author: By THE COURT:

text:
    GENERAL ELECTRIC COMPANY, Plaintiff-Appellee, v. INTERNATIONAL UNION UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (U. A. W.-C. I. O.), et al., Defendant-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7639.
    Decided September 8, 1952.

      J. Mack Swigert, Robert T. Keeler, Cincinnati, for plaintiffappellee.
    Thomas F. Hilbert, Jr., New York City, N. Y., Charles Steele, Cincinnati, for plaintiff-appellee.
    Sol Goodman, Cincinnati, for defendant-appellants.
    (METCALF, J, of the Fourth District, sitting by designation in the First District.)
   OPINION

By THE COURT:

While this case was pending in the Common Pleas Court, a temporary restraining order was entered enjoining the defendants from committing any act in violation of a certain written contract entered into as of March 15th, 1951, between the plaintiff and the defendant unions, fixing wages, hours, working conditions and other provisions as they affected the plaintiff’s employees, who were members of said unions. An appeal from that order was attempted, which was dismissed by this court, on motion, on the ground that the order appealed from was not final, and, that, therefore, this Court had no jurisdiction to review it. That appeal is numbered 7632 upon the docket of this Court.

Thereafter, on a final hearing of the issues made by the pleadings, the Common Pleas Court found in favor of the plaintiff and a final judgment was entered granting a permanent injunction against the defendants. This appeal is from that judgment. We find part of the original papers filed under one number and part under the other. As the parties considered all of them filed under No. 7639, the Court will treat them as so filed.

On the trial de novo of the issues by this Court, the parties stipulated to submit the cause upon the record made in the Common Pleas Court, supplemented by the testimony of two witnesses taken before a Notary Public.

In its petition, the plaintiff alleges that the defendant unions and the individual defendants, — all members of one or both unions — are actively and in concert engaged in inducing and participating in a work stoppage and strike in violation of certain terms of a contract entered into between it and them to regulate their relations as employer and employee for one year from March 15th, 1951, and automatically renewable from year to year under the conditions therein set forth, to-wit: “and thereafter from year to year unless not later than sixty (60) days prior to any anniversary of the effective date of this Agreement either party notifies the other in writing of its intention to terminate this Agreement in which event the Agreement shall terminate on the anniversary date following the notice.”

It alleges that neither party notified the other in writing of its intention to terminate the agreement, and that by its terms the contract will continue in effect until March 15th, 1953.

The plaintiff also alleges that the action of the defendants in engaging in a strike and work stoppage violates the following provision of said contract:

“Neither the Union nor its members will sanction, cause or participate in a sitdown, work stoppage, or a slowdown of work upon Company property. Nor shall the Union nor its members engage in a strike of any kind because of any grievance during the time such grievance is under discussion as herein provided.

“Any individuals causing or taking part in any action contrary to the provisions of this section shall be subject to disciplinary action at the discretion of the Company.”

The plaintiff also alleges that the defendants, jointly and severally, have caused employes of the plaintiff to cease work and to absent themselves from its plant, have caused pickets to be stationed in great numbers at the entrances to its plant for the purpose of preventing employees and others having business with the plaintiff from entering its place of business, have made threats, engaged in mass picketing and acts of intimidation and coercion in furtherance of its purpose to enforce a work stoppage and block all means of ingress and egress at its place of business, all in violation of the above quoted provision of said contract and, that, by reason thereof, many employees and others having business with the plaintiff have been coerced and intimidated into not entering plaintiff’s place of business and plaintiff has been forced to cease production which consisted in manufacturing jet engines under a contract with the United States of America, and which are of vital and emergent importance to it in its progress of preparation for National Defense, and cannot be obtained elsewhere.

The plaintiff also alleges that the defendants, unless restrained, will continue to violate their contract as aforesaid, to its irreparable damage and that the plaintiff has no adequate remedy at law.

The prayer of the plaintiff is for a temporary and permanent injunction, restraining the defendants from permitting to continue in effect any instructions, orders, requests or ether communications therefor issued or communicated to the members of said unions and other employees to suspend work at its plant in Lockland, Ohio, or interrupt or impede such work or engage in a work stoppage or strike or in any other way interfere with production there. By its prayer, the plaintiff seeks a prohibitory injunction against engaging or encouraging others to engage in the many acts incident to a work stoppage and strike, and a mandatory injunction requiring the defendant unions to give written notice in such form as is approved by the court to all their members and to all the plaintiff’s employees that the work stoppage and strike have ended and that they should return to work.

The defendants by answer deny that there is any contract as alleged by the plaintiff, deny the court has jurisdiction of the subject matter, and generally deny each and every allegation contained in the petition. Bnwever, at the trial, the defendants did not dispute that the unions and their members had jointly and severally quit work and engaged in picketing the plaintiff’s business establishment and endeavored to dissuade persons from entering. In other words, they were conducting a strike against the plaintiff and would continue to do so until their demands were met, unless enjoined.

The plaintiff offered no evidence of any fraud, violence, intimidation, or other illegal acts that would be denounced by the law, and enjoined to prevent irreparable damage. The gravamen of the plaintiff’s case is. that, assuming that in the absence of any contract, its employees would have the right to do all the acts complained of, these defendants have no such right, because they have surrendered such right in a binding enforceable contract. The defendants deny that any such contract exists now or existed at the time of the commission of the acts sought to be restrained.

It becomes necessary at the outset to examine the evidence to determine that issue.

There is no dispute that an agreement in writing containing the provisions heretofore quoted was entered into between the defendant unions and the plaintiff for one year ending on March 15th, 1952, unless automatically renewed by failure of either party to give notice as provided in Article XXV, heretofore quoted. The defendant unions claim that they gave a notice to terminate the contract more than 60 days prior to March 15th, 1952, and it is not disputed that a notice was given. The dispute is as to whether the notice served on the plaintiff by the defendant union was a notice to terminate, or a notice to modify or both, or an ambiguous notice, ineffective as either a notice to terminate or modify. The written contract was introduced in evidence, and to understand the controversy as to the legal effect of the notice served upon the plaintiff, we should have before us Article XXIV thereof. It is as follows:

“Within sixty (60) days prior to March 15, 1952, and of any subsequent year, either party to this Agreement may present to the other proposed modifications or revisions of any of the provisions hereof and the reasons for such recommendations. Within thirty (30) days after notice is given, a conference shall take place for the purpose of considering such modifications or revisions. Failing agreement on such proposed modifications or revisions, the Agreement shall continue in effect for the contract term.”

The evidence shows that the defendant unions had printed and kept in supply a form of notice to be used by them when they desired to serve notice of their intention either to terminate or to modify. They used one of these forms to serve on the plaintiff. The following is a copy of that form, with the blank spaces filled in the one served upon the plaintiff:— “60-DAY NOTICE TO EMPLOYER

Date, January 3, 1952

To General Electric Company — Gas Turbine Division

(Name of Employer as it appears in the contract)

Lockland Road, Lockland 15, Ohio

(Address of Employer)

This is a 60-day notice to you that we propose to (modify) (terminate) our collective bargaining contract. (Strike out one)

We hereby request you to meet and confer with us for the purpose of negotiating the terms of a (modified) (new) contract.

(To be filled out if modifications are proposed.)

(The modifications which we propose are, (among other, as follows:

(

(1. Wages

(

(2. Automatic Progression (

(3. Classification

(

(Etc. Union Security and other issues

While this notice is given pursuant to the Labor-Management Relations Act, 1947, the undersigned Union waives none of its rights and hereby expressly reserves all objections to the constitutionality, validity, and applicability of each and all of the provisions of said Act.

International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), Local No. 647

(Name of local Union as it appears in the Contract)

By, GEORGE JENT — President

(Name and Title of each Officer signing this Notice)

Form of Notice Approved:

January 4, 1951 (Date)

By RAY ROSS, Director,

Region No. 2A, UAW, CIO

Received Jan. 5, 1952 Labor Relations.”

Congress took note of the unsettling effect of the sudden termination of a collective bargaining agreement and by placing certain restrictions upon the right sought to cushion the shock to the public economy. By Section 8 (b) (6) (d) of the Labor-Management Relations Act, Congress provided that:

“PROVIDED, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification—

‘(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;

‘(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;

‘(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and

‘(4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, ‘whichever occurs later.’ ”

It will be observed that the limitations imposed relate to occasions when the purpose is to modify the contract as well as to when termination is intended, and equally to contracts at will as to contracts for a definite term. The contract under consideration here was prepared by draftsmen who were alert to the meaning of the language used, and, who, with such alertness, chose the language to express their intent.

There is evidence that within the time when notice of intent to terminate could be given one of the defendants orally informed the plaintiff that the written notice was intended as a notice of modification. There is also evidence that after such time had expired certain defendants contended that the notice was one of intent to terminate. All the ensuing bargaining related to modifications. Neither side submitted an offer containing all the terms of a proposed contract. The evidence shows that the negotiations relating to modifications were continuous. The plaintiff never refused to bargain.

In view of the law requiring a written notice, the effect of oral evidence • must be limited to placing the court in the position of the parties, so that it m,ay determine the meaning of the party as expressed in the written notice. It is not for the purpose of giving effect to an oral notice. The law specifically requires a writing, complete in itself, expressing an intent with reasonable clearness.

Now tested by this rule, of what does the writing notify the plaintiff?

As the expiration of the time within which a notice could be given approached, the defendants were confronted with the problem of weighing the advantages and disadvantages of seeking a termination on the one hand, or a modification on the other. Neither alternative promised benefits unmixed with detriment. Under the law as long as the contract continued the defendants were protected against interference by third persons with the contract relation. On the other hand, recognition of the continuance of the contract relation placed them at a disadvantage in negotiating for modification with their employer. This necessity for decision could not be evaded. They could not terminate and modify the same contract at the same time by the same notice. However, it seems, according to the defendants’ testimony and contention, they attempted by the notice served upon the plaintiff to do just that, but in attempting to do both, they did neither. Such a notice cannot be construed to be a notice to terminate within the meaning of the Labor-Management Relations Act and Article XXV of the contract.

While we are of the opinion that the ambiguity of the notice destroys its effectiveness for any purpose, we are further of the opinion that if its service upon the plaintiff imposed a duty of inquiry as to its meanng, it was justified in relying upon the defendants’ statement that it was a notice to modify. The insertion of the items of modification lent credence to that interpretation.

While Section (8) of the Labor-Management Relations Act requires the employer to bargain collectively until the minds of the parties have met and the contract relation established and, if desired by either party, its terms integrated into a written memorial, it does not require the employer to disregard the contract and continue to bargain as though no agreement had been reached, fixing the rights of the parties. This is recognized in the provision of Section (8), providing that the duty to bargain “Shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be re-opened under the provisions of the contract.”

The only grievance or issue between the parties open for discussion at that time was whether a notice to terminate had been served upon the plaintiff. The plaintiff never refused to discuss that question. It seems that the plaintiff displayed a greater desire than the defendants on that subject. Having determined that a notice to terminate had not been served, the contract was automatically renewed for an additional year, and while it appears that plaintiff did bargain on the subject of modifications to become effective during the term of the renewed contract, it was under no legal compulsion to do so.

We conclude that the collective bargaining contract was automatically renewed for one year from March 15th, 1952, and that the parties were, and are bound by its terms.

The contention is made that the Court has no jurisdiction of the subject matter of this action. It is, of course, conceded that the Courts of Common Pleas of Ohio are courts of general law and equity jurisdiction, and that this court, on appeal on questions of law and fact therefrom, has general equity jurisdiction to pass upon the issues as though it had been granted original jurisdiction over the cause. But it is asserted that under the National Labor Relations Act (29 U. S. C. A. 151, et seq.) and the Labor-Management Relations Act of 1947 exclusive jurisdiction to enforce collective bargaining agreements, therein referred to, has been conferred upon the Federal Courts.

It cannot be seriously questioned at this time that employees had a right, prior to any Federal legislation on the subject, to join together and agree collectively with their employer as to wages and other conditions of their employment. Such an agreement in the absence of any legislation would constitute a valid contract, enforceable in any State court of general jurisdiction, where service of summons could be obtained.

Nor can it be questioned that Congress can by express legislative declaration withdraw contracts relating to interstate and foreign commerce from the jurisdiction of the states and retain to the Federal government the exclusive jurisdiction to enforce such contracts. 54 Am. Jur., (Sec. 344), 966. And where the subject is inherently National and all state control is excluded, the jurisdiction of the Federal Courts is exclusive. The subject with which we are dealing is not inherently national.

We believe it is equally clear that where a new right is created or a new duty imposed by a statute and the statute prescribes a remedy for the enforcement of the right or duty, the remedy thus prescribed is exclusive. 37 O. Jur., 791, et seq. However, the corollary from these propositions is just as firmly established that if exclusive jurisdiction is not expressly retained and the legislation relates to rights and duties already recognized and enforced by the law, the legislative provision for a remedy is constructed to be cumulative and not exclusive. The established rule of statutory construction is to treat a statutory remedy to enforce an existing right or duty as an additional remedy, leaving the existing remedies unaffected. id., 793.

Upon this subject, as it applies to the exercise of jurisdiction by State and Federal Courts of rights and duties falling within the domain of concurrent State and Federal power, but where the Federal power is supreme, it is said in 14 Am. Jur., 441:

“in regard to state courts the law is also said to be settled that courts of general jurisdiction therein have power to decide cases involving the rights of litigants under the Constitution or statutes of the United States unless deprived of the right so to do by the terms of the Federal Constitution or acts of Congress.”

And, at 442, et seq:

“While the provisions of the Constitution as to the extent of the Federal Judicial power do not, of themselves and without more, exclude the jurisdiction of state courts, the judicial power of the United States is, in some cases, unavoidably exclusive of all state authority, and in all others, may be made so, at the election of Congress, exclusive jurisdiction being uniformly attendant upon exclusive legislation. If, however, exclusive jurisdiction is not thus given, state courts are generally held to have concurrent jurisdiction, since either express words of exclusion or a manifest repugnancy to the exercise of state authority is required. It is, however, a principle applicable to judicial powers that where the exercise of state authority is incompatible with the exercise of Federal authority, the state authority is superseded without express words. Therefore, it is held that where a United State statute gives a right without specifying a remedy, it may be prosecuted in a state court; but where a right is thus given and a specific remedy provided, or a new power and the means of executing it are therein granted, such right and power can be enforced only in the method provided by such statute.”

A reading of the National Labor Relations Act and the Labor Management Relations Act is sufficient to disclose that new rights and new duties are created, as, for instance, the duty of the employer to negotiate in good faith on terms of employment with a representative chosen by his employees without interference by him. And it is clear that as to these new rights and duties, the remedy provided by the Act is exclusive. The National Labor Relations Board is clothed with the administrative jurisdiction to enforce these new rights and duties in the first place, subject to review by the Federal Courts. Unfair Labor practices, as defined by Section 8 of the National Labor Relations Act, are the most distinctive new rights and duties created by the Act, the enforceability of which is confided to the National Labor Relations Board to the exclusion of jurisdiction of any and all State courts.

But a collective bargaining agreement may, and the one before the court does, include many provisions on subjects upon which the parties were free to act. They were free to contract collectively — and still are. They were and are free to provide for the automatic renewal of the terms of a contract and to provide against work stoppages and strikes.

Now, let us examine the statute. We find that it creates a Board (National Labor Relations Board) to enforce the provisions relating to unfair labor practices by employers and employees, as listed and defined in Section 8 of the Act, and to exercise certain investigatory, supervisory and conciliatory functions. No provision for judicial review of the investigatory, supervisory and conciliatory action of the Board is provided, but we assume that any invasion of personal or property rights could be redressed by the appropriate remedies. But, by Section 8 the Board is empowered “to prevent any person from engaging in any unfair labor practice (listed in Section 8) affecting commerce,” and in that Section is found the first reference to the judicial branch of government. The Board is required to conduct its hearings of charges of unfair labor practices in accordance with the rules of procedure and evidence applicable in district courts of the United States, and the Board is given power to petition the United States Circuit Courts of Appeals for the enforcement of its orders made in such unfair labor practice proceedings, or to a United States District Court, if no Court of Appeals is in session at the time. That Court is given jurisdiction to grant temporary relief by injunction or otherwise pending final hearing, at which the court may affirm, modify and enforce, or reverse the order under review. However, the Court is required to consider all findings of fact by the Board as conclusively proven if supported by substantial evidence. The jurisdiction of the United States Courts of Appeals is expressly made exclusive with right of appeal as in other cases. Any person aggrieved by the final order of the Board is given the same right to in-yoke the jurisdiction of the United States Circuit Court of Appeals or District Court for a review.

The Board is also given the right to invoke the jurisdiction of the United States District Court for temporary relief or restraining order, but this applies only upon complaint of an unfair labor practice having been filed with the Board, or when the Board finds by investigation that a complaint should be filed, and whatever order is made expires upon the making of the final order disposing of the complaint of unfair labor practice.

The Board is also given authority to invoke the jurisdiction of the United States District Courts to punish contumacious witnesses and to compel witnesses to obey their subpoenas.

It seems manifest that the foregoing provisions for intervention by the United States Courts for particular or temporary purposes, even though their jurisdiction is expressly made exclusive shed no light upon the intent of Congress, or indicate in any way its intent to limit or exclude the jurisdiction of other courts upon subjects entirely foreign to the particular or temporary purpose to which it was addressing itself.

In this action, the jurisdiction of this Court is not invoked to enforce any unfair labor practice, as listed and defined in Section 8. While the National Labor Relations Board’s jurisdiction is not expressly made exclusive, except as to unfair labor practices defined in Section 8, we assume that it is exclusive as to all unfair practices created by the Act. Its jurisdiction to hear and decide does not purport to extend beyond that sphere, and this Court has no jurisdiction to enter it.

The only reference in the Act to actions on contracts between an employer and a labor organization is found in Section 301. We quote the entire Section excepting paragraph (e) which is of no importance in the construction of the balance of the Section:

“(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

“(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.

“(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.

“(d) The service of summons, subpoena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such shall constitute service upon the labor organization.”

The first thing that strikes one on reading this section is that while Congress expressly made the jurisdiction of the United States Circuit Courts of Appeal exclusive, it refrained from making any comparable provision as to the jurisdiction of the district courts in actions for breach of contract between employers and labor organizations.

It also strikes one that the language is permissive rather than mandatory.

We also note that in paragraph (b) a labor organization may sue or be sued as an entity “in the Courts of the United States,” and that any mon'ey judgment against it in such action shall be enforceable against the entity and its assets and not against any individual member or his assets. We attach no significance to this limitation of the applicability of the provsion to the United States Courts other than that Congress thereby recognized its lack of constitutional power to provide a judicial code for state courts.

The only implication we can draw from the exemption of the Union members from individual liability on money judgments is that relief other than a money judgment could in an appropriate, case, be obtained in a United States District Court against the individual members of the Union without any additional legislation within the limitations of existing law.

The reference to Section 301 in paragraph (b) 303 casts no light upon the intent of Congress on this subject.

So we come to the question of whether the mere conferring of jurisdiction upon the United States District Courts over a subject historically and constitutionally within the jurisdiction of state courts of general jurisdiction excludes the state courts from such jurisdiction. Concededly, Congress has the power to exclude state courts from exercising jurisdiction over controversies arising out of interstate commerce by express words of exclusion, but in the absence of clear words of exclusion, should such a radical departure be implied?

See: 14 Am. Jur., 441, heretofore quoted.

Congress clearly indicated that it did not regard recourse to the United States Courts for the enforcement of the valid provisions of a collective bargaining agreement as an impingement upon the power of the National Labor Relations Board to prevent unfair labor practices defined in Section 8 of the Act or of any other power or duty with which it clothed it. We have been given no reason for denying to State Courts jurisdiction in the same field. If any implication can be drawn from the provision conferring jurisdiction upon the United States Courts, we think it would be that Congress recognized that the field was appropriate for judicial intervention, and, for that reason, clothed the district courts with jurisdiction so that they would be in a position to share in the added burden. We fail to find any word or combination of words indicating an intent to exclude the state courts or to draw to the United States District Courts the exclusive jurisdiction.

The language of the Act is permissive and non-exclusionary. We discover no intent to use “may” in other than its ordinary sense. In 50 Am. Jur., 51 and 52, it is said: “However, it should be helpful' to keep in mind the fundamental rule that ordinarily the words ‘may’ and ‘shall’ or ‘must’ are not used interchangeably or synonymously, but are given their ordinary meaning. When the use of the words in other than their ordinary meaning is intended, the intention to do so must clearly appear.”

Having concluded that the Court has jurisdiction, we turn now to a more specific consideration of the terms of this contract, the evidence relating to its breach and the relief to which the plaintiff is entitled in the event we find that there has been a breach.

Now as to the terms of the contract. In Article XXI of the contract, in which is found the- provision aganst sitdowns, work stoppages, and strikes, hereinbefore quoted, is found the procedure for the adjustments of “grievances” commencing with its discussion by the employee with his foreman, then by reference to the Bargaining Committee that may refer it to the Management Committee, then to the Plant Manager, then to representatives of the international Union for discussion with Executive Department of the Company. If no settlement is reached and the grievance “involved the application or interpretation of the contract,” either party may request that it be submitted to arbitration for final decision.

By Section 501 of the Labor-Management Relations Act, Congress defined “strike” as including “any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slow-down or other concerted interruption of operations by employees.”

It is not disputed that the defendants and the other employees of the plaintiff represented by them were engaged in the activities defined in Section 501. The interpretation and application of that provision of the contract relating to its automatic renewal were under discussion at the time. It seems to us that the situation, therefore, calls for the application of the contractual provision against a strike.

We, therefore, hold that the defendants have violated the contract by engaging in a strike.

Finally, we reach the nature of the relief afforded for the breach of a contract of this character. Counsel points out that no American court can compel a person to work against his will except as a punishment for crime, and that the breach of a simple contract is not, and cannot be made, a crime. There can be no doubt about the soundness of that position. The XIII Amendment to the Constitution of the United States abolished slavery and involuntary servitude except as a punishment for crime. It cannot be revived in any form. Congress, in obedience to the XUIth Amendment expressly provided in Section 502 of the Act that nothing in the Act “shall be construed to require an individual employee to render labor or service without his consent nor shall anything in this Act be construed to make the quitting of his labor by an individual employee an illegal act; nor shall any court issue any process to compel the performance by an individual employee of such labor or service.”

So, it is clear beyond cavil that any attempt by this or any other American Court to compel a person to labor against his will except as a punishment for crime would be utterly void under the XUIth Amendment of the Constitution of the United States, and contrary to the express prohibition of the National Labor Relations Act and the Labor-Management Relations Act.

It should be said here, however, that long before the ratification of the XUIth Amendment, and while execution against the person and imprisonment for debt were standard procedure at common law for the enforcement of money judgments, based on simple contractual obligations, courts of equity had established the principle that it would not by injunction or any other process compel or attempt to compel the actual performance of personal service, particularly continuous personal service over a long period of time. The reason given for such refusal to give relief was the impracticability of enforcing such a decree, and where the reason, upon which the rule was based, did not exist, courts of equity have granted injunction, coercing the performance of personal acts. Of course, this never extended to attempting to establish and maintain the relation of employer and employee by injunction.

We do not understand that the plaintiff is seeking a mandatory injunction, requiring the defendants to return to work and to continue to perform service. It does ask the Court to enjoin the defendants from concerted action, from permitting to continue in effect any instructions to suspend work or interrupt or impede such work or engage in a work stoppage or strike or any interference with production in plaintiff’s place of business, or from giving publicity to any instructions counseling such action; and from violating any of the terms of the contract and from encouraging any employee or other person to interfere by strike or in any other way with work in plaintiff’s plant. It also prays the court to enjoin picketing, coercion, threats, violence, inducement or breach of the contract, or aiding and abetting others in such action; from lending financial support, and, finally, to require the defendant unions to give written notice to their members and all other employees of plaintiff that “the said strike and work stoppage is ended and notify such employees to return to work on their next regular shift.”

It seems to us that the granting of this relief in its entirety would clearly violate the XUIth Amendment of the United States Constitution and the express prohibition of the Labor-Management Relations Act, and the traditional refusal of courts of equity to compel by injunction the performance of personal service.

But the fact that the plaintiff seeks some relief that is beyond the power and discretion of the court to grant, does not deprive it of the right to insist that the court award to it the relief to which the facts entitle it and which is within the jurisdiction of the Court to grant.

That Congress recognized that the subject of labor relations was, or might be appropriate for the exercise of equitable jurisdiction is disclosed by the provisions of Secton 10 of the National Labor Relations Act, authorizing the United States Courts “to grant such temporary relief or restraining order as it deems just and proper,” as an aid to the Board and a protection to others, in the enforcement by the Board of the prohibition against unfair labor practices listed in Section 8 of the Act. And as we interpret those provisions, the United States Courts would grant the appropriate relief without any preliminary inquiry as to whether the law provided an adequate remedy. However, in this case it is manifest that the legal remedy is inadequate.

The declared purpose of the National Labor Relations Act and the Labor-Management Relations Act is to promote the normal flow of commerce and the full production of articles and commodities for such commerce. They must be construed in the light of that policy and courts within their jurisdiction must afford the remedies in harmony therewith.

Certainly, there is nothing in the National Labor Relations Act or the Labor-Management Relations Act that indicates that a state court should withhold any remedy for the breach of a collective bargaining agreement that would be available under similar circumstances for the violation of the terms of a contract of any other character.

It is the inadequacy of the remedy at law for damages for breach of the contract that is the basic reason for equitable intervention. The remedy afforded must not violate any constitutional right.

In reaching the conclusion that injunction within the constitutional limitation is an appropriate remedy for the breach of this contract, we cannot ignore the fact that this plaintiff is under contract with the United States Government to manufacture jet engines at this factory, and that two-thirds of the available supply of such engines are manufactured there. These engines are needed in preparation for National Defense. The public has an interest in the uninterrupted production of these engines. The public interest has been held to outweigh the inconvenience of supervision, and to require the granting of the relief.

In 49 Am. Jur., 87, it is said:—

“Difficulties in regard to supervision will not be allowed to deter a court of equity from granting specific performance of a contract where public interest seems to require it, and when the inconvenience of the courts in acting is more than counterbalanced by the inconvenience of the public if they do not act, the interest of the public will prevail.”

If a court of equity will grant specific performance under such circumstances, there certainly can be no reason to withhold its injunctive process. And if public inconvenience will move the court to act, surely a threat to public safety should.

On the subject of inconvenience of enforcing a contract involving personal service, it is said in Standard Fashion Co. v. Siegel-Cooper Co., 43 L. R. A. (N. Y.) 854, at 857.

“Contracts which require the performance of varied and continuous acts, or the exercise of special skill, taste, and judgment, will not, as a general rule, be enforced by courts of equity, because the execution of the decree would require such constant superintendence as to make judicial control a matter of extreme difficulty. Rutland Marble Co. v. Ripley, 10 Wall. 339, 358, 19 L. Ed 955, 961; Beck v. Allison, 56 N. Y. 366, 370, 15 Am. Rep. 430; Gervais v. Edwards, 2 Dru. & W. 80; Blackett v. Bates, L. R. 1 Ch. 117; Fargo v. New York & N. E. R. Co. 3 Misc. 205; Pom. Spec. Perf. Sec. 312; Fry, Spec. Perf. Section 69. An exception to this rule, founded upon the rights of the public rather than those of the plaintiff, obtains with reference to contracts relating to the management and control of railroads and other agencies of transportation which enjoy special privileges conferred by statute, and promote the general 'welfare. Joy v. St. Louis, 138 U. S. 1, 47, 34 L. Ed. 843, 858; Prospect Park & C. I. R. Co. v. Coney Island & B. R. Co. 144 N. Y. 152, 26 L. R. A. 610. When the inconvenience of the courts in acting is more than counterbalanced by the inconvenience of the public if they do not act, the interest of the public will prevail. But even if, upon a trial of the action, specific performance of the contract in its entirety were refused as impracticable, still the bill should be retained as one permitting an injunction, in the sound discretion of the court, to restrain the defendants from violating the negative and severable covenant of the SiegelCooper Company that it would not ‘sell, or allow to be sold, on its premises, during the duration of this (the) contract, any other make of paper patterns’ than those of the plaintiff. The learned appellate division, one of the judges dissenting, overruled the demurrers on this ground, holding that the court should extend its remedy as far as it is able, and thus prevent the principal defendant, not only from making money by breaking its agreement, but from inflicting a double wrong upon the plaintiff by depriving it of the right to sell, and conferring that right on a business competitor. We think this is a sound and just conclusion, because it will compel the SiegelCooper Company to either perform its agreement or lose all benefit from breaking it, and at the same time will shield the plaintiff from part of the loss caused by the breach, if persisted in.”

Upon the whole case, we find that the plaintiff is entitled to some, but not all of the relief prayed for. The plaintiff is not entitled to an injunction requiring the defendants or any member of defendant unions to resume or continue to work, and as the Court has no power to order the resumption or continuance of work by any one, it has no power to direct any defendant to give such an order to others.

The Court has power to and will by its injunctive writ require the withdrawal of all communications, heretofore issued to defendant unions’ members, indicating to them that a work stoppage or strike should be instituted or continued, but this withdrawal should be so worded as to leave the individual his free choice to resume or continue to work without restraint or compulsion from any one.

The defendants will also be restrained from engaging in any combination or agreement to stop work or strike, or to influence the union members not to work. They will be restrained from picketing and from doing any act that would induce or encourage any member of their unions to breach the contract not to stop work or strike.

For these reasons, and to this extent, the Court finds in favor of the plaintiff.

HILDEBRANT, PJ, MATTHEWS & METCALF, JJ, concur.


source: Caselaw Access Project

author: By McCRYSTAL, J.

license: Public Domain

text:
    JUSTICE, Plaintiff, v. JUSTICE, Defendant.
    Common Pleas Court, Erie County.
    No. 27047.
    Decided February 8, 1952.

      George C. Steinemann, Sandusky, for plaintiff.
    John E. Savord, Sandusky, Frank Wiedemann, Marion, for defendant.
   OPINION

By McCRYSTAL, J.

The plaintiff and defendant were married in November of 1934 and two children were born as the issue of said marriage.

On July 6, 1949, the plaintiff filed an action for alimony only and support for the minor children of said marriage. On the 31st day of October, 1949, this cause came on for hearing on the petition of the plaintiff and the answer of the defendant, and the Court ordered that the plaintiff was allowed to live separate and free from the defendant; that the plaintiff was entitled to permanent alimony and support for the two minor children, with reasonable rights of visitation to the defendant. Further, the Court ordered that the defendant pay thirty dollars per week in addition to the rent of the premises occupied by the plaintiff.

On the 19th day of September, 1950, the defendant filed a motion for an order voiding the decree of October 31st, 1949, on the ground that subsequent to the order of October 31, 1949, the plaintiff and the defendant had resumed the marital relationship and had resided together for a period of approximately four months and had been subsequently separated.

The Court and counsel have been unable to find any cases in this State which bear directly on the issue presented by defendant’s motion. There seems to be some limited authority on the question in other jurisdictions, and it further appears that there is a decided difference of opinion in these reported cases.

40 A. L. R. 1227.

85 A. L. R. 420.

Rather than go into any extended discussion of the argumerits for or against either side of the question, the Court will briefly state the law as in its considerate opinion should apply to this case.

In view of the fact that the situation presented here is not uncommon, it is to be hoped that some Appellate Court will in the near future, review the question and render an opinion for the guidance of Courts and counsel in this state.

In an action for alimony only, where alimony is awarded to the wife, the decree remains in effect until modified or annulled, unless the language of the decree provides other means for termination. One of the grounds for a modification of such a decree is a change in the circumstances and conditions of the parties subsequent to the decree. One of the circumstances would be a bona fide reconciliation of the parties and resumption of normal marital relations.

This Court is of the opinion that a reconciliation or continued cohabitation will not in and of itself abrogate or nullify the separate decree. Such decree could only be nullified by a court upon reasonable application of both parties for a consent order, or upon application of one party and a finding by the Court that the reconciliation or continued cohabitation was such a change of circumstances that would warrant voiding the decree.

The declared policy of the law is to encourage a reconciliation and courts should be ever cautious lest their orders or decrees hinder or discourage it. However, when the parties honestly desire to inquire if a reconciliation is possible, they should not be forced at the outset of their attempt to abandon or give up their established rights and duties under the separation decree and as a result attempt the reconciliation at their, peril. It is the opinion of this Court that such a rule of law, would tend to discourage rather than encourage a reconciliation.

Foolish indeed, would be the woman with minor children, who would take such a gamble with her declared rights under a decree. Should such a reconciliation fail, through no serious fault of either party, that woman would then be forced to commence new proceedings for alimony and support and incur additional expense that goes with such proceeding. A rule of law which would discourage reconciliation or encourage a scheming party to attempt reconciliation solely to escape the decree of the Court, would be unwise indeed, and this Court does not feel disposed to create any such precedent. Rather, this Court feels that when there has been a resumption of marital relationship, and a subsequent separation without a modification of the former order, the former order remains in effect until one of the parties upon proper application can prove to the satisfaction of the Court by competent evidence that it was the express intent of both parties to abrogate the order or that the resumption of marital relationship was under such circumstances and conditions that the Court would be warranted in finding from the evidence that a bona fide reconciliation had in fact occurred.

Applying the above law to the facts of the instant case, we find that it is admitted that the parties resumed living in the same house for a period of about four months, and that they cohabited during that period. It is also admitted that on more than one occasion the defendant requested the plaintiff to take some action with him to have the decree of October 31, 1949, vacated and set aside.

There is a dispute in the evidence as to whether or not the plaintiff made any conditions upon which the defendant could return and live in the same house with her and the children. It is the claim of the plaintiff that she did so and this was corroborated by the plaintiff’s mother, who lived with the parties. The defendant denied that there was any condition attached to his return home. In any event, the parties lived together as man and wife during part of the four months’ period in question and subsequently the defendant again left the home. During all of that four months’ period, and up to and including the time of this hearing, the defendant has continued to make the necessary payments required under the order of October 31st, 1949, and the defendant further testified that he never considered that the former order was revoked or void by the resumption of marital relations.

Since the burden of proof is of necessity upon him, the defendant in this action, it is quite clear that the defendant has not proven an express intent of both parties at any time to void or cancel the order of October 31, 1949. The Court also finds that the evidence does not disclose that the resumption of the marital relationship was under such circumstances and conditions as would warrant a finding that a bona fide reconciliation had in fact occurred.

The motion of the defendant is therefore denied, as is the motion of the plaintiff for an allowance of attorney fees. Each at their respective costs.


author: Per CURIAM:

text:
    WARE, An Infant, Appellant, v. CINCINNATI (City), A Municipal Corporation, Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7501.
    Decided January 28, 1952.
    Welland, Solinger & D’Angelo, Cincinnati, for appellant.
    Henry M. Bruestle, J. B. Grause, Maurice W. Jacobs, Cincinnati, for appellee.
   OPINION

Per CURIAM:

The trial court sustained a demurrer to the petition herein for failure to state facts sufficient to constitute a cause of action, and the plaintiffs, not desiring to plead further, the Court dismissed the petition. The appeal is, therefore, one on questions of law only.

The pleaded facts are set forth in the opinion of the trial court, reported in 98 N. E. Rep. (2nd) 102, with which this Court is in substantial accord.

Supplementing the conclusions reached by Bader, J„ we distinguish this case from previous similar ones decided by this Court, together with others cited to the Court, involving the duty of a municipality under §3714 GC, to keep its streets and public ways open, in repair, and free from nuisance, by pointing out that the public generally did not have free and open access to the area here involved, wherein it is alleged the nuisance existed, but was excluded therefrom by a substantial, effective, ornamental concrete wall, approximately four feet high and a foot in width.

In Words and Phrases, Perm. Ed., Vol. 28, page 945, nuisance is defined as:

“A nuisance is something wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights. The unauthorized or unlawful obstruction of a street is a nuisance, while that which is authorized by competent legal authority cannot in law constitute a nuisance.” Construction of the ventilator was authorized by competent legal authority and the area about it enclosed and barred to the public so that it was not a public ground or public way mentioned in §3714 GC, and the plaintiff, be he child or adult, had no legal right to enter the area in which the ventilator was located. And, of course, the doctrine of attractive nuisance does not obtain in Ohio.

We recognize that a municipality may be liable for negligence in performing or failing to 'perform a corporate duty. City of Hamilton v. Dilley, 120 Oh St, 127; Yackee, Admr. v. Village of Napoleon, 135 Oh St, 344; Kocher v. City of Barberton, 140 Oh St, 240, and on the basis of qualified nuisance, as set forth in paragraph 2 of the syllabus to Wall v. City of Cincinnati, 150 Oh St, 411, which is as follows:

“As distinguished from absolute nuisance, a qualified nuisance or nuisance based on negligence consists of anything lawfully but so carelessly done or permitted as to create a potential and unreasonable risk of harm which results in injury to another. (Paragraph three of the syllabus in the case of Taylor v. City of Cincinnati, 143 Oh St, 426, approved and followed.)”

Decision of the instant case is, therefore, reduced to a consideration of the fundamental concepts of negligence and proximate cause.

In 39 O. Jur., p. 219, it is stated:

“In order that the injury constitute an actionable tort, there must be a legal duty — imposed by statute, by ordinance, by the principles of the common law, or otherwise — owing, by the one committing the injury, to the one injured, which he has failed to discharge or perform. In the absence of such a duty, any damage caused is injury without wrong, damnum absque injuria. Unless there is some contract, duty, or service which a party is bound to fulfil, there can be no negligence, fault, or breach of the obligation.”

Extended discussion which will not be reiterated here is contained in the following sections to which reference is made.

Paraphrasing the text at page 224, we state liability depends upon the natural and probable connection between a breach of duty toward the plaintiff, in other words, a tort, and the alleged injurious consequences. Nor does liability extend to consequences which cannot be regarded as the natural results of any given conduct and which, on that account, could not by ordinary forecast be anticipated.

Had there been no screen at all around the aperture between the ventilator covering and the sidewalk level, we fail to see that any condition would have existed creating a potential and unreasonable risk or harm.

Plaintiff was a trespasser — the ventilator was capped, so that it was not an open pit — in order to fall into the subway, one had to crawl through space between the sidewalk level and the cover, so that it seems too far fetched and unforseeable that even the whim of a child would induce crawling through the opening into the darkened space.

Without reference to questions of contributory negligence, which have a place herein, under the allegations of this petition, giving every favorable intendment to the pleader, we are of the opinion that the allegations contained therein are insufficient to state a cause of action based on either nuisance or negligence.

The judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur.


author: By GABEL, PJ.

text:
    SHANAHAN, In re.
    Probate Court, Sandusky County.
    No. 21417-A.
    Decided August 16, 1951.

      Leo W. Kenny, Fremont, for executrix of the estate of Margaret Shanahan.
    Frank Gallagher, amicus curiae.
    John L. King, J. M. Burtch, Jr., Columbus, for department of taxation.
   OPINION

By GABEL, PJ.

Margaret A. Shanahan died June 10, 1949, resident of San-dusky County, Ohio, leaving a last will and testament under the terms of which she provided for the payment of certain legacies and, in the residuary clause which is the part of the will pertinent to the issue in this matter, she directed as follows:

“I direct that all the rest, residue and remainder of my estate, real and personal, of every kind and description wheresoever situate, which I may own or have the right to dispose of at the time of my decease be sold, and of the total of the proceeds of such sale plus all other sums owned by or owing to me, after the payment of all my just debts, funeral expenses, expenses of administration, and any legacy or bequest hereinbefore made, I direct my executrix to expend one-sixth for Masses, according to the ritual of the Roman Catholic Church, for the repose of my soul. I further direct my executrix to expend two-thirds of such total for such Masses for the repose of my soul, the souls of my parents, Bartholomew and Margaret Shanahan, and the souls of my brothers. John, Maurice, Bartholomew and Frank Shanahan.”

On June 22, 1950, the executrix filed an application and an itemized statement of assets and liabilities for determination of inheritance tax. The court determined the tax finding the amount the executrix was directed to expend for Masses was not a taxable succession, and no tax was assessed. Thereafter, the State Department of Taxation filed exceptions to this determination. In the original exceptions, department also excepted to the exemption of a bequest to St. Vincent DePaul Society and The Toledo Catholic Charities. Later, the exceptions to the exemption of these bequests were withdrawn.

Margaret A. Shanahan, at the time of her death, was a woman in her middle 70’s. During her lifetime, as a Catholic, she undoubtedly attended several hundred Masses. Assuming that she understood her faith, she believed that the Mass was the central act of worship of her religion. She believed that the Mass was the unbloody sacrifice of the cross and she believed that it was offered, in the first place, to honor and glorify God; Second, to thank Him for his favors; third, to ask His blessings; and, fourth, to propitiate Him for the sins of all mankind. She believed that the fruits of the Mass are received by the person or persons for whom the Mass is offered, all of those who assist at the Mass, the celebrant himself, and all mankind within or without the fold of the church. She understood that the saying of a Mass for the repose of her soul and for the souls of her relatives would not be limited in its benefits to herself alone. She believed that it was an act of public worship and that, like the redemption on the cross, the repetition of the sacrifice on the altar was for the benefit and salvation of all mankind. She knew that the Mass was read daily in all parts of the world — from the deepest recesses of the African jungle to the highest reaches of the Asian plateau, from the frozen wastes of the arctic circle to the tropical climes of South America. She believed that the saying of the Mass from the rising of the sun to the setting thereof was the fulfillment of the prophecy of Malachias, Chapter 1, Verse 11:

“From the rising of the sun, to the going down thereof, my name is great among the Gentiles and in every place there is sacrifice, and there is offered to my name a clean oblation.”

She had no near relatives whom she could consider the natural objects of her bounty. Believing all these things, could she not then have had in mind that she was doing a public charity by providing for a great number of Masses, probably to be said in all parts of the world, knowing full well the troubled state of the world. There are decisions that hold that the Mass is a public charity. (In re Cavanaugh’s Estate, 126 N. W. Rep., 672.) If the testimony had been more fully directed toward this phase of the Mass, the court would then be warranted in giving more consideration to the question as to whether or not the Mass came within the definition of a public charity as intended by the exemption statute of the Ohio inheritance tax law.

In determining the taxability of a succession under the Ohio inheritance tax law, it would be the court’s first duty to determine the nature and character of the tax. The opening paragraph of §5332 GC, provides as follows:

“The tax is hereby levied upon the succession to any property passing in trust or otherwise to or for the use of a person, institution or corporation.”

You will note from the above language that it is a tax upon a succession passing to a person, an institution or a corporation. Consequently, there must be a passing over of something of value from the estate to an individual, institution or corporation. The'tax is assessed against the person entitled to the thing of value passing over. In the case of Tax Commission v. Lamprecht reported in 107 Oh St, 536, we find the following language:

“The most cursory examination of the Ohio inheritance tax law discloses that it is full of deficiencies, ambiguities, and uncertainties and its imperfections are so glaring, and the difficulties encountered in giving it a special administration are so great, that the Courts and the Tax Commission have been presented with problems of the utmost difficulty; and the decisions heretofore reached by the Courts have not been uniform among the lower Courts nor unanimous in this Court.”

Quoting further from the same case at page 538, we find the following language:

“Throughout all the authorities upon this subject, there is found a discussion of the fact that the federal tax is levied against the estate and the right of a decedent to transfer property, the state tax is levied against the succession or the right of a person to receive property from the estate of a decedent.”

In the case of Wonderly v. Tax Commission, reported in 112 Oh St, 233, the court states that an inheritance tax is not a tax on property; it is a tax on its succession to others — on the privilege to receive it upon the owner’s death, by way of devise, legacy, descent or distribution. Therefore, we conclude that the state inheritance tax is a tax in personam, not in rem, in other words, there must be a person identifiable against whom the tax can be assessed. Undoubtedly, the Court of Appeals, in the unreported decision in the estate of Gerdeman, was influenced by the reasoning set out above. In the estate of Gerdeman, the decedent died testate and his will provided as follows:

“I direct and demand that $10,000 be expended for Masses to be read according to the ritual of the holy Catholic Church for the repose of my soul and that of my wife, Mary Gerdeman, the same to be read as soon as it can be done after my demise and the same to be paid out of my personal estate.”

The court held that the amount directed to be expended for Masses did not constitute a taxable succession under §5331 and §5332 GC, and that said amount was a proper deduction in determining the value of the decedent’s net estate. The Supreme Court of Ohio, in the case of In re Estate of Reilly, reported in 138 Oh St, 145, 20 O. 0.131, refers to the Gerdeman case and indicates in the language used at page 150 that if the facts in the Reilly case were similar to those in the Gerdeman case the holding of the court would have been that no tax could be assessed. It will be noted that in the Gerdeman case there is a direction to the executor to expend. It will be noted that in the Shanahan case, that is, this case now under consideration by this court, there is a direction to the executor to expend without specifying any particular priest or any particular parish church. In the Reilly case, the question revolved around a situation where a testator left a specified sum to a trustee with direction to the trustee to pay a fixed amount to the pastor of a specified church. In such a case, you have an identifiable person who will receive the fund. In the Shanahan case, there is no identifiable person who will receive the fund. Commenting upon the direction to expend, the court in the Reilly case distinguishes between a direction to expend and a direction to pay to a specified priest or parish. At page 149, we find the following language:

“It is further argued that if a testator directs his executor to expend money to erect a monument or to have Masses said, no tax will be due. (Tax Commission v. Gerdeman.) And it is asked whether the trusts here created are not in essence the same as a direction to an executor and, if so, why are they taxable? The answer is twofold. First, there is a very real and practical difference between the long term trusts here set up and a direction to an executor. An executorship is terminated in a relatively short time but the trusts here created by the testatrix may continue indefinitely — as long as the payments made by the trustee do not exceed the income from or exhaust the principal of the trust res. The testatrix obviously desired the disbursement of her funds in small amounts over a long period of time. — This continuing and positive accomplishment could not be achieved by the testatrix through the medium of a mere direction to her executor. Second, although a bequest to a trustee and a direction to an executor may have points of similarity, they nevertheless differ in the crucial elements which determine taxability. This Court has repeatedly held that the incidence of the Ohio inheritance tax is upon the succession, that is, upon the right to receive property from the estate of a decedent. Considering a mere direction to an executor, where does one find any succession — any passing of property by will —or any right in any particular person to receive property from the decedent’s estate? There is merely the authorization to an executor to make an expenditure from the assets in his hands before the division and passing of the property of the estate. There is, thus, no succession to any property upon which the tax may fall.”

It will be noted that the language of the court in the above quotation stresses the fact that in a will in which there is a mere direction to the executor to expend that there is no succession to any identifiable or particular person who is to receive the property and against whom the tax can be assessed. During the taking of the testimony in this case, the State Department of Taxation attempted to show that even though there was no identifiable person who was to receive the money for the saying of Masses, that in all probability the fund would be completely distributed to the pastor of St. Ann’s Church, Fremont, Ohio. St. Ann’s was the parish church of the decedent. In rebuttal, the attorneys for the estate and Mr. Gallagher, as amicus curiae, offered testimony to show that a pastor is limited with reference to Mass matters in the following respects: First, he may say but one Mass per day for a stipend. Second, if he is a pastor, there are about one hundred days in each year on which he may receive no stipend. Third, he may receive only the sum of $1 for a Low Mass or the sum of $2 for a Low Mass set for a particular date, or the sum of $5 for a High Mass. Fourth, he may not personally accept stipends which would obligate him to say Masses which could not be said in toto within one year. It is therefore apparent that from the above undisputed testimony there could not be any payment of these Masses to the pastor of St. Ann’s Church, who would therefore be the successor and against whom, consequently, the tax could be assessed. Testimony further conclusively shows that if the executrix should choose the pastor of St. Ann’s as her agent for the distribution of the money for Masses the pastor would have no personal or financial interest in the fund whatever. It is further noted from the testimony that a stipend is a personal offering made to a priest. The parish church or the church as an institution has no interest whatever in such an offering. It is solely and exclusively the property of the one to whom the offering is made. All of the authorities cited by the Department of Taxation in support of their contention of taxability in this case are citations where the money was left to a particular priest or to the pastor of a particular church. This is true in every citation set out in their brief, except the case of Lanza v. DiFronzo, 41 O. O. 390, 56 Abs 310, in which the question of taxability was not in issue.

In conclusion, therefore, the court finds that under the language of the Shanahan will, wherein the executrix is directed to expend money for Masses without - any limitation upon the right of expenditure, there is no taxable succession for the reason that there is no identifiable person against whom the tax may be assessed. It is the opinion of this court that this has been the law of Ohio since the decision in the Gerdeman case decided sometime in the early Í920’s by the Court of Appeals of Putnam County and distinguished and approved by the Supreme Court of Ohio, In re Estate of Reilly, 138 Oh St, 145, 20 O. O. 131.

The exceptions herein are overruled.


author: By HURD, J.:

text:
    CALVIN, Plaintiff-Appellee, v. MARTIN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22379.
    Decided April 21, 1952.
    Myron D. Malitz, Shaker Heights, for plaintiff-appellee.
    Frank C. Lyon, Cleveland, for defendant-appellant.
   OPINION

By HURD, J.:

. This is an action originating in the Municipal Court of Cleveland by a former tenant against his former landlord for compensatory and punitive damages including attorney fees for alleged wrongful eviction. The jury returned a verdict in favor of plaintiff for fifteen hundred dollars upon which judgment was rendered. Motions for judgment non obstante veredicto and for a new trial having been overruled, defendant ■ appeals on questions of law. • 1

Defendant, Martin, was the owner of premises located at 2769 East 75th Street, Cleveland, Ohio. Plaintiff, Calvin, was his tenant occupying a suite consisting of four rooms and bath. On June 12, 1950, Martin petitioned the Cleveland Area Rent-Office of the United States Housing Expediter for a certificate relating to eviction under Section 825.6 (c) (3) of the Rent Directors Regulations under the Housing and Rent Act of 1949 stating that he desired to evict the tenant for the following reason:

“Said accommodations consist of four (4) rooms and bath. Landlord desires to remodel and repair the interior of this suite, to-wit: plaster two rooms, repair floors, decorate and paint, install and repair all windows, and fumigate the premises because same is infested with vermin by reason of the unsanitary conditions in which the premises are kept by the tenant.

“These alterations and repairs do not require approval according to local law. Landlord has purchased materials and has engaged the contractor to do the work, and will begin work immediately upon the vacation of the premises by the tenant.”

The petition for certificate of eviction was granted by the Area Rent Office on July 1, 1950, on condition that action to evict the tenant should not be commenced before September, 1950.

On September 8, 1950, Martin filed an action in forcible entry and detainer in the Municipal Court of Cleveland alleging the grounds set forth in the certificate relating to eviction. Thereupon the case was set for trial September 15, 1950. But, before trial date some discussions took place between counsel representing the respective parties resulting in an agreement in writing as shown by a letter dated September 15, 1950 signed by counsel for Calvin addressed to counsel for Martin, which, omitting the caption and signature reads as follows:

“In re Martin v. Calvin, Mun. Ct. No. A-179712. In reference to the above forcible entry and detainer action this will confirm our agreement that you may take an agreed judgment for the plaintiff for restitution of the property now being-occupied by the defendant. The order is to provide that the defendant shall have until November 1, 1950, to vacate the premises, and said order shall be without prejudice to your right to collect rent.

“I am enclosing rent for the current month which was previously refused by your clients and which you are now able to accept under this agreement.

“This letter is sent you in duplicate. Please sign one copy and return to my office.”

Counsel for Martin signed a copy of this letter as requested and returned it to counsel for Calvin in confirmation of the agreement. Thereupon, in pursuance of the terms of the agreement, an agreed entry was made by the Court providing for vacation of the premises by Calvin and he voluntarily vacated the same November 1, 1950. After Calvin vacated the premises, Martin immediately proceeded to make certain repairs testified to as shown by the record as follows:

Installed new window and frame in back room, repaired frame and installed window pane in both rooms, laid 30 square feet of flooring in dining room, kitchen and bathroom and replaced a sub-sill, patched one hole in front bedroom: papered four rooms, plastered half of ceiling in front room, installed two-way plugs, installed ceiling light in front room, all paper was removed from walls before this papering; replaced stool in bathroom; fumigated suite with (DDT); painted kitchen, bath room and part of bedroom floors.

The premises were not re-rented until the work of repair was completed which was some time about the last of November or first of December, 1950.

On March 7, 1951, something over three months after Calvin vacated the premises, he instituted this action on the ground that defendant had obtained the certificate of eviction wrongfully and had failed to remodel and repair the premises in accordance with the representations contained in the certificate relating to eviction.

Defendant appellant assigns sixteen grounds of error, the principal grounds being that the judgment is void; that the court erred in the admission of evidence offered by plaintiff to which exception was taken; that the court erred in rejection of evidence offered by defendant; that the court erred in overruling motions made for a directed verdict upon the opening statement, upon the conclusion of plaintiff’s case, upon the conclusion of the entire case and for judgment non obstante veredicto; that the court erred in refusing special charges requested in writing before argument; that the verdict of the jury was contrary to the manifest weight of the evidence; that the verdict of the jury is excessive appearing to have been given under influence of passion and prejudice; material variance between proof and allegations; misconduct of counsel and because of other errors apparent upon the face of the record

We are of the opinion that the court erred in the admission of evidence of conversations of plaintiff’s counsel with his client in the absence of the defendant; in the admission of other irrelevant and incompetent evidence; in refusing the written request to charge the jury before argument that if the remodeling done by the defendant was substantially as represented in the certificate and set forth in the petition the defendant would be entitled to a verdict in his favor because substantial performance would negative an intention to deceive or to act maliciously. We believe also, that the judgment is contrary to the manifest weight of the evidence. All of these errors are prejudicial and would in any event require a reversal of the judgment and a remanding of the case to the trial court for further proceedings according to law. But, it is unnecessary to pursue a discussion of these errors because final judgment must be rendered for appellant on other grounds.

At the time the alleged cause of action herein arose, the Housing and Rent Act enacted by Congress did not provide any civil remedy to a tenant claiming damages for wrongful dispossession. Up to the present time, the State of Ohio has not provided a civil remedy by statute for alleged violation of the Federal Housing and Rent Act. At common law, a tenant has no right of occupancy of demised premises except in accordance with the terms of his lease at the expiration of which he may be evicted by due process with or without cause and a landlord can terminate a tenancy at will, for any purpose and his motives are not subject to attack. However, the Housing and Rent Act has modified the common law rights of the landlord to the extent of prohibiting him from bringing and maintaining eviction proceedings except in accordance with the provisions of the Act. The Housing and Rent Act permits eviction proceedings where the landlord seeks in good faith to recover immediate possession for personal use and occupancy as a dwelling for himself or immediate family or for the purpose of altering, remodeling or repairing where the same cannot be practicably done with the tenant in possession.

As to the rights and remedies, there is not a desirable uniformity of opinion in the reported cases. The greater number of authoritative decisions are by the courts of last resort in New York and Massachusetts where in 1948 statutes were enacted, designed to protect tenants against eviction proceedings brought in violation of the good faith clauses of the Federal Housing and Rent Act.

New York by statute has provided in substance that where a tenant has been removed from housing accommodations by action to evict under a judgment granted upon the ground that the landlord seeks in good faith to recover possession for his immediate and personal use, and if such landlord shall fail after thirty days to occupy such space, or, if he shall rent such space to a third person within one year, he shall be liable to the tenant for all damages sustained on account of such removal. N. Y. Laws 1948 (cl 213 — Sec. 1444-a.

Massachusetts has, by statute, provided in substance that any person who recovers possession of premises used for dwelling purposes on the misrepresentation to the court that he intends to use said premises for his own use shall be guilty of contempt of court. Massachusetts Act 1948 (cl (21 Sec. 4.

It should be observed that these statutes refer only to that part of the Housing and Rent Act which relates to self-occupancy and do not include the ground of need for altering, remodeling or repairing.

The actions for recovery of damages usually are predicated upon the common law doctrine of fraud and deceit. Some take the form of malicious prosecution, others are termed “wrongful eviction” which is apparently a hybrid term having some of the elements of both deceit and malicious prosecution. The term “abuse of process” is sometimes employed, but this is merely another name for malicious prosecution. See Detwilder v. Holly, 3 Abs 121.

It is difficult to define the character of the present action. Although fraud and malice are alleged, the petition does not embrace all of the elements necessary to maintain an action in fraud and deceit at common law. The petition in substance alleges false and fraudulent statements, that the action for eviction was maliciously brought and that by reason thereof the plaintiff suffered to his damage. These are the material allegations which would indicate that it was brought as an action for malicious prosecution or abuse of process which could not be maintained here beca'use the plaintiff did not prevail in the original action. As heretofore stated, these allegations likewise are not sufficient to maintain an action for deceit, lacking the elements of intent and reliance. But, irrespective of the form of the petition, we find, upon analysis of the record, that there is a failure of proof of all of the elements necessary to an action in fraud and deceit. Bearing in mind that the certificate relating to eviction was not the usual one for self-occupancy, but rather for the purpose of remodeling and repairs, we find on evidence which was challenged upon cross-examination but not refuted that there was substantial performance in relation to repairs. A compárison of the contents of the certificate with the evidence of repairs indicates that while there is some variation, it is so slight as to be practically immaterial. Under the circumstances, we find that performance here was so substantial in character as to completely negative the allegations of fraud and deceit.

Furthermore, the evidence lacks the element of reliance. In this respect, the evidence clearly and undisputably shows a separate agreement in writing by the terms of which Calvin in consideration of an extension of time of his occupancy voluntarily vacated the premises without a determination of the issue of possession by trial and without the issuance of a writ of eviction against him. Under these circumstances his agreement that an entry of judgment could be made on condition that he be permitted to remain in the premises until November 1st, effectually foreclosed any right of action which otherwise he might have had for-wrongful eviction. Calvin chose not to litigate the issue of possession before the Municipal Court. Neither did he contest the issue before the Federal Administrative Agency which issued the certificate. Nor did he appeal to the Emergency Court of Appeals, all of which he was entitled to do. Instead, through his counsel of record he entered into an agreement containing no ambiguities or reservations in pursuance of which he voluntarily vacated the premises. Thereby he chose to rely upon the agreement and having accepted the benefits thereof he is now by waiver and estoppel precluded from asserting any rights which conceivably under any theory of law he might have claimed for wrongful eviction.

The case of David v. Fayman decided by the appellate division of the Supreme Court, 273 App. Div. 408, 78 N. Y. 5 (2d) 188 and affirmed by the Court of Appeals of New York, 298 N. Y. 669, 82 N. E. (2d) 404, is a case analogous factually in all respects to the instant case, except that the action there was based upon a complaint that the landlord fraudulently represented that he desired the rented premises for his own use and that after the tenant vacated the premises, another party took possession.

It was there held that a tenant who accepted the benefit of a two months’ stay of eviction in exchange for his agreement to remove from residential premises and who did not question before O. P. A. or by further appeal to Emergency Court of Appeals or in landlord’s Municipal Court eviction proceeding, the landlord’s assertion that he required possession for his own occupancy could not maintain an action against the landlord for damages for extrinsic fraud of landlord in failing to occupy premises for his own use. The court in that case at page 190 referring to this proposition said “he (the tenant) chose instead to accept the benefit of a two month stay of eviction in exchange for his agreement to remove from the premises. Retention of that benefit is, of course, inconsistent with the commencement of this action. Ross v. Preston, 292 N. Y. 433, 55 N. E. (2) 490, supra.” At the time of that decision, New York had not provided by statute authority for the institution of actions for removal damages where tenants are dispossessed in violation of the statute, which is a situation similar in all respects to that which presently prevails in Ohio.

In the case of Gabriel v. Borowy, Supreme Judicial Court of Massachusetts, 324 Mass. 231, 85 N. E. (2d) 836, a case relating to self-occupancy, it was held on demurrer that the petition was fatally defective in absence of any allegation of the issuance or use of any process by defendants. The court said in part:

“The declaration does not set forth a cause of action for malicious prosecution. It fails to allege that the Defendants brought their action to recover possession without probable cause and with malice, and that the action terminated in favor of the present Plaintiff. As far as the allegations go, they do not show that any judgment was entered in the summary process proceedings. Sinn v. Rice, 154 Mass., 4, 27 N. E. 772, 17 L. R. A. 288; Wilson v. Hale, 178 Mass. 111, 113, 59 N. E. 632; Bannon v. Auger, 262 Mass. 427, 443, 434, 160 N. E. 255; Rosenblum v. Ginis, 297 Mass. 493, 497, 9 N. E. 2d 525; Jacobs v. Mann, 300 Mass. 258, 260, 15 N. E. 2d 482.

“We do not agree with the Plaintiff’s contention that the declaration is ample to permit him to maintain an action for a wrongful eviction. The declaration does not set forth any physical ouster and the Plaintiff must rely upon a constructive eviction. Even if we assume in his favor that his removal from the tenement as a result of the Defendants bringing the action of summary process would constitute such an eviction, yet the legality of the eviction depends solely upon the good or bad faith with which the Defendants commenced the action. As that was one of the issues involved in that action and as there is no allegation that that action has been determined in favor of the Plaintiff, the Plaintiff had no right to commence the present action. One cannot bring an action against a Defendant on the basis that the latter has brought groundless action against him until it has been so decided in the previous action. * * *”

The plaintiff in argument and by way of brief places great reliance upon the case of Miller v. Moss (1949), affirmed by this Court without opinion, our case No. 21214. That was an action for damages resulting from fraudulent eviction on the pretext of self-occupancy, in which the previous eviction action was prosecuted to judgment. Before the tenant, Miller, vacated, a third party called upon the Millers and informed them that said third party had rented the premises from the landlord. Thereupon, Miller filed a motion to vacate the judgment of eviction claiming that, prior to the entry of judgment, Moss had already contracted to rent the premises to a third party and that his assertion of need for the apartment for purposes of self-occupancy was false. The motion to vacate the entry was denied by the trial court on assurances of counsel for Moss that any claim of occupancy by anyone other than Moss was unfounded. Upon vacation of the premises by Miller pursuant to the writ of eviction, Moss rented the premises to the same third party. Thereafter, the action for wrongful eviction was commenced against Moss.

The trial court found inter alia in his conclusions of fact that Moss had no intention or expectation of moving into the premises vacated by Miller and that the sole reason for the eviction was his admitted dislike of his tenant, and that his representations to the Area Rent Director, to the Municipal Court and to Miller were at all times false and known by him to be false, and, but for such false representations, the Area Rent Director would not have authorized the institution of eviction proceedings, nor would Moss have secured a judgment in the Municipal Court in the eviction suit, and that by reason thereof, Miller suffered to his damage. The Court awarded Miller his actual damages plus attorney fees together, with punitive damages. It should be noted and emphasized that in the Moss case there was no separate and independent agreement between the parties whereby Miller would voluntarily vacate the premises, but on the contrary, the eviction was obtained by fraud and deceit concerning which there could be no doubt as shown by the record and the findings of fact of the trial court.

The findings of the trial court embraced the five elements necessary to maintain a common law action in deceit, viz: a false representation of a material' fact made with knowledge of its falsity, made with intent to mislead, relied upon by the parties with a right to so rely, and resulting in injury to the party complaining. These findings of fact compared with the facts of the instant case clearly indicate why that case is clearly distinguishable and cannot be accepted as a precedent here.

The case of Ferguson v. Buddenberg, 87 Oh Ap 326, decided by the Court of Appeals of Hamilton County, May 19, 1950, (motion to certify overruled November 1, 1950), is a case more closely analogous. That was an action predicated upon false and fraudulent representations for self-occupancy and sole reliance thereon by which plaintiff was induced by defendants to relinquish a right of occupancy secured to him by law. The Court there held as appears by the syllabus:

“Where a tenant, upon request and notice to vacate, voluntarily and without protest abandons premises rented from week to week, no action for damages against the landlord, based on fraud or misrepresentations as to reasons for such request to vacate, can be maintained under rights recognized by the common law, the Federal Housing and Rent Act or any statute of Ohio.”

Ross, P. J., speaking for the court at page 327 said:

“If the plaintiff had any rights in the premises he voluntarily released and waived such rights by vacating the premises without protest.”

The appellate court then entered final judgment for the defendants which it held the trial court should have entered.

While in the case of Ferguson v. Buddenberg, the defendants served a notice to vacate with the statement that compliance therewith would prevent resort to legal proceedings with which the plaintiff voluntarily complied and in the instant case eviction proceedings were instituted but settled by agreement, we think the same principles of law are applicable. In neither case was there abuse of process because of the voluntary vacation of premises in the Ferguson case upon notice and in this case by agreement.

Counsel by way of brief and argument have cited many cases bearing upon the subject here considered. We have examined these and in addition many others not cited. It is neither necessary nor would it be profitable to discuss all of these cases. Likewise, due to varying factual and legal situations, it is impossible to arrive at a satisfactory reconciliation thereof. However, it may be stated that two basic propositions emerge from an examination of the case law to date: (1) The common law action of fraud and deceit will lie and is the most acceptable form of procedure when the pleadings supported by the requisite degree of proof embrace the five elements necessary to such an action. (2) An action for malicious prosecution or abuse of process will be sustained only if the plaintiff has prevailed in the original action.

In New York and Massachusetts it has been held in a series of cases that the purpose of the landlord in dispossessing the tenant is a matter for determination in the original eviction proceeding and the judgment there cannot be collaterally attacked.

In the Massachusetts case of Berenson v. Mahler reported 93 N. E. (2) 740, there is a citation of cases bearing on this subject, where the following is stated:

“If, as seems altogether probable, judgment was in fact rendered in the action for possession in favor of the present defendant, the case would fall within the authority of a number of recent decisions holding that the purpose of the landlord in dispossessing the tenant is a matter for determination in the original action for possession and is in fact determined there, if the judgment is for possession, and cannot be litigated anew in an action for deceit. Gabriel v. Borowy, 324 Mass. 231, 236, 85 N. E. 2d 435; Sher v. Perlman, 324 Mass. 390, 392, 86 N. E. 2d 902; Noyes v. Shanahan, 325 Mass. 601, 604, 91 N. E. 2d 841; David v. Fayman, 273 App. Div. 408, 78 N. Y. S. 2d 188, affirmed 298 N. Y. 669, 82 N. E. 2d 404; Rosenbluth v. Sackadorf, 274 App. Div. 794, 79 N. Y. S. 2d 524, affirmed 298 N. Y. 761, 83 N. E. 2d 158. See Wishnewsky v. Sagus, 325 Mass. 191, 194-196, 89 N. E. 2d 783, and cases cited; 62 Harv. L. Rev. 153.”

The difficulty inherent in the proposition that the purpose of the landlord in dispossessing the tenant must be determined in the original action and cannot be collaterally attacked is that such purpose cannot always be ascertained until the termination of the original action. This difficulty has been recognized in later cases where petitions for recovery of damages embracing all of the elements necessary to an action for deceit were held sufficient when the petitions or complaints were attacked by motion or demurrer. Kilroy v. Barron, Supreme Judicial Court of Massachusetts (1950), 95 N. E. 2d 190; Teare v. Sussman, Supreme Court of Colorado (1949), 210 Pacific 2d 446; Woods v. Gate City Agency, Inc. (1949), 86 Fed. Supp. 435. Counsel for plaintiff has cited these three last mentioned cases in support of his contentions in this case. We find these cases aré clearly distinguishable both in form and character of action and on the facts.

Teare v. Sussman was decided on appeal where the trial court had dismissed the complaint. In that case, which was brought for fraud and deceit, the Supreme Court held the petition was sufficient, which contained all of the elements necessary to an action in deceit and which alleged in effect that after the landlord had obtained possession on a certificate for remodeling, he immediately placed another tenant in possession without any remodeling.

Woods v. Gate City was an action by Tighe Woods, the Housing Expediter brought to enjoin the landlord from further violations of the Rent Control Act with respect to housing accommodations and for damages, where the landlord represented to tenants that the premises were required for remodeling purposes. The tenants moved as result of notification, but the landlord did not remodel the house. Instead it was sold to another person. The court denied the motion for summary judgment or judgment on the pleadings, holding that the petition stated a good cause of action.

Kilroy v. Barron was decided on demurrer. This petition embraced all of the elements necessary to an action in deceit and alleged in substance that the landlord falsely represented that possession was necessary on the ground of family occupancy but that he never intended to use the property, but in fact intended to sell the property and to use the vacated tenement as a means of facilitating the sale of the property. The Supreme Court held that the petition stated a cause of action and reversed. At page 192, the court stated that “The instant case is distinguishable from Gabriel v. Borowy, 324 Mass. 231, 85 N. E. 2d 435, and Sher v. Perlman, 324 Mass. 390, 86 N. E. 2d 902, where there were lacking some of the elements necessary to set forth a cause»of action for deceit.”

In the instant case, we find that certain of the elements necessary to maintain an action at common law in fraud and deceit are lacking in the allegations of the petition and in the evidence adduced upon trial. For reasons previously stated, it cannot be considered as an action for abuse of process or malicious prosecution.

We therefore hold that Municipal Court erred in its denial of the motion of the defendant for an instructed verdict at the conclusion of all the evidence and thereafter, in refusing to grant the motion for judgment non obstante veredicto. This Court therefore will enter final judgment for the defendant which the trial court should have rendered. Judgment accordingly. Exceptions noted. Order see journal.

SKEEL, PJ, THOMPSON, J, concur.


text:
    STATE v. GOTTFRIED.
    Common Pleas Court, Seneca County.
    No. 3484.
    Decided June 7, 1952.
    Webb D. Tomb, Tiffin, for the state.
    Frick & Turner, Tiffin, for defendant.
   OPINION

By McCRYSTAL, J.

The defendant was arrested and brought before the Justice of the Peace of Clinton Township, for a violation of the duly adopted orders and regulations of the Seneca County District Board of Health. He was subsequently bound over to the Grand Jury and indicted at the January 1952 Term.

The cause came on for trial on the 28th day of May, 1952, at which time defendant madé an oral motion to dismiss for want of jurisdiction over the subject matter. Counsel or the Court were unable to find any reported case which passed on this question.

In deciding this motion we must look to §§4414, 4416, 4417 and 4418 GC, for the right of the Board to bring the action and the procedure and penalties provided by the Legislature for a violation. After a careful study of these sections one must make the observation that the trial procedure and penalties are novel and unique in criminal procedure in this State. Since the Legislature saw fit for reasons best known to itself, to provide for this procedure, the question arises, how can a Common Pleas Court carry it into execution?

Common Pleas Courts have jurisdiction in all misdemeanors except whenever exclusive jurisdiction is vested in the Justice of the Peace or Magistrate.

The Court does not propose to go into any extended discussion of this question. Suffice to say that after a study of the sections above noted, two constructions are possible.

1. That it was the intent of the Legislature in enacting §4416 GC to limit the jurisdiction of these cases to Justices of the Peace, Mayors or Police Judges, or

2. The Legislature intended the Common Pleas Court to have jurisdiction over these cases, but set up a procedure under §§4417 and 4418, which this Court is without authority to execute.

Taking either of these two alternative constructions, the Court is unable to find any ground upon which it could entertain this action.

It is therefore, the opinion of the Court that the defendant’s motion is well taken and that the indictment be dismissed and that the bond of the defendant be cancelled and held for naught.