text:
    SUETTA, Plaintiff-Appellant, v. CARNEGIE-ILLINOIS STEEL CORPORATION, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3792.
    Decided October 6, 1955.

      Thomas F. Joseph, Martins Ferry, James F. DeLeone, Columbus, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendantappellee.
   OPINION

By PHILLIPS, PJ.

Plaintiff appeals on questions of law from a judgment of the court of common pleas entered upon a jury verdict for defendant in plaintiff’s appeal thereto from an order of the Industrial Commission of Ohio disallowing upon original and rehearing her claim of right to participate in the Workmen’s Compensation Fund of Ohio by reason of the death of her husband, called decedent, upon whom she was wholly dependent for support at the time of his death on May 20, 1950, from “metastatic carcinoma of the lung.”

On and for some time prior to January 12, 1949, decedent was employed by defendant corporation, a self-insurer under the Workmen’s Compensation Act of Ohio, as a crane operator engaged in an operation known as “skull cracking,” which was breaking scrap iron by means of a large ball swung from the crane he was operating, which travelled on a track about 100 feet above railroad tracks in the yards of defendant’s plant in Youngstown, Ohio, in which steam and deisel locomotives were engaged in shifting cars under the cab of the crane he was operating.

On January 12, 1949, plaintiff was engaged in skull cracking at a time when several panes of glass were broken from the cab of the crane and steam locomotives as usual were shifting cars beneath him, which broken panes it is claimed caused him to be more exposed to smoke which was emitted from two such locomotives and which he inhaled.

Decedent’s testimony taken in perpetuam memoriam on an order of the court is that on January 12, 1949, and at such time he expectorated and coughed up “a whole mouth full of blood,” from which time forward he suffered from chest ailments.

Plaintiff’s medical witness testified that upon x-ray examination of decedent’s lung he found three lesions in the right lung field which he believed was cancer.

Answering a hypothetical question that witness testified that in his opinion there was a direct causal relationship between the decedent’s inhalation of smoke and his lung hemorrhage, which in turn aggravated an underlying and pre-existing cancer of his lung causing his death; and that in his opinion on and prior to January 12, 1949, decedent had such cancer, which was a slow growing type, which was accelerated by inhalation of smoke on the latter date.

The other of plaintiff’s expert medical witnesses answering the same hypothetical question testified that in their opinions there was a direct causal relationship between decedent’s death and such smoke inhalation.

Defendant’s four medical witnesses, three of whom examined decedent during life, answering the same hypothetical question testified that in their opinion there was no direct causal relationship between decedent’s death and inhalation of smoke on January 12, 1949.

Plaintiff contends that the trial judge erred to her prejudice in admitting testimony of the three defendant witnesses who had treated decedent during life because of the privileged relationship (which was not waived) of physician and patient granted by §2317.02. Paragraph A, R. C., which as applicable provides:—

“The following persons shall not testify in certain respects:
“* * * a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient * *

Plaintiff further contends that the trial judge erred in admitting •hospital records ordered by such doctors.

One of such three doctors testified:—

“Mr. Suetta, the understanding I had on going to Youngstown, was that Mr. Suetta and his family had agreed that he would submit himself to the company doctors for the purpose of making any examination we wished. On that basis, Dr. Mathay asked me to come to Youngstown and examine this man to ascertain insofar as possible whether or not his condition was of an occupation origin.”

Counsel for defendant contend that such testimony was not privileged because the doctors in question were employed by defendant and accordingly no professional relationship existed between them and the decedent.

Plaintiff and decedent each voluntarily agreed to have decedent examined by defendant paid doctors for such examination as such doctors wished to make for defendant’s benefit, which did not include treatment nor advice, neither of which were given to decedent nor plaintiff. The examination or consultation clearly was not for the purpose of alleviating decedent’s pain nor curing his malady. The evidence indicates no physician patient relationship between decedent and such physicians. Consequently no privilege existed as claimed by plaintiff. See Wigmore on Evidence (third edition), Volume 8, Section 2382B.

It is the treatment, not the examination made under the circumstances in this case, which creates a confidential physician patient relationship between doctor and patient, and hospital records made in connection with the various examinations made by defendant’s doctors were not privileged for the same reason and accordingly were admissible for the purposes they were admitted.

The trial judge refused to submit in writing, in which refusal plaintiff contends he erred to her prejudice, the following requests to charge before argument numbered 4 and 5 respectively submitted on authority of Industrial Commission v. Polcen, 121 Oh St 377:—

“4. The presence of noxious fumes or smoke in unusual quantities at any given time may be proved by circumstantial evidence.
“If the presence of the fumes or smoke is shown, one circumstance of probative value to indicate their presence in unusual quantities is the effect upon the person subjected thereto.”
“5. If you find that John Suetta, the decedent herein, while working as a crane operator for the Carnegie-Illinois Steel Corporation on January 12, 1949, was subjected to an emission of smoke created by his employment so as to cause him to suffer a coughing spell, resulting in a ruptured blood vessel in his lung as a direct and proximate result of the coughing, then I charge you, as a matter of law, that John Suetta sustained an accidental injury within the meaning of the Workmen’s Compensation Laws of this State.”

The case under consideration is distinguished clearly from the case of Industrial Commission v. Polcen, supra. In that case the syllabus must be read in the light of the evidence recited by Judge Allen in the opinion, which shows that the coughing on a particular day was extraordinary; that there was a specific coughing fit accompanied by a tearing of the abdominal tissues at about that specific time. In other words, there was an unusual and extraordinary happening at a particular time and place.

In this case there was no evidence of an unusual and extraordinary happening at a particular time and place, and the requested charge is not founded upon an unusual and extraordinary happening, and the giving of such instruction as submitted was not authorized under the definition of a compensable injury.

The trial judge did not err in refusing to charge the jury in writing before argument as requested by charge number 5.

In the case of Industrial Commission v. Palmer, 126 Oh St 251, a case of carbon monoxide poisoning, upon which request number 4 was based, the court said:—

“The record shows, and in fact the court will take judicial notice, that carbon monoxide gas is both colorless and ordorless. Therefore the presence of carbon monoxide gas in unusual quantities at any given time must necessarily be proved by circumstantial evidence.”

The smoke and evidence of steam coming from locomotives, which decedent allegedly inhaled, were no greater than encountered by the workman from day to day after several panes of glass were broken from the cab of the crane operated by him in the usual course of his employment.

The trial judge did not err in refusing to charge the jury in writing-before argument as requested by charge number 4.

Plaintiff contends that the trial judge erred to her prejudice “in refusing to include in its general charge to the jury additional instructions as to the definition of accidental injury, requested by the plaintiff at the conclusion of the charge,” namely “that if they found the decedent was exposed to unusual quantities of noxious fumes or smoke and suffered disability therefrom, then they would find that the decedent sustained an accidental injury.”

There is no evidence indicating that on the day of inhalation decedent was exposed to fumes, smoke or steam to a greater degree nor in a larger quantity than he was exposed to normally for some time prior to such inhallation, as the evidence discloses that the panes of glass were broken from the cab of such crane for a long period of time prior thereto during all of which time he was exposed as he was on the day in question.

Viewing the charge in the light of the evidence we can not reach the conclusion at which plaintiff urges us to arrive that the trial judge erred to her prejudice in the respects under consideration, and this notwithstanding that during deliberation the jury made the following request of the trial judge:—

“We would like to (sic) a copy of the Ohio Law on what is an accident.”

Plaintiff argues that this request indicated that the jury was concerned with the issue of what constitutes a compensable injury. Undoubtedly that is true but the requested charge was not authorized under the evidence.

Finally, plaintiff argues that the verdict of the jury and judgment of the trial court entered thereon are manifestly against the weight of the evidence, and that the trial judge erred to her prejudice in overruling her motion for a new trial, and in other respects “apparent upon the face of the record,” upon which latter assigned ground of error we will not pass because appellant’s counsel has failed to call our attention to “other errors apparent upon the face of the record,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Under the evidence presented we can not hold the verdict to be against the manifest weight of the evidence.

We find no error prejudicial to plaintiff in any of the respects urged by plaintiff in her assigned grounds of error.

The judgment of the court of common pleas is affirmed.

NICHOLS and GRIFFITH, JJ, concur.


source: Caselaw Access Project

author: By HORNBECK, J.

license: Public Domain

text:
    TAYLOR, Plaintiff-Appellee, v. CONTINENTAL ASSURANCE COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5445.
    Decided October 8, 1956.
    George T. Tarbutton, Columbus, for plaintiff-appellee.
    Vorys, Sater, Seymour & Pease, James O. Seymour, Charles D. Minor, of Counsel, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment in favor of the plaintiff for $1000.00, interest and costs on the first cause of action of her petition.

The cause was tried to a judge without the intervention of jury. After the submission of the case the trial judge returned a written opinion in which he held that the plaintiff should have judgment for $1000.00 on the first cause of action and $1000.00 on the second cause of action of her petition. Thereafter, the court notified counsel that the judgment entry should be for the plaintiff on the first cause of action, only, and it was prepared accordingly with a finding for the defendant on the second cause of action. (Emphasis ours.)

Defendant appeals and assigns four errors:

(1) The Court erred in rendering judgment in favor of plaintiff in the amount of $1000.00 on plaintiff’s first cause of action.

(2) The Court erred in overruling defendant’s motion for judgment.

(3) The Court erred in overruling defendant’s application and motion for a new trial.

(4) The judgment is contrary to law.

All assignments raise substantially the same question.

The plaintiff is the widow of Charles W. Taylor, deceased, who in his lifetime was an employee of the Ft. Hayes Hotel Company, Columbus, Ohio, and had been in the employ of said company for more than five years prior to his decease. The Ft. Hayes Hotel Company since April 9. 1937, was the holder of a policy of group insurance issued by defendant company wherein the employees of the company were protected and under a certificate issued to plaintiff’s decedent she was designated a beneficiary.

The record is made up of a stipulation of the parties together with the transcription of the testimony of plaintiff. From the stipulation it appears that the policy after notices from the employer had been can-celled of date December 9, 1950. The stipulation makes no reference to days of grace and we therefore must assume that all rights under the days of grace provision in the policy were terminated as of December 9, 1950. On or about October 13, 1950, while plaintiff’s decedent was employed by Ft. Hayes Hotel Company and was under 60 years of age he became permanently and totally disabled as a result of bodily injuries suffered during the course of and arising out of his employment and was thereafter permanently, continuously and wholly prevented thereby for life from engaging in any occupation and performing any work for wage or profit. This is stipulation No. 7 and conforms in language to the requirements of the policy as to benefits to an insured employee for permanent disability subject only to the necessity of notice as provided in the policy.

Stipulation No. 8 is to the effect that plaintiff’s decedent died January 31, 1951, as a result of the bodily injury and/or disease set forth in Stipulation No. 7. This fact is sufficient to establish the right of plaintiff to death benefit under the policy if effective on the date of his death and if requisite notice to the company is established according to the terms of the contract of insurance.

The stipulation sets forth no fact respecting notice to the defendant company of the' permanent and total disability of plaintiff’s decedent or of his death, but the testimony of plaintiff is directed to the issue of notice to the company of the disability of decedent.

Plaintiff pleads compliance with the requirements of the policy as to notice as to permanent and total disability and of decedent’s death. Defendant denies specifically receipt of notice of Taylor’s permanent disability and by general denial notice as to his death and that the policy was in effect as of the date of the death of plaintiff’s decedent.

The testimony of the plaintiff respecting the notice that she claims was sent to defendant company relates entirely to decedent’s permanent and total disability. It could not relate to his death because the notice to which she refers was given prior to decedent’s death and there is no proof whatever of any notice to the company of the death of plaintiff’s decedent.

The judgment on review is on the first cause of action which is predicated entirely upon the right of plaintiff to recover as beneficiary in the policy by reason of the death of her husband. The court held in opinion and entry against plaintiff on the second cause of action which sought to recover on the basis of the permanent and total disability provision of the policy.

Clearly, plaintiff’s right to recover under the second cause of action is much stronger than under the first.

As we understand, it is the contention of plaintiff first, that under the provision in the policy as to insured’s death, certain rights vested in him upon his suffering total disability which were not abrogated by his death, and second, that under the terms of the group policy, the insured was entitled to have a policy of insurance upon his life issued to him upon the termination of the master policy by the Ft. Hayes Company and that this right could not be denied plaintiff’s decedent without notice to him of the termination of the master policy.

The first contention is not valid because if any right was vested in the insured employee or in the plaintiff, it was in that clause of the policy relating to the liability of the company upon the permanent and total disability of the insured which occurred during the life of the policy. This could not have the effect of vesting any right on the liability for the death of the insured which is the basis of the judgment under review.

The second contention is predicated upon this language in the policy:

“3. EMPLOYEES INDIVIDUAL CERTIFICATE: — The Company will issue to the Employer for delivery to each Employee whose life is insured hereunder an individual certificate setting forth a statement as to the insurance protection to which he is entitled, to whom payable, and containing provision to the effect that in case of the termination of the employment for any reason whatsoever the Employee shall be entitled to have issued to him by the Company without further evidence of insurability, and upon application made to the Company within thirty-one days after such termination and upon the payment of the premium applicable to the class of risks to which he belongs and to the form and amount of the policy at his then attained age, a policy of life insurance, in any one of the forms customarily issued by the Company, except term insurance, in an amount equal to the amount of the Employee’s protection under this policy at the time of the termination of his employment.”

Although the Employee’s Certificate is not attached to the Bill nor carried with the stipulation, presumably, it contained the language in paragraph 3, just quoted. The provision assured the employee the right upon the termination of his employment to have issued to him a policy by the company without further evidence of insurability. But such right was conditioned upon the further terms of the paragraph, namely, “upon application made to the company within 31 days after such termination and upon the payment of the premium applicable to the class of risks to which he belongs and to the form and amount of the policy at his then attained age.” Such an application was not made to the company nor was any premium paid by the insured employee. We cannot hold with the plaintiff upon her contention of the meaning of this provision of the policy. The certificate was in the possession of the insured employee; he or someone acting for him must have known of his termination of employment and were put upon notice that a new policy could be issued to him only upon the terms and conditions specified. We are not clear whether plaintiff’s claim is predicated upon the theory that the policy could not be terminated by the Company without notice to him or that by reason of his disability, his employment had terminated with the Ft. Hayes Hotel Company. The latter is the condition set forth in the policy under which the employee had the right to have another policy issued to him.

It is specifically urged by appellee that under §3917.06 (E) R. C., the company could not terminate the policy without notice to the insured employee. An examination of the language of this paragraph of the section discloses that the policy here carries the identical language of Paragraph (E). Continuing, the section, Paragraph (F) provides:

“A provision that if the group policy terminates or is amended so as to terminate the insurance of any class of insured persons, every person insured thereunder at the date of such termination whose insurance terminates and who has been so insured for at least five years prior to such termination date is entitled to have issued to him by the insurer an individual policy of life insurance, subject to the same conditions as are provided by division (E) of this section, * *

The policy in terms conforms to (F) of the section. There is no requirement that specific notice of termination of the group policy be given to insured employees who have been issued their certificates.

To conform to plaintiff’s contention it would be necessary not only that it be held that the insured employee was entitled to notice that the group policy had been terminated, but also if such notice was not given a policy would automatically be issued to him covering both permanent disability and death. We agree that it would be desirable that some notice be accorded to employees covered by group policy of its termination so that they might be assured of the accrual of the right to have a new policy issued to them, but we cannot hold that the phraseology employed in the section will permit of this construction.

We are impressed with the fact that the stipulation as to the permanent and total disability of plaintiff’s decedent during his employment with the Ft. Hayes Company and during the life of the policy, would clearly entitle the plaintiff to recovery as beneficiary under the policy had she given the requisite notice. Whether or not she gave such notice is not vital to this appeal because the judgment is not based upon the permanent disability clause, but upon the death provision.

The judgment in this court must be for the defendant as to the first cause of action as all errors assigned are well made.

It will be noted that there is no judgment on the second cause of action but a finding only for the defendant. Plaintiff could not have appealed from this finding against her, and we express no final opinion on the merits of the respective claims of the parties as to this cause of action.

The cause will therefore be remanded to the trial court for further proceedings according to law.

MILLER, PJ, WISEMAN, J, concur.


author: By PHILLIPS, PJ.

text:
    BRINDLE, Plaintiff-Appellant, v. HINELY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3765.
    Decided September 29, 1955.
    Traxler & Beil, Youngstown, for plaintiff-appellant.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendantappellee.
   OPINION

By PHILLIPS, PJ.

Plaintiff appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for defendant in plaintiff’s action against defendant to recover damages for personal injuries.

On the evening of July 18, 1952, defendant, a licensed real estate broker, and her husband called by automobile at plaintiff’s beauty salon to take plaintiff and her husband to see a house for the purpose of interesting plaintiff and her husband in purchasing it.

Plaintiff alleged in her petition:—

“* * * that the defendant’s said motor vehicle was driven to a place near the curb in front of plaintiff’s residence, located on the west side of Market Street in the City of Youngstown, Mahoning County, Ohio, and that the defendant was seated in the rear seat of said vehicle; that plaintiff approached said motor vehicle, intending to become a passenger therein for the purposes aforesaid, and as she approached, the defendant, seated as aforesaid, opened the right rear door of said vehicle and beckoned plaintiff to enter; that as plaintiff was entering said vehicle, the defendant carelessly and negligently, closed the door before plaintiff was clear of the same, and that the said door, being gf heavy egnstruction, slammed against this plaintiff’s right ankle, crushing it against the body of said vehicle, and injuring her as follows:
“Her body was thrown, wrenched and twisted. She suffered a severe contusion of the right ankle with injuries to the soft tissues thereof, and injury to the periosteum of the small bones of the right ankle and of the anterior and posterior tendons, muscles and ligaments attached thereto, causing immediate severe pain and swelling, and producing acute tenderness in the fibulo-tibial joint anteriorly, with tenderness about the right sacro-iliac area and along the lower third of the right sciatic nerve and right calf area.”

Briefly, but substantially, the evidence discloses that about 8:15 o’clock on the rainy evening of July 18, 1952, defendant’s husband, who was driving such automobile south on Market Street, stopped on the westerly side of Market Street in front of plaintiff’s beauty salon, where plaintiff and her husband were standing about ten feet from the westerly curb of that street; that after the car was stopped defendant’s husband moved to the right of the front seat, and as plaintiff approached unlocked the right rear door of the automobile and opened that door part way; that plaintiff’s husband had seated himself in the front seat about the same time as his wife was attempting to seat herself in the back seat of the automobile; and that as thus seated the husbands of the parties were looking ahead when they heard plaintiff call “oh my foot, my foot.”

Plaintiff testified that she placed her left foot in the rear portion of the automobile in front of the defendant, and was sitting down when defendant closed the door against plaintiff’s right ankle; .but admitted on cross-examination that as she attempted to enter the automobile she was not certain whether defendant was holding the door open or not, although it was a little more than half way open as she approached the car.

Defendant denied plaintiff’s testimony, and testified that she remained seated directly behind her husband on the left side of the rear seat of such automobile.

By assignments of error plaintiff contends:—

“1. The verdict is not sustained by any evidence.
“2. The judgment of the trial court is contrary to law and against the manifest weight of the evidence.
“3. The trial court erred in not granting plaintiff-appellant a new trial.”

Photographs of the automobile introduced in evidence, which would and apparently did demonstrate to the jury the improbability of plaintiff’s version of the manner in which she allegedly was injured, coupled with her own conflicting testimony with reference thereto in our opinion justified the jury in rendering a verdict for the defendant, which verdict, together with the judgment of the trial court entered thereon, we can not disturb on the grounds urged by plaintiff.

Plaintiff failed to carry the burden of proving her claim against defendant by the greater weight of the evidence or by the greater weight of the probabilities.

Finally, though not assigned as a ground of error, plaintiff contends in oral argument for the first time that the charge of the trial judge on the question of compensation was misleading to the jury.

Having reached the conclusion we have with reference to defendant’s negligence the error, if any, of the trial judge on compensation is immaterial for the reason that if defendant was not negligent she was not entitled to recover any compensation from plaintiff.

Having reached this conclusion as to plaintiff’s negligence and the charge of the trial judge it is unnecessary for us to comment upon the nature or extent of plaintiff’s injuries.

The judgment of the court of common pleas is affirmed.

GRIFFITH and NICHOLS, JJ, concur.


author: By NICOLA, J.: By NICOLA, J.

text:
    RICHMAN BROTHERS COMPANY, Plaintiff, v. AMALGAMATED CLOTHING WORKERS OF AMERICA et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 641936.
    Decided August 15, 1956.
   OPINION

By NICOLA, J.:

A short history of this case and its background may be helpful to us in its consideration. The plaintiff, The Richman Brothers Company, hereinafter called “Richman,” filed its action for injunction and relief in this Court on October 18, 1952. On March 12, 1953, this Court overruled a motion by the defendants Amalgamated Clothing Workers of America, et al, hereinafter called “Amalgamated,” to dismiss Richman’s petition based on the claim that the National Labor Relations Board had jurisdiction of the case.

Thereupon Amalgamated appeared in the United States District Court and attempted to have this case removed to that Court on the ground that only a federal question was involved. Judge McNamee refused to so order. Then Amalgamated brought an original action in said District Court to enjoin this Court from proceeding in said case, claiming that the State Courts lacked jurisdiction of the subject matter, the same plea as made in the removal application. On March 25, 1953, the District Court refused to enjoin this Court from proceeding.

On April 20, 1953, this Court entered a temporary restraining order against all picketing by Amalgamated. At the time the restraining order was granted, the Court (Connell, J., then sitting on this bench) had before him the same essential facts in affidavit form as were disclosed at the trial before us.

The decision of the United States District Court in refusing to enjoin this Court from proceeding was later affirmed by the Circuit Court of Appeals after which on April 4, 1955 the Supreme Court of the United States refused certiorari (348-U. S.-643).

Thereupon the case came on for trial before another branch of this Court of Common Pleas. In the trial of said case the motion of Amalgamated for dismissal of Richman action was granted on June 27, 1955, after opening statement of counsel. The Court in so deciding ruled contrary to ruling on the motion for restraining order entered by Judge Connell and decided that this case is within the sole jurisdiction of the National Labor Relations Board.

Our Court of Appeals disagreed and reversed said latter ruling on January 26, 1956 and remanded this case back to this Court to be tried on its merits.

Thereafter, to-wit, on June 5th to 14th, 1956, the trial was had before this branch of the Court. At the outset, after Richman’s counsel had made his opening statement, counsel for Amalgamated moved for dismissal of the petition on the same grounds previously urged, to-wit, that this Court lacked jurisdiction inasmuch as the National Labor Relations Board had exclusive jurisdiction of labor disputes under the Labor Management Relations Act as the National Labor Relations Act as amended by the Taft-Hartley Act is denominated. By virtue of said Act, it was claimed the federal courts had pre-empted the whole field of labor relations where interstate commerce was involved, which latter fact was conceded.

This Court reserved its decision on the motion and stated that he would hear all the evidence and then render his decisirm on said motion and on the case as a whole.

The facts indicate that Amalgamated had been attempting to organize Richmans for many years but failed in its efforts. Then on March 31, 1951, without any notice, pickets appeared in front of the 18 stores of Richman located in 15 cities of Ohio and in front of about 51 stores of the same company located in fifteen other states. In a few locations, one or two regular pickets were used while in other places four to nine pickets were regularly used. From the evidence they were not members of Amalgamated or other unions but hired for the purpose of picketing. The exception was in Cleveland where union men were the pickets for about one week.

The picketing at the Richman stores in Cleveland is typical but less intensive than in some other cities. Mr. Amdur, Business Agent of the Cleveland Joint Board of Amalgamated and four other men appeared on the sidewalk in front of Richman’s main store on Euclid Avenue near E. 9th Street — the busiest corner between New York and Chicago. Two men carrying signs walked abreast towards the east and two carrying like signs to the west. As they reached the center of the storefront, they turned around and walked the opposite way to the property line. Then they would repeat the process. Afterwards, they picketed in single file. They walked within six inches of the window. Their signs carried the legend—

“RICHMAN BROS. CLOTHES NOT UNION MADE.
BUY UNION MADE CLOTHES.
RICHMAN BROS. CLOTHES DO NOT HAVE A UNION LABEL.
BUY CLOTHES WHICH HAVE A UNION LABEL.”

Picketing was continued with varying techniques till enjoined.

On Saturday, March 22, 1952, twenty additional pickets appeared carrying banners and balloons filled with helium gas rising eight to fifteen feet above the ground with similar legends thereon. Led by Mr. Peppercorn, they started single file to circle in front of the store 3 to 4 feet apart. Thereafter, they milled around in front yelling and singing for 2-V2 hours. This was not denied except by a business agent who said that the demonstration lasted ten to fifteen minutes.

Pickets told customers not to go into a “scab” store. This was not a union store and did not carry a union label. They interfered with traffic and occupied even the lobby and interfered with prospective customers who complained to the manager. After buying a suit, customers would bring it back after they talked with the pickets and demand a refund which the company granted. Other customers stated that they did not come in because of a picket line.

A similar demonstration was held on Saturday, March 29, 1952. Union men of other crafts would not cross the picket line and this was true of ordinary citizens. They thought there was a strike on at Richmans or that there was some trouble between it and the employees, and did not want to become involved in any way. Instances of the use of violent language are many.

What was true of Cleveland was true of Youngstown, Steubenville, Detroit, Chicago and St. Louis. In fact, the activities and demonstrations were more numerous and the regular pickets were more demonstrative and yelled at those who entered the store. The evidence shows that union men refused to deliver Richman’s merchandise and the same had to be shipped by railway express; that repairs would not be made and the company was harassed in innumerable ways. An altercation occurred between the manager and Amdur when this business agent and four pickets went in the Cleveland store’s lobby. The manager and the agent differed on the words used but there was no question of the physical encounter.

On the other hand Amalgamated stated that it was conducting an educational campaign for the adoption of the Union label. The picketing of Richman was ordered in convention. From their president down they all desired the campaign to be peaceful and so ordered. The theorist who apparently set up the technique of picketing and harrassment by demonstration was Howard D. Samuels of New York City, a suave young college man who had written a book on “Congress At Work,” but had as far as the evidence disclosed, no labor experience whatsoever. He testified under oath with apparent candor that he was the director of the union label campaign since August 12, 1952. He conferred with the top union men and then determined the technique to be followed. The campaign was directed against the company to show the employer that it would be to the best interest of the company to end its objection to unionization. But there was not a shred of evidence that Richman ever objected to their employees joining the union. He drew up leaflets for the employees. Demonstrations were to advance the Amalgamated’s publicity, not intended to keep people out of the store. The hurdygurdy atmosphere created by the balloons was set for Saturdays and other days when the store was busiest. He naively said that every effort was made to show that this was not a labor dispute and that union members could go through a picket line. But, of course, he was not there when the demonstrations took place.

To the same effect was the testimony of Goldstein, another top organization man from Detroit. Organizer Corcoran, from the Steuben-ville-Pittsburgh district, testified that he added more pickets when more shoppers were on the street and that pressure was used against Richman so that he would contract for the use of the union label and thus would be forced to unionize his plant. He used seven demonstrations with from nine to twenty-one men marching four to five feet apart in front of the Pittsburgh store from 7:30 to 9:00 P. M. when the store closed. The last demonstration was held in April of 1952 even after the injunction had been granted by Judge Connell.

The evidence is conclusive to us that the technique devised was to picket steadily with a few and then follow up with a demonstration at Richman’s busiest time. There is no question that they tied up the store completely during the demonstrations. The objective was to force Rich-man to contract with Amalgamated for the Union label which necessarily would compel unionization of Richman’s plant and stores.

A false impression undoubtedly was caused by the picket line. It meant to passers-by and prospective customers that Richman was having trouble with its employees and that either there was a strike or trouble over wages or working conditions. We agree with Judge Connell when he says—

“Such banner may be innocent and harmless and may express absolute truth; but such banner on the doorstep of seventy stores, continuously for two years, may very well create a mental impression on the part of the public which is not at all contained on the banner. It may well be that Amalgamated has here figured out an ingenious devise for creating in the public mind, including those who drive for unions, those who are members of unions, and those sympathetic to unions, the impression that a legal dispute exists between the company and the amalgamated; that the company does not treat its employees fairly; that something is amiss, which causes its employees to place a picket line before the door of the company; that the company and its employees are having a dispute over working conditions or wages of its employees and that a strike is in actual progress.
“Whoever invented this ingenious method of deriving benefits from the false impressions did not have advertising in mind as his primary purpose. The whole procedure * * * smacks of a psychology entirely foreign to ours. * * *”

What then is the applicable law to the factual situation above recited? In our quest we have been aided by exhaustive briefs of counsel, and have read a plethora of cases wherein the reasoning appeared to be logical but sometimes so refined as to become elusive. We have threaded our way through them in order to come up with an answer which is correct, — at least the answer herein found is the best this Court can give.

We know full well, however, that we have not exhausted the subject and we also know that our decision will not be the last word on the subject. Starting with our own state courts, we find that in 1923, our Supreme Court laid down the following general rule:

“Picketing the plant of an employer by strikers during a strike, and peaceful discussion with and persuasion of employees to leave their employment, which under the terms of their contract is terminable at will, and peaceable persuasion of men applying for employment not to work for that particular employer, if unaccompanied by physical violence, abuse, intimidation, or any form of coercion or duress, direct or indirect, are not unlawful and cannot be enjoined.” (The LaFrance Electrical Construction & Supply Co. v. International Brotherhood of Electrical Workers, Local No, 8, et al., 108 Oh St 61 — 1923.)

In State, ex rel. v. Commission, 125 Oh St 301-303 (1932), the Court quoted with approval the following statement from La Prance supra:

“Equality of justice demands that in any controversy the rights of all parties be scrupulously maintained. The right of workmen to be employed, irrespective of union membership, must be maintained; the right of employer to conduct his business without illegal interference must be upheld; and legal means employed by strikers must not be curtailed.”

Then we reach the case of Crosby v. Rath, et al, 136 Oh St 352 (1940).

The controlling question, the Court said, is whether the evidence disclosed “the existence of a legitimate trade dispute.” The record discloses that Crosby’s employees did not belong to a union, though they were not prohibited in any way. They had a contract with Crosby renewable every three months. The union picketed her restaurant though there was no complaint from the employees, all of whom had been solicited but did not join a union. Prom 40 to 100 persons were engaged in picketing her place of business. Vile and obscene names were called, entrances were obstructed. They threatened, assaulted, struck and injured some of her employees and did many other acts of violence.

The Court of Common Pleas rendered a decree enjoining the picketing. The Court of Appeals affirmed in part. It held violence should be enjoined but peaceful picketing permitted. The Supreme Court reversed to the extent the Court of Appeals decree permits violent picketing and boycotting. It rendered final judgment in conformity with decree of Common Pleas Court. Thus all picketing of the union was proscribed.

In the case of W. E. Anderson Sons Co., v. Local Union No. 311, et al, 156 Oh St 541 (1952) it was held—

“Syl. 4. — Picketing or bannering as a means of exercising the right of free speech will be afforded constitutional protection so long as it is lawfully conducted, but the right of free speech is predicated on the lawful exercise of such right, and if, through conspiracy or unlawful conduct, the result of its exercise by such means unlawfully injures another in his property rights, the guaranty ceases and the exercise of the claimed right by such means may be enjoined or prohibited.”

Judge Hart in his opinion reviews meticulously the decisions of both federal and state courts So that we can conclude that picketing may be used in Ohio where a labor dispute exists between an employer and employees if peaceably conducted, — that is without direct or indirect coercion.

The Ohio law was as above set forth when the injunction against any picketing in the instant case was granted by Judge Connell on April 14, 1953.

In the meantime, nationally, the Wagner Act was succeeded by the National Labor Relations Act which was amended in 1947 by the TaftHartley Act. It then became known as the Labor Management Relations Act.

On October 20, 1953, the Supreme Court of the United States handed down its decision in Garner v. Teamsters Union, 346 U. S. 485. This case looms large in the field of labor relations and will need to be carefully analyzed. In the words of the Supreme Court, the—

“Petitioners were engaged in the trucking business * * * The trucking operations formed a link to an interstate railroad. No controversy, labor dispute or strike was in progress, and at no time had petitioners objected to their employees joining the union. Respondents (union), however, placed rotating pickets, two at a time at petitioners loading platform. None were employees of petitioners. They carried signs reading ‘Local * * * wants employees of Central Storage & Transfer Co. to join them gain union wages, hours and working conditions.’ Picketing was orderly and peaceful, but drivers for other carriers refused to cross a picket line and, as most of petitioner’s interchange of freight was with unionized concerns, their business fell off as much as 95%. The courts below found that respondents’ purpose in picketing was to coerce petitioners into compelling or influencing their employees to join the Union.”

Pennsylvania had a statute somewhat different from the Labor Management Relations Act which statute forbade labor unions to exert certain types of coercion on employees through the medium of the employer. The trial court applied the Pennsylvania law and enjoined the union in pursuit of its goal. The Supreme Court of that state reversed the trial court on the ground that the petitioners should apply to the National Labor Relations Board for relief. The Supreme Court of the United States then affirmed said decision. The question as put by the Supreme Court of the United States is—

“Whether the State, through its courts, may adjudge the same controversy and extend its own form of relief.”

In this case, the answer was that the state could not do so.

Counsel for Amalgamated deduces from the above holding, and, therefore, argues, that the whole field of labor relations has been preempted by the Labor Management Relations Act (Taft-Hartley) to federal authority and that jurisdiction in all labor disputes is given to the National Labor Relations Board.

Since this is Amalgamated’s claim it may be helpful to set out the pertinent part of the Statutes.

“SECTION 7 NATIONAL LABOR RELATIONS ACT as amended (29 USCA Section 157): ‘Employees shall have the right to self-organization, to form, join, or assist labor organizations, * * 9 and shall also have the right to refrain from any or all of such activities * *
“SECTION 8 NATIONAL LABOR RELATIONS ACT as amended (29
USCA Section 158): ‘(a) It shall be an unfair labor practice for an employer — . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization:
* # * * * #
“‘(b) It shall be an unfair labor practice for a labor organization or its agents — (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in Section 157 of this title: * * * or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances; (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.
* A * * * A
“‘(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.’ ”

Adverting again to our State decisions, we find that before the Garner decision, supra, our County Courts had considered and decided the case of Grimes and Hauer Inc., v. Pollock (CP 65 Abs 499, OA 71 Abs 153, 154), wherein the following facts were disclosed by the evidence. The plaintiff, a poultry corporation, had seven outlets in Cleveland for sale of processed chickens brought here in refrigeration. It had a total of 25 employees at these various outlets which the defendant attempted to unionize but failed in its attempt. Nevertheless, the defendants peacefully picketed these stores, the pickets carrying signs which read—

“This Market Does Not Employ Union Help. Please Do Not Patronize.”

The Common Pleas Court and Court of Appeals both enjoined the picketing. Before the case reached the Supreme Court of Ohio, the Garner decision, supra, was handed down by the Supreme Court of the United States. Thereupon our Court of Appeals entertained a motion for rehearing and reconsideration of Grimes & Hauer and reversed its previous decision upon the grounds that said case came under the rule set by the United States Supreme Court in Garner. The Supreme Court of Ohio affirmed this action in its decision handed down on May 25, 1955 and reported in 163 Oh St 372. The Syllabus reads—

“Because of the decision of the Supreme Court of the United States in the case of Garner v. Teamsters, Chauffeurs & Helpers local Union No. 776, 346 U. S., 485, where a labor union is in dispute with an employer engaged in interstate commerce over the unionization of the employer’s nonunion employees, and the union pickets the business locations of such employer in an orderly and peaceful manner, a state court is without jurisdiction to enjoin the picketing; a controversy of this kind comes within the provisions of the Labor Management Relations Act (Section 151 et seq., Title 29, U. S. Code), as it relates to unfair labor practices; and the employer must, initially at least, pursue the remedy of presenting his grievance to the National Labor Relations Board.”

In the Grimes case our Supreme Court did not state in its syllabus that Taft-Hartley pre-empted the entire field of labor relations. However, in the opinion of the member writing said opinion, our elder and much admired member of the Court, appears the following on page 377:

“So far as we can ascertain, the Garner case represents the latest pronouncement of the Supreme Court of the United States directly on a set of facts resembling those in the instant case (Grimes & Hauer) and lays down the rule that a state court does not possess the power to enjoin union conduct, such as the picketing of an interstate employer’s premises to induce the unionization of its employees, since such activity presents the question of an unfair labor practice within the meaning of Labor Management Relations Act which, initially at least, is exclusive.”

In Garner, the construction of a state statute of Pennsylvania somewhat different from the Federal Statute was involved. The Supreme Court of the United States affirmed that the Supreme Court of that state was correct when it found that the Federal statute prevailed over the State statute and that the case therefore came under the Labor Managment Relations Act.

That full pre-emption was not intended the Court itself on page 488 gave two exceptions. It also pointed generally to other exceptions. These exceptions were summarized by our Court of Appeals in reversing another branch of this Court in the instant case. It sets out the exceptions as follows; where:

“1. there is injurious conduct which the Board is without express power to prevent and therefore must be governed by the State or it would be entirely ungoverned.
“2. there is a case of mass picketing, threatening of employees, obstructing streets and highways, of picketing homes.
“3. there is a probable breach of the states peace.
“4. * * *, or that the Board would decline to exercise its powers once its jurisdiction was invoked.”

Our Court of Appeals held further that the allegations of the petition in the instant case are such as clearly to distinguish the same from Garner and Grimes & Hauer which suggests an area for the exercise of State authority under Ohio law. It was for the reasons given that this case was remanded to this Court for trial on its merits.

The last case handed down by the United States Supreme Court (June 4, 1956) is that of United Automobile, A. and A. I. Workers of America v. Wisconsin Employment Relations Board and the Kohler Co. In this case the employees and the Kohler Co. could not resolve their differences by collective bargaining and the employees struck and picketed the Kohler plant. On application to the Wisconsin Board, under the Wisconsin Peace Act, the Board ordered the strikers to cease and desist in mass picketing and intimidation of interstate employer’s non-striking employees. The Union thereupon appealed to the United States Supreme Court which held:

Syl. “Taft Act’s subjection of Union’s unfair labor practices to federal control, does not deprive Wisconsin Court of power to enforce Wisconsin Employment Relations Board’s order forbidding unions mass picketing and intimidation of interstate employer’s nonstriking employees.”

The facts show there was a strike by employees of an interstate employer, clearly and admittedly coming under the federal act, yet the state was not deprived of its power to regulate the activities through the state Board. The Court in its opinion says—

“The appeal urges that this amendment (Taft-Hartley) eliminated the state’s power to control the activities now under consideration to State Labor statutes. It seems obvious that Section 8(b)(1) would not be the exclusive method of controlling violence even against employees, much less violence interfering with others approaching an area where a strike was- in progress. No one suggests that such violence is beyond state criminal power. The Act does not have such regulatory pervasiveness. The state interest in lav/ and order precludes such interpretation. Senator Taft explained that the federal prohibition against union violence would allow state action.”

Previously it had been held that acts of violence in labor disputes were unfair iabor practices and only would be handled by the National Labor Relations Board. This the Court refutes and says—

“As a general matter we have held that a State may not, in the furtherance of its public policy, enjoin conduct, ‘which has been made an unfair labor practice under the federal statutes.’ * * * But our post Taft-Hartley opinions have made it clear that this general rule does not take from the States power to prevent mass picketing, violence, and overt threats of violence.”

It will be observed that in the Wisconsin case, supra, both Wisconsin and the Federal Government had provisions for regulating mass picketing just as both the State of Pennsylvania in the Garner case and the Federal Government had regulations on the facts as they appeared in Garner.

It must be noted that the facts in the two cases are different in this —in Garner the picketing was not violent though 95% coercive, while in the Wisconsin case violence prevailed with mass picketing but apparently was not so coercive. However, this was a ruling from which three justices dissented.

Mr. Justice Douglas wrote the dissenting opinion which (in part) says:

“Here the State has prescribed an administrative remedy that duplicates the administrative remedy prescribed by Congress. Each reaches the same identical conduct. We disallowed that duplication of remedy in Garner v. Teamsters Union, 346 U. S. 485, 33 LRRM 2218. In that case we held that a state court could not enjoin action which was subject to an unfair labor proceeding under the federal Act. And see Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 35 LRRM 2637. Today we depart from Garner and allow a state board to enjoin action which is subject to an unfair labor proceeding before the federal board. We sanction a precise duplication of remedies which is pregnant with potentialities of clashes and conflicts.”

Whether the Supreme Court of the United States has actually departed from the Garner ruling, as asserted by the three dissenting justices, is not for us to say. It is sufficient here to note that the above case, the last expression of the Supreme Court fully establishes that the field of labor relations was not pre-empted by the Labor Management Relations Act as asserted by counsel for Amalgamated.

There are many other exceptions to the theory of total pre-emption some of which are cited by Taft, J. in Chucales v. Royalty, 164 Oh St 214. These citations need not be repeated here in view of the above ruling.

The next question that we will consider is whether or not there was such a labor dispute in the instant case that would impel the NLRB to grant appropriate relief. If there was not such a dispute in Richman, in equity, it would not be compelled to do a futile thing. This our Court of Appeals noted in remanding the instant case. See also Building Trades Council v. Dinard, etc., 346 U. S. 933 (1954).

The most recent case on the subject as far as we can discover is that of J. J. Newberry Co. v. Retail Clerks International Assn. No. 8339, on the docket of the Supreme Court of Idaho and decided by that tribunal on June 4, 1956.

In that case the union claimed to have a majority representation of the employees of Newberry’s store in Pocatello, and filed a petition for an election with the NLRB. The election was scheduled then for August 13, 1952. On August 12th, the day before the election, the employees of Newberry’s informed the secretary and treasurer of the union that none of the employees would attend the meeting and none would vote for the union. Thereupon the union withdrew its request for an election and went direct to the NLRB claiming that it represented a majority of the employees at Newberry’s and that the company had refused to bargain with the union and had dealt directly with the employees on the subject of wages and other conditions of employment without giving the union’s representatives an opportunity to be present; that Newberry had refused to recognize the Union as the exclusive representative or bargaining agent of Newberry’s employees and had committed unfair labor practices in violation of Sec. 8(a)(1) and (5) of the National Labor Relations Act. Newberry denied the commission of the acts complained of. Hearing on the charges and the Regional Director’s complaint made pursuant thereto, was held on January 13, 1953. The trial examiner found all the issues in favor of Newberry, and specifically found that Newberry did not interfere with, restrain or coerce its employees within the meaning of the National Labor Relations Act, and recommended that the complaint be dismissed in its entirety. This was done.

In Newberry the claims made by counsel for the union were found to be untrue. What was there found to be untrue is here admitted, that is, that there is no majority or even anyone in Richman’s that belongs to the union. Consequently, the facts in effect are the same.

In Newberry after the National Labor Relations Board approved the findings and recommendation of the examiner and dismissed the proceedings, the Union placed a picket to patrol the outside of the sidewalk at the entrance and in front of Newberry’s store, carrying a sign which read:

“MEMBERS & FRIENDS OF ORGANIZED LABOR WE NEED YOUR HELP Please Shop At The Stores That Display This Sign.”

(Facsimile of Union store card or emblem)

“OUR MEMBERS DO NOT PATRONIZE NEWBERRY’S Retail Clerks Union LOCAL No. 560.”

Thereafter the said Union placed Newberry on the unfair list. Thus we have a similar situation as in the instant case, except that in Rich-man there is the additional fact that violence was used.

Newberry filed an action in the State Court praying for a restraining order. This was issued and picketing pending the hearing was enjoined. The same claim was made in that case as was made in the instant case that the matter was one for the NLRB since the field had been pre-empted by the Act of 1947 (LMRA) and that the injunction violated the union’s rights under the 1st and 14th Amendments to the federal constitution.

The lower Court found in Finding No. IX—

“That the purpose of placing said picket by the defendant union was unlawfully to intimidate, coerce and compel plaintiff to enter into an agreement with defendant union, and by the use of economic coercion by defendants, to destroy plaintiff’s freedom of contracting.”

The Supreme Court of the state sustained the lower court ruling and made the injunction permanent and said in its opinion—

“The activities and conduct of the Union here complained of have neither been approved nor prohibited by the National Labor Relations Act and are not within the categories covered therein.”

Also that—

“The right to engage in business or follow any lawful calling is a right open to all persons, together with the further right to conduct such business or calling without unlawful interference from others.”

If there was no labor dispute in Newberry, there is no labor dispute in Richman. If, therefore, Richman applied to NLRB, its complaint would be dismissed. It seems to us that Richman’s contention that it would be futile to apply to the Board for relief, is fully sustained.

But counsel for Amalgamated in his letter brief of June 26, 1956, calls to our attention the case of Lauf v. Shinner & Co., 303 U. S. 323, which is rather disconcerting. We think the answer is that the Supreme Court of the United States was concerned more with the interpretation of the Wisconsin state law than anything else. It says—

“As the acts complained of occurred in Wisconsin, the law of that state governs the substantive rights of the parties. (Page 327) * * * The District Court was bound by the construction of the section (of Wisconsin law) by the Supreme Court of the state, which has held a controversy indistinguishable from that here disclosed to be a labor dispute within the meaning of the (Wisconsin) statute.”

We' believe the later decisions of the Supreme Court of the United States above cited cover the situation in Richman and make for a better understanding thereof.

It is urged, but not strenuously, that to enjoin Amalgamated in the instant case would infringe on its constitutional rights under the 1st Amendment to the Constitution. This has been refuted in many cases. We will confine ourself to the cases of Hughes v. Superior Court, 339 U. S. 460 (1950) wherein the Court says:

“The Fourteenth Amendment does not bar a state from enjoining peaceful stranger picketing, the sole object of which is to enforce compliance with a demand that the employees of the business be hired in proportion to the racial origin of its clientele. The state Supreme Court had affirmed a narrowly drawn injunction on the ground that the public policy of the state forbid such conduct because it would encourage discriminatory hiring. In its opinion the Supreme Court emphasizes; (a) that picketing is more than free speech since the presence of a picket line may lead to action of some kind regardless of the nature of the ideas being disseminated and (b) that the fact that the state public policy had been expressed by the judiciary rather than by the legislature was wholly immaterial.”

From the above and other cases we see that federal courts will follow the state public policy expressed either by the legislature or by the judiciary.

But where do the above decisions applied to the facts disclosed by the evidence in the instant case lead us?

Isaacson in his brilliant article (Am. Bar Ass’n Journal of May 1956, p. 420) digests and comments on the important cases in this field of the law. He quotes Justice Frankfurter in the Richman decision that the “ascertainment of pre-emption under Taft-Hartley Act is (neither) self-determining (nor) even easy;” the line of demarcation between the area of exclusive federal power and allowable state jurisdiction is indeed “rather subtle.” (Then he follows with his own views.) “That under these circumstances the state courts would frequently blunder. The best intentions of state court judges could not supply that degree of knowledge and familiarity essential to an understanding of the complex subject.”

His comment about state courts may be correct in a very great measure. This court has studied this case for over a month and we hope we see a little light. But we cannot resist saying here that the eminent Justice above quoted was one of the six Supreme Court Justices whom the dissenters in the Wisconsin case supra claimed had departed from Garner.

We have in the instant case Amalgamated, an outside union, through stranger picketing, attempting to coerce Richman to contract with the union for the use of its “Union label.” This would necessitate the unionization by Richman of its employees. If the employees would not join the union, Richman, to keep its contract, would have to discharge them, thus committing a “discrimination” under the Taft-Hartley Amendment.

It is clear that the “mandate” came from the Union’s convention, was considered and implemented by its officials and the orders were given to Peppercorn and other Cleveland representatives to proceed in the manner agreed upon, to unionize Richman. Call it a “conspiracy” or call it a “plan,” its ultimate object was the same. What Peppercorn had not been able to do at the factory for more than ten years would be accomplished by this plan.

It is now clear from the Hughes case, supra, to the last Wisconsin case, above mentioned, that the Supreme Court of the United States, will interpret a state’s policy as the state courts interpret that policy,— whether that policy is one declared by the legislature or declared by the judiciary. This is especially true where violence is involved. It is admittedly within the power of the state to protect its own peace.

We find that the facts proven in this case clearly show that the exceptions to pre-emption set forth by our Court of Appeals in its order remanding this case have been clearly proven before.

The policy of our state as to stranger picketing is set forth in Chucales v. Royalty, 164 Oh St 214. The Syllabus is clear and the reasoning of Judge Taft is quite logical. True, the facts show an intrastate violation. Nevertheless, the policy is clear as shown in Crosby v. Rath, 136 Oh St 352. It must be kept in mind that in Crosby, certiorari was refused by the Supreme Court. In doing so, we are obeying the mandate of our Court of Appeals, which we must do under the proven facts.

The finding will, therefore, be for the plaintiff and the injunction will be against all stranger picketing. In so doing, we do not in anyway presume to deny strikers the right of peaceful picketing which is the determined policy of our state. We have no strike here but we have a stranger who is attempting to force an employer to enter into a contract against his will, which is proscribed by our law.

We could stop right here but I am impelled to add an observation. Counsel for Amalgamated called Richman’s method of operating its factory “paternalistic feudalism.” There is nothing evil in being paternal, — in treating one’s employees as being a part of the family. It is when the father becomes arbitrary or autocratic that the situation becomes objectionable and may cause rebellion. Germany under the Kaiser before World War I, had advanced economically and otherwise farther than any other nation and remained at the top till the leader began to think of “Ich und Gott.” Mussolini and Hitler did well until they began to think of themselves as world rulers. Then disaster came. That is why democratic action is more cumbersome but safer in the end. The people will right themselves finally.

But we do not have that case here. There is no strike.

In the early part of this century men in the coal mines under John Lewis (not John L. for whom we also have respect) struck and fought for a decent wage. Labor in those days obtained their raise in pay, literally, through “blood and tears.” Then labor began its march upwards. The employees of Richman have marched upwards also and are perfectly satisfied with their lot. If they become disatisfied in any way, they also will rebel.

As to the campaign for adoption of the union label, a slower, but perhaps sounder, campaign has been proposed as shown in last week’s official union paper of this city. If the rank and file of labor follow that plan, we will not have rule by an oligarchy, which may be as disastrous as rule by an autocracy.

Decided October 4, 1956.

In any event, the Supreme Courts, when this reaches those tribunals, will have a clear cut decision to sustain or reverse.

A Journal Entry may be drawn in conformity with this opinion.

No. 641936.

JUDGMENT

By NICOLA, J.

This cause duly came on for trial on the merits, and was heard on the pleadings, the evidence, and the arguments of counsel, and was submitted to the Court; and

On consideration thereof the Court finds on the evidence for plaintiff and that the statements and allegations in the petition are true; that the defendants, acting at the instance and under the direction and control of the defendant Amalgamated Clothing Workers of America, have entered into, and have carried out an unlawful plan or conspiracy against Plaintiff as alleged in the petition herein; that the picketing complained of in the petition is in furtherance of such plan or conspiracy, which the Court finds is contrary to the public policy of the State of Ohio and is unlawful; that as a result of such plan or conspiracy, plaintiff has been, and, unless an injunction is granted as prayed, will continue to be, irreparably damaged, and is without adequate remedy at law; that the Court has jurisdiction of the parties hereto and the subject matter herein, and plaintiff is entitled to the relief prayed for.

Upon consideration of the defendants’ motions made at the trial to dismiss plaintiff’s petition, dissolve the temporary injunction or, in the alternative, to modify said injunction, and to limit the temporary or any other injunction to cover peaceful picketing or any other activities in the State of Ohio, all of which were heard, argued and submitted to the Court, the same are hereby overruled.

It is, accordingly, ORDERED, ADJUDGED AND DECREED that the temporary injunction heretofore granted in this cause be made permanent and that the bond provided for therein be and the same hereby is cancelled; that defendants and each of them named in the petition, the respective branches, locals, officers, members, agents and employees of the defendant unincorporated associations, or any of them, all persons associated with or acting in concert with the defendants or any of them with respect to the acts herein enjoined, and all others to whom knowledge of this order shall come, be and they and each of them are hereby perpetually enjoined and restrained from picketing, or from causing, encouraging, or assisting to cause to be picketed, any of the stores of plaintiff wherever located, and from doing any and all other acts or things, in furtherance of said plan or conspiracy.

Further considering, it is ordered that plaintiff recover from defendants its costs herein expended, taxed at $106.83, judgment for which is hereby rendered plaintiff against defendants.

Exceptions to defendants. Appeal Bond $1,000.


author: Per CURIAM.

text:
    CHARLES M. INGERSOLL COMPANY, Bankrupt, In re: COLEMAN, Trustee, Appellant, v. JOHN DEERE PLOW COMPANY OF COLUMBUS, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12282.
    Decided April 26, 1955.
    Wells & Marks, Cleveland, Carson & Roderick, Akron, for appellant.
    Gardner & Spilka, Cleveland, for appellee.
    Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
   OPINION

Per CURIAM.

This case came on to be heard upon the record and briefs and oral arguments of counsel:

And it appearing that the conditional sales contracts involved reserved title in the seller until payment was made for “every article” of goods to be delivered;

And it appearing that sales might be made by the dealer in the ordinary course of retail business “provided that at the time of sale the Dealer obtains full settlement from the purchaser and provided that property taken in trade as part payment of the retail price of such goods, together with other proceeds of sale, whether cash, book accounts or notes, or in any form whatsoever, shall be the property of the Company and shall be received and held by the Dealer as the Company’s property in trust for its benefit and subject to its order in lieu of the goods so sold. Cash proceeds shall be turned over to the Company as and when collected by the Dealer and shall be applied on the Dealer’s indebtedness under this contract”;

And it appearing that the provisions in the said contracts for accounting were carried out regularly each month by the parties, together with a physical check of inventory;

And it appearing that the referee in bankruptcy held that the conditional sales contracts involved were properly executed and properly recorded in the county in which the conditional vendee resides, that the affidavits of the conditional sales contracts complied with the requirements of §1319.11 R. C., and that the description of the goods covered by the conditional sales contract, which contained an itemized list of all goods described by type and model number and purported to cover all sales of goods of the special make, sufficiently identified the goods under Ohio law;

And it appearing that the District Court confirmed the order of the referee;

And it appearing that the findings of the referee and of the District Court, 119 F. Supp., 868, are supported by the record and that their conclusions of law are correct under applicable authorities and Ohio decisions, Kleine, Hegger & Co. v. L. Katzenberger & Co., 20 Oh St 110, 117, approved and followed in Brubaker v. Brubaker, 55 Oh St 648, 48 N. E., 1110, and Kelly v. Tracy & Avery Co., 71 Oh St 220, 242, 73 N. E., 455; Lawyers’ Cooperative Publishing Co. v. Rose, 60 Oh Ap 258, 13 O. O. 273, 20 N. E. (2d), 720; 65 A. L. R., 715 et seq.; 47 Am. Jur. 52; Raeuber v. Central National Bank (D. C., N. D. Ohio), 112 F. Supp., 865, 52 O. O. 73. Cf. In re Collinwood Motor Sales, Inc. (6 Cir.), 72 F. 2d, 137, and National Cash Register Co. v. Marks (6 Cir.), 13 F. 2d, 628;

The order of the District Court holding the conditional sales contracts valid, sustaining the order of the referee and dismissing the petition to review, is affirmed.


author: By HUNSICKER, J:

text:
    CENTRAL NATIONAL BANK OF CLEVELAND, Plaintiff-Appellant, v. ARNOLD, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23785.
    Decided July 11, 1956.
    Richard I. Kuhn, Gerald A. Doyle, for plaintiff-appellant.
    George F. Hayes, for defendant-appellee.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

The Central National Bank of Cleveland brought an action on a promissory note with warrant of attorney attached, against Park Arnold, to recover $1,524.27. (The Plaside Co. was the original payee of the note. This company sold the note, without recourse, to Ceneral National Bank.) The said amount was claimed to be due for certain improvements made to a house owned by Arnold.

After the cognovit judgment had been rendered, the trial court vacated it to permit Arnold to interpose a claimed defense. Arnold, by way of answer, denied that he signed the “note upon which this action is based * *

The trial resulted in a judgment for Park Arnold. It is from this judgment that an appeal on questions of law is before this court.

The bank, appellant here, says, by way of assignments of error:

“1. That the defendant failed to sustain by a preponderance of the evidence that the ‘X’ signature of the defendant was a forgery.
“2. That the evidence produced at the trial was such that reasonable minds could only conclude as a matter of fact that the ‘X’ signature affixed to the note sued upon was placed thereon by the defendant.
“3. That the judgment finding in favor of the defendant and against the plaintiff is not sustained by the evidence and is contrary to the weight of the evidence.
“4. That the trial court erred in not granting plaintiff’s motion for a new trial.
“5. Other errors apparent from an inspection of the record.”

There has been filed in this case a bill of exceptions which bears the following certification by the trial judge:

“And now, upon the 30th day of January, 1956, being within five days after the receipt of said bill of exceptions, and all objections and amendments thereto, from the said Clerk, and within the time allowed by law, and upon due consideration of the same, and the objections and the amendments thereto, the said bill of exceptions is hereby allowed and signed by the Court, and it is ordered that the same be transmitted to the office of the Clerk of this Court forthwith, and that the same be filed as and made part of the record in this case, but not spread at large upon the journal.
“Anthony A. Rutkowski,
“Trial Judge.”

It is thus seen that the trial judge did not certify that the bill was complete, but only that it was a bill of exceptions. When this bill of exceptions is examined with reference to the testimony taken at the trial, it is readily apparent that the bill is not complete, and that most, if not all, of the testimony in chief presented by the appellant (plaintiff Bank in the trial court! is not a pa,rt of this bill..

The defense to the action, as filed in the trial court, was not the affirmative defense of forgery, but a defense based upon a denial that the defendant ever executed the note. There is no testimony in the bill which tends to prove that this appellee, Park Arnold, signed this note, either by mark or otherwise. If there was testimony before the trial court that Park Arnold did sign the note, it is not a part of this bill of exceptions.

In the situation that confronts this court, we find no error prejudicial to the appellant on the face of the record; and, since we have only a partial bill of exceptions, we are unable to determine the claimed errors arising on the weight of the evidence.

The judgment herein must be affirmed.

STEVENS, PJ, DOYLE, J, concur.


author: By CASE, J.

text:
    TIPTON, a Minor, etc., Plaintiff, v. FLEET MAINTENANCE COMPANY et, Defendants.
    Common Pleas Court, Fayette County.
    No. 22243.
    Decided May 17, 1957.
    David H. Bailie, Landis, Ferguson, Bieser & Greer, Dayton, for plaintiff.
    William H. Selva, Pickrel, Schaeffer & Ebeling, Dayton, for Fleet Maintenance Company.
   OPINION

By CASE, J.

On April 12,1957, Fleet Maintenance Company, one of the defendants herein, filed the following motion:

“Comes now the defendant, Fleet Maintenance Company, not entering its appearance herein, or intending to enter its appearance herein, and appearing solely for the purpose of this motion, and for no other purpose, and without submitting itself to the jurisdiction of this Court, moves the Court to set aside the summons issued herein against it, the service thereof made upon it and return of the sheriff thereon for the reason that the purported service of summons made upon this defendant is invalid and the Court does not have jurisdiction of the person of the defendant, Fleet Maintenance Company.”

In support thereof said defendant filed therewith the following memorandum:

“It is elemental that before a Court can effectively acquire jurisdiction over the person of a defendant, the person sought to be charged must be properly brought before the Court by service of process.
“By her pleading and type of service, plaintiff has admitted the defendant is not a resident of the State of Ohio and, as no service of process has been made within Ohio or within the territorial limits of this Court, it is fundamental that non-residents, such as this defendant, are not subjected to the jurisdiction of Ohio Courts under service provided under §2703.20 R. C., dealing with non-resident owners or operators of motor vehicles which are involved in accidents or collisions within the State of Ohio.
“It is very apparent from the reading of the statute that nonresidents who may be served under the non-resident section of the General Code fall into two categories. (1) The actual owner of the motor vehicle, (2) the actual operator of the motor vehicle.
“See Mary Grimes, Administratrix, v. C. A. Schaeffer, 15 O. O. 292.
“In the cited case, the Court will note that a similar case was removed to the District Court of the United States for the Southern District of Ohio, Eastern Division, and that Judge Underwood of said Court upon a similar motion sustained said motion.
“See also Parr, Appellant, v. Gregg, Appellee, 70 Oh Ap 234, 25 O. O. 23.
“See also Commonwealth of Kentucky v. Maryland Casualty, 112 F. (2d) 352 (United States Court of Appeals, sixth Circuit) in case the Court construed a statute of Kentucky which is similar to the one in Ohio and the Appellate Court said at page 355:
“ ‘Paula Andres, being neither the operator nor owner of the motor vehicle, upon the negligent operation of which plaintiff predicated her action in the state court, was not within the terms of the present statute.’ ”
“We respectfully submit that as the defendant, Fleet Maintenance Company, was neither the owner nor actual operator of the vehicle involved, service was improper and the motion to quash should be sustained in its entirety.
“We attach an affidavit relating to ownership of the involved vehicle.”

The aforesaid affidavit reads as follows:

“William H. Selva, being first duly sworn, deposes and says that he is one of the attorneys for defendant, Fleet Maintenance Company herein; that this affidavit is made in support of defendant’s motion being filed simultaneously herewith; that, on information and belief, the motor vehicle referred to in plaintiff’s petition was not owned by defendant, Fleet Maintenance Company, on the date and time referred to in plaintiff’s petition, nor does this defendant own said vehicle at this time.
“Further affiant saith not.”

By its memorandum, said defendant contends that §2703.20 R. C. authorizes and provides for service only upon (1) the non-resident actual owner of the motor vehicle, or (2) the non-resident actual operator of the motor vehicle.

With respect to the authorities cited and argument presented in said memorandum, this Court is not persuaded that it completely or correctly states the law of Ohio.

In Pray v. Meier, 69 Oh Ap 141, 35 Abs 319, 23 O. O. 572, 40 N. E. 2d 850, 43 N. E. 2d 318, the headnote thereto reads as follows:

“The provisions of §6308-1 GC providing for substitute service on a non-resident defendant who, while availing himself of the privileges of the highways of Ohio negligently causes injury to another, includes with its provisions such right of service of summons through the secretary of state, thereby conferring jurisdiction upon the courts of this state to try such cause not only as against an owner or operator who was either driving or having such vehicle driven upon the highways of this state, but also a non-resident principal or employer who directed his employee, also a non-resident, to operate the employee’s motor vehicle on the roads of Ohio while acting in the course and scope of such employee’s employment.”

On May 2, 1957, plaintiff filed the following memorandum in opposition to said defendant’s motion to quash service of summons:

“Now comes plaintiff, Patricia Tipton, a minor, by her counsel and respectfully requests the Court to overrule Fleet Maintenance Company’s motion to quash service of summons on the ground that jurisdiction over the person has not been obtained. It is admitted by the plaintiff that the defendant may specially appear for the purpose of denying jurisdiction over its person, but it is respectfully submitted that when counsel for defendant filed an affidavit along with its motion to quash, he, in said affidavit, denied the ownership of the defendant, Fleet Maintenance Company, of a particular truck in question. This denial puts in issue one of the facts alleged in plaintiff’s petition. The plaintiff swears under oath that Fleet Maintenance Company did own the truck in question and defendant through its counsel is denying said matter under oath. We respectfully refer the court’s attention to the case of Virginian Joint Stock Land Rank v. Kepner (7 N. E. 2nd 562, 54 Oh Ap 352), where the Court held that a motion objecting to the jurisdiction of the person which can be disposed of without examining any of the facts going to the merits of action is not a general appearance. It is respectfully submitted that the ownership of the truck in question is very definitely a fact going to the merits of plaintiff’s action, and the Court must look into the merits of said facts to decide this motion. Therefore, we respectfully submit that defendant by its counsel had made a general appearance in this case.
“Now comes plaintiff, Patricia Tipton, a minor, by her counsel, and respectfully submits to this Court that Fleet Maintenance Company, being a corporation, can only operate through its employees, and that if Louis Decker was at the time of the accident which is the subject of this litigation an employee of Fleet Maintenance Company, and Fleet Maintenance Company had in its control the operation of the vehicle involved in this collision, then it is respectfully submitted to the Court that under §2703.20 R. C., Fleet Maintenance Company would fall under the wording:
“ ‘Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to non-resident operators and owners, of operating a motor vehicle or of having the same operated, within this state,’.....‘makes the secretary of state of the state of Ohio his agent for the service of process in any civil suit or proceeding instituted in the courts of this state against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occuring within this state in which such motor vehicle is involved.’ ”

On May 9, 1957, in reply to plaintiff’s above quoted memorandum counsel for defendant, Fleet Maintenance Company, filed a copy of a decision rendered by Judge Cecil of the United States District Court Southern District of Ohio Western Division on March 20, 1957, in the case of Glenna L. Cody v. Frances L. Schwarz, Inc., being case No. 2077 on the civil docket of that court; and it is noted that the following language appears therein:

“The petition alleges that Francis L. Schwarz, Inc., is a corporation with principal office and place of business in the State of New York.
“The motion of the defendant is supported by an affidavit of Chester E. Finn of counsel for the defendant, which states that the automobile being driven by the said Harry Edwards at the time of the accdent, was not owned by the defendant.
“The queston presented is whether or not the Common Pleas Court of Montgomery County, Ohio, acquired jurisdiction over the defendant through service of summons made under and by virtue of §2703.20 R. C. The first paragraph of this section of the Revised Code and the part pertinent to the issue in this case, reads as follows:
“ ‘Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, or operating a motor vehicle or of having the same operated, within this state, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who subsequently becomes a nonresident or conceals his whereabouts, by such acceptance or licensure and by the operation of such motor vehicle within this state makes the secretary of state of the state of Ohio his agent for the service of process in any civil suit or proceeding instituted an the courts of this state against such operator or owner of such motor vehicle arising out of, or by reason of, any accident or collision occurring within this state in which such motor vehicle is involved.’
“The statute uses the words ‘operator or owner,’ that is, ‘Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners,’ may be served in the manner provided by the statute ‘in any civil suit or proceeding instituted in the courts of this State against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within this State in which such motor vehicle is involved.’
“The specific question is whether or not a nonresident of the State who is neither owner nor operator of a motor vehicle may be served with process under this provision of the statute on the basis of being the principal of an agent who, in the scope of his employment, was driving the car involved in an accident. To determine this question, the Court must look to the Ohio law.
“In Pray, Appellee, v. Meier, Appellant, 69 Oh Ap 141. decided January 19, 1942, it was held by the Court of Appeals for Cuyahoga County that under similar circumstances, the Court had jurisdiction of the person.
“In Parr v. Gregg, 70 Oh Ap 235, decided February 17, 1942, it was held by the Court of Appeals for Butler County, that under circumstances similar to those in the case at bar, the Court did not have jurisdiction of the person of the principal.
“It seems almost unbelievable that in fifteen years this question has not again been raised in Ohio and decided by the Supreme Court. The two authorities just cited are of equal value and the law on this question as it now stands in Ohio, is in conflict. The law of Ohio being in this condition, the Court looks for guidance to other decisions of the Supreme Court of Ohio.”

Although this Court must admit that the decisions rendered in Pray v. Meier, 69 Oh Ap 141, 35 Abs 319, 23 O. O. 572, 40 N. E. 2nd 850, 43 N. E. 2nd 318, and in Parr v. Gregg, 70 Oh Ap 235, 36 Abs 71. 25 O. O. 23, 42 N. E. 2nd 922, appear to be clearly in conflict and of equal value as stated by Judge Cecil, in the portion of his decision above quoted; however, this Court is not able to follow with assurance or to subscribe with confidence to the reasoning by which Judge Cecil finally arrives at the conclusion to sustain the motion to quash the service of summons.

This Court has repeatedly reviewed Judge Cecil’s decision in the Cody case in an effort to comprehend and understand what pertinent language and provisions of §2703.20 R. C. were quoted in the decision but which were not discussed and which were not analyzed by him in arriving at his conclusion. His decision quotes in part the following language of the statute:

“Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle or of having the same operated, within this state, * * *”

It does not appear that any portion of his decision was particularly directed to an interpretation to that portion of the statute emphasized above; nor does it appear that his decision cited or considered two other interesting decisions of Ohio courts.

In Davis v. Montei, 38 Abs 147, 49 N. E. 2nd 584, decided September 24, 1942, by Ohio Appeals, 2nd District (which is also the Court of Appeals for Fayette County), at page 150 (38 Abs), that court stated in part as follows:

“We are inclined to think it is incorrect to say that only one person can operate a car. We can agree that this would be the correct method of operation, but it is physically possible for more than one to participate in the operation. For obvious reasons we refrain from giving examples of how two, three or four persons might all be actually participating in the physical operation of the automobile. These very acts of multiple participation would probably be negligence within themselves. The detail of alleging which one performed the various acts which constituted the operation, would be evidential. We will venture the guess that plaintiff would probably find it impossible to produce the evidence supporting his allegations of multiple operation, but as a matter of pleading we do not think it defective, particularly when we find that such a situation is possible.”

And although it is clear that Davis v. Montei, supra, is not directly in point with the question raised by defendant’s motion to quash service of summons; yet there appears to be a related area of consideration with respect to the language of §2703.20 R. C. which reads in part-

“Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege * * * of operating a motor vehicle or of having the same operated, within this state, * * *”

In other words, any nonresident of this state who accepts the privilege of operating a motor vehicle within this state, or any nonresident who accepts the privilege of having a motor vehicle operated within this state, clearly come within the meaning and intent of the express language of this statute; and it does not appear, either by express language or any reasonable inference that could be drawn therefrom, that such nonresidents were specifically or expressly limited to actual ownership of such vehicle or to actual physical presence in or actual physical operation thereof. In so far as this Court is capable of reading and interpreting the plain, ordinary and usual meaning of the words used by the Legislature in §2703.20 R. C., this Court must and does subscribe to the following pronouncement of the court of appeals in the case of Pray v. Meier, supra, at page 146 (69 Oh Ap) when it said:

“The statute above quoted, when interpreted in the light of the purposes to be accomplished, clearly includes within its provisions: (1) The owner who is operating his automobile; (2) the owner whose vehicle is being operated at his command by his agent or servant; (3) a non-owner who is having the vehicle of another operated in carrying out his own purposes within the state of Ohio. The word ‘operator’ is thus to be understood to mean one for whose purposes a motor vehicle is being operated as well as one who is performing the physical act of operating a motor vehicle.
“Such interpretation certainly does not strain or exaggerate a single word of the section, * * *”

In Shepherd v. Shapiro Fisheries, Inc., et al., and six other cases, 62 Abs 235, 99 N. E. 2d 512, the headnotes thereto read as follows:

“1. A non-resident corporation which is operating leased motor vehicles within the State of Ohio is an operator within the terms of §6308-1 GC.
“2. A non-resident corporation operating leased motor vehicles in the State of Ohio may, in the event of an accident, be served with process through the agency of the Secretary of State as provided by §6308-1 GC.”

Judge Bader’s opinion in the Shepherd case, supra, is concise and persuasive and reads in part as follows:

“The same motion to quash service of summons has been filed by the defendant in seven different cases against the Shapiro Fisheries, Inc. and the questions involved in all cases will be covered by this opinion.
“These cases came before the Court on the motion to quash the service of summons in the respective cases for the following reasons:
“1. That the defendant is not, never was and is not alleged to be the owner of the motor truck complained about in the petition herein;
“2. That the petition shows the physical control and management of the said motor truck was by a person not this defendant at the time and place complained about.
“3. That this Court was without jurisdiction to issue the pretended summons served upon defendant, and the pretended service and the return thereon are without warrant of law and of no effect.
“4. Plaintiff has not pleaded jurisdictional facts to authorize issuance to and service of summons on Secretary of State.
H« *
“The defendant, Shapiro Fisheries, Inc., is a corporation and does not own the truck but if it operated the truck and trailer in question by authority of lease or otherwise it must necessarily do so through its agents or employees. A corporation is a separate entity and can only act through its agents.
“Certainly it cannot be said that if the truck was operated by Shapiro Fisheries, Inc., or it had the same operated within the State of Ohio, it could not be held liable because it was a corporation. The Legislature of the State of Ohio did not intend that the agent of a corporation operating in the State of Ohio for Shapiro Fishers, Inc., because he was the person in actual physical control, could be the only one held responsible and relieve the responsibility of the employer or actual operator. The Legislature intended to effect service on nonresidents against whom injured persons had claims.
“Shapiro Fisheries, Inc. cannot be relieved of answering to the claims of the respective plaintiffs if it leased the truck from Walter Kniaz and operated the truck through its own agents and had exclusive control over the operation of both the agent and the tractor and trailer.”

By reason of the decisions hereinabove cited by this Court, it cannot subscribe to the argument and contentions urged in said defendant’s memorandum for quashing service upon Fleet Maintenance Company; and, since it does not appear that said defendant has raised or is seriously urging any other ground as the basis upon which its motion to quash service should be sustained, it therefore appears that defendant’s aforesaid motion to quash service is not well made and should be overruled.

Counsel for plaintiff should prepare an appropriate entry in accordance herewith, noting exceptions on behalf of said defendant, Fleet Maintenance Company, and submit same to said defendant’s counsel and to this Court for approval by on or before May 29, 1957.