a guardian of the person, or of the estate, or of both, of an * * * incompetent (except that if the incompetency be due to physical disability or infirmity the consent of the incompetent must first be obtained), * * *; provided the person for whom the guardian is to be appointed be a resident of the county, or has a legal settlement or residence therein, a prerequisite to the appointment of the guardian is that it is necessary. That part of the section in brackets was enacted following the decision of our Supreme Court in Schafer v. Haller, 108 Oh St 322, declaring unconstitutional the provision of former §10989 GC, making physical disability or infirmity a ground for the appointment of a guardian. The practical effect of this added language in §10507-2 GC is to place in the hands of the ward, when necessity for the appointment of a guardian appears, the power to select the guardian. This is true because at any time prior to the appointment the applicant can withdraw the consent. So that here it becomes vital to a correct decision of this appeal to decide two determinative factors: first, the necessity originally and the continuance of the necessity on the application for termination of the guardianship; and second, the reality of the consent of Mrs. Luft.

Upon both of these matters if we had the right to determine them originally upon the evidence before us we would hold that all of them should be resolved in favor of Mrs. Luft. But we recognize that we are hearing this appeal on law only and have no such power to weigh and determine the evidence as upon de novo hearing. However, upon the development of the testimony on the application for the termination of the guardianship we are of opinion that the refusal to grant the application was against the manifest weight of. the evidence. The development upon which we rely was not before the Probate Judge at the time of the original appointment and no criticism can properly be directed against the action taken at that time. It does not appear, nor can we find that the Probate Judge fully appreciated the influences which must have actuated Mrs. Luft in signing the consent to the appointment of the guardian. She did not come into court on her own motion. She was forced to come in upon two charges: first, that she was a mentally incompetent person; and second, that she was physically incompetent to conduct her own business affairs. It must be assumed that upon the informal hearing the Court could properly consider, prior to the consent of Mrs. Luft, but one aspect of the application for the appointment of a guardian, viz., mental incompetency. Mrs. Luft had reason to believe, though it may not have been the fact, that the person who filed the affidavits seeking the appointment of the guardian was unfriendly to her and her interests. She also might well have been apprehensive that as a result of these unfriendly acts the Court might appoint a guardian for her upon the ground that she was an insane person. Finally, from her subsequent conduct it is reasonable to conclude that she did not appreciate the full implication of her consent to the appointment.

In the state of mind of Mrs. Luft to which we have heretofore referred, her own counsel advised her that she should consent to the appointment, and further told Miss Thornton, presumably in the presence of Mrs. Luft, “that with the appointment of her personal counsel as guardian * * * then after the operation, I thought after the operation for quite a while, for a period of, say, six months that perhaps, * * * the heat was off and * * * perhaps then she might be appointed as guardian.” One inference which could have been drawn from this statement was that Mrs. Luft might after the appointment have something to say respecting the continuance of the guardianship or the same guardian.

Almost continuously from the date of the appointment Mrs. Luft has refused to cooperate with the guardian who ostensibly was named upon her request and as desired by her. Such failure at all times to cooperate is utterly inconsistent with the thought of consent such as is contemplated by §10507-2 GC. It is altogether probable that the Probate Judge did not have full knowledge of these factors which manifestly operated on the mind of Mrs. Luft to produce her consent. Nor do we impute any want of good faith to Mrs. Luft’s counsel. He no doubt acted in the exercise of his best judgment in the situation as it appeared to him when he advised Mrs. Luft.

It is manifest that the guardianship of the estate only of Mrs. Luft is not working to her advantage and it is not accomplishing that which is intended by the statute in such appointments.

We are doubtful if the necessity for the appointment would have appeared originally if full development of the facts had been made. Certainly the necessity of the continuance of the guardian upon the record does not appear.

Mrs. Luft owns considerable real estate, the gross income from which is $150.00 per month. At the time of the appointment of the guardian there was no suggestion of improvident expenditure, that her income or estate was being squandered ■or that there was any danger of her losing title to her holdings. She was.having continuous and proper attention and had the mental ability to name an agent or an attorney in fact, if desired. Upon the application for termination of the guardianship it clearly appears that by reason of the appointment of the guardian her income has been depleted, there is every probability that her estate will be materially decreased, .and most unfortunately the guardian is impotent to accomplish anything of substantial value to his ward because of her unwillingness to cooperate. In this situation if necessity for the appointment appeared originally it had disappeared when the application of the ward was before the court.

The guardian now serving is an attorney of ability and integrity and there is no reason to believe that any person, other than Miss Thornton, could do better or more satisfactory service under the appointment than he. But as guardian of the estate he has no control of the person of his ward. Because of her physical condition Mrs. Luft requires constant attention, day and night. To employ and pay for trained attendants or nurses and a housekeeper to meet her necessities would rapidly dissipate her estate. Miss Thornton, the ward’s sister, has, almost alone, performed all of these services for a period of years without remuneration. The guardian cannot discharge her. He might reduce the allowance to his ward. This for obvious reasons is impractical. Without some control over the person of the ward the guardian is practically helpless and if he should accomplish the removal of Miss Thornton it would not only increase the cost of the maintenance and care of the ward, but might very seriously impair her physical well being. Miss Thornton’s belligerant .attitude in this case has been inordinate, unwise and has manifestly operated to her own disadvantage and probably .also to the disadvantage of her sister. But Miss Thornton is ■capable and has stood by her sister with the utmost loyalty and consideration. It is most unfortunate that this ward, with her limited estate, should be subjected to the unusual expense .as well as the mental distress which has occurred and will ■continue as a result of this guardianship.

It is also unfortunate that Mrs. Luft was not required to "testify more at length as to the circumstances, conditions and .state of mind at the time that she signed the consent. Upon remand the Court can explore this aspect of the case and .should do so fully. We appreciate the difficulty under which Mrs. Luft testifies but several of the witnesses stated that they had no difficulty in understanding her and the Court should, if necessary, call somebody to his assistance to get all the facts which have any bearing on the consent of Mrs. Luft to the appointment of the guardian.

In our opinion the failure of the Court to sustain the motion of Mrs. Luft to terminate the guardianship was contrary to and against the manifest weight of the evidence.

The judgment will be reversed and cause remanded for further proceedings according to law.

MILLER, PJ, and WISEMAN, J, concur in judgment.

By MILLER, PJ.

I concur in the judgment of reversal, but am of the opinion that this Court should render a final judgment terminating the guardianship. I am in full accord with my associates in finding that the Court properly appointed the guardian in the first instance, but when it appeared that Mrs. Luffs consent was not genuine and was given under an apparent misapprehension-of her legal rights, the guardianship should have been terminated. It should be noted that Mrs. Luft did not voluntarily seek the assistance of the Court, but was brought in under a complaint properly filed therein, charging both mental and physical disability. She certainly recognized these as most serious charges, and when she was advised that the Court probably would appoint a guardian for mental disability, although there was no evidence to support such a charge, she merely chose the lesser of two evils and gave her consent. Under these circumstances the consent was not of her own free will and accord and therefore does not meet the requirements of §10507-2 GC. The appointment of a guardian for physical disability without the ward’s consent is an unwarranted abridgment of his right to acquire, possess and protect property and therefore in violation of Section 1, Article I of the Constitution of Ohio. Schafer v. Haller, 108 Oh St 322.

I am of the further opinion that the record clearly shows not only that there is no necessity for a guardian, but that it would be to the best interest of the ward that the guardianship be terminated. Her income from the estate is so limited that it cannot satisfy all her needs, compelling her to accept the services of others without compensation. She therefore needs the entire income, even more, and the added expenditures incident to the guardianship should not be imposed upon her. Since she has full mental capacity it must be inferred that she is able to employ others physically qualified to look after her affairs.

By WISEMAN, J.

I concur in the judgment of reversal on the weight of the evidence on the theory that Mrs. Luft was persuaded to give her written consent to the appointment of a guardian of her estate on the ground of incompetency due to physical disability by statements of her counsel involving a promise which would require the judgment and action of the Probate Court and which, according to the record, was not brought to the attention of the Court at the time of the appointment, and which is not likely to become a reality. It cannot be said that she acted with a full knowledge of the legal implications of her act; it was not her free act as contemplated by §10507-2 GC.


text:
    CLEVELAND HEIGHTS (City), Plaintiff-Appellee, v. GLOWE, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 21803, 21804.
    Decided September 11, 1950.
    Roger Zucker, Cleveland, for plaintiff-appellee.
    Gerald A. Doyle, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law. The defendant was found guilty of violating Section 100-A of the zoning ordinance of the City of Cleveland Heights, by running a lodging house in a Class 1-A District.

The defendant is the owner of two single family dwelling houses known as 2457 and 2446 Kenilworth Road in the City of Cleveland Heights. There is no dispute but that said properties are in the Class 1A District under the zoning ordinance of the said City.

There is likewise no dispute but that the defendant and her family reside on the first floor of the property known as 2457 Kenilworth Road and that she rents the rooms on the second and third floors to six roomers or lodgers, all of whom pay rent to the defendant on a weekly or monthly basis.

The first floor of the said dwelling house known as 2446 Kenilworth Road is rented by defendant to a tenant, said tenant furnishing his own household furnishings. The rooms on the second and third floors which are furnished by the defendant, are rented to seven lodgers. There is no evidence that meals were furnished to the lodgers in either house. It is also conceded that the lodgers or roomers and the tenant occupying the first floor of 2446 Kenilworth Road all pay rent to the defendant on either a weekly or monthly basis.

A lodging house is defined in the zoning ordinance as follows:

“A building occupied for or arranged, intended, or designed to be occupied for, rooming or rooming and boarding for compensation by five or more, but not to exceed fifteen persons, by prearrangement for definite period of not less than one week in contra-distinction to hotels open for transients.”

Section 100 A defines the uses permitted in a single family large lot district, classified as “Class 1A District.” Nowhere in this classification is a lodging house included. Lodging houses are provided for and permitted in a Class 3B District under (2) of Section 300B of the ordinance.

It is defendant’s claim that by the provisions of sub-section 4 of Section 101 of the zoning ordinance of said city, which section is headed “Accessory Uses and Restrictions in Class 1A and IB Districts” she may rent rooms to five or more lodgers within the Class 1A District so long as she does not furnish table board to more than four persons. This section provides in part as follows:

“Subject to the off street parking regulations set forth in Sections 800 to 814, an accessory use customarily incident respectively to a Class 1A or Class IB District use shall be permitted in such respective district when such accessory use, building or structure is located upon the same lot with the main use or building to which it is accessory provided that:
“(4) Rooms only in the main building may be rented, and table board furnished for pay to not more than four persons, for definite periods of not less than one week, provided no window display sign, sign board or other visual or sound device is used to advertise such use and no culinary facilities in addition to those provided for one family are used.”

This contention of the defendant is based upon the punctuation of this sub-section, that is, that the comma following the word “rented” in the first line of the sub-section, has the effect of making an independent clause of “rooms only in the main building may be rented” from the following clause “and table board furnished for pay to not more than four persons * *

Such construction is not tenable, however, when consideration is given to all of the provisions of the ordinance. An ordinance must be interpreted so as to carry out the intention of the legislature or city council and apparent contradictions reconciled if possible.

Blackwell v. Bowman, 150 Oh St 34; 80 N. E. (2d) 493.

The zoning ordinance under consideration clearly defines rooming houses and provides the districts in which they may be maintained. The ordinance shows that the council intended to provide against the establishment of a rooming or lodging house in Class 1A (single home) districts. To hold that a mistake in punctuation created in the defendant a right to use property in a Class 1A District as a lodging house is wholly inconsistent with the clear purpose of the zoning ordinance. This must be true when, if the defendant’s claim is sustained there would be no limitation on the number of roomers or lodgers permitted in a Class 1A District where no table board is furnished, while the number is limited to 15 in a Class 3B District wherein lodging houses are provided for.

It is the duty of the court to disregard punctuation when absurd results would result from following a literal construction of an ordinance because of erroneous punctuation.

In the case of Erie R. R. Co. v. U. S. 240 P. 28 (C. C. A. Ohio 1917) it was said that the presence or absence of a comma in a statute is so nearly fortuitous that it is wholly unsafe as an aid to statutory interpretation.

A court may disregard or rearrange punctuation of statutes to effectuate the evident meaning of the legislature.

Hamilton v. Steamboat R. B. Hamilton, 16 Oh St 428 at p. 432.

Shelley v. State, 19 C. C. (n. s.) 164, affirmed 85 Oh St 481.

The Shelley case was a criminal action involving a charge of embezzlement as defined by Sec. 6842 R. S. (§12467 GC) in which if the section had been literally followed as punctuated, the internretation of the statute would have required the court to find that a three-year limitation in bringing an indictment for such crime was provided. The court held:

“1. There is abundant authority in this state for disregarding or rearranging punctuation of statutes in order to effectuate the evident meaning of the legislature.
“2. The three year limitation in Section 6842, Revised Statutes applies only to the period within which different conversions may be aggregated so as to constitute one embezzlement, and does not interpose any bar to the prosecution of the crime of embezzlement.”

The defendant also claims that at the time she bought the property at 2457 Kenilworth Road she received a rooming house registration blank from the City of Cleveland Heights which she filled out and filed with the City, setting forth the number of roomers she intended to provide for, the number being in excess of four. Such circumstances however cannot be of help to the defendant. Knowledge on the part of a city official that a defendant intends to violate a zoning law restriction will not estop the city from enforcing the law. Zoning laws are passed in the interest of the public welfare and the benefit accrues not only to the municipality but also to the abutting property owners.

Pritz v. Messer, 112 Oh St 628, 149 N. E. 30; Rosenberg v. Mehl, 37 Oh Ap 95.

The record further shows that this action was filed and tried for the purpose of procuring a judicial determination of the meaning of Sec. 101 Sub-section 4. It might be said that it was intended to be a test case. This being true, it seems to this court that under all the circumstances the fines, although well v/ithin the limits provided by Sec. 53 of the zoning ordinances, were excessive and should be modified. This, however, is for the trial court’s consideration, this court being without power to make such modification.

For the foregoing reasons the judgment is affirmed. Exc. Order see journal.

McNAMEE, J, HURD, J, concur.