source: Caselaw Access Project

author: By DOYLE, J:

license: Public Domain

text:
    STATE, ex rel. BAKOS, Plaintiff, v. CORRIGAN et, Defendant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23795.
    Decided January 24, 1957.
    McConnell, Blackmore, Cory, Burke & Kuntz, for plaintiff.
    Ralph S. Locher, Dir. of Law, Richard O. Horn, Asst. Dir. of Law, for defendant.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

This is an action in mandamus, commenced in the Court of Appeals of the Eighth Judicial District of Ohio.

The relator, Michael A. Bakos, was an employee in the Division of Police of the City of Cleveland. The defendants are the Board of Trustees of the Police Relief and Pension Fund of the City of Cleveland.

The petition prays for a writ of mandamus “commanding the defendants as the Board of Trustees * * * to accept the relator’s tender of contributions due the fund for the period of January 10, 1930, to August 25, 1937, to constitute him a beneficiary under the rules and regulations governing the said Police Relief and Pension Fund; to place his name upon the pension roll and cause to be issued to him forthwith the sum of fifteen hundred dollars ($1,500.00), the same being the accrued pension to which he is entitled from the period of May 1, 1955, to the date of the filing of this petition to cause to be paid to him such additional amounts as have accrued or may accrue to him pursuant to the benefits allowed to a retired member with twenty-five (25) years of service with the Division of Police, and for such other relief as may be proper in the premises.”

Salient facts appearing in the stipulations are:

(1) September 19, 1929, relator was appointed a temporary radio operator in the Division of Police by the Director of Public Safety, at a salary of $2,600.

(2) January 27, 1930, as a result of a practical and written test relating to qualifications for the position of radio operator, relator was awarded a permanent appointment as “radio operator in the Cleveland Division of Police.”

(3) In the years 1932 and 1935 relator placed in the 295th and 278th positions, respectively, on the eligible list for patrolman in the Division of Police.

(4) December 21, 1936. Effective as of this date, the city council, by ordinance No. 105285 A, provided for the inclusion of four (4) radio operators “as members of the Division of Police.”

(5) Effective as of February 16, 1937, and July 1, 1937, ordinances No. 105741 and No. 106728 provided that the rate pay for radio operators as members of the Division of Police be two thousand four hundred nineteen dollars and sixty-eight cents ($2,419.68) per year — an amount equal to the then prevailing rate pay for patrolmen in the Division of Police of the city.

(6) June 3, 1937. The director of public safety advised the chief of the Division of Police that the relator was, as of this date, “appointed to the position of radio operator in the Division of Police” at the salary mentioned in (5) above.

(7) June 23, 1937. Relator was given a police badge.

(8) August 25, 1937. At a regular meeting, the Board of Trustees of The Cleveland Police Relief and Pension Fund adopted a resolution which declared that radio operators in the Cleveland Division of Police, by virtue of ordinances No. 105741 and No. 106728 (mentioned in 5 above), “were entitled to the protection and privileges of the pension laws, wherefore such incumbent radio operators and their successors were declared as eligible to the benefits of the Police Pension Fund by agreeing to the voluntary payment of the sum of one dollar ($1.00) per month.”

(9) Commencing January 27, 1930, the time at which relator was appointed permanent radio operator in the Division of Police, and on subsequent occasions, the said relator offered himself as a voluntary member of the Police Pension Fund and offered to pay a monthly amount into the fund “as the Board of Trustees would then deem appropriate.”

The Board of Trustees rejected these offers and refused to accept him as a member to the date of August 25, 1937, at which time the resolution, stated in (8) above, became effective.

(10) On August 25, 1937, the time when relator was accepted as a member of the Relief and Pension Fund, he “offered to pay such voluntary contributions into the fund for the period during which he was denied membership therein as the then Trustees * * * would deem appropriate, and that the then Trustees * * ' refused to receive such offered contributions from relator.”

It further appears in the stipulations of fact that, in 1930, when the relator was appointed as radio operator, Sec. 186 of the Cleveland Municipal Code provided, in part:

“There shall be and there is hereby established a division of police in the department of public safety, to be administered and controlled by a chief of police, subject to the provisions of the charter and ordinances of the city of Cleveland and to the director of public safety. The division shall consist of the following persons: A chief of police, one inspector of police, one commissioner of traffic, who shall be in command of the traffic bureau; one deputy commissioner of traffic, who shall act as deputy to the commissioner of traffic; four deputy inspectors of police; * 1 * and such number of employees in other classifications of city service as the city manager may determine.”

Sec. 31 of the “Rules and Bylaws of the Cleveland Police Relief and Pension Fund,” as adopted and made effective on April 30, 1930, by the Police Relief and Pension Board, is as follows:

“The terms ‘member,’ ‘member of the Division of Police,’ ‘member of the department’ and ‘member of the Police Department of the City of Cleveland,’ as herein used, are defined to mean a person who at the time he or she, or his or her dependents, are placed upon the Police Relief roll, is or at some time theretofore has been a duly appointed, qualified and acting member of the Division of Police of the City of Cleveland.”

On April 30, 1955, the relator offered his resignation and retired from the department; simultaneously, he submitted his written application to the defendants, requesting that his name be placed on the pension roll, and that he be permitted to participate in the pension fund to the extent allowed a member thereof with twenty-five years of service.

From the foregoing, it is obvious that the relator’s name was not placed on the rolls in compliance with his request, and that this lawsuit is the result thereof.

The plaintiff states in its brief the following:

“The sole issue in this matter relates to whether or not relator should be considered a ‘member’ of the Division of Police of the City of Cleveland so as to make him eligible to contribute to the Police Relief and Pension Fund, and to receive, upon his completion of twenty-five years of service with the Division and twenty-five years of contributions to such fund, the benefits then inuring to such member and contributor.”

In connection with the question stated by plaintiff, we have the additional questions of (1) whether relator has shown the failure of the Board of Trustees to perform acts which the law specifically enjoins as a duty resulting from the office, trust or station; and (2) incidental thereto. Did the Board act without authority or abuse its discretion in refusing to allow relator to become a contributing member prior to the year 1937, or in its refusal to allow relator to pay into the fund an amount equal to contributions for the period from September 19, 1920, until 1937, based upon a rate established in 1937 for radio operators?

The state law governing the operation of the Board during the years 1929 to 1937, read as follows:

“Sec. 4628 GC.:
“Such trustees shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid, and the amount thereof, with power also to give credit for prior continuous actual service in the fire department or any other department of the city rendering service in fire prevention, but, no rules or regulations shall be in force until approved by a majority of the board of trustees.”
“Sec. 4625 GC.:
“The trustees of the fund may also receive such uniform amounts from each person designated by the rules of the police department, a member thereof, as he voluntarily agrees to, to be deducted from his monthly pay, and the amount so received shall be used as a fund to increase the pension which may be granted to such person or his beneficiaries, or in the discretion of such trustees money derived from such monthly deductions shall be used to relieve members of the force who contribute thereto when sick or disabled from the performance of duty, for funeral expenses, relief of their families in case of death or for pensions when honorably retired from the force.”

Under the authority of §4628 GC, the Board was empowered to make all rules and regulations for the distribution of the fund, “including the qualifications of those to whom any portion of the fund shall be paid.” Likewise, under authority of §4625 GC, the trustees were empowered to receive, “from each person designated by the rules of the police department, a member thereof,” uniform amounts for specified purposes. Nowhere is it shown in the rules adopted that radio operators were specifically included among those entitled to participate in the fund; and obviously, the Board, in interpreting its own rules and regulations, concluded that radio operators should not qualify.

This ruling of the Board we find not to have been arbitrary or an abuse of discretion. It is entirely consistent with the definition given by its own rules of the “terms ‘member,’ (and) ‘member of the Division of Police,’ ” Sec. 31 of the Rules and Bylaws, supra.

It was reasonable to interpret the language of the section — i. e., “duly appointed, qualified and acting member of the Division of Police” — as applicable only to that class of persons who had been appointed to the department for police duties from a civil service eligible list, and not to a class of persons who held an office in the department as the result only of having passed another type of examination for radio operators only.

It is further observed that, during the years 1930 to 1937, the relator was aware of the construction placed upon the rules and regulations of the Board in the light of the statutes of the state. At no time during this period did he take action to avoid the construction given by the Board.

While construction given to rules and regulations by boards of this character is not conclusive upon courts, nevertheless it is entitled to weight and consideration; and the practical interpretation placed upon these rules and regulations by board members whose duty it is to administer and enforce them, should not be lightly discarded.

We find no clear legal right to the writ sought.

Writ denied.

STEVENS, PJ, HUNSICKER, J, concur.


author: By THOMAS, J.:

text:
    STANDARD OIL COMPANY, an Ohio Corporation, Plaintiff, v. OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 697574.
    Decided July 1, 1957.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, by Maurice F. Hanning and King Rosendale, for plaintiff.
    Metzenbaum & Schwartz, by Howard Metzenbaum and Melvin Pearl-man, for defendants.
   OPINION

By THOMAS, J.:

This may seem a little late in the day to open Court, but I am prepared now to render the decision on the case that has been on trial this past week.

Plaintiff, Standard Oil Company of Ohio seeks a permanent injunction against certain concerted activities of the Defendants, Oil, Chemical & Atomic Workers International Union, its Local Union 11-395 and certain individual members and representatives of said Union, which concerted activities have been carried on and undoubtedly will be carried on unless permanently enjoined. This activity is in furtherance of the present strike of the Company’s refinery workers, the strike being primarily one to secure retroactivity of an agreed wage increase.

Specifically, the Company requests a permanent injunction prohibiting picketing or any other concerted activity directed at the employees of the Company’s distribution centers who are members of the Independent Petroleum Workers, Inc., and which activity the Company says is inducing the breach of a collective bargaining agreement presently existing between the Independnt Petroleum Workers, Inc., and the Company, and which agreement, among other provisions, contains a no-interruption and no-stoppage-of-work clause.

The Defendants, by their answer and by the positions taken during the trial of this case, oppose the injunction on two main counts.

First, the Defendants urge that since the business of the Company is interstate in character, this Court is without jurisdiction to issue an order in this case because of the claimed pre-empting and exclusive effect of the Labor Management Relations Act of 1947, better known as the Taft-Hartley Act.

Second, the Defendants urge that even if this Court should hold it has jurisdiction to act, no injunction should be issued in any event against peaceful picketing and concerted activities carried on at the Company’s distribution centers. And, further, they deny that such picketing if carried on will necessarily induce a breach of the agreement between the I. P. W. Incorporated and the Company.

The significant facts of this controversy are undisputed.

(1) It is admitted that beginning June 7th, the first day of the strike, the East 49th Street Distribution Center, operated by the Company, was picketed by members of Local 11-395 at the direction of the International and Local Unions at, geographically speaking, the intersection of East 49th Street and the separate entrance driveway and the separate exit driveway which leads west from East 49th Street into this very large bulk and distribution center, known as the Sohio Distribution Center, and located at 4800 East 49th Street.

(2) This picketing was carried on between June 7th and June 12th by a varying number of pickets. According to the photographs introduced in evidence and according to the testimony, these pickets have varied in number from, perhaps, four to six to ten to twenty and on the morning of the 12th, the undisputed testimony of one witness was that the number reached a figure of 50 to 75.

(3) It is established in the evidence that at no time was there any physical abuse or were the truck drivers physically affected by the picketing. In terms of personal violence, this record is entirely and completely devoid of any showing of any such violence.

(4) It is established that as the tank trucks either approached the exit to go out onto 49th Street or approached the entrance to return into the Sohio Distribution Center, pickets either by what they said to the drivers or in some instances by walking in front of the trucks, would cause or get the trucks to stop. And following the stoppage of these trucks there would be conversations between the pickets and the drivers. On various occasions the old word “scab” was used over and over again as well as certain other epithets which are, perhaps unfortunately, part of the parlance of the picket line.

There were certain individual cases which do not certainly figure in my decision. There were some claimed individual threats made, but I don’t find that those constituted any planned or designed acts on the part of the Defendants.

(5) Coming now then to the fifth finding of fact. On the 7th and 8th of June a number of the drivers refused to cross the picket lines with their trucks. On Monday, the 10th of June, a larger number of drivers ceased operating and finally things ground to a stop on the 11th and nothing moved at all. Likewise on the 12th.

(6) During the morning of the 12th Judge Charles W. White, of this Court, granted the Company’s request for a temporary restraining order. The Defendants were served by about noon or soon thereafter on the 12th with a temporary restraining order.

(7) Evidence shows that this restraining order was immediately explained to the truck drivers, and that by 2:00 o’clock in the afternoon, when the picketing ceased, the trucks started to roll again.

(8) The eighth finding of fact is that operations continued at full tilt until about 5:45 in the afternoon, when the pickets reappeared. Again the drivers refused to cross the picket line until the picketing ceased.

That evening, the 12th, or the next morning of the 13th, it is not exactly clear in my mind from the evidence, which is true, but by the morning of the 13th picketing stopped completely, has not been resumed, and ever since the operations of the Sohio Distribution Centers have been continued at full production.

(9) The ninth finding of fact. On March 18, 1957, a collective bargaining agreement was signed by the Company and the Independent Petroleum Workers, Inc. This was for one year, beginning March 18, 1957. The recognition clause of that contract provides, and this is Section 2:

“The Union having been certified by the National Labor Relations Board pursuant to an election conducted on July 15, 1946,” and then the representation case number is given, “and pursuant to an election conducted on April 5, 1955, the Company recognizes the Union as the sole and exclusive collective bargaining representative for all maintenance and operations employees of the Cleveland Sales Division, including drivers, bulk station agents, except the agent at Noble Bulk Station, loaders, warehousemen, garage men, watchmen, recappers and maintenance employees, including burner service * * And then the section continues to describe the units covered by the recognition section.

So clearly it has been established in the evidence that this Union was and is the bona fide bargaining representative of the employees of the Sohio Distribution Centers and other centers.

That same contract contains a clause, Section 12, which reads as follows:

“Strikes and lock-outs.”
“(a) During the life of this Agreement there shall be no interruptions or stoppages of work by the Union through strikes, slow-downs, sit-downs or otherwise and there shall be no lock-outs by the Company.”
“(b) Any employees found by the Company to have violated (a) shall be subject to discharge, provided, however, he shall have the right of recourse under the grievance procedure hereinbefore set out.”

(10) On the average about 50 Sohio tank trucks driven by 180 drivers, work in and out of the Sohio Distribution Center during the course of a day.

There are, in addition, some tank trucks of independent haulers, two or three especially were mentioned, which also haul products from that facility. But it seems clearly from the evidence that the business of this center is largely devoted to supplying Sohio’s own tank trucks. These trucks in turn transport petroleum products to service stations throughout Cuyahoga County, both company owned and operated and dealer operated, and they also haul fuel oil to a large number of residences and people, to hospitals, schools, commercial establishments and other public institutions.

We come then to the first question which this Court must decide. Granted that this Court has the power to grant an injunction in this case, does it have the jurisdiction to do. that? Or putting the question a little differently, has the power of this Court to grant an injunction in this type of case and under the subject matter of this case been divested by the Taft-Hartley Act?

In the unending task of integrating the activities of our National Government with those of our State Governments, so necessary if our Union is to be preserved and to endure, no more troublesome problems have confronted the Courts of our country than the problems of the type that now faces this Court.

In the post Taft-Hartley era, ten years this year, many decisions on this very question have been handed down by the Supreme Court of the United States and by a lot of Courts at the bottom of the pyramid, just like this Court, and by many Courts in between. These I have been reading and seeking to reconcile, while this case was in progress, and since I last saw you on Saturday.

It seems to me that it is possible, and certainly necessary for a proper decision of this case, to classify these decisions of the Supreme Court bearing on this delicate relationship between Federal, and State Court and agencies in labor management matters.

There is one class of cases in which peaceful picketing seeks to accomplish objectives which may be unfair labor practices under the .Taft-Hartley Act, more particularly under Section 8(b) of the Act applying to Unions. And in this case the Supreme Court has held that the exclusive responsibility, in the first instance of providing the remedy and enforcing the remedy lies with the National Labor Relations Board. And in such cases State Courts are told to stay out, “this is not your preserve.”

An example of this class, of course, is the case of Garner v. Teamsters Union, 346 U. S. 485 (1953). There, in a rather small operation, in Pennsylvania, the Teamsters Union attempted, unsuccessfully, to organize the workers at this truck terminal. They having failed, they obtained some strangers, members of the Union, but not working there, to picket this location. And after a while, because of that, truck drivers who belonged to The Teamsters refused to cross the picket line. And eventually the case indicated that the economic effect was so drastic that about 95 per cent of the business of this company was lost.

The State Court granted an injunction against that activity. The Supreme Court of Pennsylvania reversed; the Supreme Court of the United States affirmed the Supreme Court of Pennsylvania. They did so on the basis that here was a situation in which the employer had a remedy under the Taft-Hartley Act. The facts indicated that interstate commerce was affected and that, at least, the Board could have taken jurisdiction of the case. And, there, the Supreme Court of the United States held that the State Court was divested of jurisdiction and could not issue an injunction.

Here are just some of the court’s words, but I think they help to summarize the Supreme Court’s point of view in that case:

“On the basis of the allegations, the petitioner could have presented the grievance to the National Labor Relations Board. The respondents were subject to being summoned before that body to justify their conduct. We think the grievance was not subject to litigation in the tribunala of the state.”

There are three recent decisions, which extend the Garner doctrine far indeed. The first is the case of Guss v. Utah Labor Board, 353 U. S. 1 (1957). This involved a dispute in Utah between the Steel Workers and a manufacturer of photographic equipment. He was supplying one of the defense agencies with equipment. In the course of efforts to organize the plant, the Steel Workers petitioned and obtained a collective bargaining election under the NLRA, under the Taft-Hartley Act. And in that election the Steel Workers won the election and were certified as the bargaining representative.

Thereupon they said, “O. K., Mr. Employer, let’s start doing business.” Well, that went along and nothing happened. The employer didn’t do business. He wouldn’t, apparently, enter into any kind of a collective bargaining agreement. And so the Union filed a charge with the National Labor Relations Board. This was in 1954, and about this time the Labor Board decided there had to be some line drawn in terms of whether or not they would take jurisdiction of every local dispute, even though it might affect interstate commerce.

The Board fixed $1,000,000 as a minimum. This Company’s business was less than $1,000,000 in interstate commerce, and the Board declined further jurisdiction.

Thereupon, the Union went to the Utah Labor Relations Board and said, “Well, if the National Board won’t take it, surely, you will take it.” And the Utah Board did.

They processed it and found the employer guilty of an unfair labor practice. The Utah Supreme Court affirmed it and then it went up to the Supreme Court of the United States. There, on March 25th of this year, Chief Justice Warren reversed.

He did so on the proposition that, as he put it:

“This involved a matter in which the National Labor Relations Board had jurisdiction under the Act. It did affect commerce. It did involve an unfair labor practice under the National Act. Therefore, unless there was a cession of jurisdiction by the National Board to the State Board under Section 10(a) of the Act, the State Board was not free to step in.”

And even though the National Board had declined jurisdiction and he conceded there was a No Man’s Land left where neither Board could act, and this caused Justice Burton no end of concern, still he found that uniformity under the Federal Act is so necessary that we can’t have the State Board try to decide what the National Act means or a state replica of the National Act. So the Supreme Court reversed and denied the injunction and denied the order and, apparently, nothing has happened since.

The other case, the second of the three cases, involved a situation right here in Ohio. It is Meat Cutters v. Fairlawn Meats, 353 U. S. 20 (1957). There you have a situation where three meat markets were under a process of organization by the Meat Cutters Union.

The Meat Cutters attempted to get membership in these meat markets without success, without very much success, at least. And having failed to organize them, they then made a demand on the employers for a union shop and for a right to represent the employees of the three meat markets.

Here you had meat markets who bought about $100,000 worth of meat outside of the State of Ohio each year. The employers did not attempt to go to the National Board, but they did not only attempt, they did go to the Summit County Court of Common Pleas. The Summit County Court of Common Pleas found there was no labor dispute and although the picketing was peaceful, it was illegal and granted an injunction.

The case went on its way. It was affirmed by the Summit County Court of Common Pleas and the Court of Appeals affirmed and the Supreme Court of Ohio affirmed and then it went up to the top Court in Washington. And there the Supreme Court of the United States, on the authority of the Guss case, reversed the Ohio Courts and held that no injunction should have been issued, and this was the reasoning of the Supreme Court of the United States. It held, and I will just use the majority’s exact words at page 23.

“On this view of the case our decision in Guss v. Utah Labor Relations Board controls. If the proviso to 10(a) of the Act,” the one concerning cession authority, “operates to exclude state labor boards from disputes within the National Board’s jurisdiction in the absence of a cession agreement, it must also exclude State Courts.” And then this important point. “The conduct here restrained,” and that is by the Akron Court, “an effort by a Union not representing a majority of its employees to compel an employer to agree to a Union shop contract is conduct of which the National Act has taken hold. Sect. 8(b) (2). Garner v. Teamsters Union, teaches that in such circumstances a State cannot afford a remedy parallel to that provided by the Act.”

Hence, if the Act prohibits a certain practice or takes hold of a certain conduct of a Union, to use the Court’s language, then the NLRB has the exclusive remedy unless ceded by the National Board to a State Board or a State agency.

And the justification that the Court relies on is that there must be uniformity in the administration of the National Labor Relations Act. That is the first classification of cases.

There is a situation in which the Union pulls out the stops and engages in violent conduct, perhaps in connection with or growing out of mass picketing or at the homes of the working employees. It doesn’t make any difference what the violent conduct might be.

What has the Supreme Court done about that? Well, they have carved out an exception to the rule in the Garner case. It was actually carved out in the days of Allen Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, and before Taft-Hartley was passed.

They say that even though in the case of violence the employer has a remedy, and can go to the National Labor Relations Board for a remedy, that fact still doesn’t divest a State Court of jurisdiction to exercise its equity powers.

And the reason and thinking of the Court is, as I understand it, that traditionally the states have been the guardians of public peace. The states have the responsibility to maintain law and order, to use the shortest wordage.

Therefore, where unlawful violence, mass picketing or things of that type occur, which the Courts have found to be unlawful, a State Court can step in and grant an injunction even though the employer could have gone to Washington and filed an unfair labor charge against the Union. That is the second classification.

Then there is the third classification. This involves situations where concerted activity, including the right to strike is protected. Clearly, under the Taft-Hartley Act, the right to strike is not made absolute, nór is any other concerted activity given to a Union, or guaranteed to a Union, by virtue of this Act, made absolute.

What I think we must understand and remember is that prior to the Taft-Hartley Act, prior to the Wagner Act, there were many Courts in many states that said if men get together and organize collectively to engage in trying to get better wages or working conditions, that is a conspiracy and that can be stopped.

So to get at that and to protect the workers in their just and lawful concerted activity, be it a strike or other activities, the Labor Relations Acts have contained these guarantees of the right to strike and to engage in other concerted activity.

But it is evident from the decisions of the Supreme Court that this is not to be regarded nor has it been held to be an absolute sweeping, all encompassing, right. We can look at it in the light of two or three cases.

Wisconsin passed d law banning strikes in public utilities. There the law didn’t make any exceptions. It said to a fellow working on a streetcar line or in a gas plant up there in Milwaukee, or elsewhere, “You can’t strike and we are going to give you compulsory arbitration in place of striking.”

That was upheld by the Wisconsin Supreme Court. It went to the United States Supreme Court, and in Bus Employees v. Wisconsin Board, 340 U. S. 383 (1951) it was found to violate the protection of concerted activity, to-wit, the right to strike given under the Taft-Hartley Act and its forerunner, the Wagner Act.

So there, where there was a complete ban of concerted activity, it was found that the protection granted by the Act rendered such a State law illegal and void.

Recently we had another more precise illustration. A Kentucky State Court enjoined and, in fact, issued a mandatory injunction directing truck drivers to cross a picket line.

It grew out of a situation in a strike at the American Tobacco Company — not involving the American Tobacco Company as such, where Lucky Strikes are made, but a subsidiary called American Suppliers.

Employees of that plant, which was on the premises of the American Tobacco Company, were on strike, and there the employees of certain common carriers who hauled to and from American Tobacco, had to cross the picket line at this plant.

The actual contract which these truck drivers had, said they didn’t have to cross the picket line. There was an express excuse given them against crossing such a picket line.

The Chancellor down in Kentucky and the Court of Appeals of Kentucky affirming him, 264 S. W. 2d 250 (1954), said that it doesn’t make any difference, “You are a common carrier and you have got to haul.” And, therefore, they issued a mandatory injunction directing these truck drivers to cross a picket line.

It is the first time I ever saw one like that. It went to the Supreme Court of the United States and was decided in the same term of Court as the Anheuser-Busch case, Weber v. Anheuser-Busch, 348 U. S. 468 (1954). And on the authority of the Anheuser-Busch case the Supreme Court, without an opinion, reversed the Kentucky Court, 348 U. S. 978 (1955). Now, I understand that to mean this, especially after I had read the decision of the Court of Appeals of Kentucky. I think, clearly, the Supreme Court of the United States says that the right given expressly by the Taft-Hartley Act, and I read that provision, must be upheld. And that is the provision in Section 8(b)(4)(D), which says this:

“Nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer other than his own employer if employees of such employer are engaged in a strike ratified or approved by representatives of such em„-ployees whom such employer is required to recognize under this sub-chapter.”

So in that situation it was held, apparently, because of this section that the truck drivers could not be put under mandatory restraint in order to cross that picket line. So there, specifically, is a right protected by the Act, • and the Supreme Court said that any State Act which attempted to violate that must be held illegal.

As far as Weber v. Anheuser-Busch is concerned, the Supreme Court couldn’t quite make up its mind whether this case involved an unfair labor practice situation, which the Board had dismissed, or whether it involved protected activity. But the Supreme Court, Justice Frankfurter speaking, wound up by saying, at Page 481:

“But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the Federal Act, may be reasonably deemed to come within the protection afforded by that Act, the State Court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.”

Yet it is equally true that in Auto Workers v. Wisconsin Board, 336 U. S. 245 the Supreme Court has ruled that neither Section 7 nor Section 13 of the Taft-Hartley Act confers an absolute right to engage in every kind of strike or other concerted activity. Specifically the Court held that recurrent or intermittent unannounced stoppages of work to win unstated ends are “neither forbidden by federal statute nor was it legalized and approved thereby.” The Court therefore affirmed an order of the Wisconsin Employment Relations Board which ordered the Union and its members from instigating intermittent and unannounced work stoppages in the plants of any employer engaged in interstate commerce.

The last paragraph of the majority opinion is presently significant. At Page 265 the Court said: “We find no basis for denying to Wisconsin the power, in governing her internal affairs, to regulate a course of conduct neither made a right under federal law nor a violation of it and which has the coercive effect obvious in this device.”

So then we come to apply these principles to the present case. It is the position of the Defendants that the picketing carried on at the Sohio Distribution Centers is not an unfair labor practice. I think that is an important point to make.

When the question was specifically put to counsel for the Union as to whether the picketing which had been going on there, under any possible interpretation, could be regarded as an unfair labor practice, he specifically and categorically said no. Pie conceded that the conduct which involved the picketing does not constitute and cannot constitute an unfair labor practice under the Taft-Hartley Act.

I think it should be interpolated at this point that if the purpose of this picketing was actually to substitute the Oil, Chemical and Atomic Workers as the bargaining agent in place of the Independent Petroleum Workers, if that was the real purpose of the picketing, it might very well be argued that the picketing going on there would constitute an unfair labor practice under the Taft-Hartley Act.

But, after all, intent is an important element in picketing. And here the intent is lacking to make this an unfair labor practice. And, of course, it would follow that if this actually was intended, although denied here, then this Court under the Garner case would have to decline jurisdiction and take the position that the employer must seek his remedy in Washington.

Furthermore, it seems to me that we can summarize then by saying this does not constitute conduct prohibited by the Act nor does it constitute conduct protected by the Act. As I have said previously there is no absolute guarantee of the right to strike or to engage in concerted actvities.

As a matter of fact, research shows that the Congressional Committee, handling the Taft-Hartley Act on this question of enforcement of contracts said this, and I quote from their Committee report:

“Once parties have made a collective bargaining contract the enforcement of the contract should be left to the usual processes of the law and not to the National Labor Relations Board.”

So it seems to me that there is clearly nothing in the Taft-Hartley Act which can be regarded as protecting concerted activities which have as their purpose possible and probable inducement of breach of contract. This conduct here, neither being prohibited by the Taft-Hartley Act nor protected by the Taft-Hartley Act, therefore, does not fall within any of the categories in which the Supreme Court has said a State Court may not act.

It has been ruled by the Supreme Court that even though a specific remedy exists under the Taft-Hartley Act to prevent violent picketing, nevertheless State Courts are not divested of their historic right to maintain the public peace.

Surely it must be equally true that where the Taft-Hartley Act provides no remedy against picketing which tends to induce a breach of contract the State Courts also retain their historic role to uphold and enforce valid existing contracts.

I think it is important to just mention two cases, without making any reference to them specially, which take a point of view which seems, to me, pretty clearly shows we have jurisdiction in this case. One is the case of General Electric Company v. International Union, 93 Oh Ap 139 (1952). The other case is a decision of the Pennsylvania Supreme Court, a very recent decision rendered after the American Brake Shoe Case, which has been bantered about and considered so much in this trial. That is the case of Philadelphia Marine Association v. Longshoremen, 382 Pennsylvania 326, 115A 2nd 419.

In short, we come to a situation which Justice Jackson referred to in the Garner case as being, “Either governable by the State or it is entirely ungoverned.”

I think that is precisely what you have here. Therefore, it is my ruling on the first point in this case that this Court does have jurisdiction to act.

Coming then to the question of whether or not the evidence shows that the picketing which took place here induced a breach of contract as claimed by the Plaintiff:

The facts show that the picketing was authorized and commanded by the Defendants. It is also clearly established in the evidence that the picketing was directed at stopping the trucks, both by placing picket lines in the line of traffic, in and out of the Distribution Center, and by oral persuasion in arguing with each driver.

Thirdly, though incidentally it is true that the picketing may, perhaps, also have been aimed at those few members of the general public who hauled in and out of this plant, clearly, primarily, it was directed at Sohio truck drivers in an effort to get them to cease working.

I think the effect of this picketing is best illustrated by what happened on June 12th. At that time the picketing reached its highest volume when there were some 50 to 75 pickets, according to the evidence, at the entrance and exit of the Distribution Center. Operations were at a complete halt. Judge White issued a restraining order and it was served on the Defendants. Picketing ceased at 2:00 o’clock.

The order was explained to the truck driver members of the Independent Petroleum Workers, Inc., and immediately when the pickets ceased their activity the truck drivers went back to work.

Again, about 5:45, when a few pickets reappeared, operations stopped again. When those pickets were removed the truck drivers commenced operations again and have been continuing ever since.

So the direct relationship of cause and effect couldn’t, I don’t think, be any clearer than under these facts. Nor do I think it can be argued that though the Union is bound by Section 12, the so-called no-interruption-of-work, no-stoppage clause, that the members of the Union are not bound.

I think it is best demonstrated by the fact that in paragraph (b) of that section a worker who violates paragraph (a) is made subject to discipline, and clearly then the section applies to individual employees. As a matter of fact, a Union, after all, is its membership. It is the combination of all the members. It is seeking to get better wages, and better hours and better working conditions, and, clearly, if the employees derive the benefits from a Union contract then, surely, they are subject to the burdens of the Union contract.

If it were otherwise, it seems to me that Unions would be in the same kind of position, which some corporations get into by trying through separate corporate fictions to shed responsibility, and I am sure no Union wants to reach or take that position.

Then we come to the question of whether, since I do specifically find that there has been an inducement to breach this contract as a result of this picketing, whether or not under the public policy of this State such action is illegal.

I think Judge Hurd’s opinion in Sterling & Welch Co. v. Duke et al., 67 N. E. 2d 24 (1946) must still be regarded as the pronouncement of the public policy of this State. It is about eleven years old. It has never been reversed or modified and it has been, on the other hand, referred to and quoted with approval by other Courts.

I think it clearly must be the public policy of any State to uphold and enforce contracts. If that weren’t so, the very base of all of our relationships would disintegrate. Surely, Courts have to be regarded as the guardians of contracts. If a breach occurs a person files a lawsuit for damages. But, on the other hand, where a suit for damages is not an adequate remedy, Courts, historically, have stepped in and granted through equity protection against breaches of contract. This I take to be the law of Ohio.

I am not concerned with the law of Pennsylvania. I am enforcing the public policy and the law of Ohio. And if Pennsylvania, with its little Norris-LaGuardia Act, in a very sharply conflicting opinion of its Supreme Court in the American Brake Shoe Case, 373 Pa. 164 (1953), 94 A. 2d 884, found that under the anti-injunction act of that state, in a situation quite comparable to the one we have here, that an injunction could not issue and should not issue, all I can say is I am not bound by that decision because we don’t have an anti-injunction act in this State. We must, therefore, be bound by the law I am bound to enforce.

I think it is interesting, though, to point out that in the case I mentioned to you a moment ago, Philadelphia Marine Association v. Longshoremen, the later decision of the Pennsylvania Supreme Court, they specifically say this about the question we have been dealing with. They say at Page 332:

“Prevention of violation of obligations contained in a contract by injunctive relief is a power traditionally exercised by courts of this commonwealth. Congress has not acted upon the specific subject matter at issue. Enforcement of contracts may be required according to the usual processes of the law.”

That involved a breach, not of a third party contract, but of the actual contract between the employer and the employees. There they stepped in and enforced it.

Now, then, to quickly come to a conclusion in this case. If there were no contract covering the employees of the Sohio Distribution Center I think that under the decision of the Kentucky Court, the American Tobacco case, which was not reversed on one ground, and under decisions of other Courts, that it would be legitimate to maintain picketing even though the employees of this center were not directly involved in the labor dispute we are concerned with here. Because I think it is true that the Courts have upheld the right to picket facilities of the same employer in order to bring economic pressure to bear on that employer. But that, in my judgment, has to stop where a valid existing enforceable contract binds the employees of that particular unit to specific conduct and specifically prohibits a work stoppage and work interruptions.

Gentlemen, the last witness that testified in this case, I think gave us the problem just in a very clear nutshell, if you can think of a transparent nutshell. I am referring to Ralph H. Bloom, Jr.

He said, “Well, I was coming in to work. I had left work in the morning, after working all night, and I was coming back to work at 5:30, and I was coming in the gate, I don’t know how many fellows were standing there, and a fellow said to me as I slowed down, ‘Here comes another scab, one of those God-damned scabs.’ I said, ‘What do you mean scab?’ He said, ‘You know what I mean,’ I said, ‘No sir, I don’t know what you mean. After all, I am a Union man as well as you and I have a contract to live up to.’ With that I took off.”

A labor agreement is necessarily the end result of the collective bargaining process. If labor relations are to prosper, and I am sure and hope that they will, then there must be mutual confidence in the sanctity of a labor agreement. And it works both ways. It works against employers as much as it must encompass Unions.

It seems to me that the agreement of the Independent Petroleum Workers, Inc. is entitled to the same kind of respect as the agreement, which I hope soon will be worked out between the Oil Workers and The Standard Oil Company.

You can’t pick and choose between one and the other. If the shoe were on the other foot and the Petroleum Workers were on strike, and the Oil Workers had a contract, that contract would have to be respected by the Petroleum Workers. And the reverse is equally true.

Gentlemen, it seems to me under the circumstances that the request for injunctive relief to prevent, by picketing or other concerted activity, an inducement or any inducement to breach the Independent Petroleum Workers contract, must be sustained.

The temporary restraining order, I think, perhaps, will have to bear some rewording, but the basic point that we have been dealing with here, the question of whether a permanent injunction should be issued against picketing of whatsoever kind at the distribution centers must be answered yes. The temporary restraining order on that point must be made permanent.

Exceptions are noted, of course, to both sides.

Let me say this before I leave the bench. Now that I have concluded this role, I repeat what I said at the beginning of this matter. If this Court, working either in conjunction with the Federal Mediation Service or alone, can be of any value or any benefit at all in trying to bring this strike to an end, my services are ready and willing. Maybe not able, but at least willing.

JOURNAL ENTRY

July 10, 1957.

This matter came on for hearing on June 24th, 27th, 28th, and 29th, and on July 1st, 1957, the cause having been advanced for hearing out of its regular order upon the motion of the defendants. The cause was heard upon the plaintiff’s petition, the joint answer of the defendants (the affirmative matter contained in the first defense of said joint answer being by the parties treated as denied), the evidence and arguments of counsel presented both orally and in writing, and the motions for judgment made respectively by the parties at the conclusion of all the evidence.

After due consideration the Court finds that the defendants by picketing at the premises hereinafter designated, and by engaging in other concerted activity, including but not limited to following tank trucks of the plaintiff on public streets and highways, have induced, and, unless permanently enjoined, will continue to induce, a breach of the agreement now in full force and effect between the plaintiff and Independent Petroleum Workers, Inc., and particularly Section 12 of said Agreement, which provides in part that during the life of the Agreement there shall be no interruptions or stoppages of work by Independent Petroleum Workers Union, Inc., through strikes, slowdowns, sit-downs or otherwise.

The Court further finds that said inducement to breach said Agreement is conduct which is neither prohibited by nor protected by the Federal law known as the Taft-Hartley Act, and further that said conduct is “either governable by the State or it is entirely ungoverned;” and

The Court further finds that said conduct of the defendants directly and proximately resulting, as it has, in an inducement to breach the aforesaid Agreement, is violative of and against the public policy of the State of Ohio; and therefore,

The Court finding that it has full jurisdiction to exercise its equitable powers under the circumstances of this case, the joint motion of the defendants for a dismissal of plaintiff’s petition and for judgment is denied, and plaintiff’s motion for judgment and its prayer for a permanent injunction, being well taken, are granted as hereinafter specified. Therefore,

IT IS ORDERED, ADJUDGED AND DECREED, That the defendants, and each of them, defendant labor organizations, their officers, agents, members and employees, and all other persons associated with or acting in concert with the said defendants, and all others to whom knowledge of this order shall come, be permanently enjoined:

1. From picketing, peacefully or otherwise, in any manner at or in the vicinity of the premises of the plaintiff designated as Sohio Distribution Center, 4800 East 49th Street, Cuyahoga Heights, Ohio; Sohio State Warehouse, 2941 East 34th Street, Cleveland, Ohio; Division Bulk Terminal, 3083 Broadway, Cleveland, Ohio; Noble Bulk Station, East Cleveland, Ohio; Brecksville Bulk Station, Brecksville, Ohio.

2. From interfering with plaintiff’s officers, agents, representatives and employees, and from engaging in any concerted activity, which interference or concerted activity is for the purpose of inducing, or tending to induce, a breach of the Agreement which is now in full force and effect between the plaintiff and Independent Petroleum Workers, Inc., including but not limited to inducing employees of the plaintiff who are subject to said Agreement to cease work in violation of said Agreement.

3. From loitering, grouping, or congregating on or off the public street or highway at or in the vicinity of the entrances or exits of said designated premises.

4. From interfering in any manner with the ingress to or egress from said designated premises of trucks, cars, or other vehicles of any kind and from following them at hazardous or dangerous distances or in a hazardous or dangerous manner, or from in any way limiting their freedom of movement, or from interfering with the operation of said vehicles on the public streets or highways, and from following them except at a safe and non-hazardous distance and only for the purpose of ascertaining customers of the plaintiff for the purpose of acquainting said customers with the dispute in a lawful manner.


author: By SKEEL, J:

text:
    GERSTENEK, Incompetent, In re: BREWER, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23906.
    Decided December 12, 1956.

      Paul Mancino, for plaintiff-appellee.
    Wilbur H. Brewer, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from an order of the Probate Court of Cuyahoga County removing Wilbur H. Brewer as guardian of Barbara Gerstenek, incompetent, and ordering and directing that the journal making the original appointment be amended to show that the court at no time obtained jurisdiction over the ward because Barbara Gerstenek was never served with notice as provided by law and that the court was in error in making such appointment because the consent of the ward (to the appointment of a guardian because of physical disability) was never obtained.

The record shows that on November 29, 1951, Frank G. Kleinhens filed an application for letters of guardianship for Barbara Gerstenek, an incompetent, by reason of “advanced age and physical infirmity and mental illness.” The court ordered notice to be served as provided by law. Such service was had on the ward by the Sheriff on December 1 and on December 10, 1951, the transcript shows “notice returned and filed.”

On December 11, 1651, the application came on for trial and the following entries appear:

‘Dec. 11, 1651. To Court: The application heretofore filed on No-\¿m,^r ^9, 1„5~, Ly Frank G. Kleinhens to be appointed guardian of the person and es.ate of Barbara Gerstenek, an alleged incompetent person, coming on to be heard, the said application is withdrawn.

‘ Doc. 11, 1951. Application of Wilbur H. Brewer, 300 Engineers Bldg., t leveland, Ohio, for letters of guardianship, filed. To Court: It appearing io the Court that applications have been filed praying for appointment as guardian of the person and estate, or of the estate only, or the person only, of the following persons who are alleged to be mentally incapacitated or physically incapacitated, and by reason thereof, incapable of taking proper care of themselves and property, and that all such persons have been notified of the filing of the said application according to law, and that the next of kin who are entitled to notice have been notified according to law or have waived notice; and the Court finding that such persons who are physically incapacitated have consented in writing to the appointment of the applicant and that the applicants are suitable persons to be appointed and that the statements contained in the application are true: It is therefore, by the Court ordered that the applicants be appointed guardian of the following persons, upon giving bond with sureties thereon as required by law or in respect to corporate fiduciaries, in accordance with the statute, without the giving of bond and that letters of guardianship for the estate only, be issued to such corporate fiduciaries without the giving of bond.

457893 Ward Applicant Amount of Bond

Barbara Gerstenek, Wilbur H. Brewer $9,000.00

Incompetent Person and estate

Wilbur H. Brewer then qualified and letters of guardianship were issued. He then entered upon the duties imposed upon him by the appointment and acted in that capacity from December 12, 1951 until the entry of December 23, 1955 by which last entry he was removed. During that period the court instructed the guardian, as requested on a number of occasions, approved upon hearing a partial account, conducted and approved a land sale proceeding and approved other requests for authority to act filed by the guardian relative to the care of the ward.

On November 8, 1955, a motion seeking the removal of the guardian was filed wherein it was alleged:

“(1) That the appointment was improperly made contrary to the statutes so made and provided.
“(2) That the ward herein at no time consented to the appointment of a guardian over her person and her estate.
"(3) That the court had no authority to make the appointment herein for the reason that the appointment was made for physical disability of the ward herein.
“(4) That the ward at no time had her day in court.
“(5) That the ward does not desire a guardian over her person or estate and never has desired one.
“(6) That the ward is capable of managing and maintaining her own person and property.”

Upon hearing in which the court received over objection evidence of the recollection of the witness as to what took place (the evidence received on the failure to establish statutory requirements) on December 11, 1951, on the hearing of the application for the appointment of a guardian as the basis of the journal entries of that date. The court then found for the ward and approved and ordered journalized the following entry:

“Dec. 23, 1955. To Court: This cause came on for hearing before Honorable Walter T. Kinder, Judge of the Probate Court, Cuyahoga County, Ohio, upon the motion of Barbara Gerstenek, to remove the guardian herein for the reason that the consent of the ward had at no time been obtained for the appointment of the guardian herein over the person and estate of the ward for physical disability and physical infirmity. Evidence was taken and adduced at the hearings in this matter and a record was taken and made of the proceedings had in this matter. Upon consideration thereof the court finds that the motion of Barbara Gerstenek to remove the guardian herein is well taken and the same is hereby granted. The court further finds that said Barbara Gernstenek at no time gave her consent for the appointment of a guardian over her person and estate; that said Barbara Gerstenek was at no time served with notice as provided by law upon the application filed by Wilbur H. Brewer. The Court further finds that its journal of December 11, 1951, Vol. 705, Page 583, is subject to the interpretation that Barbara Gerstenek consented in writing to the appointment of Wilbur H. Brewer as her guardian. The Court further finds that as thus interpreted, said journal does not speak the truth in that in point of fact said Barbara Gerstenek, as heretofore found, at no time consented to the appointment of a guardian over her person and estate. The guardian, Wilbur H. Brewer, requested separate findings of fact and law, which request was granted by the court and said separate findings of fact and law have been made and filed in this proceeding. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the motion of Barbara Gerstenek to remove the guardian is hereby sustained and Wilbur H. Brewer is hereby removed as guardian in the within proceedings for the reason that said Barbara Gerstenek was never .served with notice as provided by law and that the consent of the ward herein was never obtained for the appointment of said Wilbur H. Brewer as guardian over the person and estate of the ward herein, and that, therefore, the court at no time obtained jurisdiction over the person of the ward. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court’s journal Vol. 705, page 583, be and the same is hereby corrected to show that insofar as concerns Barbara Gerstenek, no consent was by her made to the appointment of the guardian. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Wilbur H. Brewer transfer and deliver to Barbara Gerstenek undiminished, by reason of the proceedings herein, the monies and property comprising the estate of Barbara Gerstenek, of which said appointment of the guardian. IT IS FURTHER ORDERED, ADJUDGED guardian became custodian at the time of his appointment. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Wilbur H. Brewer, within thirty days hereof, file herein an account of his administration as guardian of the estate of Barbara Gerstenek, including an account of his transfer and delivery to Barbara Gerstenek of the monies, property and assets as hereinabove provided. Exceptions to the guardian, Wilbur H. Brewer.”

A motion for new trial was filed on December 30, 1955, and overruled on March 12, 1956. On March 16, 1956, an amended final account of Wilbur H. Brewer, guardian, as ordered by the court, was filed and counsel for the ward, who on January 12, 1956, was appointed “successor guardian,” stated in open court that there is no objection to the approval of such account.

The appellant presents the following assignments of error, designated “Issues:”

“(1) On December 11, 1951, did the Court, having before it the application of Mr. Kleinhens, based upon mental incapacity of Mrs. Gerstenek and supported by medical evidence, have jurisdiction to appoint a guardian for said person?
“(2) Once having acquired jurisdiction to appoint a guardian, did the Court retain jurisdiction to appoint a person other than the applicant as such guardian?
“(3) Can that jurisdiction be removed from the Court by the action of any other person in ‘withdrawing’ his application?
“(4) Upon the execution by the Court of a journal entry appointing such guardian, and the spreading of such journal entry upon the public records of the Court, what position does such guardian enjoy?
“(5) To what extent may a Court, four years after a finding of fact and the execution of a journal entry thereon, inquire into the testimony originally presented, interpret the same and make a determination affecting the entire period of service as such guardian.”

Sec. 2111.02 R. C., in part, provides:

“When found necessary, the probate court on its own motion or an application by any interested party shall appoint a guardian of the person, the estate, or both, of a minor, incompetent, habitual drunkard, idiot, imbecile, or lunatic or a guardian of the estate of a confined person provided the person for whom the guardian is to be appointed is a resident of the county or has a legal settlement therein,
“If a person is incompetent due to physical disability, the consent of the incompetent must first be obtained before the appointment of a guardian for him.”

It is established by the face of the record that the applications of Kleinhens and Brewer were before the court at the same time (December 11, 1951) after Barbara Gerstenek had been served by the Sheriff on December 1, 1951, the notice stating that Prank C. Kleinhens had filed an application on November 29, 1951 “for the appointment of himself or some other suitable person as guardian of your person and estate.” (Emphasis added.) “Said application is made on the ground that you are incapable of taking proper care of yourself or of your property by reason of being an incompetent.”

Prom the fact that the application of Brewer was filed during the progress of the trial on December 11, 1951, it must be deduced (and such deduction is an inescapable conclusion to be drawn from the facts carried into the court’s journal entry) that notice was given as provided by law and the appointment of a guardian was consented to as provided by statute. The entry that the application of Kleinhens for appointment as guardian was withdrawn, when the whole record is considered, must be determined to apply to him as an applicant, and not a dismissal of the proceeding. The judge’s act in appointing Brewer and the facts contained in the journal entry that service was had on the ward and consent to the appointment of guardian obtained can only be explained in that way. In support of establishing the fact of the ward’s consent to the application of Kleinhenz for appointment as her guardian, consideration must be given to his application for fees (which application was granted) in which it was specifically stated that he, Kleinhenz, acted at her (the wards) specific request. This fact appears on the face of the record. The bill of exceptions, containing all the evidence of the hearing on the ward’s motion for removal of Brewer as guardian, in great part seems to be directed as to what evidence was presented to the presiding judge at the time the appointment of the guardian, as exemplified by the court’s journal of December 11, 1951, such evidence tending to contradict facts carried into the journal entry.

This evidence was irrelevant and inadmissible and should have been excluded. There can be no question of doubt from the face of this record that the court had jurisdiction of the subject matter of the action and that by the service of notice upon the ward that she was properly before the court. It is also clear by examination of the journal entry that the court found that all statutory requirements had been met necessary for the appointment of Brewer as guardian of the person and estate of Barbara Gerstenek, the court having found as a fact that service was had and consent given. The fact that the court for four years directed the course of the guardian tends to support the fact that the entry of December 11, 1951, was not made by mistake and that the court did find facts upon which to justify the appointment. The claim that the judgment of December 11, 1951, was void ab initio for want of jurisdiction is without legal foundation on the face of the record in the trial of the motion now before us.

The record indicates that the court in the trial of the ward’s motion to remove the guardian almost four years after the original appointment was attempting to retry the issues or to determine whether, in the original trial, the court had before it sufficient evidence to justify its judgment. The court attempted by a nunc pro tunc order to “correct” the findings of fact in the original journal entry (claiming the absence of evidence to support the judgment). The use of an order nunc pro tunc is to correct a mistake appearing on the record, not to review a claim of error that the judgment was not sustained by the evidence where, on the face of the record, the court had jurisdiction of the subject of the action and of the person of the ward and the journal entry approved by the court finds facts sufficient in law to sustain the judgment entered. The question of consent, as required by statute, to the appointment of a guardian is an issue of fact to be established by the evidence and not one affecting the court’s jurisdiction. A judgment of a court of record (of competent jurisdiction to try the issues presented and having jurisdiction of the person or persons before it as required by law) entered after trial, is final unless an appeal is taken or unless a motion to vacate is granted within the limitations of the statutes.

The appellee here does not claim this proceeding to be one provided by law seeking relief after judgment. The appellee, in effect is here making a collateral attack on the jurisdiction of the court over the ward and the power of the court to make the appointment of Wilbur H. Brewer as guardian of Barbara Gerstenek, incompetent.

In the case of Sheldon’s Lessee v. Newton, 3 Oh St 494, almost the identical question was presented. The Common Pleas Court, acting as the Probate Court in the administration of the Estate of Jeremiah Sheldon, authorized a land sale to pay debts. By the agreed statement of facts, a petition to sell land was filed in the April Term 1829, of the Common Pleas Court of Washington County in the probate proceeding in which Olive Sheldon, widow of decedent, and Israel Sheldon, brother of decedent, had been appointed and had qualified to administer the estate. The real property owned by the decedent was described in the petition, the fact that the personal property was not sufficient to pay the debts and prayed that the widow’s dower be set off, that the property be appraised and that two parcels (not the land herein described) be sold. The children of Jeremiah Sheldon (both minors) were made parties defendant. The minors (the oldest being then about five years of age) were not served but a guardian ad litem was appointed. The property was appraised and the dower set off to the widow and the two parcels ordered sold. The order of sale was reissued in the April Term 1830, and the lands in dispute were sold to Andrew McConnell, a minor, who was the purchaser in name only, paid no money and took title only to subsequently deed it to Israel Sheldon, Administrator, the same day he got the deed. It further appears that while the case was pending, the administratrix and administrator were married. That thereafter (October 1833) Israel Sheldon deeded the property to William Fleming, who in 1834 deeded the property to the defendant who did not know of or have notice of the infancy of McConnell. A short time before this action was brought, almost twenty years after the probate proceeding, McConnell deeded the property to the lessors of the plaintiff. It was the contention of the plaintiff that:

“That the record relied upon by the defendant fails to show the existence of many facts indispensable to the jurisdiction of the court; the petition did not ask for authority to sell the lands now in controversy, and there was, therefore, in respect to them, in effect, no petition; the heirs were never made parties by being brought into court, and an opportunity given them to defend their rights; no deficiency of the personal assets appears to have been judicially ascertained, and, therefore, no necessity for the sale of real estate was shown, and that, in proceeding to order a sale without the existence of these essential prerequisites to its authority, as well as in delegating to the personal representative the discretion to determine what lands should be sold, and in allowing more to be sold than was necessary to meet the alleged deficiency of the personal estate, the court exceeded its jurisdiction, and its order was wholly inoperative to transfer or affect the title to the premises now in dispute.”

The court said on page 499 of the opinion:

“1. A settled axiom of the law furnishes the governing principles by which these proceedings are to be tested. If the court had jurisdiction of the subject-matter and the parties, it is altogether immaterial how grossly irregular, or manifestly erroneous its proceedings may have been; its final order cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. On the other hand, if it proceeded without jurisdiction, it is equally unimportant how technically correct, and precisely certain, in point of form, its record may appear; its judgment is void to every intent, and for every purpose, and must be so declared by every court in which it is presented. In the one case, the court is invested with the power to determine the rights of the parties, and no irregularity or error in the execution of the power, can prevent its judgment, while it stands unreversed, from disposing of such rights as fall within the legitimate scope of its adjudication; while in the other, its authority is wholly usurped, and its judgments and orders the exercise of arbitrary power under the forms, but without the sanction, of law. The power to hear and determine a cause is jurisdiction; and it is coram judice whenever a case is presented which brings this power into action. But before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal, to answer the charge therein contained. When these appear, the jurisdiction has attached; the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred; and whether determined rightfully or wrongfully, correctly or erroneously, is alike immaterial to the validity, force, and effect of the final judgment, when brought collaterally in question. United States v. Arredondo, 6 Pet. 709; Rhode Island v. Massachusetts, 12 Pet. 718.”

That the court had no power to attempt to “correct the record” where the record shows on its face that it exemplifies exactly what the court intended by its judgment to do, is clear from the cases.

In 23 O. Jur., 678, paragraph 255, it is said:

“An erroneous judgment cannot be corrected by nunc pro tunc entry. It is not a proceeding for the purpose of reviewing former judgments by the same court, or of correcting errors of judgment theretofore exercised.”

and paragraph 285, at page 694, provides that:

“Courts exercise the power to correct their records so as to make them speak the truth, if the judgment entered is not in accord with the actual decision, or is not the judgment which was actually rendered, or is entered as of the wrong date, or omits or misstates a material fact, whether the erroneous entry was made by mistake, fraud, or otherwise. Thus, at common law a mistake of the clerk in entering judgment that the defendant recover, instead of the plaintiff, could be corrected. However, correction cannot be made, after term of court, of an entry on the journal which correctly states the judgment actually rendered, even if such judgment contains a mistake of law or of fact, or both.”

In the case of Reinbolt v. Reinbolt, 112 Oh St 526, 147 N. E. 808, the court said:

“1. The power of the trial court to make an entry nunc pro tunc after term does not extend beyond the power to make the journal entry speak the truth.
“2. A trial court is without power to alter his conclusion by nunc pro tunc entry at a term subsequent to the term of the original entry.”

See also Slate, ex rel. Cincinnati v. Schneider, 89 Oh Ap 96, 100 N. E. (2d) 863.

If we were to consider the motion as one seeking to vacate a judgment after term, we would be met with the statute of limitations. Sec. 2325.01 R. C., provides:

“The court of common pleas or the court of appeals may vacate or modify its own final order, judgment, or decree after the term at which it was made:
“(C) For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order;
“(D) For fraud practiced by the successful party in obtaining a judgment or order;
$ %)) '

Sec. 2325.04 R. C., provides that proceedings under paragraph (C) of §2325.01 R. C., must be by motion and by §2325.05 R. C., it is provided that the proceeding under paragraph (D) must be by petition upon which summons must issue. By §2325.10 R. C., it is provided that a motion filed under the authority of paragraph (C) of §2325.01 R. C., must be filed within three years of the order or judgment sought to be vacated and a petition under paragraph (D) must be filed within two years of such order of judgment.

These provisions are applicable to judgments or orders of the courts of probate (§2101.32 R. C.), but the right in this ease to relief under them is now barred by §2325.10 R. C., supra. There is now no relief to be had to either vacate or review the judgment or order of the Probate Court entered December 11, 1951, appointing Wilbur II. Brewer guardian of Barbara Gerstenek based on the claim that the judgment was erroneous for want of sufficient evidence, such claim being directly contradicted by the journal entry approved by the court.

For the foregoing reasons, the order of the court removing Wilbur H. Brewer as guardian of Barbara Gerstenek is reversed, and, because the only ground for removal is based on the illegality of the judgment by which he was appointed, final judgment is entered for the appellant.

Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By FESS, J.

text:
    NELSONVILLE ELECTRIC & MANUFACTURING CO., Plaintiff-Appellee, v. MARSHALL, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5626.
    Decided March 29, 1957.
    Collis Gundy Lane, Columbus, for plaintiff-appellee.
    James M. Hengst, Carrington T. Marshall, Columbus, for defendant-appellant.
    (FESS and DEEDS, JJ, of the Sixth District, and HORNBECK, J., of the Second District, sitting by designation in the Tenth District.)
   OPINION

By FESS, J.

Appeal on questions of law from a judgment of the Municipal Court of Columbus, Ohio, rendered without a jury, in favor of the plaintiff in the sum of $815.71.

For a number of years defendant and Harry M. Runkle have owned a coal mine near Roseville, Ohio. This mine had been leased to Rose Hill Coal Company, which went into receivership on April 22, 1953. In June, 1953, defendant and Runkle purchased certain mining equipment from the receiver of their lessee and shortly thereafter such equipment suffered damage as a result of a fire. Negotiations were had between the plaintiff, an insurance adjuster, and a representative of the owners for the repair of the damaged machinery. Plaintiff had suffered loss as a result of the liquidation of the Coal Company and when it inquired of the adjuster about payment of the repair bill, he advised plaintiff that payment would not be made to the plaintiff, but would be made to the owners of the property. Plaintiff thereafter requested the defendant to guarantee payment and in response thereto defendant wrote plaintiff on July 13, 1953, as follows: “This is to assure you that the undersigned will assume responsibility for any labor and materials furnished to the mine at Roseville, Ohio, formerly owned by the Rose Hill Coal Company. Truly, Carrington T. Marshall.” Thereafter plaintiff opened an account on its books in the name of Marshall & Runkle, and, upon completion of the work, on November 30, 1953, forwarded an invoice therefor in the sum of $1,296.49 to defendant. This invoice was endorsed paid in full on April 22, 1954. This invoice bears a notation written in ink, — “This is what was covered by your letter, H. M. R.” The evidence fails to disclose whether this notation was made prior to or after plaintiff acknowledged payment in full on April 22, 1954. The invoice bears a further notation, “Please receipt & return to H. M. Runkle, 81 N. Drexel Ave. Columbus, Ohio.”

On September 28, 1953, Rose Hill Coals, Inc. was organized, and either on October 1 or October 19, 1953, leased the mine and its equipment from defendant and Runkle and covenanted to keep the structures and equipment in good repair, and to maintain a reserve for such purpose. Thereafter, at the instance of Coals, Inc., the plaintiff performed work and furnished materials from November 18, 1953, to February 19, 1954, for which plaintiff rendered Coals, Inc., thirteen separate invoices aggregating $1,213.45. Although plaintiff claims, without positive proof thereof, that copies of the invoices rendered to Coals, Inc. were mailed to the defendant, the great preponderance of the evidence discloses that neither the defendant nor Runkle had any knowledge of these repairs or that defendant might be called upon to pay for them until January 19, 1955.

As above indicated, the account which defendant paid in the sum of $1,296.49 was carried in the name of Marshall & Runkle. The items in dispute were carried on plaintiff’s ledger by way of continuation of the former account of Rose Hill Coal Company which had been opened prior to 1950. This ledger sheet discloses the bad debt charge-off of the Coal Company in the fall of 1953 predated after the first charge against Coals, Inc. on December 8, 1953. No explanation is offered by the plaintiff as to why these subsequent charges were recorded against Coals, Inc. rather than by way of continuation of the Marshall & Runkle account. This sheet also shows a credit against the Coals, Inc. account of $397.74 as of January 25, 1954, and a bad-debt charge-off of $815.71 in 1955, without indicating the month or day.

The evidence further discloses that at the time the order was placed by Coals, Inc. the general manager of the plaintiff inquired as to who would be responsible for the payment of its account, was referred to the president of Coals, Inc. and discussed with such president the responsibility for deliveries to Coals, Inc. Nevertheless, several orders were delivered C. C. D., but the remainder were charged to the account of Coals, Inc.

On April 22, 1954, when plaintiff acknowledged receipt in full of its invoice rendered Marshall & Runkle, the work done at the instance of Coals, Inc. had been completed for over two months, — since February 19, 1954. Plaintiff must have been fully aware of defendant’s letter of July 13 throughout the previous nine or ten months, and particularly when it failed to receive payment on its Coals, Inc. account after February 19.

Coals, Inc. ceased operations on April 22, 1954, and plaintiff has been unable to collect the $815.71 balance due on its account. Incident to the cessation of the business of the plaintiff, defendant’s letter of July 13, 1953, was discovered, and after demand for payment made on January 19, 1955, was refused, the instant action was brought on November 22, 1955.

Although the instrument upon which the action is brought was prepared by the defendant, the rule that the language of a promise is to be construed most strongly against the promissor is not applied to the construction of a guaranty, and a guarantor is bound only by the express terms of his contract. Morgan v. Boyer, 39 Oh St 324; Merchants National Bank v. Cole, 83 Oh St 50; National Bank v. Laidlaw, 86 Oh St 91; Landman v. Sauerston, 24 O. C. C. N. SJ, 478; Cohn-HallMarx Co. v. Vanosdall, 25 Oh Ap 360.

The language employed by the defendant is rather expansive in character and without specific limitation. As in the case of National Bank v. Laidlaw, supra, so far as the guaranty itself goes, its language is broad and full. The trial court decided that the word “any” referring to labor and material going into the mine and not to the owners or lessee, without words of limitation, distinguished the writing in the instant case from those construed in Birdsall v. Heacock, 32 Oh St 177 and Morgan v. Boyer, supra. But the rule is well-established in Ohio that in construing a guaranty, the language used is to be understood in its plain and ordinary sense, as read in the light of surrounding circumstances, the situation of the parties, and the object of the guaranty, and that construction given which most nearly conforms to the intention of the parties. Parol evidence is not admissible to enlarge or limit the terms of the instrument. But evidence of the surrounding circumstances is competent, in order to arrive at the intention of the parties, as declared by the words employed, which are to be construed in the light of such circumstances. Birdsall v. Heacock, supra; Morgan v. Boyer, supra; Cambria Iron Co. v. Keynes, 56 Oh St 501; Merchants Bank v. Cole, 83 Oh St 50; Bank v. Laidlaw, supra; Storm & Sons v. Blanchet, 120 Oh St 13; National Bank v. Garn, 3 O. C. C. (N. S.), 428; Cole v. Merchants Nat’l. Bank, 15 O. C. C. (N. S.), 315; Landman v. Sauerston, 24 O. C. C. (N. S.), 478; Cohn-Hall-Marx Co. v. Vanosdall, supra.

The chief difficulty lies in determining what interpretation should be put on a guaranty which is so worded that it may either extend to a series of sales or advances, or be limited to the first. Unless the language is sufficiently broad to show that it was meant to reach beyond ■the present, and render the guarantor answerable for future credits, it should be confined to the immediate transactions. Birdsall v. Heacock, supra. Accordingly, it is an established principle of construction that a guaranty will not be construed as continuing, unless the intention of the parties is so clearly manifested as not to admit of a reasonable doubt. Birdsall v. Heacock, supra; Morgan v. Boyer, supra; Merchants Nat’l. Bank v. Cole, 83 Oh St 50; Storm & Sons v. Blanchet. 120 Oh St 13; National Bank v. Garn, 3 O. C. C. (N. S.), 428; Landman v. Sauerston, 24 O. C. C. (N. S.), 478; Cohn-Hall-Marx Co. v. Vanosdall, 25 Oh Ap 360; Goodman v. Alliance Bank, 11 Abs 626. It has also been held that where, after construing the guaranty in the light of the surrounding circumstances, there is still doubt as to whether the guaranty was intended to be continuing, the presumption is that it was not so intended, and this presumption may be given effect. National Bank v. Garn, 3 O. C. C. (N. S.), 428. In Morgan v. Boyer, supra, the Supreme Court holds that if the language is equally capable of each construction, the one will be adopted which construes it to be limited, and not the one which construes it to be continuing.

In support of the judgment, plaintiff cites Srutek v. Hart & Co., 1 Abs 374, holding that a contract will be construed as a continuing guaranty if it appears that a future course of dealing for an indefinite time or a succession of credits is contemplated by the parties; and that unless the words in which the guaranty is expressed fairly imply that the liability is to be limited, it continues until revoked. The epitomized opinion does not reveal whether the guaranty was construed in the light of the circumstances surrounding its execution, and must be distinguished. To the extent it is at variance with the above principles decided by the Supreme Court, it is not to be regarded as persuasive.

Upon review of the record disclosing the circumstances surrounding the execution of the guaranty and the subsequent conduct of the parties in relation thereto, we find some conflict in the evidence with respect to such circumstances, and are therefore unable to find as a matter of law that judgment should be entered for the defendant. We do find, however, that the judgment is manifestly against the weight of the evidence and that it should be reversed and the cause remanded to the Municipal Court for a new trial. Costs to abide final judgment.

HORNBECK, PJ, DEEDS, J, concur.


author: By MILLER, PJ.

text:
    SAMS, Plaintiff-Appellee, v. LYONS, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 575.
    Decided December 28, 1956.
    Pickrel, Schaeffer & Ebeling, H. Thomas Haacke, Jr., of Counsel, Dayton, for plaintiff-appellee.
    Curtner, Brenton & O’Hara, James E. Seller, of Counsel, Dayton, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court for Greene County, a jury having been waived and the cause tried to the court. The action was one for damages arising out of the collision between the two automobiles of the parties hereto, at the intersection of Skeel Avenue and Xenia Drive.

The record reveals that the plaintiff was proceeding in an easterly direction in a lawful manner on Skeel Avenue and as he approached the intersection with Xenia Drive the defendant was also approaching said intersection in a northerly direction on Xenia Drive at a slow rate of speed, to wit, approximately five or six miles per hour. The record also reveals that there was a stop sign on Xenia Drive facing the defendant as he approached the intersection, but there was a variance in the testimony as to the distance this sign was from the intersection. One witness testified that it was only three or four feet or a little farther from the same; other witnesses testified it was back 65 or 75 feet from the southern curb line, if extended, of S'keel Avenue.

One of the specifications of negligence set forth in the petition was that the defendant failed to reduce his speed or stop for said sign.

The defendant denied any acts of negligence on his part and further denied that there was a legally erected stop sign at the intersection, and also filed a cross-petition charging certain acts of negligence by the plaintiff. The alleged negligence of either of the parties depended solely upon whether or not the defendant had violated the requirements of the stop sign, the defendant having admitted that he observed the sign but did not bring his car to a stop.

The testimony disclosed that the two streets at the intersection are within the limits of Wright-Patterson Air Base and that the sign had been erected by the military authorities thereof. The court found in favor of the plaintiff, from which judgment this appeal is prosecuted.

Although the judgment entry does not reveal the specific act or acts of negligence the defendant committed, the decision of the court is filed with the transcript, which reveals that the court found the failure of the defendant to stop for the intersection was the proximate cause of the accident, and furthermore, this was the only fact upon which the judgment could have been grounded.

Counsel for the appellant urges that the sign was not erected in accordance with §4511.65 R. C.; hence the defendant was not required to bring his car to a stop before entering the intersection. This section of the Revised Code provides:

«* * * Every stop sign shall be located as near as practicable at the property line of the highway at the entrance to which the stop must be made, or at the nearest line of the crosswalk thereat, or, if none, at the nearest line of the roadway.”

It appears to us that the sign was not erected in accordance with the cited section, but this cannot be the sole test of its effectiveness. The determinative question, as we see it, is whether or not it was so located as to reasonably lead the drivers on these streets to expect the person approaching the stop sign to stop and yield the right of way. If so, then it was incumbent upon the defendant to bring his car to a stop in obedience to the sign, and failure to do so constituted negligence.

In the case of Stout v. Ellinger, 154 Oh St 418, at page 427 the court quotes with approval from Clinkscales v. Carver, 22 Cal. (2d), 72, 136 P. (2d), 777, which appears to be applicable to our factual situation, to wit:

“ ‘Failure to observe a stop sign is unreasonably dangerous conduct whether or not the driver is immune from criminal prosecution because of some irregularity in the erection of the stop sign. If a through artery has been posted with stop signs by the public authorities in the customary way and to all appearances by regular procedure, any reasonable man should know that the public naturally relies upon their observance. If a driver from a side street enters the ostensibly protected boulevard without stopping, in disregard of the posted safeguards, contrary to what drivers thereon could reasonably have expected him to do, he is guilty of negligence regardless of any irregularity attending the authorization of the signs. 1 * * Otherwise a stop sign would become a trap for innocent persons who rely upon it.’
“It was well said in Comfort v. Penner, 166 Wash., 177, 6 P. (2d), 604:
“ ‘Travelers upon public highways are not expected to first ascertain and determine whether such signs are established in strict compliance with law before respecting them.’ ”

The appellant contends further that even though a stop sign was present there was a failure of proof that it had been authorized by statute or government regulation. Such a requirement does not appear to be necessary, for in paragraph 2 of the syllabus in the case of Stout v. Ellinger, supra, it is said:

“The operator of a motor vehicle, who fails to stop in obedience to a stop sign, erected and maintained by a municipal corporation at a street intersection, and thereby fails to yield the right of way to all other vehicles not obliged to stop, is guilty of negligence per se, although such sign was erected without specific authorization by ordinance of such municipal corporation. (Wolfe, Admr. v. Baskin, 137 Oh St 284, approved and followed.)”

In the cited case the court quoted with approval from Staley v. Vaughn, 92 Colo., 6, 17 P. (2d), 299, which held that the power to designate a street as a through street may be an administrative function, and which was exercised in our case by the establishment of the stop sign.

Also, in Wolfe v. Baskin, 137 Oh St 284, the court held that a legislative enactment was not a prerequisite to the erection of an effective stop sign, saying at page 290:

“The trial court entertained the view that there must be an ordinance authorizing in some form the installation or maintenance of the light at the particular intersection before a failure to stop could be asserted and relied on as a ground of negligence. With this view we are not in accord. Certainly the police authorities could station a police officer at any intersection to direct traffic without specific authorization by ordinance; and if a policeman is not available or it is thought best to substitute for him a mechanical device which signified ‘stop,’ certainly the police authorities would have power to do so. In our judgment a steadily burning red light, with or without the word ‘stop’ thereon, placed in the center of a street intersection by the police authorities would be a signal or sign ‘of police officers’ within the meaning of §6310.35 GC.”

We therefore hold that a legislative enactment making Skeel Avenue a main thoroughfare was not required before the sign could become effective.

Several other errors have been assigned, all of which we have carefully examined and find none to be well taken.

Finding no error in the judgment the same will be affirmed.

HORNBECK and WISEMAN, JJ, concur.