author: By CONN, J. FESS, J., DEEDS, J,

text:
    NORTH AMERICAN AVIATION INC., Plaintiff-Appellee, v. UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL UNION 927, U. A. W., C. I. O. et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5053.
    Decided April 12, 1954.

      Porter, Stanley, Treffinger & Platt, R. H. Treffinger, Bruce G. Lynn, of Counsel, Columbus, for plaintiff-appellee.
    Harold Cranefield, Lowell Goerlich, Toledo, David dayman, Columbus, for defendants-appellants.
    (FESS, CONN & DEEDS, JJ, of the Sixth Appellate District sitting by designation.)
   OPINION

By CONN, J.

This action was begun in the Common Pleas Court by plaintiff, October 23, 1953, against the defendants for injunctive relief. In addition to the two labor unions named in the caption as defendants, the Regional Director and two representatives of the UAW-CIO, individually and in their representative capacity, were made defendants; also the president, vice-president, secretary and treasurer, three trustees, eleven committeemen and stewards, sergeant-at-arms and guide of Local No. 927 UAW-CIO, were made defendants individually and in their representative capacity; and also eighty-three other employes of plaintiff designated as stewards were made parties defendant and sued individually, there being in all 107 defendants, together with all other members of said local, too numerous to be named, were also made parties defendant as a class. °

Plaintiff alleges that its office, plant and place of business in Ohio is located at 4300 Fifth Avenue, Columbus, Ohio; that the plant site consists of approximately 250 acres; that the combined floor space is approximately 3,000,000 square feet; that the plant is engaged in the assembly and manufacture of naval aircraft for the United States Navy and military aircraft for the United States Air Force and Marine Corps; that plaintiff employs approximately 18,000 employes; that said local No. 927 is the duly certified and recognized bargaining agency of approximately 12,500 of plaintiff’s employes.

Plaintiff further avers that plaintiff and defendant labor unions were unable to agree upon a new contract after 30 days negotiations; that said labor organizations, acting by and through the individual defendants herein, authorized and commenced a strike against plaintiff at midnight October 22, 1953; that defendants, individually and acting in concert, picketed plaintiff’s plant in an unlawful manner and by unlawful means as more particularly set forth in plaintiff’s petition; that plaintiff was prevented from conducting its normal business operations and that as a result, the defense efforts of the United States were crippled and imperiled.

Plaintiff prayed that a restraining order against defendants issue forthwith, and without notice, and upon final hearing the order be made permanent.

A restraining order was issued by the trial court on October 23, 1953, ex parte, on plaintiff’s application. The order, among other things, limited the number of pickets to four at each of the motor driveway entrances to the plant from Fifth Avenue and Fourteenth Avenue, and two pickets at each gateway, or other entrance to the plant from Fifth Avenue.

The order contained, in all, eleven separate specific acts, including hindering or intimidating in any manner plaintiff’s officers, agents, employes, representatives or other persons having business with plaintiff; also from interfering by violence, force, intimidation those desiring to enter or leave the plant or blocking or obstructing any of the driveways or interfering with or hindering ingress to or egress from said plant and also from loitering, grouping or congregating at or near any approaches or on public streets or highways leading to said plant.

Copies of the restraining order were served on each of the named defendants, except six who could not be found.

October 24, 1953, the defendants moved the court to vacate and set aside the temporary restraining order, which was heard on evidence and statements of counsel, and at the conclusion thereof was overruled. November 6, 1953, plaintiff filed an application for an order containing three specifications, to wit: (a) and (b) reducing number of pickets respectively at 14th Avenue and 5th Avenue entrances to plaintiff’s plant, and (c) for an order to require certain defendants named therein to show cause why they should not be punished in contempt of court for violation of the temporary restraining order during the period from October 27th to November 5th, 1953.

Hearing on the above application was had on November 12, 1953. At the conclusion thereof, the court granted the application and ordered the defendants named therein to show cause on Tuesday, November 17, 1953, why the court should not enter a finding that the temporary restraining order had been violated and that by reason thereof that said defendants be found to be in contempt of court.

Upon the opening of court on November 17, 1953, counsel for plaintiff called the court’s attention to certain purported violations of the temporary restraining order that had occurred earlier in the morning of November 17th, and thereupon, and before proceeding with the evidence to show cause in respect to occurrences on November 4th and 5th, plaintiff moved that all pickets be removed from all gates and entrances and that defendants post a bond to maintain the peace.

Written charges in contempt were filed on November 18, 1953, at 10:50 a. m., wherein it was alleged

“that on the morning of November 17, 1953, between 6:45 and 8:30 a. m., the defendants violated, disregarded and disobeyed the temporary restraining order entered in this cause under date of October 23, 1953.”

The defendants were ordered to appear on November 18, 1953, and, at the conclusion of other matters under plaintiff’s motion of November 6, 1953, show cause why they should not be punished as for contempt.

At the conclusion of the hearing of charges previously filed, the court sustained plaintiff’s motion and found that the defendants and each of them, on November 4th and 5th, had violated the temporary restraining order issued October 23, 1953, and were in contempt of court, and each defendant was fined $200.00, or an amount in the aggregate of $20,000.00. The court ordered the fine suspended on condition that defendants obey said order.

The hearing on charges filed on November 18th, was continued to November 19, 1953, at 11:00 o’clock a. m., and the Clerk was ordered to cause notice of this order to be issued to the Sheriff, and service forthwith upon said defendants. The judgment entry recites that defendants were before the court by “general appearance.” However, it does not appear that any objection was interposed on this ground.

At the conclusion of an extended hearing on said written charges, the court on November 27, 1953, found each defendant guilty of the contempt charged, and fined each defendant $500.00, or in the alternative fined the defendants collectively $50,000.00. It was further ordered that $25,000.00 of said fine be suspended on condition that within the time stipulated, defendants satisfy claims for damages sustained by employes growing out of strike activities. On the same day, the court granted the motion of defendants to set aside the order and judgment entered as of November 17, 1953.

From said judgment, defendants have appealed to this court on questions of law.

Defendants’ assignment of errors contains eighteen specifications, but in brief and oral argument the several assignments herein have been combined in substantially the form set forth in defendants’ brief, but not in the same order, as follows:

1. The contempt proceedings were unlawful in that no written charges were filed as required by statute.

2. The court erred in admitting in evidence motion picture films and affidavits.

3. The court’s remarks, attitude and order imposing an unreasonable fine, clearly establishes that the court in finding the defendants guilty was impelled by bias, prejudice, passion and a misconception of the duties of the court of equity; that the trial court exceeded its lawful functions and erred in depriving defendants of their constitutional rights.

4. The plaintiffs failed to establish by the required degree of proof (a) that any of the defendants were guilty of the alleged charges and that (b) the Union was criminally responsible for the alleged violation of the order.

1. Taking up the several assignments of error in above order, we first consider defendants’ claim that as' no written • charges were filed, .as required by statute, the contempt proceedings were unlawful.

Acts in contempt are enumerated in §2705.02 R. C., and include disobedience to “a lawful writ, process, order, rule, judgment or command of a court * *

The following §2705.03 R. €., expressly provides that “a charge in writing shall be filed with the Clerk of the court * * * »

The provisions of the Code respecting charges in contempt have been reviewed by the courts in a number of cases, and it is uniformly held that written charges must be filed under §2705.03 R. C., and the accused given an opportunity to be heard. See Sawbrook Steel Castings Co. v. United Steel Workers of America, 148 Oh St, 73; Albert v. Gus Juengling & Son Co., 115 Oh St 64.

In the instant case, charges in contempt were filed in writing on November 18, 1953, at 10:50 a. m. These charges related to alleged violations of the temporary restraining order which occurred on Tuesday morning, November 17, 1953. The previous week, the court had heard plaintiff’s motion to reduce the number of pickets and its charges in contempt alleged to have occurred on November 4th and 5th, 1953. At the conclusion of plaintiff’s evidence, the hearing was continued to Tuesday, November 17, 1953, at which time the court would receive evidence offered by defendants.

As already pointed out, when the court convened on November 17, 1953, plaintiff brought to the attention of the court, in oral statement and before the reception of any evidence on the charges then pending, that earlier this morning large numbers of members of the union and pickets congregated at the gates on 5th Avenue, leading to plaintiff’s plant, built barricades and committed acts of violence, all in violation of the court’s previous order.

Thereupon the testimony of certain police officers and deputy sheriffs was received as to occurrences earlier in the day. This evidence was received over objection of defendants and prior to the actual filing of written charges, and related to the number of persons in the groups at the entrances to plaintiff’s plant, obstructions in the roadway and damage to automobiles of employes who were about to enter the plant. No evidence was offered as to the personal identity of the members of the groups. The initial evidence was concluded at twenty minutes of three, and thereupon the court resumed hearing the matters that had been continued, as above indicated.

In the opinion of a majority of the court, the reception of the testimony given by the several officers, prior to the actual filing of written charges, was within the sound discretion of the trial court and was not prejudicial to the defendants. It follows that this assignment should not be sustained.

2. The admission in evidence of motion picture films and of certain affidavits offered by plaintiff are assigned as error.

(a) It is claimed by defendants that the motion pictures were carefully selected and show only particular circumstances that insofar as they present “only partial truth,” the admission of the motion pictures was prejudicial. Defendants apparently concede that to the extent that persons shown on the pictures are identified as defendants, the pictures would be relevant and admissible.

The record discloses that the motion picture films were taken at entrances to plaintiff’s plant on the morning of November 17, 1953, at the time certain of plaintiff’s employes were returning to work on the morning shift. The respective photographers testified fully as to the manner of taking the pictures, both on direct and cross-examination, the time of taking, and that the pictures were a true reproduction of events that took place at said time.

Following the reception of the motion picture films in evidence, they were exhibited to the court, and during the showing comments were made on behalf of plaintiff. Thereupon the films were shown to the court a second time and during the showing, comments on behalf of defendants were made. At the conclusion of the oral arguments on the hearing herein, the films were shown to the members of this court.

The receipt of photographs in evidence, which have been accurately taken and sufficiently verified, is within the sound discretion of the court. 17 O. Jur., 579, Sec. 471. We have found no reported cases in Ohio, and none have been cited, wherein the admission of motion pictures was considered.

Outside of Ohio, where the courts have given consideration to the admission of motion pictures as evidence, it appears from the authorities, which are limited, that their admissibility “is determined by the basic principles governing the admission of still pictures.” 20 Amer. Juris., 615, Sec. 738. Also, 1953 supplement thereto, p. 81, and cases cited.

We quote from the annotation in 129 A. L. R., 361, “Use of Moving Pictures as Evidence,” as follows:

“Recent authorities hold that motion pictures are admissible in evidence, under a proper exercise of discretion by the trial court, where their relevancy, authenticity and accuracy of portrayal are established by the laying of an adequate foundation.”

See also 9 A. L. R„ 2nd, 921, Sec. 10.

It is the opinion of a majority of the court that on the record before us there was no abuse of discretion on the part of the trial court, in admitting the motion picture films in evidence and that this assignment of error should not be sustained.

(b) The second branch of this assignment of errors relates to the introduction in evidence of forty-three affidavits, offered by plaintiff, exhibits 41 to 84 inclusive, which were received over the objection of defendants.

The subject matter of these affidavits respectively, related to occurrences on the morning of November 17, 1953, which plaintiff claims were violative of the court’s previous order, such as mass picketing at the entrances to plaintiff’s plant, threats made to plaintiff’s employes, damages to their automobiles as they approached the entrances to the plant and also obstructions on the highway.

Affiants identified several persons who participated in mass picketing, but among those identified, only two, Harvey VanHorne and Kenneth Randle, were named parties defendant. Two other persons who appear to have been served with a citation were also identified. Two additional affidavits were admitted, exhibits 85 and 86, but they , were related to events on November 16, 1953.

Defendants contend that since the procedure and penalty provided for in Chapter 2705 R. C., in contempt of court matters, contains no provisions authorizing the use of affidavits on the hearing of the charges made, the admission of the affidavits in evidence was prejudicial error.

As the probative value of the several affidavits was cumulative and related principally to fact matters not sharply in dispute, such as mass picketing and hindering ingress and egress to plaintiff’s plant on the morning of November 17, 1953, it does not appear that any prejudice was suffered by defendants'in the admission of the affidavits.

3. In the third assignment of error, defendants claim that the trial court was impelled by bias, prejudice and passion, exceeded its lawful function and deprived the defendants of their constitutional rights to an opportunity to defend.

In support of this assignment, the defendants have taken a number of excerpts from the record which it is claimed show bias and prejudice of the court. Particular emphasis is attached to the extended and somewhat informal colloquy between court and counsel on December 16, 1953, which took place on the hearing of defendants’ motion to vacate the judgment entered November 27, 1953, and from which this appeal has been taken.

The significance and importance of statements culled from a record of two thousand pages or more, when considered apart from the context, are capable on being over-emphasized and misinterpreted. Furthermore, in the stress of an extended trial, colloquies between the trial judge and counsel may at times give way to statements that might well have been omitted, but in any event, they do not assume the character of considered judgment and therefore do not reflect the final result nor provide a basis for a charge of bias and prejudice.

As an impartial tribunal and orderly procedure under law are challenged by this assignment, its character and importance are at once apparent.

The issue presented must be adjudged in the light of the whole record. This action grew out of the failure of plaintiff and defendants to agree on a new contract. Thereupon the defendant unions exercised their legal right to call a strike and picket plaintiff’s plant.

About one-third of plaintiff’s employes were not members of the unions and, as sometimes happens, the cessation of work was not agreeable to all of the union employes.

It appears that picketing early assumed the character of mass picketing, which prevented the free ingress and egress to plaintiff’s plant of non-union employees and other persons having such right. This situation formed the predicate for the temporary restraining order limiting the number of pickets and forbidding, among other things, mass picketing and congregating of groups at or near the plant entrances, or any other acts tending to obstruct those who desired to enter the plant.

Under the circumstances thus presented, the invasion of personal and property rights of interested parties would easily be engendered. It appears that the trial court was cognizant of the explosive character of the situation presented, and throughout the several hearings on charges of violence and disorder, frank statements that the order of the court would be upheld and that disorder and violence, if shown to exist, would result in punishment of those found to be guilty.

The frankness of the trial court is now challenged and is made the basis of the charge of bias and prejudice, and that the court exceeded its lawful function.

It should be observed that continuances were granted defendants, from time to time, to enable counsel for defendant, whose professional responsibilities were onerous, to present an appropriate defense. The record does not disclose that defendants, or any of them, were denied any rights guaranteed to them under the law.

Foregoing an extended discussion, it is our conclusion that, on the whole record, the heavy responsibility of the trial judge, in relation to his official duties, not only to the parties and their counsel but also to the general public, was met with judicial candor and courage, and that this assignment of error should not be sustained.

5. In the final assignment, defendants claim that the plaintiff failed to establish by the required degree of proof: (a) that any of the defendants were guilty of the alleged charges; or (b) that the defendant unions were criminally responsible for the alleged violations of the court’s order.

This assignment contains two specifications. We will consider first, the claim that the evidence fails to show the Unions were guilty of contempt.

Conduct constituting contempt of court of the character shown by the record in this case and the proceedings brought to uphold and vindicate the court’s authority, are quasi criminal. Under the statute (§2705.02 R. C.) written charges against the accused must be filed and an opportunity be given the accused to be heard (§2705.03 R. C.). If, upon trial, the accused is found guilty, he is subject to a fine or imprisonment, or both. (Sec. 2705.05 R. C.)

It is apparent from the procedure outlined in the statutes that the personal conduct of the accused is the basis for the adjudication of the charge, and that guilt is personal. However, the guilt of the accused may be shown by proof of acts directly contemptuous, or by proof that the accused aided and abetted the alleged violation, or was a member of a conspiracy having as its objective the commission of prohibited acts.

In the instant case, it is clear that the court’s order was violated on the morning of November 17, 1953. Was the conduct of any one, or more, of the defendants, contemptuous, and if so, who? That is the remaining issue to be' resolved.

It must be borne in mind that the presumption of innocence obtains in contempt cases and that written charges of contempt can not be sustained unless the evidence of guilt is clear, positive and convincing.

Fawick Airflex Co., Inc., v. United Electrical Radio & Machine Workers of America, Local No. 735, 56 Abs 65, 419, 426; 60 Abs 451; 90 N. E. 2nd, 610; also 101 N. E. 2nd, 797; General Motors Corp. v. United Electrical, Radio & Machine Workers of America, Local No. 717, 31 O. O. 515.

In the instant case there is no evidence that the Unions, directly or indirectly, aided or abetted, in any manner, the commission of acts in violation of the court’s order. The evidence affirmatively shows that the officers of the Unions were diligent in bringing to the attention of the Union members the nature and character of the order, and repeatedly counseled obedience to and strict observance of its provisions. In the absence of any evidence of guilt on the part of the Unions, or either of them, finding the Unions guilty of contempt was not supported by any evidence. It follows that the judgment and fine assessed against each of them should be reversed.

In view of the situation thus presented, it becomes unnecessary to consider under what circumstances an unincorporated voluntary association may be guilty of contempt.

As to defendants Bernard Angus, Kenneth Randle, Paul Ritchie, Harvey VanHorne, Charles F. Walker, and Raymond Wilkerson, a majority of this court is of the opinion that the record shows, by the requisite degree of proof, that said defendants are guilty of violating the temporary restraining order entered October 23, 1953, and are in contempt of court; and that the judgment and imposition of the fine of $500.00 as against each of said defendants should be affirmed, and that said defendants should further be assessed five per cent (5%) of the costs, apportioned equally among them, and the said cause be remanded to the Court of Common Pleas for execution.

In respect to the remaining defendants, the finding and judgment should be reversed and said cause remanded to the Court of Common Pleas with directions to dismiss said charges as to all remaining defendants at plaintiff’s costs.

Judgment affirmed in part and reversed in part.

CONN, FESS, JJ, of the Sixth Appellate District, sitting by designation, concur.

DEEDS, J, of the Sixth Appellate District, sitting by designation, dissents.

FESS, J.,

concurring.

In reliance upon State v. Fremont Lodge, 151 Oh St 19, defendants contend that in Ohio the unions, as voluntary associations are not amenable to suit. A voluntary association itself is not a legal entity subject to be sued, but such an association may be sued as such in an action naming several of its officers or members as individual parties defendant in a class action. Sec. 2307.21 R. C. (§11257 GC). And in such a civil action the property and assets of the association are subject to execution upon a judgment obtained therein.

United Mine Workers of America v. Coronado Coal Co., 259 U. S., 344, 66 Law Ed., 975; McClees v. Brotherhood, 59 Oh Ap 477; Williams v. Brotherhood, 81 Fed. Sup., 150.

Cf. United States v. United Mine Workers, 330 U. S., 258, 91 Law Ed., 884; Damm v. Elyria Lodge, 158 Oh St 107.

In Ohio, proceedings in contempt are regulated by statute. The proceedings in the instant case fare governed by the provisions of Chapter 2705"R. C., and §§2727.11 and 2727.12 R. C. Pilliod v. Searles, 115 Oh St 694. A person or party charged with the violation of an injunction is entitled to have written charges filed against him and a hearing thereon. Sec. 2727.11 R. C., provides that upon being satisfied by affidavit of the breach of an injunction, a fine of not more than $200.00 may be imposed; but no provision with respect to the use of affidavits is to be found in Chapter 2505 R. C. Since the judgment imposed fines of $500.00 upon each of the named defendants, it is apparent that the proceedings were had under Chapter 2705 R. C. rather than §2727.11 R. C.

At the hearing, there was admitted, over objection, forty-four affidavits of persons whose automobiles had been damaged in the riot which occurred on the morning of November 17th, but only two of these affidavits identified any particular person as having violated the injunction. In my opinion, since no provision is made for the use of affidavits in Chapter 2705 R. C., these affidavits were not admissible in the contempt proceeding as against any individual defendant, but they were admissible for the purpose of showing the nature, character and extent of the violation of the injunction. The fact that evidence may not be admissible for one purpose does not require its exclusion, but it is admissible on the issue to which it is relevant or for the purpose for which it is competent. 17 O. Jur. 188. The admission of these affidavits, therefore, did not constitute error.

The same principle applies to the admission of the moving picture films, which the members of this court also viewed in reviewing the record on appeal. The record discloses that over objection of the defendants these moving picture films portraying the riot on November 17th were viewed on three occasions by the trial court—1st, without comment; 2nd, with comment on behalf of plaintiff, and 3rd, with comment on behalf of the defendants. Only a small portion of this comment by witnesses identifies any defendant as a participant in the riot. Under proper circumstances, moving pictures are admissible upon a basis analogous to the admission of photographs, but so far as the record before us in the instant case is concerned, the showing of the moving pictures merely corroborates other testimony that violence did occur on the morning of November 17th, and for that purpose was admissible.

It seems to be the theory of plaintiff’s counsel that upon proof of violation of the injunction by -unascertained persons the defendant unions and the named defendants are ipso facto guilty of contempt. As heretofore indicated, the manner in which the action was brought imposes liability upon the unions, but even applying the socalled legal entity principle, it must be grounded upon the doctrine of respondeat superior. Before recovery can be had, the evidence must be such as to disclose that the Union, through its officers, initiated, participated in or ratified the acts of those shown to have violated the injunction and in a contempt proceeding this must be shown by at least clear and convincing testimony. A review of the record fails to show that any of the responsible officers encouraged or incited the violence perpetrated on the morning of November 17th.

As to individual defendants, the usual procedure is to file charges against one or more persons and to proceed with each case seriatim. Fawick Airflex Co. v. Elec. Workers, 87 Oh Ap 371, ibid, 56 Abs 419, 56 Abs 432, 60 Abs 451. No particular effort was made to show that any named defendant participated in the violence. The record discloses that defendants Bernard Angus, Kenneth Randle, Paul Ritchie, Harvey Van Horne, Charles F. Walker, were present during the riot and participated in the fighting. The defendant Raymond Wilkerson, who was a picket captain, disavowed any participation in the riot, but he was present and took no effective measures to stop the fight. The trier of the facts could well believe that he was a silent, if not active, participant'. Furthermore, under the terms of the injunction limiting the number of pickets, he had no right to be there with his parked car at the time in the midst of the riot. In their brief, defendants tacitly admit the participation by these defendants, but contend that by reason of the large number of persons employed by the plaintiff, these men were not positively identified.

I therefore concur in the conclusion of Judge Conn that the judgment should be affirmed as to these six defendants.

Under §2705.05 R. C., since the amount of the fine is limited to $500.00, the imposition of the fine of $50,000.00 was without legal justification. With respect to that portion of the judgment suspending $25,000.00 upon making restitution to persons injured in person or property, there is likewise no authority of law. A court of equity neither has jurisdiction nor does it have the facilities to determine a large number of unliquidated damage claims, even in a class action. Davis v. Columbia Gas & Elec. Co,. 151 Oh St 417. Such claimants themselves have the right to recovery in separate actions at law.

In my opinion, the judgment should be affirmed as to the imposition of the fines of $500.00 against the above six defendants and reversed and final judgment entered as to the remaining defendants.

DEEDS, J,

dissenting.

It is my view that the action of the Court of Common Pleas in entering a joint judgment against one hundred defendants, including the defendant Union, in the sum of $50,000.00 was without authority in law and therefore erroneous. State v. Loyal Order of Moose, 151 Oh St 19; also as stated in 33 Labor Relations Report, 206 (BHA) January 16, 1954:

“In determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the common law rules relating to agency shall be applicable. Provided, that no labor organization shall be held responsible for the acts of individual members thereof solely on the grounds of such membership.”

Also, that the Court of Common Pleas was without authority in law in ordering, in addition to the imposition of fines in the extreme amount authorized by law as a punishment for contempt, that defendants be required to pay all claims for damage to person or property sustained by any of the (18,000) employes of the plaintiff, which may be presented to the court and approved, without limitation as to amount and without regard to the Code of Civil Procedure of the State, or the right to a trial by a jury.

It further appears from the record that a very substantial portion of the evidence offered by the plaintiff was received by the court for consideration, before any written charges had-been filed against the defendants, as required by §2705.03 R. C., and also the decisions of the Supreme Court of the State interpreting that requirement of the law.

Albert v. The G. Juengling & Son Co., 115 Oh St 64; Castings Co. v. Steelworkers, 148 Oh St 73.

Motion pictures were exhibited and viewed as evidence by the court, which portrayed a wide variety of .incidents, actions and movements by unidentified groups, assaults, damaged automobiles and other evidence of a highly prejudicial character, covering a wide undefined area, without any evidence to show that the individual defendants were in any way responsible for or were in any manner connected with, scarcely any of the many prejudicial occurrences and conditions portrayed by the motion pictures, all of which in my view amounted to a serious violation of the established rules of law, governing the introduction of evidence and such exhibition was therefore clearly erroneous to the prejudice of each and all of the defendants.

The trial court also received in evidence numerous affidavits purporting to prove a wide variety of prejudicial matters and occurrences, without any proof that the individual defendants were in any way responsible for or connected with most of the actions and matters which such affidavits purported to prove, all of which it seems clear was contrary to the law and acknowledged rules of evidence and was highly prejudicial.

Therefore, considering the foregoing errors and the attempt of the trial court, as shown by the judgment entry, to make the Union as a legal entity or the defendants jointly responsible to pay a fine of $50,000.00, or if partially suspended as provided, $25,000.00, and in addition thereto to pay damages without any limitation as to the number of claims or aggregate amount of such claims, to be determined without regard to the legal requirements of civil procedure, this court is without authority in the situation presented by the record to modify such judgment or substitute its judgment for that of the trial court. Chester Park Co. v. Schulte, Admr., 130 Oh St 273; In re Estate of Johnson; Morgan et al. v. Fink, 142 Oh St 49; Bishop v. East Ohio Gas Co., 143 Oh St 541.

It is my conclusion on the record in the case before us for review, it being an appeal on questions of law only, that when the incompetent evidence of a. prejudicial character is excluded from consideration, there is no substantial evidence to support a judgment against any of the defendants and that therefore final judgment should be entered by this court accordingly, for the defendants.


source: Caselaw Access Project

author: By HUNSICKER, PJ.

license: Public Domain

text:
    SELBY, Appellee, v. SELBY, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4275.
    Decided July 30, 1952.

      Wozniak & Herman, Akron, for appellee.
    Hadley & Vale, Akron, for appellant.
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law. The Summit County Court of Common Pleas granted Paul Earl Selby a divorce from Mary Joan Selby. The judgment made a division of property, alimony to Paul Selby, awarded the custody of the children to Mary Selby, and provided that Paul Selby pay for the support of the minor children.

Mary Selby, the appellant herein, says that the judgment “insofar as it affects the division of the property, the granting of alimony, and certain aspects of the custody and support of the children, is manifestly against the weight of the evidence.”

We have examined the record and the bill of exceptions, and do not find that the judgment with respect to the division of property and the award of alimony is against the manifest weight of the evidence.

The bill of exceptions shows that the award of custody of the minor children to the mother, Mary Selby, was made, because Paul Selby, who worked six days a week, was not able to supervise and care for his three minor daughters. The trial court, in making such award of custody to the mother, said in the judgment entry:

“The Court coming now to the custody, education and support of the minor children of the parties herein. It is ordered, adjudged and decreed that the custody and care of said minor children be and the same hereby is granted to the defendant limited and restricted and to continue only during such period of time as the defendant remains unmarried and defendant’s mother, Anna Hagan, resides in the same household with 'said children.

“It is further ordered, adjudged and decreed that said children may not be taken from the jurisdiction of this Court without the permission of the Court and that no change may be made in schools or schooling without either the consent of both plaintiff and the defendant or the prior permission of this Court.”

We are constrained to examine this order of custody to determine whether the trial court had the power to so restrict the custody of these children.

The action herein was commenced in the trial court on January 29, 1951; the judgment was entered on January 10, 1952. The statutory law on the subject of divorce and alimony was amended and became effective August 28, 1951.

The statutory law (§11981 GC now §8003-22 GC, and §8022 GC, now §8005-4 GC), so far as it grants power to the trial court to make an award of custody of children of divorced parents, requires that the court shall make such order for the disposition, care and maintenance of the children, if any, as is just. According to §8005-4 GC, the trial court shall decide which parent may have custody, and the court shall take into account that which would be for the best interests of the minor children.

We have, in the order as made by the trial court, an award of “limited and restricted” custody, which is to continue, subject to certain conditions. One condition is that Mary Selby, who is, by the judgment, a divorced person and so legally free to remarry, shall, if she does remarry, be deprived of the custody of her children. Another condition attached to such custody order is that the mother of Mary Selby shall reside in the same household with the children. Anna Hagan, the mother of Mary Selby, was not a pary to the action. In the event Anna Hagan moves from the home, her daughter would automatically cease to have the custody of these children.

Other conditions are placed on the custody of these children, which grants a portion of the right of Mary Selby to Paul Selby. Her choice of “school and schooling” for the children is subject to the determination of Paul Selby, or that of the “prior permission” of the court.

Custody, as it is used in the divorce and alimony statute, connotes a keeping or guarding of a child of divorced parents. Black’s Law Dictionary (Third Ed.) defines “custody” as “The care and keeping of anything * * *. Detention; charge; control; possession.”

Custody includes within its meaning every element of provision for the physical, moral and mental well-being of the children. It implies that the person having custody has the immediate personal care and control of the children.

An award of custody of minor children determines the rights of the parties with respect to the care and control of their children, subject to the continuing jurisdiction of the court to modify the award upon a proper application.

The jurisdiction to modify a former award of custody continues in the court which entered such order. Addams, Judge, v. State, ex rel. Hubbell, 104 Oh St 475; Hoffman v. Hoffman, 15 Oh St 437.

In the case of Mierowitz v. Mierowitz, 47 Abs 104, the court determined that in an action for divorce, in which a decree was granted upon the husband’s petition, the failure of the trial court to make provision for the custody and support of the minor child of the parties constituted error prejudicial to the wife.

Where neither parent is a suitable person to have the custody of their minor child (under 15 years of age), the court may commit the child to a relative of the child or certify the case to the Juvenile Court for further proceedings with respect to such custody. Sec. 8005-4 GC.

The court in the instant case did not determine that Mary Selby or Paul Selby were not suitable persons to have the custody of their children. It did seek to award custody to Mary Selby, subject to such custody being changed, not upon application properly made, but upon the happening of certain events which might occur in the future.

The trial court, under the statute, has the power to award the care, custody and control of the minor children of the parties to either parent, but the statute does not provide for limited or restricted powers of custody.

We do not have before us the question of the right of parents to agree to restrictions placed in the order of custody, and so do not determine that matter herein.

We therefore determine that the trial court does not have the power, under the statutes respecting custody of minor children of divorced parents, to place, in an award of custody, restrictions concerning the right of such divorced parent to remarry, the necessity to have a relative reside in the home of such parent to whom custody is awarded, and restrict such parent in the choice of school to which the children shall be sent.

Judgment reversed in part and sustained in part. The cause is remanded to the trial court with instructions to delete from the order of custody the limitations and restrictions as to such custody noted in this opinion.

DOYLE, J, STEVENS, J, concur.


author: By BARTLETT, J.

text:
    COLUMBUS (City), Plaintiff, v. WATERS, Defendant.
    Common Pleas Court, Franklin County.
    No. 188457.
    Decided October 20, 1954.
    City Attorney, for appellee.
    Milton L. Farber, Columbus, for appellant.
   OPINION

By BARTLETT, J.

Appeal from a conviction in Municipal Court by a jury on charge of driving motor vehicle while intoxicated. Prosecution offered evidence that defendant after arrest and while in custody of police, refused to submit to a urinalysis test designed to determine amount of alcohol he had consumed, if any.

Thereafter in chief the state offered Lloyd M. Shupe, a police chemist, who testified he did not know defendant, had never examined a specimen of his urine or blood, and knew nothing of the facts at issue in the case. He was then permitted to testify as to the manner in which blood and urine tests are performed, by the examination of specimens thereof, the point at which intoxication may exist, and other facts in general pertaining to the testing of body fluids. At the close of his examination in chief, counsel for defendant moved to exclude the testimony of the witness from the jury, which motion was overruled. Thereupon counsel cross-examined this witness.

It is conceded by defense counsel that the refusal of defendant to submit to such test, is competent evidence, and does not violate the self-incrimination clauses of the Federal and State Constitutions, under the ruling of the Court of Appeals of this district. State v. Nutt, 78 Oh Ap 336, citing State v. Gatton, 60 Oh Ap 192.

Defense counsel confines his objection to the prejudicial effect of testimony of Mr. Shupe, the police chemist, as to how such tests are made, the purpose of such tests, and what they may disclose.

It would seem to be a very narrow view for the Court to admit evidence of such refusal to submit to the tests, and then exclude all testimony as to the purpose such tests are designed to serve, by showing the amount of alcohol present, the amount necessary to influence a person or persons, especially in a jury trial where naturally the average member of the jury would not be informed on such matters.

Expert testimony is admissible upon a matter regarding which there is not common knowledge, where the Court or jury may be aided or educated by the expert views and opinions of men experienced in some particular art, science, trade, or business. It must involve scientific knowledge or skill. 17 O. Jur. Evidence, Sec. 332, p. 423; Ibid, Sec. 350, p. 445; such evidence may be pertinent thereto—Ibid, Sec. 132, p. 170; an important field of expert testimony is 'that relating to the diagnosis of the cause and effect of disease and kindred matters of medical practice, Ibid, Sec. 387, p. 485.

The appeal is dismissed, and the verdict of the jury and the judgment of the Municipal Court affirmed, at appellant’s costs. Entry accordingly with exception by counsel for appellant.


author: By THE COURT.

text:
    RIGGS, Plaintiff-Appellant, v. RIGGS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5072.
    Decided October 1, 1954.
    Davies & Davies, John L. Davies, Jr., of Counsel, Columbus, for plaintiff-appellant.
    Henry A. Reinhard, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court of Franklin County, Division of Domestic Relations, awarding custody of two children to the defendant.

Plaintiff, the wife, sued for divorce; the defendant, in his cross-petition, prayed for a decree of divorce and custody of the two sons, one thirteen and the other nine years of age. Upon trial the court dismissed the petition of the plaintiff for lack of evidence and granted the divorce to the defendant on his cross-petition and awarded custody of the children to the defendant.

The sole assignment of error is that the judgment awarding custody of the children to defendant is not sustained by sufficient evidence, is contrary to the manifest weight of the evidence, and is contrary to law.

Plaintiff-appellant does not contend that defendant is an improper person to have the custody of the children, nut rather that under the testimony the plaintiff is a suitable person and, being the mother, she should be given preference over the father. Under the provisions of §8005-4 GC, now §3109.04 R. C., one parent is not preferred over the other: the court is authorized to award custody to either parent, “taking into account that which would be for the best interest.” While courts, in awarding custody of children of tender years, most times prefer the mother over the father, where the circumstances warrant, it is always in furtherance of what the court conceives to be for the children’s best interest. Lawyer v. Lawyer, 14 Abs 33; Schumeth v. Schumeth, 55 Abs 376. However, these two cases are distinguishable from the case at bar on the facts.

After a consideration of the whole record, this court cannot say that the Court erred in concluding that the best interest of these two boys would be served by awarding custody to the father. We find the judgment to be supported by sufficient evidence, not contrary to the manifest weight of the evidence, nor contrary to law.

Finding no error in the record prejudicial to the rights of the plaintiff, the judgment is affirmed.

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


author: By WEBER, J.:

text:
    FLETCHER, Plaintiff, v. CONEY ISLAND, INC., Defendant.
    Common Pleas Court, Hamilton County.
    No. A-139328.
    Decided July 21, 1954.

      Walter S. Houston, Michel M. Turpeau, Cincinnati, for plaintiff.
    Rendigs, Frey & Kiely, Cincinnati, for defendant.
   OPINION

By WEBER, J.:

The plaintiff, Ethel Fletcher, alleges that she is a negro, a citizen of the United States and of the State of Ohio: that the defendant is the proprietor and operator of Coney Island Park, a place of public accommodation and amusement in Hamilton County, Ohio; that on the second day of July and also on the 4th day of July, 1953, she tendered payment of the admission price to Coney Island Park but that the defendant refused to admit her and aided and incited others who were under contractual relations with the defendant to refuse admission to the plaintiff and thereby on said days denied to the plaintiff the full enjoyment of the accommodations, advantages, facilities and privileges of Coney Island and that said refusals were in violation of §§12940, 12941 and 12942 GC. Said Sections are now §§2901.35 and 2901.36 R. C., and read as follows:

Sec. 12940 GC. (Denial of privileges at restaurants, stores and other places by reason of color or race.) Whoever, peing the proprietor or his employee, keeper or manager of an inn, restaurant, eating house, barber shop, public conveyance by air, land, or water, theater, store or other place for the sale of merchandise, or any other place of public accommodation or amusement, denies to a citizen, except for reasons applicable alike to all citizens and regardless of color or race, the full enjoyment of the accommodations, advantages, facilities or privileges thereof, or, being a person who aids or incites the denial thereof, shall be fined not less than fifty dollars nor more than five hundred dollars or imprisoned not less than thirty days nor more than ninety days, or both.

Sec. 12941 GC. Further penalty. Whoever violates the next preceding section shall also pay not less than fifty dollars nor more than five hundred dollars to the person aggrieved thereby to be recovered in any court of competent jurisdiction in the county where such offense was committed.

Sec. 12942 GC. Bar to prosecution. Either a judgment in favor of the person aggrieved, or the punishment of the offender upon an indictment under the next two preceding sections, shall be a bar to further prosecution for a violation of such sections.

Plaintiff prays for a permanent injunction, restraining the defendant and those under contractual relations with the defendant, from denying plaintiff admission to Coney Island Park and the full enjoyment of all the accommodations thereof, because of her race or color or for any other reason not applicable alike to all citizens.

In its amended answer defendant denies that on said days it operated Coney Island Park as a place of public accommodation, but that on said days Coney Island Park was operated under outing contracts, on the 2nd day of July, 1953. with the Second-Third Ward Civic and Social Club of Dayton, Kentucky, and on July 4, 1953, with the Guiding Star Lodge, Knights of Pythias, of Dayton, Kentucky; that said contracts vested in said organizations respectively the exclusive right to designate the persons who might or might not be admitted to Coney Island Park on said days respectively; that on said days the defendant received instructions from said organizations, respectively, to refuse admission to any member of the National Association for the Advancement of Colored People or any member of the Cincinnati Council on Human Relations, or persons acting in concert with them, because of previous unlawful disorderly subversive conduct of said groups, which conduct was detrimental to the peace and safety of the members and guests of said outing organizations and of the citizens of the State and rendered the members of said groups undesirable persons at said picnics. The amended answer further alleges that under said policy and instructions white member as well as negro members of the N. A. A. C. P. and of the C. C. H. R. were excluded from Coney Island Park on said days and that said cause of exclusion was applicable alike to all citizens. The defendant also denies that the plaintiff is without adequate remedy at law.

The plaintiff filed a general denial.

In reaching its conclusions in this particular case, the Court cannot be concerned with the wisdom of the provisions of the statutes involved or with the effects upon the operation of Coney Island Park consequent upon the enforcement of these provisions. The only concern of the Court is whether under the facts proved in this particular case, said provisions of the statutes have been violated and whether there is threatened continued violations which entitle the plaintiff to equitable relief by way of a permanent injunction.

From the testimony of various witnesses and from pictures taken, it is shown that on a number of Sundays in May, June and July, 1952, when the park was open to the general public, groups consisting of about six negroes and of about twenty white persons created considerable disturbance near the entrance gates of Coney Island Park. Some carried banners in an attempt to picket the park. A car partly in the auto entrance and partly in the public highway refused to obey the order of the police to turn away from the auto gate and proceed on the public highway beyond the park entrance. One auto was locked and abandoned and had to be towed away. Traffic was blocked for some time. The pedestrian entrance was also blocked by at least one person lying flat on the ground. There was no physical violence. There was considerable resentment by persons who desired to enter the park. It is not absolutely certain whether the blocking of the entrance and the other disturbances were the result of or the cause of refusal to admit these persons to the park. One arrest was made. There was uncontradicted testimony that some of the people who caused the disturbances admitted to the agents of the defendant that they were members of the N. A. A. C. P. or the C. C. H. R., or both.

The plaintiff testified that she was a member of the N. A. A. C. P.; that she had never been in the park; that on July 2nd and July 4th, 1953, she offered to pay the admission price and was refused admission on each day for substantially the same reason, that is, she was told by the gatekeeper that he had been instructed to admit no one who was a member or was suspected of being a member of N. A. A. C. P. or C. C. H. R., or in any way connected with them. The agents of the defendant testified to the same effect and that on the days she was refused admission it was not actually known to the defendant’s agents that the plaintiff was a member of N. A. A. C. P. Three other negro women, two of whom were members of the N. A. A. C. P., were refused admission on July 2nd or July 4th, 1953, and that the same reason was given, and • at the same time white people were being admitted without questioning. Two white women testified that they were admitted, one on July 2nd and the other on July 4th and that they were not questioned and that white people were admitted without questioning. One of these women had been a member of. N. A. A. C. P. for a long time and had carried a banner on one of the days in 1952. These women knew nothing about organizations which had contracted for the park on those two days. Another white woman testified that she was with a negro woman on June 30, 1953 and was refused admission. On July 4th she was admitted and loitered near the gate a short while. Later she was apparently recognized as being there on June 30th and her admission price was refunded and she was told to leave because she was suspected of being a member of N. A. A. C. P. or C. C. H. R. Although no official action was taken by either of these organizations with respect to the occurrences on July 2nd and July 4th, 1953, the visit to the park by the plaintiff and the other witnesses on those days was the result of some prearrangement among them and an official of N. A. A. C. P., known to the gatekeeper, took moving pictures.

The first question presented is whether on July 2nd and July 4th, 1953, the days on which the plaintiff was refused admission, the normal character of Coney Island Park as a place of public accommodation was altered by reason of the contracts in operation on those two days. Said contracts are in evidence as Exhibits 5 and 6, the pertinent parts of which are in printed form and are as follows:

“The first party (Coney Island, Inc.) agrees that the second party shall have the exclusive right to designate the persons who may or may not be admitted on the day of the outing $ # *
“The first party agrees to carry out instructions of the second party by limiting the admission * * * to persons and guests of the second party.”

“Both parties agree that the first party shall have the right to use the usual advertising media for the purpose of encouraging attendance of members and guests of the second party and that such advertisements shall not be construed to be a general invitation to the public to attend the second party’s outing in violation of this agreement.”

These provisions transferred to the contractee the rights of exclusion which the defendant had, but only such rights as the defendant had under the statutes. If the park was open to the general public, only such causes of exclusion as are defined by the statute were permissible, whether the right of exclusion was exercised directly or indirectly by the contracting group or the defendant. The defendant reserved the right to use the usual advertising media for the purpose of increasing attendance, that, is, the defendant reserved the right to and did appeal to the public in its customary manner to patronize the park on those days. Whether the members of the public who responded to the appeal were designated as guests of the groups with whom the contracts were made or as guests of the defendant does not alter the fact that the invitation was made to the general public. Nor does the stipulation that the making of such an appeal should not be considered as a violation of the contract change the nature of the appeal; in fact, such provision is a recognition by the terms of the contract that others than members or guests of the contracting group were to be invited. The procedure practiced with reference to these days was consistent with the above interpretation. The manager of the defendant testified that at least some of the advertising was general and contained no reference to the contracting groups and in substance just stated: “Come to Coney Island.” The fact that the attendance on July 2, 1953 was about 5,500 and on July 4, 1953 about 35,000 also indicates that the park was open to the public generally and many came who knew nothing of the contracting groups. The manager also testified that the defendant has another printed form of contract which clearly gives exclusive possession and gave illustrations of its use; he admitted that the two contracts herein involved do not give exclusive use.

The Court holds that the normal character of Coney Island Park as a place of public accommodation remained unchanged on July 2nd and on July 4th, 1953.

The second question is whether the plaintiff was denied admission to the park on July 2nd and July 4th, 1953 for a reason applicable alike to every citizen and regardless of race or color. The following facts were uncontradicted and some of them were expressly admitted by the agents of the defendant:

That over the years rarely had a negro patron been seen in the park, and then perhaps they were children with such groups as 4-H. On July 2nd the attendance was 5,500 and on July 4th 35,000 but no negro was admitted on those days. Pour witnesses, including the plaintiff, who claimed they were refused admission on said days, were negroes. One white woman, after gaining admission to the park without being questioned, was recognized as a person who was refused admission on June 30th, at which time she was with a negro. Her admission price was refunded and in compliance with the request to do so she left the park. All other white persons admitted on those days were not questioned. A great majority of the members of-the N. A. A. C. P. and C. C. H. R. are negroes.

In view of these uncontradicted facts it-seems incredible that the exclusion of the plaintiff and the three other negroes on July 2nd and on July 4th, 1953. was totally without regard to race or color. However, the testimony of all the witnesses is that the gatekeeper of the defendant told those who were denied admission that he was instructed to exclude them because they were members or were suspected of being members or were associated with members of either the N. A. A. C. P. or the C. C. H. R. and that these groups were trouble makers. The conclusion that these organizations were trouble makers was based upon the occurrences near the gates of the park during the summer of 1952, when the so-called trouble makers consisted of about six negroes and about twenty white people.

Unquestionably the defendant owes a duty to protect the safety and peace of its patrons. If the defendant were negligent in admitting, or in allowing to remain in the park, a trouble maker whose conduct later injured a patron, the defendant would be liable. In other words, the defendant not only had the right but the duty to exclude a known trouble maker and such individual disqualification would be a reason applicable alike to all citizens. But the evidence is positive that the plaintiff never made any trouble either inside or outside of the park, either on July 2nd or July 4th or previously. The plaintiff applied for admission and when refused quietly left. At the times she was refused admission she was not personally known to the gatekeeper and it was not then known that she or any of the persons who accompanied her belonged to the so-called troublesome organizations. Her rejection was based upon a suspicion apparently founded upon the fact that a known member of the N. A. A. C. P. was seen taking her picture.

In case No. 7814, Court of Appeals, First Appellate District of Ohio, hereinafter referred to, it was held that a case in which the petition stated facts similar to the facts stated in the petition in this case could not be prosecuted as a class suit. The right created by the statute is personal and is conferred upon every citizen regardless of race or color. To succeed before the Court, the individual plaintiff must prove that she personally was wrongfully excluded from the park. In order to defeat such litigation the defendant must prove that the plaintiff was excluded because she had a personal disqualification which would be a proper cause for the exclusion not only of the plaintiff but also of every citizen who personally possessed that disqualification. Since the plaintiff cannot bring a class suit and litigate the rights of all the parties to a group to which she may belong, it seems to follow that the plaintiff cannot be charged with a disqualification of a group or some members of the group of which she is a member or with which she associates, if she is personally without fault. The right being personal, can be lost only by reason of a personal fault which would be applicable to every other citizen. There is no evidence which would reasonably justify the defendant in the belief that if the plaintiff were admitted to the park, she would cause physical injury to the property of the park or physical injury to any person in the park or deprive any other person of the right and opportunity to fully enjoy the facilities of the park. If the plaintiff’s personal conduct is proper, the fact, if it be a fact, that her mere presence in the park offends other persons who have under the statutes only the same right as the plaintiff to the full enjoyment of the facilities of the park, is no cause under the statutes for denying the plaintiff admission to the park. The blanket exclusion of all members and of all persons who associate with members of a particular group or organization, because of the misconduct of some members, and without regard to the fact that a particular person who may be affected by such blanket exclusion is without personal fault, is not a reason applicable alike to all other citizens.

The Court holds that the reason assigned for denying the plaintiff admission to the park on July 2nd and on July 4th, 1953 is not a reason applicable alike to all citizens.

The third question presented is whether, in view of the provisions of the statutes and the evidence in this case, the plaintiff is entitled to a permanent injunction. In the case of Vivian Colbert, et al. v. Coney Island, Inc., No. 7814, First Appellate District Court of Ohio, a visiting Court affirmed the trial court’s decision that a case wherein the petition alleged facts similar to those alleged in the petition herein, could not be prosecuted as a class suit. It was also argued in the trial court that the remedies given by the statutes were exclusive and adequate and therefore injunctive relief could not be granted, but the trial court did not pass upon this question. In the Court of Appeals it was again fully argued that the remedies provided by the statutes were exclusive and adequate and, although the Court affirmed the decision of the trial court, by a two to one decision, on the ground that the case was not a proper class suit, the Court unanimously made the following declaration:

“We concur, however, with the pronouncement of the Massachusetts Supreme Court in Kenyon v. Chicopee, 70 N. E. 2nd. 241, 175 A. L. R. 430, that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights. In the instant case, the plaintiffs set up a right given them under the law of Ohio and the deprivation thereof by a continued course of conduct on the part of the defendant. Upon the face of the petition, it appears that a substantial right of the plaintiffs will be impaired to a material degree unless relief be granted and that the remedy at law is inadequate.
“* * * without prejudice to the rights of the several plaintiffs to separately prosecute in equity their several causes of action, the judgment of the common pleas court is affirmed on the ground of misjoinder of parties.”

The above statement is positive and apparently was made after due consideration of the arguments and briefs and consequently should be given considerable weight by this Court. Nevertheless, technically it is obiter dictum and therefore this Court may and should give some original consideration to this question.

For violation of its provisions the statute gives two remedies:

1. A criminal prosecution;

2. A fine of not less than fifty dollars nor more than five hundred dollars in a suit at law for the benfit of the aggrieved person;

and further provides that a judgment in a civil case or conviction and punishment of the offender in a criminal prosecution shall be a bar to further prosecution for a violation. Although an election is not usually required between an action in tort and a criminal prosecution, this requirement under the statute, in the absence of a clear expression to that effect, does not indicate an intent of the legislature to bar equitable relief if the conditions for such relief are present and the aggrieved person waives her remedy at law. And the modern view, pronounced by the Massachusetts Supreme Court in Kenyon v. Chicopee, 70 N. E. (2d) 241, annotated in 175 A. L. R. 430, and cited in the opinion of the Ohio Court of Appeals above referred to, is that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights.

The defendant’s contention that the plaintiff is not entitled to a permanent injunction is based upon a number of well settled rules of construction, the principal among which are:

1. That where a new right is created by statute and specific remedies are provided for a violation of that right, the remedies provided are exclusive;

2. That at common law the defendant as a private owner and operator of a place of public accommodation had the absolute right to determine whom it would admit to its premises, and the provisions of the statute, being in derogation of that common law right, must be strictly construed in favor of the defendant.

These rules are of general but not of universal application. Whether they are to be applied in a particular case depends upon the nature of the right created and whether the remedies provided will accomplish the purpose intended. The statute creates a personal right to every citizen to fully enjoy the facilities of a place of public accommodation upon equal terms with every other citizen. It is inconceivable that the legislative purpose was that some should have the opportunity actually to enjoy the facilities of such a place but that others, equally without personal fault, should be compelled to accept from a wrongdoer money as a substitute for such opportunity.

The defendant cites numerous Ohio cases in support of its contention that the remedies provided by the statute are exclusive. A critical examination of these cases makes clear that in all of them the statutory remedy enabled the plaintiff to retain or regain whatever he was rightfully entitled to or to restore to him whatever he would lose by the wrongful acts of the defendant; therefore, the Court either expressly or impliedly based its conclusion upon the fact that the statutory remedy was adequate and the Court adhered to the rule as stated in 50 American Jurisprudence, 593, Statutes, Section 596:

“It is an established principle that if a statute creating a new right or cause of action where none existed before, also provides an adequate remedy for the enforcement of the right created, the remedy thus prescribed is exclusive.” (Emphasis ours.)

The system of Equity Jurisprudence originated in the necessity of providing procedures and remedies which were impossible under the fixed and rigid rules of the common law. The foundation principle of equity is that there should be no right without an adequate remedy. The test of the adequacy of the remedy is whether it will enable the plaintiff to retain or acquire that to which he is lawfully entitled, such as an elective office, or, as nearly as it is'practicable, to restore to him whatever he would lose by the wrongful acts of the defendant, or its equivalent.

The agents of the defendant testified emphatically that the plaintiff would be denied admission to the park whenever she applied. It is evident that neither a recovery at law of the damages permitted by the statute, regardless of how many times the plaintiff recovers, nor convictions and punishments of the defendant in criminal prosecutions, regardless of how often obtained and imposed, will restore to the plaintiff in this case the thing which the legislature clearly intended to give her and of which the wrongful acts of the defendant have deprived her and will continue to deprive her, namely, the right to enter the park and the opportunity to fully enjoy its facilities. The gist of the argument of the defendant is that, although the legislature clearly intended each citizen to have the opportunity to fully enjoy the facilities of a place of public accommodation, such as Coney Island Park, on equal terms with every other citizen, yet, at the same time, the legislature also intended to empower the owner or operator of such a place, by means of repeated unlawful denials of admission to the park, to deprive a particular citizen permanently of that opportunity. To sustain such an argument would confirm an absurdity and impugn the integrity of the legislature which enacted the statute. The injury to the plaintiff by the wrongful acts of the defendant is irreparable and the statutory remedy is inadequate.

Interpretations of similar statutes have been made by the Court of last resort in several States. In White v. Pasfleld, 212 111. App. 73, an injunction was denied for the reason that injunctive relief was not proper to protect a personal right. The basis of this conclusion is contrary to modern view as expressed in Kenyon v. Chicopee, supra.

In Woolcott v. Shubert, 154 N. Y. S. 643, an injunction was denied on the ground that the remedy provided by the statute was adequate. A most recent case is Orloff v. Los Angeles Turf Club, 180 Pac. (2d) 321 (Calif. 1947), 171 A. L. R. 913 and annotation, in which the Court granted an injunction on the ground that the remedy provided by the statute is inadequate.

This court’s analysis of the nature of the right intended to be granted and the purpose to be accomplished by the provisions of the statute leads to the same conclusion reached in the decision in the Orloff case, supra, and in the obiter dictum in the case of Colbert, et al, v. Coney Island, Inc., First Appellate District Court of Ohio, supra.

The Court holds that a permanent injunction should be and is hereby granted restaining the defendant, Coney Island, Inc., at all times when the Coney Island Park and its facilities are open to the public generally, from denying the plaintiff, Ethel Fletcher, admission to said park and the opportunity to fully enjoy its facilities, because of her race or color, or because of her membership in the National Association for the Advancement of Colored People or in the Cincinnati Council on Human Relations, or for any other reason not applicable alike to every citizen.

Please present an entry.


author: By HURD, PJ.

text:
    CREMATI, Habeas Corpus, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23112.
    Decided February 19, 1954.
    Louis Fernberg, Cleveland, for petitioner.
    Frank T. Cullitan, County Pros., Cleveland, for State of Ohio.
   OPINION

By HURD, PJ.

The petitioner invokes this proceeding for the purpose of being admitted to reasonable bail. He is now confined in the county jail in default of bail fixed by the court of common pleas.

The petitioner represents that he is being subjected to “cruel and inhuman punishment by reason of the fact that unreasonable and exorbitant bail was fixed by the common pleas court in violation of his constitutional right to be admitted to reasonable bail.”

By way of answer, Joseph Sweeney, Sheriff of Cuyahoga County, sets forth the following:

“That Joe Cremati has been committed to the County Jail by the Court of Common Pleas of Cuyahoga County, Ohio, following his arraignment under cause No, 63921 of said Court of Common Pleas, Criminal Division, upon certain indictments returned against the said Joe Cremati by the Grand Jury of Cuyahoga County, Ohio, copies of which are marked Exhibits “A” “B” and “C” and are annexed hereto and made a part hereof.

“Upon arraignment of the said Joe Cremati on the charges set forth in the indictments on February 5, 1954, the Court of Common Pleas fixed the amount of bail at $50,000.00 and the said Joe Cremati has to date failed to furnish said bond. The sheriff further states that under cause No. 63922 of the Court of Common Pleas of Cuyahoga County, Ohio, Criminal Division, the said Joe Cremati and one Bernabe Lopez were charged in the indictments of the violation of the provisions of §2905.14 and §2905.27 R. C., and that copies of said indictments are annexed hereto, marked Exhibits “D” “E” “F” “G” “H” and made a part hereof. The court of common pleas upon arraignment of the said Joe Cremati and Bernabe Lopez on Feb. 5, 1954, fixed the amount of bond in said cause No. 63922 in the sum of $3500.00.

“The sheriff further states that the said Joe Cremati has conferred frequently with counsel while in the county jail and except for the statements herein expressly made, denies the allegations contained in the petition.”

.The indictments referred to in the foregoing answer annexed thereto are eight in number but contain separate counts, six of which charge the petitioner with the commission of felonies and four of which charge him with the commission of certain misdemeanors.

Without enumerating all of the separate counts in the indictments in detail suffice it to say that the defendant is charged with violation of certain sections of the Revised Code which, with maximum penalties, are as follows:

Sec. 2905.01 R. C. (Rape) Maximum penalty 20 years;

Sec. 2905.02 R. C. (Rape of Female under 12 years) penalty, life imprisonment.

Sec. 2905.03 R. C. (Carnal knowledge of female under 16 years) maximum penalty 20 years;

Sec. 2903.01 R. C. (Felonious assault) maximum penalty ten years;

Sec. 2905.14 R. C. (Keeping house of ill-fame or harboring child therein) maximum penalty, fine and six months.

Sec. 2905.27 R. C. (Keeping a place for prostitution) maximum penalty one year.

From the foregoing partial enumeration of charges and penalties there can be no doubt of the serious nature of the offenses and the severity of the penalties.

We are not here called upon to discuss the guilt or innocence of the accused. Such issues will be determined upon trial of the indictments. The single question presented is whether or not total bail in the sum of $53,500.00 fixed by the trial court is excessive where the charges involve commission of six felonies and four misdemeanors.

Section 9, Article I of the Constitution of Ohio, and the Eighth Amendment to the Constitution of the United States provide that “excessive bail shall not be required.”

In the case of In re Lonardo et al, 86 Oh Ap 289, this court in referring to these constitutional provisions, said at page 291:

“From these constitutional provisions there is derived the general principle governing the allowance of bail that the amount thereof shall be reasonable. The primary purpose of bail is to secure the appearance of the accused at the trial, but in determining the amount of bail, the following factors, among others, may be considered: The nature of the offense, the penalty upon conviction thereof, the character and reputation of the accused, and the probability of his appearance for trial.”

In that case each of the petitioners were charged with being suspicious persons in violation of the ordinance of the City of Cleveland, the maximum penalty on conviction in such case being a fine of $50.00 and imprisonment for thirty days. The trial court had fixed bail at the sum of $50,000.00, which was held to be excessive by this court, but bail was required from each in the sum of $15,000.00. The great difference in the crimes charged in that case and the crimes charged in the instant case is so obvious that a discussion thereof is unnecessary.

In applying the principles set forth in the case of In re Lonardo, supra, this court must take into consideration the fact that the six felonies here charged against the petitioner are the most serious offenses, one of which carries a sentence of life imprisonment. It was stated in open court and not denied that concomitant with the indictments brought against the petitioner, seventeen police officers of the City of Cleveland were suspended on charges directly relating to the keeping of a place for prostitution on Prospect Avenue in the City of Cleveland.

In consideration of these circumstances and the serious nature of the offenses and the penalties provided therefor, this court is of the opinion that bail fixed in the amount of $10,000.00 for each of the felonies here charged would not be excessive. It is our conclusion therefore that under all of the circumstances brought out in the hearing of this writ that the amount of bail fixed by the trial court in the total sum of $53,500.00 is not a violation of the constitutional rights of the petitioner.

In the hearing on the petition there was advanced as a further reason of petitioner for reduction of bail that he is presently suffering from diabetes and that it is necessary to have the administration of insulin daily. However, the petitioner testified that the nurse at the county jail, under the direction of the county physician, has been administering insulin to the petitioner daily as needed.

It is the conclusion of this court, for the reasons stated, that the writ of habeas corpus should be denied. Exceptions noted. Order see journal.

KOVACHY, J, SKEEL, J, concur.


author: By MILLER. J:

text:
    ADAMSON et, Relators, v. WETZ et, Defendants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2213.
    Decided October 24, 1952.

      Roy D. Boucher, Dayton, for relators.
    Mathias H. Heck, Pros. Atty., Albert J. Dwyer, Asst. Pros. Atty., Dayton, for defendants.
   OPINION

By MILLER. J:

This is an original action in mandamus brought by the plaintiffs as abutting property owners and taxpayers seeking an order requiring defendants as Trustees of Van Burén Township, (1) to maintain, (2) to keep in good repair, (3) to keep from obstruction by snow, and (4) to cause to be dragged in accordance with §3375 GC, the roads enumerated in the petition, the names of which are not here important.

The petition alleges that portions of two of the roads enumerated are improved and other parts are graveled or unimproved, and that the others are all unimproved; that said roads were duly dedicated to the public use forever by all of the owners and lienholders of the land shown on a certain plat recorded in Plat Book X, page 33 of the Plat Book Records of Montgomery County, Ohio; that said dedication was accepted for highway and street purposes by the Board of County Commissioners of Montgomery County, Ohio, as of August 1, 1946; that said plat was approved by the Planning Commission of the City of Oakwood on July 22, 1946; that said roads have been used by the public continuously for a period in excess of three years and are now used by the public; that said roads are public highways of the State of Ohio other than state or county roads; that said roads are in such a condition that they, or parts thereof, are full of holes, deep ruts and other obstacles, and are in dire need of maintenance, repair and dragging; that a request was made on the defendants to comply with §§3370, 3374-1, 3374-2, 3375 and 7464 GC with reference to said roads, but defendants have failed, neglected and refused to so comply and will continue to do so unless ordered by the Court.

The answer admits the capacity of the parties, admits the dedication and acceptance of the roads by the Board of County Commissioners and the City of Oakwood and that the said roads have been used by the public continuously for a period in excess of three years, and are now used by the public. It denies that the said roads are public highways of the State of Ohio other than state or county roads, alleging that the same have never been established or improved by the State, County or Township; that these bodies have never at any time done anything concerning said roads that invited the public to make use of them as public highways. It denies that respondents have any legal obligation to maintain said roads, and denies every allegation in the petition not admitted to be true.

As a second defense defendants allege that they lack the necessary funds or the legal means to procure the same at the present time to repair or improve any highways under their control.

The record supports the allegations of the petition, that the roads enumerated are unimproved, that they are full cf holes, deep ruts and are in need of maintenance, repair and dragging; that from August 1, 1946, to December 31, 1946, and during the years 1947 to 1952, up to this date the defendants or their predecessors had funds available to them for road purposes and used such funds in Van Burén Township but used none of such funds for road work upon the roads for which a writ of mandamus is here sought; that the defendants have never, before making any other appropriations from the road funds in the township treasury, appropriated and set aside out of said funds a sum sufficient to meet the expense of dragging the graveled and unimproved public roads of the township, including the roads for which this writ of mandamus is sought.

It is our opinion that the subject highways are township roads as defined by §7464-c GC, the record revealing that they were duly dedicated and accepted for road purposes by the City Planning Commission of Oakwood, being within the three mile limit, and the Board of County Commissioners of Montgomery County in accordance with §§6886 and 3586-1 GC. See Federal Construction Co. v. Neiheisel, 156 Oh St 392, 46 O. O. 233; Robinson v. Swing, et al., Commrs., 70 Oh Ap 83.

The respondents insist that even though these highways are township roads there is no duty upon them to maintain the same until they have opened them to public travel or in some manner invited the public to use the same for highway purposes. See Dayton v. Rhotehamel, 90 Oh St 175. The record does not disclose that these respondents ever opened these roads to public travel or ever knowingly performed any acts to maintain them, although some snow was removed from them on one occasion by a township employee by mistake, but the evidence does show that prior to the acceptance of the plat by the County Commissioners and the Planning Commission these roads were opened to public travel and the defendants admit that they have been used by the public continuously for a period in excess of three years. By accepting the territory embodied in the plat as previously stated the respondents became bound by the prior opening of the same to public use as much as if they had actually done it themselves.

In James v. Oakwood, 5 Abs 667, this Court under a parallel state of facts said:

“While it is true that the highway in question was not formally dedicated by deed or other instrument of writing by the original proprietor, yet it was opened, improved, made a highway and was actually used by the public for several years. This would constitute a dedication in fact, as between the proprietor and the public using the same, and would also be binding upon the village by reason of its acceptance of the territory, and, if the village desired to abandon the highway or any part thereof as a public road, it should be done by barriers maintained thereon, or otherwise, and in such manner as to warn the public against the use thereof.

The facts in the case at bar differ from those in the City of Dayton v. Rhotehamel, supra, in that in the cited case there was no evidence that the streets had been opéned to public travel as we have here.

In giving consideration to the relief, if any, to which the plaintiffs are entitled, we find that §3374-1 and 3375 GC impose certain mandatory duties upon township trustees in maintaining their highways. These sections provide:

“Sec. 3374-1 GC. Removal of obstructions. It shall be the duty of the township trustees to cause all the highways within the township, including the state, county and township roads, to be kept free from obstruction by snow. The cost and expense thereof shall be paid from the road funds of the township.”
“Sec. 3375 GC. Dragging graveled and unimproved roads semi-annually.—The township trustees shall cause the graveled and unimproved public roads of the township to be dragged in the manner hereinafter provided. At the beginning of each fiscal half year the township trustees, before making any other appropriations from the road fund in the township treasury, shall appropriate and set aside out of said fund a sum sufficient to meet the expense of dragging the graveled and unimproved public roads of the township during the ensuing six months. Such sum shall not be used for any purpose other than that for which it was appropriated.”

The duties and obligations of these respondents under the above quoted statute are well defined in State, ex rel. Rogers, et al. v. Taylor, et al, 152 Oh St 241, as follows, syllabus 1, 2 .and 3:

“Under the provisions of §§3370, 3374-2 and 3375 GC, township trustees are charged with the duties to repair and drag township roads and to cut all brush, briers and weeds growing along such public highways.
“These provisions are mandatory.
“The duties enjoined thereby may be commanded by a writ of mandamus.”

We are therefore of the opinion that the plaintiffs are entitled to a writ commanding the respondents to keep the subject highways free from obstruction by snow and also an order causing the same to be dragged in accordance with §3375 GC.

Considering next the other relief sought we are of the opinion that the defendants’ duty to maintain and keep said roads in good repair is mandatory. (State, ex rel. v. Taylor, supra.) However, since the amount to be spent for the same requires the exercise of a sound discretion, no order can be issued requiring that certain work be performed. It is well settled that a duty enforceable by mandamus must be specific and definite and may not be one of a general character which leaves to the respondent any discretion in its performance. State, ex rel. v. Sheets, 8 Abs 316; State, ex rel. v. Murphy, 3 O. C. C. 332; State, ex rel. v. Taylor, supra; 25 O. Jur. 991. The writ will be allowed as heretofore indicated.

HORNBECK, PJ, and WISEMAN, J, concur.


author: Per CURIAM:

text:
    STATE, Plaintiff-Appellee, v. SHEPPARD, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23400.
    Decided January 19, 1955.
    Frank T. Cullitan, County Pros., Saul S. Danaeeau, Thomas J. Parrino, Cleveland, for plaintiff-appellee.
    Corrigan, McMahon & Corrigan, Fred W. Garmone, Arthur E. Petersilge, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

The defendant appellant in the above entitled cause was found guilty of murder in the second degree upon the verdict of a jury, after trial on an indictment charging him with the crime of murder in the first degree.

The defendant is now prosecuting an appeal on questions of law, seeking to reverse the judgment and has filed this motion asking a stay of the judgment pending the hearing of the appeal on its merits and his release on bail during such period of time. This court has granted that part of the motion seeking to stay execution of the judgment during the appeal and will give consideration now to his request to be admitted to bail until the appeal is determined on its merits.

It is a well settled principle of law that after judgment of guilty in a criminal action a- defendant is not entitled to bail pending appeal, as a matter of right. In the case of In re Halsey, 124 Oh St 318, the defendant had been found guilty of murder in the second degree and was seeking a review of the judgment in a proceeding in error. The trial court refused to suspend execution of the sentence or admit the defendant to bail. The Court of Appeals, upon motion, suspended execution of the sentence but refused bail. The Supreme Court held:

“1. Section 9 of the Ohio Bill of Rights guarantees the right to bail only before judgment of conviction in the trial court.
2, Sec. 13453-1 GC, denying accused persons the right to bail after judgment in the trial c'ourt where the punishment is imprisonment for life is not unconstitutional.”

The authority of the Court of Appeals to suspend the execution of sentence and admit a defendant to bail after conviction in a felony case, and after notice of appeal has been given whereby this court acquires jurisdiction of the case, is to be found in two sections of the Revised Code, to-wit, §§2953.10 and 2949.02 R. C. These sections provide:

"Sec. 2953.10 R. C. Power to suspend sentence. The Court of Common Pleas, Court of Appeals, or Supreme Court, or any judge thereof, to which court an appeal is taken from an inferior tribunal, has the same power and authority to suspend the execution of sentence during the pendency of such appeal and admit the defendant to bail as is provided for in respect to said inferior tribunal.”
“Sec. 2949.02 R. C. Execution suspended: recognizance: When a person has been convicted of any bailable offense including the violation of an ordinance of a municipal corporation, in the court of common pleas, or by any court or magistrate inferior to the court of common pleas, and such person gives notice in writing to the trial judge or magistrate, of his intention to file, or apply for leave to file a petition to review such conviction, such judge or magistrate may suspend ■ execution of the sentence or judgment for such fixed time as will give the accused time to prepare and file, or to apply for leave to file such petition. In all bailable cases, except those in which the punishment is imprisonment for life, such judge may release the defendant upon a recognizance with sufficient surety to be approved by the judge or magistrate conditioned that the accused will appeal without delay and abide by the judgment and sentence of the court.” (Emphasis ours.)

The crime of which this defendant has been found guilty is under the Constitution of Ohio, a bailable offense. Art. I, Section 9, provides:

“Section 9: Bailable Offense: Of Bail, Fine and Punishment: All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great. Excessive bail'shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.”

It is clear, therefore, that where a defendant has been found guilty of a crime for which the punishment provided is life imprisonment neither the trial court nor the appellate court can admit the defendant to bail pending appeal.

It is argued by the defendant that because of the indeterminate sentence law (§5145.01 R. C.) which prohibits a trial court from fixing the duration or limits of a sentence to the penitentiary of one convicted of a felony, except in cases where the defendant was found guilty of treason or murder in the first degree, that the court in this case could not impose a life sentence on the defendant and therefore §2949.02 R. C. is not applicable. This claim cannot be supported. Sec. 2949.02 R. C. is not concerned with the character of the sentence to be imposed by the court in a particular case, but provides for the cases in which a defendant may or may not, at the discretion of the court (either the trial court or the court to which an appeal is taken) be granted bail after conviction and during pendency of an appeal.

As indicated above, the statutory law of the State prohibits either the trial court, or the reviewing court to which an appeal is taken, from extending the privilege of bail pending appeal, to one found guilty of a crime for which the punishment provided by law is life imprisonment.

For this reason, the defendant’s motion seeking release on bail until the hearing of his appeal on its merits, is overruled. Exceptions noted.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


text:
    UNION CEMETERY ASSOCIATION, Plaintiff-Appellee, v. FRANKLIN COUNTY BOARD OF ZONING APPEALS, Defendant-Appellant. UNION CEMETERY ASSOCIATION, In re.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4948, 4949.
    Decided July 1, 1953.
    Kennedy & Kennedy, Folkerth & Folkerth, Columbus, for plaintiff-appellee, Union Cemetery Association.
    Frank H. Kearns, Pros. Atty., J. Baxter Evans, Paul W. Martin, Asst. Pros. Attys., Columbus, for defendants-appellants, Franklin County Board of Zoning Appeals and Franklin County Building Inspector.
   OPINION

By THE COURT.

Submitted on motion of the Union Cemetery Association, appellee, seeking an order dismissing the appeals for the reason that no right of appeal exists under §3180-1, et seq, GC (particularly §3180-14 GC). The record reveals the appeals are from judgments in the Common Pleas Court reversing orders of the Franklin County Board of Zoning Appeals. The notices of appeal designate the “Board” and Orlando C. Miller, Building Inspector, Franklin County, Ohio, as the appellants.

Counsel for appellants concede that in the case of A. DiCillo & Sons, Inc., v. Chester Zoning Board of Appeals, 158 Oh St 302, the Supreme Court held that the “Board” has no right to appeal. They urge, however, that such a right exists in the Building Inspector, since he exercises no judicial functions in the performance of his duties; that the same are purely administrative. The duties of such an officer are comparable to those of the Director of Liquor Control who is not authorized to prosecute an appeal from a judgment of the Common Pleas Court. Corn v. Board of Liquor Control, et al, 160 Oh St 9.

For the reasons set forth in the cited case, we hold that the “Building Inspector” is not authorized to prosecute the appeal presented by these consolidated cases.

The motion will be sustained.

WISEMAN, PJ, MILLER, J, concur.

HORNBECK, J, not participating.