author: By WISEMAN, J:

text:
    MOHLER et, Plaintilfs-Appellees, v. BAKER et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2123.
    Decided November 17, 1950.
    Nolan & Boesch, Dayton, for plaintiffs-appellees.
    George F. Holland, Dayton, for defendants-appellants.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the Common Pleas Court of Montgomery County which directed a verdict in favor of the plaintiffs. The plaintiffs brought an action on a promissory note and for foreclosure of a mortgage executed to secure said promissory note on a piece of real estate sold by the plaintiffs to the defendants. The defendants, in their second amended answer and cross-petition, admit the signing of the note and mortgage but deny that there is any sum due the plaintiffs upon said note and furiher allege:

“* * * that there has been a failure of the consideration herein in this, that said note and mortgage was given by these Defendants to secure the payment of a balance due on the purchase of a dwelling house * * *.
“Defendants further answering say that said dwelling house was constructed by the Plaintiffs herein; that said dwelling house was a California type bungalow constructed of cement and cement blocks, with a flat roof; that said Plaintiffs represented to these Defendants that the construction of the said dwelling house was proper and that the same would be durable against the weather, stating that the said dwelling house would not leak and would not sweat; that these Defendants relying upon the representations of said Plaintiffs purchased said home and executed said note and mortgage and said Defendants moved into said dwelling house.
“Defendants further answering state that the said dwelling house did not shed water, as the same leaked and sweat; that all times the walls were damp; that the cement around the walls and windows would not set and become hard; that the cement is soft and can be removed with the fingers; that the doors in said dwelling house mildewed; that the roof leaked; that all the doors in said dwelling house swelled so that they could not be closed; that the floors in said dwelling have become uneven; that there is water on the floors at all times.
“Defendants further answering and by way of defense state that the heating equipment for said dwelling house was a gas furnace in the basement; that the same was placed in a hole in said basement; that the said hole containing said furnace had no drain; that the same filled with water; that said gas furnace would not and could not operate.
“Defendants further answering and by way of Cross-Petition make the Answer herein a part of said Cross-Petition as if the same was rewritten herein, and further state, that as a result of the condition of said dwelling house that their personal goods, furniture, rugs, chairs, beds and other household furnishings have been damaged by the dampness of said residence and have mildewed, all to their damage in the sum of Two Thousand Dollars ($2,000.00).”

To the defendants’ second amended answer and cross-petition the plaintiffs filed a reply in the nature of a general denial.

Upon the trial of the case the defendants, in making defense, sought to introduce evidence as to the representations made by the plaintiffs as alleged in the defendants’ answer. The defendant, Taylor Baker, testified as follows:

“Q. Well, did you ask him about the property, about weather conditions?
A. I asked him if it would sweat or leak and he told me no.
Q. You asked him if it would sweat or leak?
A. That’s right.
Q. That was how long before?
A. It was a few days before we bought the property.
Q. He said that it would not leak?
A. That’s right.”

This testimony was afterwards stricken. Later the defendant testified as follows:

“A. Mr. Mohler told me that the — and my wife — that it would not leak and would not sweat; that it was well constructed.”

Upon objection being interposed by counsel for the plaintiffs the answer was stricken. Later counsel for the defendants asked the witness this question:

“Q. I believe you stated — now, don’t answer the question— did he or did he not tell you — and this is before the deed was made — that this house would not leak and it would not sweat?”

An objection was sustained to this question. A prolonged discussion took place between counsel and the trial judge relative to the nature of the defense of the defendants and the basis for recovery on their cross-petition and the admissibility of evidence in respect thereto. The trial court took the position that there were three possible theories on which the defendants could proceed. First, fraud; second, breach of warranty; and third, innocent misrepresentation. Counsel for the defendants stated that they were not relying-on fraud nor breach of warranty. From the record it does not clearly appear on what principle of law defendants were basing their defense and seeking their right of recovery on the cross-petition. Apparently it was based on innocent misrepresentation. The court took the view that this defense would not be available to the defendants unless the defendants had rescinded the contract and tendered back the consideration in an effort to place the plaintiffs in statu quo.

In our opinion the record shows a misconception of the nature of the defense and their right of recovery on their cross-petition. This case falls within the principle of law laid down in Gleason v. Bell, 91 Oh St 268, 110 N. E. 513, wherein the court held in the first paragraph of the syllabus as follows:

“Where a purchaser was induced to buy and pay for a city residence, by false representations made to him by the vendor as positive statements of fact clearly implying knowledge of the owner of the truth of the facts stated, and made under such circumstances that the vendor should have known of the falsity of the representations, and they were of such a nature as to affect the character, utility and value of said property, and the purchaser had a right to and did rely thereon, and suffered damage by reason thereof, he may recover. In such a case an averment that the vendor knew the representations to be false and made them with intent to. deceive is not essential.”

The court on page 275 said:

'“Under thé circumstances detailed in this petition it is not incumbent upon the plaintiff to aver and prove that the defendant knew the representations were false and made with intent to deceive. The facts set up in this petition show that the party ’ making the representations should have known whether they were true or false, and further show that they were made not as an expression of opinion but as positive statements of fact, with the intention that they should operate as an inducement to the sale of said premises. The recital of the transaction in the petition sufficiently shows that the representations were so made as to imply that the maker knew them to be true and intended that his statements should be so understood, believed and relied upon and operate as an inducement to the purchase of the premises.
“ ‘A positive statement implies knowledge, and if the party who makes it has no knowledge on the subject, he has told scienter what is untrue; he has affirmed his knowledge.’ 1 Bigelow on Fraud, 513.”

The court in Gleason v. Bell cited with approval Aetna Ins. Co. v. Reed, 33 Oh St, 283. The court in that case held that:

“An action will lie for a false representation of a material fact, whether the party making it knew it to be false or not, if he had no reason to believe it to be true, when made, and it was done with the intention of inducing the person to whom made to act upon it, and the latter does so, sustaining a damage in consequence.”

In Mulvey v. King, 39 Oh St 491, the court held:

“Where a person by means of false representations of facts materially affecting the identity and value of certain real estate, induces another to enter into a contract for the purchase thereof, upon the faith of such representations, and upon which he was justified in relying, the purchaser may,, in an action brought by the vendor for the purchase price,, recoup the damages which he has sustained by reason of such false representations, although the vendor believed them to be true when made, and had good reason for so believing.”

On page 494 of the opinion the court said:

“It may be considered as well settled in this state, by the cases above cited, that an action for damages caused by misrepresentation cannot ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles cannot be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the contract, that it was false, that the other party had a right to rely upon it, and that he was induced by it to make the contract, in order to entitle him to relief either by rescission of the contract or by recoupment in a suit brought to enforce it.”

On page 495 the court said:

“But the testimony also fully proves that King was guilty neither of fraud nor of gross negligence in making those representations, his mistake having been occasioned by that of a surveyor in previously establishing the boundary line.
“The facts thus proved bring the case within the principles above stated and give a right of recoupment in an action for the balance of the purchase money, to the extent of the deficiency in the value of the property purchased. The rights of the purchaser do not rest upon the ground of fraud, actual or constructive, but that, to the extent of the difference in value between the property as it was represented to be, and the property conveyed, there is no consideration for his promise.”

The court in Gleason v. Bell álso cited in support of this principle of law the case of Pierce v. Tiersch, 40 Oh St 168, which held:

“In an action by mortgagee against mortgagor upon a note and mortgage given for the purchase money of the premises, the mortgagor may, as a defense, set up a counter-claim for damages by reason of the fraud of the mortgagee, in concealing from him material facts as to the situation and extent of the premises.”

On page 172 the court said:

“And furthermore, in an action against the mortgagor for the purchase money, his right to set up a counter-claim for any excess in price through the vendor’s misrepresentations of the extent of the property, would be the same, whether such misrepresentations were wilful or innocent.”

The case of Gleason v. Bell was followed in Fries v. Gannon, 9 Oh Ap 387. See also Fillegar v. Walker, 54 Oh Ap 262, 6 N. E. (2d) 1010.

In a similar case, wherein the action was instituted by the vendee against the vendor for damages by reason of false representations made respecting the construction of the residence purchased this Court, in ah unreported case, in Fiebig, et al. v. Brofford, et al., Court of Appeals of Franklin County, decided March 10, 1950, followed Ins. Co. v. Reed and Gleason v. Bell and held that: “In an action of this character it is not necessary to allege or prove scienter, or that the representation was made with the intent to deceive.”

On the question of the admissibility of such testimony although a deed had been delivered which did not contain such representations, see Fries v. Gannon, supra; Drew v. Construction Company, 140 Oh St 1, 6, 41 N. E. (2d) 1018.

In the case at bar the defendants’ answer, on its face, states a good defense although it would be strengthened by certain amendments. The evidence sought to be introduced was admissible and the court committed error prejudicial to the rights of the defendants in striking this evidence. No other error assigned is well made.

Judgment reversed and cause remanded for further proceedings according to law.

MILLER, PJ, and-HQRNBECK, J, concur.


source: Caselaw Access Project

author: By WEBER, J.

license: Public Domain

text:
    SAMMONS, etc., v. HOTEL & RESTAURANT EMPLOYEES UNION et al.
    Common Pleas Court, Hamilton County.
    No. A-117984.
    Decided September 26, 1949.
    Charles F. Hartsock, Cincinnati, for plaintiff.
    J. W. Brown, Cincinnati, for defendants.
   OPINION

By WEBER, J.

Plaintiff conducts a restaurant under the name of Kern’s Motor Lunch, 4027 Eastern Avenue. Plaintiff employs between nineteen and twenty persons. In April, 1949, a representative of the union attempted to negotiate a union contract with the plaintiff. At that time all of the plaintiff's employees were non-union and they were al] satisfied with their working conditions. The plaintiff told the union representatives that the employees were free to do as they pleased about joining the union and permitted the union representative to hold a meeting in the plaintiff’s place of business for the purpose oí presenting the union’s views to the employees. None of the employees would join the union. Thereafter, the defendants began to picket in front of the plaintiff’s place of business with a banner reading: “Unfair, does not employ union labor.” This kind of picketing continued until September 9th.

About August 17th, plaintiff employed Alma Ruth Gibson to work in the kitchen; her duty was to prepare foods and at times to wash dishes. On September 2nd, Mrs. Gibson joined Waitress’s Union No. 276. On September 8th, Irwin Katz, a representative of the union again visited the plaintiff and tried to negotiate a union contract but without success. On September 9th, at the request of the union, Mrs. Gibson visited the Union Headquarters and was told to stay away from work because a strike was being called. On September 9th, without further communication with the plaintiff, the defendants changed the sign used in picketing to read: “Please do not patronize, this restaurant, strike on.” There is no evidence of physical violence, direct interference with customers or any other acts except carrying this sign in front of the plaintiff’s place of business.

On September 12th, plaintiff filed a petition for a temporary restraining order and upon final hearing for a permanent injunction.

Excellent briefs have been filed on behalf of both the plaintiff and the defendants.

It is clear that prior to September 9th, there was such a labor dispute as justified, under the freedom of speech provision of the United States Constitution, the picketing with the banner then used; Cafeteria Employee’s Union v. Angelos, 320 U. S. 293. But it is claimed that the banner which has been used since September 9th, proclaiming to the public that there is a strike, is unlawful because untrue. The sole question, therefore, is whether there is a strike. The plaintiff claims there is no strike for one or all of three reasons. First, that a cessation of work by a single employee, particularly if that employee is the only member of the union and all the other employees, numbering at least twenty, are satisfied with their working conditions and refuse to join the union. In the case of Baker, et al. v. Powhatan Mining Company, 146 Oh St 600, 33 O. O. 84, the court said:

“The universally understood meaning of the term ‘strike’ is that it is a concerted or general quitting of work by a part or all employees in order to coerce their employer or employers in some way, as when higher wages or shorter working hours are demanded or reduction of wages is resisted, any general refusal to work as a coercive measure.”

In practically all the cases using a similar definition, the question was whether in a strike, that is a cessation of work by employees for the purpose of coercing compliance with their demands, the actions of the employees would be unlawful merely because they were committed by two or more in concerted action rather than by a single individual, that is, because technically such concerted action is a common law conspiracy.

In the case of Saltzman v. United Retail Employees, 10 O. O. 6, (25 Abs 354) a Common Pleas Court of Cuyahoga County held that the refusal of one employee to work does not constitute a strike. The same holding was made by the Supreme Court of Oregon in Moreland Theaters Cooperative v. Machine Operators Protective Union; 12 Pac. (2nd) 333. But this court cannot avoid the conclusion that the essence of a strike is the stoppage of work for the purpose of coercing an employer to grant concessions as to working conditions, even though the work stoppage is by one workman only. A cessation of work by the concerted action of a large number may more easily accomplish the object of the work stoppage but there is no fundamental difference in the principle involved or the object sought to be achieved. The basis of the law of conspiracy is that an act done by the concerted action of many may do harm which would not result if the act were done by a single individual. The concerted action of many probably will be more effective than the action of one in achieving the purpose of the work stoppage, but if the act is the same and the purpose to be accomplished is the same there is a strike, whether one or more than one have ceased to work. A chief characteristic of a strike is that the strikers are afforded the right of retaining the status of employees during the work stoppage. Certainly a single individual who stops work temporarily for the sole purpose of coercing a change in his working conditions should not, merely because he is not acting in concert with others, lose his status as an employee, but such would certainly be the result if one worker could not strike.

The second point made by the plaintiff is that the relation of employer and employee must exist in order to have a strike and that no such relation exists between the plaintiff and Mrs. Gibson. The evidence does not sustain this contention. Mrs. Gibson testified that she did not return to work on September 9th and has not gone back to work since because the union called a strike. She also testified that she did not tell the plaintiff she quit work when he asked her on September 11th whether she was coming back to work; she told him she was not going to wash dishes any more on account of the condition of her hands. Although her answer may seem evasive and ambiguous and may have been unfair to her employer, it well may have been her method of stating to him the nature of her specific complaint. She did not refuse to do all the duties connected with her kitchen job and there is no evidence that she intended to sever completely her relation as an employee.

The third point made by the plaintiff is that a demand directed to the employer on the part of the employee before the cessation of work is a condition precedent to a strike. To sustain this contention the plaintiff’s brief makes the following quotation from Page 141 Volume 4 of the Restatement. “It is not a strike if employees temporarily stop working without making a demand upon the employer or use the stoppage as the means of exacting concessions from him even though the stoppage is against his will.” This is in the alternative; either a demand must be made against an employer or the stoppage after it occurs must be used to gain concessions from the employer. But even if a demand prior to the stoppage of work is necessary, the uncontradicted testimony in the case is that such a demand was made. In answer to the Court’s question and upon cross examination by the plaintiff’s counsel, Mr. Katz, the representative of the union, said that on September the 8th, he told the plaintiff that some of his employees were members of the union and that he represented them.

The court holds that there is a strike and that the banner so reading is the truth. The restraining order is denied.


author: By THE COURT:

text:
    HONEY CREEK REGULAR BAPTIST CHURCH, Plaintiff-Appellee, v. WILSON, Defendant-Appellant.
    Ohio Apppeals, Second District, Champaign County.
    No. 121.
    Decided April 1, 1950.

      George M. Winwood, III, Springfield, E. Clark Morrow, Newark, Donald M. Gibbs, Urbana, for plaintiff-appellee.
    Wm. T. Gillie, Urbana, Danial E. Falkner, Akron, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law and fact from an injunction granted by the Common Pleas Court against the defendant. The type of appeal is such that we are required to hear and determine the issues drawn between the parties as though the case had originated in this court. Thus, all the responsibility attending the obligation to weigh and determine the facts and to pronounce the law controlling devolves upon this court. It is a most unpleasant duty because it involves disputes between members of a congregation of the same church.

It is pleaded in the amended petition and admitted that the plaintiff is a corporation and, it may be added, not for profit. It is the successor to a body which entered into a Covenant as Baptists in the year 1813 and has almost continuously carried on as a religious denomination without serious difference among its members until the recent controversy culminating in the suit under consideration.

The original petition verified by the Trustees of Honey Creek Baptist Church was filed on September 22, 1948, and a temporary restraining order issued. On October 25, 1948, an amended petition was filed in which the plaintiff was styled as The Honey Creek Regular Baptist Church, a corporation. New summons was issued and served on the amended petition.

The amended petition, independent of the prayer, consists of sixteen paragraphs. The answer to the amended petition in conjunction with statement of counsel for defendant at the trial oí the cause admits the first, second, third, fourth, fifth, sixth, seventh, ninth and eleventh paragraphs of the amended petition. By the second, third and fourth defenses of the answer, the defendant pleads facts in denial of paragraphs eight, ten, twelve, thirteen, fourteen, fifteen and sixteen of the amended petition and by the first defense avers that it does not state a cause of action against the defendant.

It is averred and admitted that the plaintiff is a corporation incorporated on May 5, 1866, “for the express object of the general diffusion of the Gospel of Jesus Christ as taught in the Bible in manner and form of the Regular Baptist Church as set forth in their Articles of faith and practice.” The Articles of Incorporation of said plaintiff, provide in part that “the Trustees of said plaintiff shall make all contracts, shall prosecute and defend suits, shall hold, enjoy, dispose of and convey all property real or personal which may be acquired by purchase, donation or otherwise,” that “the plaintiff acquired title to certain real estate and thereafter constructed a church on said real estate and is now the owner of said real estate and also later acquired certain other real estate, now used as a parsonage, said real estate being acquired for plaintiff in the name of the Board of Trustees of Upper Honey Creek Church Association and now is the owner of said real estate.” “Ever since its incorporation, plaintiff church has been a member of and affiliated with the Ohio Baptist Convention, and the Mad River Baptist Association, both being recognized denominational organizations of Regular Baptist Churches, and that the Northern Baptist Convention, another recognized denominational organization of Regular Baptist Churches, was organized in 1907 and since then plaintiff has been a cooperating church of the said Northern Baptist Convention.” “That prior to the time the defendant became the pastor of plaintiff church, all its pastors were Regular Baptist ministers, and adhered to the faith, practices, and discipline of the church and led plaintiff church in harmony with the organizations, societies, and agencies of the- Regular Baptist denomination.” “That the defendant was never trained as a Regular Baptist minister and received his training in an Independent Baptist School.”

The denials are that the four persons who signed the affidavit to the amended petition individually but who are named as Trustees of the plaintiff corporation “are the duly elected and acting Trustees of plaintiff, having been elected on October 8, 1947, and their terms of office have not expired.” That the defendant “is not now or never has been a Regular Baptist minister, which fact was unknown to plaintiff, its officers and congregation” at the time defendant was called to the pastorate. That the “fundamental doctrines, practices and forms of the Independent Baptist Church are foreign to and widely divergent from those of the Regular Baptist Church.” That “the defendant in accepting the call as pastor of plaintiff church, knew that plaintiff church was a Regular Baptist Church and knew the fundamental differences between Regular Baptist Churches and his own faith and belief which was and is that of the Independent Baptist Churches.” That when the plaintiff accepted the call to the plaintiff church “it was his intention and plan, and is now his intention and plan, to effect a change in the basic denomination of such church, and to make of it an Independent Baptist Church, contrary to the dedicated purposes of plaintiff church.” That “one of the requirements of church membership in plaintiff church, as in all Regular Baptist Churches, is the receiving of the right hand of fellowship and that defendant in receiving new members in the plaintiff church has not complied with the aforesaid requirement and by reason of that fact said persons are not members of plaintiff church.” That “defendant, by and with the aid and assistance of said non-member persons, has attempted and is attempting to effect a change in the basic denomination of plaintiff church by making of it an Independent Baptist Church and is attempting to remove plaintiff church from its association and affiliation with Regular Baptist organizations, to-wit; the Northern Baptist Convention, the Ohio Baptist Convention and the Mad River Baptist Association; has attempted and is attempting to take possession and control of the church property of the plaintiff church” and in other ways set forth “is attempting to divert the use of the property of plaintiff church to those persons who do not adhere and hold to the belief, religious principles, doctrines and articles of faith of the Regular Baptist Church.”

The prayer is for an injunction against the defendant which was granted in the language thereof and perpetually enjoined the defendant from interfering with, in any manner whatsoever, directly or indirectly * * * the real estate of the plaintiff, including the church building and parsonage, from using the name “Honey Creek Baptist Church,” from exercising any of the rights and franchises conferred upon the plaintiff by its articles of incorporation, except insofar as they may regularly become members of the plaintiff church, that a temporary restraining order be granted enjoining the defendant from entering upon the church building and the premises upon which the same is situated, from acting as pastor of plaintiff church in any manner whatsoever.

Upon the issues drawn the burden of proof is upon the plaintiff and to justify the granting of the injunctive relief sought the plaintiff’s right to such relief must clearly and definitely appear. Spangler v. Cleveland 43 Oh St 526. It is said that no rule in equity is better settled than this. Foley v. Peters 5 O. Dec. Rep. 517.

It is the claim of the plaintiff that it has the right, even though it appears that it is representative of a minority group, to the relief sought because the defendant and his followers are attempting to preach and teach doctrine in conflict with and contrary to the Articles of Faith and Practice of the Regular Baptist Church. This right of a minority group has been supported in cases cited by plaintiff. First Regular Church, Independent Pa. v. Allison, et al, 304 Pa. 1, 154 A, 913, and others. We will hereafter discuss the factual development in these cases.

The action is not instituted by or on behalf of a minority group, as such, but by the Trustees in the name of the corporation. Passing this question for the time being and going immediately to the essentials of proof, before this court can find that the acts of the defendant constitute a departure from the Articles of faith and practice of the plaintiff such articles should be made available. The only evidence of Articles of faith is found in the Covenant as recited in the minutes of the church of January 13, 1813, continued and restated in 1866 just before the Articles of Incorporation were prepared and finally carried in language almost identical in the printed Covenant, Beliefs and Rules of Practice, defendant’s Exhibit E. If the Articles of Faith of the Regular Baptist Church differ in any particular from those embodied in the Covenant, Beliefs and Rules of Practice of plaintiff, heretofore mentioned, it does not appear from this record. We, therefore, assume that when the Article of Incorporation says “5th,— that the object of this church the general diffusion of the Gospel of Jesus Christ as taught in the Bible in manner and form of the Regular Baptist Church as set forth in their articles of faith and practice, it refers to the articles of faith and practice as set forth in the Covenants of plaintiff to which reference heretofore has been made. In any event, it is safe to conclude that if there is another it is not in conflict with those which are before us. Nor, can we make differentiation between the articles of faith and rules of practice of the Regular Baptist Church and the Independent Baptist Church because we do not have the articles and rules of the latter church, and insufficient testimony to establish of what they consist.

Another material question which is presented is to what extent, if at all, it appears from the record that the defendant is violating any of the doctrine of the Regular Baptist Church in the particulars charged.

It is asserted that in contravention of many years of uniform practice, the defendant and his followers have withdrawn the plaintiff church from affiliation with the Ohio Baptist Convention, Mad River Association and the Northern Baptist Convention recognized denominational organizations of Regular Baptist Churches. If, as a part of the fundamental organization of the church, association with one or more of these groups is requisite then there is basis for the claim that the defendant is attempting to change the practices of the plaintiff church.

The clearest fact projected from this record is that the Regular Baptist Church is an independent, self-governing body; that as to all matters not specifically controlled by charter, rules, or law, the congregation or members of the church is the supreme controlling body. It is not a federation and is not dependent upon or inter-dependent with any other religious body or association as to its governmental control or scriptuural interpretation.

Rev. J. W. Hooper, Minister of Calvary Baptist Church, Springfield, Ohio and pastor of the plaintiff church for seven years, 1934 to 1940, said that his' church was affiliated with the Northern Baptist Convention and the Ohio Baptist Convention and the Mad River Association, that the purpose of the church affiliating with these conventions and associations was to strengthen its church, its fellowship, its missionary work, support schools and other projects of the Northern Baptist Convention. Upon the Inquiry,

Q. “You understand the beliefs of the Northern Baptist people, do you, Rev. Hooper”?

This answer was made. “Well, I think I do. As was said here this morning, there are fifty-seven varieties and it is pretty hard to understand them all. As an individual, generally speaking, that is, the characteristic of the Northern Baptist Convention and all the Baptists down through the history, has been the fact that every man is given the privilege of interpreting the New Testament according to the dictates of his own heart. The Northern Baptists have been embracive and have lived up to that age-old tradition that each man is an anatomy that has to answer to God himself, both as a minister and as a layman.”

Q. “Is there any creed or statement of faith that the Northern Baptist Convention insists that the individual or the individual church adopt before they can become affiliated with that group?”

A. “So far as I know I have never seen one that a church must subscribe to. The only thing I know that a church must necessarily subscribe to is to the projects, etc.”

He says upon cross-examination that he would not be able to determine the difference between the so called Independent and the Regular Baptist Churches, but, that as near as he can understand, the difference is in the interpretation of the scripture. They both take the New Testament as their rule and guide but that they differ widely as to their interpretation of the New Testament. He says there is nothing in the regulations that would prevent an independent church group from becoming a member of the convention if they were willing to subscribe to the purposes and aims of the association. He says of the plaintiff church “It was absolutely an autonomic body of its own.”

Dr. Paul Judson Morris, another clergyman, Executive Secretary of the Ohio Baptist Convention and Director of Promotion for the Northern Baptist Convention says that a Baptist Church is organized on the congregational plan with the authority resting in the congregation but that for matters of fellowship and particularly for the propagation of the Gospel the churches bind themselves voluntarily together in associations, and conventions. Dr. Morris said that one of the distinctive things of Northern Baptists or of Baptists has been that there has been no accepted statement of creed as binding upon churches, that the Regular Baptist Church member exercises his own freedom of mind in interpretating the Bible.

The witness makes differentiation between the Independent Baptist and the Northern Baptist. Whether or not he uses Northern Baptist synonymously with Regular Baptist is not stated but it may be assumed that he does although he stresses, as do practically all of the witnesses that testify on the subject, the diversity of interpretation of the New Testament. He gives as his opinion that the Independent Baptist insists upon its members accepting a more restricted statement of faith. He illustrates by mentioning one church that took such a statement as a prerequisite to membership. Having fully gone into this matter, on cross-examination, he says there is nothing in the regulations which would prevent an Independent Baptist Church from becoming a member of such associations provided only that they agreed to support missionaries and follow the rules of the association but that any difference in regard to creed would not preclude membership. Rev. H. C. Marland testified substantially as the other ministers for the plaintiff and he and all of them emphasized that the plaintiff church is a congregational organization.

We cannot conceive of a doctrine which would accord to its pastor, whose duty it is to affiord spiritual leadership to his congregation, wider latitudes of exposition of his belief than the tenets of faith of the plaintiff church. In the light of this fact it is most significant that nothing whatever appears of any satement of the defendant, oral or written, purporting to present any doctrine of the Independent Church in conflict with the belief of the plaintiff or to incorporate it in the articles of faith, rules of practice or general program of the plaintiff church unless found in the Resolution and particularly No. 1, which we discuss.

We have examined the language of Resolution One passed by those who voted upon it on the evening of September 15, 1948. It sets forth much of the subject matter which is the basis of plaintiff’s claim for injunctive relief. The language imputed to the defendant upon the presentation and discussion of this resolution was inordinate, vituperative and unfortunate and some of the language of the resolution would have been better omitted. But the test is not whether it is couched in appropriate language but the ultimate effect of the resolution upon the dogmatic structure of the articles of faith and rules of practice of the plaintiff church. Its purpose is to resolve that the plaintiff church will not affiliate with the three associations mentioned. Of course, it provided for a change in the relation of the plaintiff church to these organizations which had existed uninterruptedly over a long period of time. But, in our judgment, it did not rise to the dignity of a statement of policy which would require the conclusion that the defendant or those who supported the resolution had violated any article of faith or basic rule of practice which it was enjoined upon them as members of the church to observe. The subject matter of the resolution asserts and re-asserts the steadfastness of the faith of the plaintiff and the departure from the faith of the conventions, but only by conclusion and not specification. It stresses the purpose of the plaintiff to maintain the doctrine of the plaintiff church. Many of the “whereas” clauses in the resolution are most general in terms but when examined to determine if any of them is in conflict with any article of faith or rule of the plaintiff church which is brought to our attention we find no such conflict. Unless and until this .be determined in favor of the plaintiff it could not maintain its suit even upon its own theory.

Other questions require that certain events be considered in chronological order. The defendant was called as pastor by vote of the plaintiff congregation in October, 1947. It reasonably appears that some of the officers of the church knew, and others could have known, that the defendant was a member of Temple Baptist Church, that he was not trained as a Regular Baptist minister but received his training in an Independent Baptist School. This in its-self, according to plaintiff’s witnesses, would not preclude the members of plaintiff church employing him as its pastor.

It does not appear, except as gleaned from the membership book, how many persons were members of- the plaintiff church at the time that the defendant took up his'work there and how many were taken into membership during his pastorate. By observation of the list of members it would appear that there were a few more members of the church prior to defendants coming than were accepted by him during his tenure cf service.

Prior to September 15, 1948, the members were notified of a meeting of the congregation. The object of the meeting, if and as stated in the notice, does not appear because we have neither the notice nor a copy thereof. It was sent out by Powell M. May, Assistant Moderator of the church. At this meeting in attendance were members of the congregation who had been received into the church before and after the coming of the defendant. Also present were a number of visitors who, presumably, had been invited and who came to counsel fellowship and accord between the groups and particularly to urge the inadvisability of the withdrawal of the church from affiliation with the Conventions and the Mad River Association. At this meeting the defendant who, it is stated and not denied, was the Moderator presided instead of Assistant Moderator May, who had called the meeting. It is asserted that this was an irregularity but whether it was or not we are not in position to say because there is nothing before us which would enable us to decide this question. It would be presumed that in the absence of such information the Moderator would have the prior right to preside at the meeting, if he cared to do so.

On September 18, 1948, a notice signed by defendant and three members stated as Deacons was sent to the members of a meeting of the church to be held on the evening of September 22, on the church grounds “for the purpose of excluding Trustees of the church” and for other business. The minutes of this meeting, plaintiff’s Exhibit four recite, among other things, the dismissal of the four Trustees who signed the petition and the amended petition in this cause and the election of new Trustees succeeding them. The minutes further recite that the motions naming these parties to their respective offices were carried 50 to O. As of October 6, 1948, was introduced what purports to be the minutes of a business meeting electing Lena Littlejohn church clerk and naming trustees and other officers.

Defendant’s Exhibit C of date November 10, 1948, is a motion certified to be correct by “Lena Littlejohn, Clerk” of the Honey Creek Baptist Church wherein the membership directs the persons who signed the petition and amended petition, as Trustees, “to withdraw any and all actions that they may be maintaining in the name of the church and to cease to represent to the court or others that they are acting as such trustees.”

Under date of November 23, 1948, minutes of a meeting appear in the record book of the church over the signature of Oeorgia L. Furrow, Clerk, who in the business session of October 6th had been succeeded by Lena Littlejohn. This record takes no cognizance of any meeting between July 7, 1948 and November 23, 1948 and ignores the interim meetings which we have before mentioned.

Although the plaintiff insists that it does not rely upon the necessity of establishing the dismissal by the plaintiff of the defendant as its pastor, asserts that the minutes of November 23, 1948, succeeding the filing of the petitions, are proof of his dismissal. The language of pertinent subject matter of the minutes is “5 — A year (has/is) passed and it is time for a vote of confidence for a pastor.” “A motion was made that we take that vote and vote “yes” or “no” on Bill Wilson by ballot.” “Sec. Carried. Vote 33 against him, 0 for him.” Manifestly, this was not a dismissal of the pastor although it would have been the basis of a motion to that effect. If such motion had carried and the minutes are a true record then plaintiff would have had the right to maintain a legal action against the defendant.

If those who voted on the motion, defendant’s Exhibit C were members of the church and thus entitled to vote, then clearly it was a mandate to the trustees to withdraw this suit, in the face of which they should not have proceeded and no court should act upon the petitions which they filed. Independent, however, of the effect of this instruction, it is our judgment that the trustees had no authority to institute this action by virtue of their offices.

The Articles of Incorporation recite 4th Paragraph that “it shall be the duty of the Trustees to make all contracts, to prosecute and defend suits, etc.”. This does not mean that the Trustees, upon their own initiative, shall enter into all contracts or prosecute and defend suits but only if, and when, the members of the church had first directed them to do so. This is made plain by the following language of paragraph 4, “for the purpose of carrying out the intention of the church as a majority of the members of the same may determine and order.” It would not be urged on this record that the trustees could select and contract for a pastor of the church, although, if a contract was required as a result of such selection made by a majority of its members, it would be the obligation of the trustees to enter into such contract in the name of the church. Likewise, the duty of the Trustees to institute a suit begins only after the church by the requisite vote of its members has indicated an intention and purpose that such action shall be begun. There is nothing in this record which authorizes the trustees to prosecute this action in the name of the corporation.

Who were members of the plaintiff church and who had the right to vote upon the motions and resolutions? It being alleged and admitted that the plaintiff is a body corporate, manifestly not for profit, it is controlled as to its members and their right to vote by the provisions of §8623-104 GC to the effect that, unless otherwise provided by law, the articles or regulations, every member shall be entitled to one vote.

The record is silent as to the specific procedure essential to membership in the plaintiff church. The amended petition asserts that as a prerequisite to membership it is necessary that candidates be received by the extending of the right hand of fellowship. No doubt this procedure was followed before the coming of the defendant as pastor and that it had not been generally observed since that time. No one of the witnesses for the plaintiff, who qualified as experts in the field of the doctrine and practices of the Baptist Church, said that the extending of the right hand of fellowship was an essential and integral part of reception of a person into membership of the church. It further appears that prior to the meeting of September 15, 1948, the membership, before and after the coming of the defendant voted without objection or differentiation on matters that regularly came before the congregation for decision. It does not appear that plaintiff’s claim was urged at any time by any member of the church until the institution of the petition in this case. There is nothing in the Articles of Faith or Rules of Practice of the church respecting the necessity of this form as a part of the membership ritual. Inasmuch as the burden of establishing this claim is upon the plaintiff we cannot find that the procedure which it suggests was a prerequisite to membership by any written or well recognized rule of the church.

It is asserted that the defendant has planned to and has taken over the Regular Baptist Church and that his followers have like intent and purpose. The only proof which reflects at all upon this claim is the fact that a majority of those present at meetings of- the church voted as they did and in favor of. the resolutions of September 15, 1948, which had been prepared and sponsored by the defendant. It is said that the members who were enrolled before the coming of the defendant did not vote on the resolutions but it is testified and not denied that eight of such members did vote with the majority and the number of members who did not vote, or who opposed the resolution, does not appear. So that, we cannot, as a matter of simple mathmetics, say that the majority in favor of the resolutions was made up of members who had been admitted into the church after the coming of the defendant. Nor, can we say without some testimony, which is not forth-coming, as to the belief of those who supported the action of the majority in the meetings of September 15, 22 and October 6, that their votes were based upon any opposition to the Articles of Faith or Rules of Practice of the Regular Baptist Church into which they had been admitted as members.

The membership of the church being established, the procedure to discharge the defendant if the church desired to do so was apparent and should have been followed. If and when such action was taken the plaintiff had a clear legal right to eject the defendant from the parsonage and if any further equitable relief was necessary to prevent his attempt to carry on as pastor it could have been secured by appropriate action.

We have carefully examined the cases cited by appellee and, although without exception, we agree with the judgments and the legal principles there followed, the facts are so different from this case as to preclude the acceptance of them to control the decision here.

First Regular Baptist Church of Indiana, Pa. v. Allison, 304 Pa. 1; 154 A. 913 — The gist of this judgment is found in the syllabi;

2 — “Action of majority of Baptist congregation held subject to control of court of equity so far as property rights are concerned, if it intends to do that which is essentially nonbaptistic.
4 — “Deed of trust to church property or charter for church owning property determines rights of member's of church, regardless of antagonism of majority.”

The majority membership adopted a new confession of faith which the Chancellor and the courts found to be at variance with the charter of the parent church-.

Kemp, et al v. Lentz, et al, 46 Abs 28, is a decision by this court. There one of the groups of the original church incorporated a new church organization affiliated with another denomination and sought to transfer title to the church property to that denomination. We held that such a transfer could not be made so long as one member of the original church objected to such transfer. The defendant church had withdrawn its support from certain state and national conventions and from a college and seminary which theretofore it had supported. It pledged assistance to another seminary. As a result, it was not recognized by the state and national conferences. All this was urged as a departure from its creed and churchly practices. We held that a church which upon its establishment provided that it should be congregationally controlled did not adopt ecclesiastical authority superior to the congregational control by sending delegates to state and national conventions, and by supporting an educational institution at the request of the state organization.

The syllabus in Bakos, et al, v. Takach et al, 14 Oh Ap 370, clearly differentiates the facts from the instant case. The church held real property by way of trust for the use and promotion of a certain specific religious organization. An attempt was made to change the organization so as to effect an avowed change of denominational relations, resulting in the turning over of the church property to another separate distinct denomination and working an abandonment of the original purpose of the society. The court enjoined such action.

Nothing that the defendant did in this case nor. the resolution which the majority adopted, in our judgment, can be found to be a departure from the article of incorporation or Articles of Faith of the Regular Baptist Church or to constitute practice which is in conflict with any of the Rules of Practice of the plaintiff church.

We are satisfied that the plaintiff had not the right to maintain this suit and that it has failed to produce requisite proof to support any equitable intervention by this court in its behalf.

The judgment will be for the defendant and the petition and amended petition will be dismissed.

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


author: By MILLER, PJ.

text:
    SIMS, Petitioner, v. ALVIS, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4455.
    Decided June 21, 1950.
    Julius D. Sims, petitioner for himself.
    Hon. Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Asst. Atty Geni., Columbus, for respondents.
   OPINION

By MILLER, PJ.

This is an action in habeas corpus in which the record discloses that the petitioner was sentenced to the Ohio Penitentiary for a term of one to seven years on a charge of grand larceny, being case No. 29187 in the Court of Common Pleas for Franklin County. Subsequent thereto he was indicted, charged with being a habitual criminal. He was convicted on this charge and sentenced to the Ohio Penitentiary as follows: “* * * until legally discharged * * * committed for rest of his natural life, sentence concurrent with that in case No. 29187.” As a result of the above proceedings the petitioner is now serving two sentences, the first being one to seven years for grand larceny, and the second being a life sentence under the Habitual Criminal Act.

The record discloses further that one of the offenses committed by the petitioner as charged in the indictment for being a habitual criminal was committed in 1927, which was prior to the enactment of the Habitual Criminal Act, §13477-4 GC. The petitioner is contending that under this state of facts the law is retroactive and. unconstitutional. This question, however, has been definitely decided in the case of Blackburn v. The State, 50 Oh St 428. At page 438 the Court says:

"A law cannot properly be considered retroactive when it apprises one who has established, by previous unlawful acts, a criminal character, that if he perpetrates further crimes, the penalty denounced by the law will be heavier than upon one less hardened in crime. In such case the party is informed before he commits the subsequent offense of the full measure of the liability he will incur by its perpetration, and therefore does not fall within the class that is entitled to the protection afforded by the constitutional guaranty against the enactment of ex post facto, or retroactive laws, for the object sought by those guaranties, in respect to this kind of legislation, is that no transgressor of a penal statute, shall be subjected by subsequent legislation, to any penalty, liability or consequence, that was not attached to the transgression when it occurred.”

The next question for consideration is whether the sentence under the Habitual Criminal Act is void since the sentence in No. 29187 was not vacated in accordance with §13744-3 GC. This question has also been disposed of in the case of State, ex rel. Drexel v. Alvis, Warden, 153 Oh St 244, wherein the Court held that such a sentence may be voidable but it may not be attacked by habeas corpus as a substitute for appeal. Citing Ex parte Shaw, 7 Oh St, 81, 70 Am. Dec. 55; Ex parte Hagan, 25 Oh St, 426; In re Allen, 91 Oh St, 315, 110 N. E. 535. The petitioner’s conclusion that he is now serving only one legal sentence, to wit, No. 29187, is not correct. The sentence under the Habitual Criminal Act being only voidable, in its most favorable aspect to the petitioner, must be considered legal until found to be otherwise. It can be declared void only upon the proper legal steps being taken, which is not habeas corpus. As the Court stated in the Drexel 'case, supra, even though the latter sentence were void the petitioner is still not being unlawfully restrained of his liberty because he is still lawfully committed under the grand larceny conviction.

The application will be denied.

HORNBECK and WISEMAN, JJ, concur