author: By MILLS, J. By MILLS, J.

text:
    BOARD OF MONTGOMERY COUNTY COMMISSIONERS, Plaintiff, v. UNKNOWN HEIRS etc., Defendants.
    Common Pleas Court, Montgomery County.
    No. 96079.
    Decided April 25, 1947.

      Mathias H. Heck, Pros. Atty., Albert J. Dwyer, Asst. Pros. Atty., Dayton, for plaintiff-appellee.
    Eugene G. Kennedy, Miles S. Kuhns, Heber S. Leonard, Otterbein Creager, Howard P. Williamson, Roy G. Fitzgerald, William M. Pettit, Dayton, for defendant-appellants.
   OPINION

By MILLS, J.

This is an action filed by the Board of County Commissioners of Montgomery County, Ohio, praying that the title to lots 131 and 132 of the consecutive numbers of lots on the revised plat of the City of Dayton be quieted and for such other and further equitable relief as may be granted.

The matter comes on to be heard before the court on the petition of plaintiff herein, the answers of defendant, the City of Dayton; the answer of intervening defendants, J. P. Seybold, Ellen M. Smith, Harry W. Binegar, Sebastian Ruel and George B. Wetzel, claiming an interest in the premises described in the petition and as friends of the court, in behalf of themselves and all other citizens and residents of Montgomery County; it appearing to the court that the unknown heirs, devisees and legal representatives of the estate of Sophia Lowry, deceased, of Daniel Cooper, deceased, and Letitia Bacus, deceased, having been duly served by publication, have filed no answer, plea, nor made an appearance herein.

The defendant, the City of Dayton, claims a future right of reversion or forfeiture in said lots by reason of a quit claim deed of July 1872, for a valuable consideration, from the heirs of Daniel C. Cooper, and by reason of a quit claim deed of January 1873 from the trustees of Letitia C. Bacus, widow of David Z. Cooper.

Defendant, J. P. Seybold, Ellen M. Smith, Harry W. Binegar, Sebastian Ruel and George B. Wetzel, in behalf of themselves and all other citizens and residents of Montgomery County, Ohio, claim a vested interest in said lots by virtue of a dedication by Daniel C. Cooper, of lots 131 and 132, for a court house, jail,, etc., by a plat which said defendants claim was accepted by the duly qualified and acting county commissioners of Montgomery County, Ohio, in 1805.

To the answer of the intervening petitioners, plaintiff herein filed a general denial.

The court, after careful consideration of all the evidence adduced at the hearing, the briefs and arguments of counsel, and after consideration of the law applicable thereto, finds the following:

That on April 27th, 1802, Israel Ludlow certified for Daniel C. Cooper that a certain plat was a true copy of the original plat of the Town of Dayton, then Hamilton County, Ohio; that same was filed for record April 28th, 1802 in Deed Record E-2, page 40, Hamilton County, Ohio; that a subsequent plat of Daniel C. Cooper, dated September 5th, 1803, was filed for record in Montgomery County September 9th, 1805 and recorded in Deed Book B, page 1. The first constitution of the State of Ohio was adopted at Chillicothe, Ohio, November 29th, 1801, and Ohio was admitted to the Union as a state in 1803. That attached to said plat filed in Montgomery County as of record on September 9th, 1805, was an explanation of lots 131 and 132 to be used for the court house, with the following certificate: “I do hereby certify the above explanation and reservation are correct with respect to the Town of Dayton.”

On April 2nd, 1804, an election was held for county commissioners. The following commissioners were elected: Edmund Munger, John DeVoe, and William Browne, and the first session or meeting of the county commissioners was held at the Newcom Tavern on June 11, 1804.

Montgomery County, at that time, included the territory now in Preble, Montgomery and a portion of Clark counties, and extended north to the state boundary line.

On June 27th, 1805, Daniel C. Cooper and the county commissioners, entered into an agreement wherein it was stipulated that the conditional agreement, which included the offer to dedicate lots 131 and 132, dated September 5th, 1803, had not been accepted, and that because of non-acceptance by the county commissioners, the agreement dated June 27th, 1805, and filed for record September 9th, 1805, recorded in Deed Book B, page 3, .was entered into between Daniel C. Cooper and the county 'commissioners.

The agreement recites that the aforementioned offer had not been accepted, and a further condition was that the aforesaid offer was considered to be null and void, and in this agreement Daniel C. Cooper agrees in consideration that the aforesaid agreement may be made null and void binds himself to make a good deed to the commissioners and successors in office for the county as soon as he obtained title from the United States for the town tract, among them lots 131 and 132 for the court house, jail, etc., etc. There are other obligations placed on the county commissioners wherein they were to carry out previous conditions.

On July 18th, 1812, Daniel C. Cooper received his patent for the town tract from the United States government, which was filed for record February 9th, 1813, and recorded in Deed Book C, page 47 of Montgomery County records. Acting in accordance with the agreement, Daniel C. Cooper, on November 26th, 1813, deeded lots 131 and 132, among other property, for a court house, etc., etc., to the county commissioners of Montgomery County, their successors in office and assigns forever. This deed was filed for record on January 7th, 1814, in Deed Book C, page 256, in the Deed Records of Montgomery County, Ohio. In this deed Daniel C. Cooper, in referring to lots 131 and 132 and other lots and the purpose for which they were deeded, refers to his agreement of June 27th, 1805, with the county commissioners and specifies it as recorded in Deed Book B, page 3, of the Deed Records of Montgomery County, Ohio.

The first question considered by the court is: Did the county commissioners take the title for the uses and purposes of a court house and jail, etc., etc., by reason of a dedication and acceptance, or did they take title by the deed dated November 26th, 1813, recorded January 7th, 1814, in Deed Book C, page 47, of the deed records of Montgomery County, Ohio, from Daniel C. Cooper and his wife, Sophia Cooper, as provided in the contract dated June 27th, 1805?

Intervening defendants are relying solely on a common law dedication, or dedication under the Territorial Laws. At the time of the claimed dedication there were no statutes in effect in the State of Ohio, providing for and defining dedication. Referring to 16 American Jurisprudence, Article 16, under “Contractual Analogies” and “Dedication Generally,” it is held:

“Neither a written grant nor any particular words or ceremonies, or form of conveyance, are necessary to render the act of dedication of land to public uses effectual at common law. Anything which fully demonstrates the intention of the donor and the acceptance-by the public, works the effect. Words are unnecessary if the intent can be gathered from other sources. It is sufficient if the owner’s intention, and express act coincide; dedication will then be effective immediately on its acceptance by the public.”

Under Article 49, at page 375 of 16 American Jurisprudence, under the subject of “Withdrawal:”

“In general, the proprietor may revoke or withdraw his offer of dedication, in whole or in part, at any time before it is accepted by the public or its representatives and before the rights of private persons have intervened.”

Lots 131 and 132 are not shown upon the drawing of the original plat filed for record September 9th, 1805 and dated September 5th, 1803. However, there is an open space marked on the plat consisting of eight lots where lots 131 and 132 are now numbered on the plat. An explanation is attached stating lots 131 and 132 are for the court house. Prior to the recording of said plat, to wit, on September 9th, 1805, an agreement between Daniel C. Cooper and the county commissioners was entered into. The plat and the agreement were filed simultaneously for record on September 9th, 1805. The plat of 1803 recorded in Hamilton County does not specifically name lots 131 and 132 but the blank space of eight lots is shown as public grounds.

In the absence of any evidence of an offer to dedicate, other than the drawing of the plat and the recording thereof in Hamilton County, there being no further evidence of an offer to dedicate to the public for public uses, the court finds there was no evidence of an acceptance of any prior offer to dedicate up to the time of the election of the county commissioners in 1804. The court finds there is no evidence as to the acceptance by the county commissioners after their election and qualification. We must look to the agreement dated June 27th, 1805 between Daniel C. Cooper and the county commissioners; therein it is recited in the second paragraph:

“That the said Daniel having heretofore made certain proposals for granting lots to the county and other property for and in consideration of having the seat of justice established at Dayton which has not been accepted by the judges and the said lots have not been sold for the county whereby the value of the lots would have probably been augmented to the advantage of the said Daniel and the parties hereto subscribing on their respective parts being willing to settle and compromise the aforesaid agreement have agreed as follows, to wit:

“That in consideration of all the aforesaid agreement being made null and void the said Daniel hereby grants and conveys and binds himself to make a good deed to the commissioners and to their successors in office for the county as soon as he obtains one from the United States for the town tract for the following lots numbered on the plat of the said town as follows: 131 and 132 for a court house and jail, etc., (naming other lots for burial ground, for religious purposes, and several other lots to be sold for the use of the county) one fourth by the first of November next and with a condition binding the purchaser to build and improve on them in one year, the remainder to be sold in four years and the commissioners agree on their part for and in the behalf of the county that the said Daniel shall be hereby exonerated and discharged from all the proposals and subscriptions made by him to the use of the county before the date of these presents and the fullfilment of all and every of the engagements and stipulations herein set forth the said Daniel 'C. Cooper binds himself, his heirs, executors, administrators and assigns on his part and the said commissioners bind themselves and their successors in office in behalf of the county.”

It must be remembered that there was a condition in the proposals entered into for granting lots to the county and other property prior to the agreement of June 27th, 1805. That having been signed by Daniel C. Cooper and the county commissioners, and the condition recited in the contract is “in consideration of having a seat of justice established in Dayton;” reciting further that the offer had not been accepted by the judges, and that the other lots proffered had not been sold for the county, whereby the value of the lots would have been augmented to the advantage of said Daniel C. Cooper, it is apparent that the proposals and offers that the agreement says “have not been accepted,” was a promotional idea on the part of Daniel C. Cooper to augment the value of the land on condition that Dayton would be selected as a county seat and on further condition that if it were selected as a county seat, the to be elected county commissioners, after the judges had selected it as a county seat, would further sell other outlying lots to further increase the value of real estate owned by Daniel C. Cooper at the time in Dayton. (It is to be remembered that there was a rival town already established in Montgomery County that might have been selected as the county seat, a little village long since deserted, lying in the hills off the Whipp Road, between Alexandersville and Centerville, and called Woodburn.) This agreement further said “Daniel C. Cooper further binds himself to make a good deed to the commissioners and their successors as soon as he obtains one -from the United States for the town tract,” and transfer to said county commissioners for the uses and purposes mentioned in the agreement by the most solemn instrument of conveyance, to wit, a deed.

It follows thereafter that Daniel C. Cooper did receive a patent dated July 18th, 1812 from the United States, which was filed for record February 9th, 1813, which was recorded in Deed Book C, page 47, in the records of Montgomery County. Pursuant to his agreement he executed and delivered a deed to the county commissioners of Montgomery County, on November 26th, 1813, in which his wife, Sophia, released her right and expectancy of dower, and the same was filed for record January 17th, 1814, and recorded in Deed Book C, page 256 of the records of Montgomery County, Ohio. This is the solemn instrument by which the court finds that the county commissioners, their successors in office and assigns, obtained title to lots 131 and 132 in the City of Dayton, Ohio, which is the subject of this action to quiet title thereto.

Describing among other properties, lots 131 and 132, the deed recites:

“That this indenture made this twenty-sixth day of November in the year of our Lord one thousand eight hundred and thirteen between Daniel C. Cooper and Sophia, his wife, of the county of Montgomery of the one part and the County Commissioners of the same county of the other part, witnesseth:

“Whereas the said Daniel C. Cooper as proprietor of the town of Dayton in the said county, among other donations of ground for public purposes, did describe, set apart and give in-lots numbered on the plat of the said town of Dayton one hundred and thirty-one and one hundred and thirty-two for the court house etc., etc., (describing other lots for other purposes), as will appear more fully in and by the records of Montgomery County, Book B, page 3.”

The granting clause in said deed recites:

“Therefore this indenture witnesseth that the said Daniel C. Cooper hath given, granted, aliened, conveyed and confirmed and by these presents doth give, grant, alien, convey and confirm unto the said county commissioners, their successors in office and assigns forever, to and for the uses and purpose aforesaid, all the above described lots.

“To have and to hold the said granted premises with all the privileges and appurtenances to the same belonging as in any wise appertaining to the only proper uses, benefits and purposes above mentioned.

“And the said Daniel C. Cooper for himself, his heirs, executors and administrators, doth covenant, grant and agree to and with the said county commissioners, their successors in office and assigns, by these presents that they, the said county commissioners, their successors in office and assigns, to and for the uses and purposes above mentioned shall and may from time to time and at all times forever hereafter by force and virtue of these presents lawfully, peaceably and quietly have, hold, use, occupy, possess and enjoy the said granted and confirmed premises, with all the appurtenances, free and clear and freely and clearly acquitted, exonerated and discharged of and from all and all manner of other or former gifts, grants, sales or incumbrances of what name or nature soever that might in any measure or degree obstruct or make void this present deed.

“Furthermore the said Daniel C. Cooper for himself, his heirs, executors and administrators, doth covenant and engage the above granted and confirmed premises to them, the said county commissioners, their successors in office and assigns, against the lawful claims of any person or persons whatsoever forever hereafter to warrant, secure and defend by these presents.”

The deed appears upon its face to have been properly executed by the grantor, Daniel C. Cooper, and his wife, Sophia Cooper. It is witnessed by two witnesses and acknowledged before the proper officer.

It will be observed that the deed from Daniel C. Cooper and his wife, Sophia' Cooper, to the board of county commissioners of Montgomery County, Ohio, contains no provision for forfeiture or reversion.

It is held in First Presbyterian Church of Salem, Appellee v. Tarr, et al, Appellants, 17 O. O. 57, and cited November 1st, 1939:

“A devise of real estate to a religious society ‘to be used as-a parsonage,’ but with no provision for forfeiture or reversion, conveys all of the estate the testator had therein to the devisee, and the failure of the devisee to use and property as a parsonage will not cause the title to revert to the heirs of the testator.

“The mere statement in a will of the purpose for which property devised is to be used, will not be regarded as a condition subsequent, so as to debase the fee when the condition is broken, unless the intention of the testator is clearly shown to be otherwise.”

The same principle is upheld in 58 Oh St 67, The Village of Ashland v. Greiner, et al, where it is held:

“That as said deed had no words of forfeiture or re-entry, the diverting of said lands to uses and purposes, other than those expressed in the deed, did not in legal effect revest title to said lands in the grantor, or his heirs.”

An opinion to the same effect is expressed in 8 Oh Ap 356, in the case of Larwill v. Farrelly:

“The use in a deed of general warranty of the words ‘for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church’, does not constitute a condition subsequent or en-graft a iimitation upon the title, but at most is a mere suggestion or unenforceable request or desire.”

In First New Jerusalem Church of Lakewood, Appellant, v. Singer, et al., Appellees, 22 O. O. 217, in quoting from Copps Chapel Methodist Episcopal Church, 120 Oh St 309, it is held:

“Where a quit claim deed, for valuable consideration conveys to trustees of an unincorporated church, association, certain real property, ‘to have and to hold * * * unto the said grantees and their successors * * * so long as said lot is held and used for church purposes’, without any provision for forfeiture or reversion, such statement is not a condition or limitation of the grant. Since the deed contains no provision for reversion or forfeiture, all of the estate of the grantor was conveyed to the grantees.”

The fourth syllabus in First New Jerusalem Church of Lakewood v. Singer, reads:

“Such a deed conveying the land to the ‘trustees’ and their successors in office forever, to be held in trust for the church, and providing that the ‘land is to be returned to the original owners’ in the event that it should ever cease to be used for church purposes, conveys an absolute fee simple title to the trustees.”

Syllabus five reads:

“In such case, the grantors must, in order to create a reverter or forfeiture of the estate reinstating the fee in them or their heirs, use words in the reverter clause of equal dignity and force to those of the grant, embodying the conception of perpetuity and succession.”

Quoting from First Presbyterian Church v. Tarr, 17 O. O. 61:

“To create a condition in a grant, apt and appropriate words ought to be used, or a right of re-entry be reserved; a mere expression of purpose for particular uses to which the property is to be appropriated is not sufficient. * * *

“A condition will not be raised by implication from a mere declaration or recital in an instrument that the grant is made for a particular or certain purpose, unless it is coupled with words clearly showing upon their face such a condition, such as words indicating that the grant is to be void and the property to revert if the declared purpose is not carried out. The most that can be claimed for such recitals or statements is that they might be construed as the expression of a mere wish or desire on the part of the grantors to have the property used for the purposes indicated; but in effect they are mere suggestions, unenforceable requests, or desires.

“Conditions which in any way have a tendency to destroy or lessen estates are not favored by the law; such conditions are strictly construed, and all doubts are resolved against them in such way as to have the grant, and not to defeat it, even, it is said, to an extent hardly reconcilable with conscience, because on the breach of such conditions there is a forfeiture, and the law is adverse to forfeitures.”

Mathias H. Heck, Pros. Atty., Dayton, for the plaintiff.

Herbert S. Beane, City Atty., Dayton, for the City of Dayton.

Wm. A. Pettit, Dayton, for intervening defendants.

It is evident that nowhere upon the face of the deed from Daniel C. Cooper to the county commissioners is there evidence of words of forfeiture or reversion to the estate of Daniel C. Cooper, his heirs or assigns. There is no condition subsequent engrafted therein. There is a provision, however, that upon condition that the county commissioners accept other lots to sell in order to augment the value of lots in the town of Dayton to Daniel C. Cooper upon the further condition that the town of Dayton is chosen as a county seat, that lots 131 and 132 pass to the county commissioners, its successors in office and assigns for a court house and jail purposes and so forth. It is apparent that all of the conditions in the grant from Daniel C. Cooper to the county commissioners have long since been complied with.

Applying the law heretofore laid down by the Supreme Court of the State of Ohio to the evidence before this court, it is the conclusion of the court that the deed from Daniel C. Cooper and Sophia Cooper, his wife, to the county commissioners of Montgomery County conveyed an absolute fee simple interest, subject to no restrictions, to the county commissioners for a valuable consideration and that the deed from the Cooper heirs tó the City of Dayton, copies of which were introduced in evidence and dated in 1872 and 1873, conveyed no interest whatsoever to the City of Dayton, because the Cooper heirs had no interest, either present or future, to convey.

The court finds that the prayer of plaintiff’s petition to quiet title as against all defendants herein should be granted.

DECISION ON MOTION FOR NEW TRIAL

No. 96079. Decided May 28, 1947.

OPINION

By MILLS, J.

This cause comes on to be heard upon the motion of defendants, Seybold, Smith, Binegar, Ruel and Wetzel, by their counsel of record, moving the court that the decision rendered in this action be vacated and a new trial granted, setting forth four specific reasons for said motion.

The court will consider the second reason first:

“2. Error in interpretation of the law in finding that the Cooper plat dated 1803 and accepted by the County Commissioners and recorded when first real estate records of Montgomery County were opened in 1805 was a common law plat, instead of a plat dedication under the territorial law, which said territorial law continued as the Ohio law when statehood was attained in 1803.”

The court has again examined Volume 2, page 41 of the Laws of Ohio, dated 1800. It is true there was a penalty for failure to record a plat within one year, as provided by the Territorial Laws, but the court is without any evidence upon which to base an opinion as to whether or not that penalty was ever inflicted upon Daniel Cooper. The court can find nothing in the Territorial Law which says that the penalty was or was not inflicted, but if the duly executed plat was not filed and not accepted, that there would be a dedication.

The court will refer again to the law of dedication as set out in the opinion:

“Anything which fully demonstrat'es the intention of the donor and the acceptance by the public works the effect. Words are unnecessary if the intent can be gathered from other sources. It is sufficient if the owner’s intention and express act coincide; dedication will then be effective immediately on its acceptance by the public.”

Going on further:

“In general, the proprietor may revoke or withdraw his offer of dedication, in whole or in part, at any time before it is accepted by the public or its representatives and before the rights of private persons have intervened.”

We have no evidence of dedication of the plat of 1803, filed September 9, 1805; the only evidence we have before us, however, is the filing of the plat September 9, 1805, together with the contract, with the county commissioners dated June 27th, 1805, and referring to the plat of 1803. Both the plat and the contract were filed for record at the same time, and it is from the contract and the plat filed as of September 9th, 1805, that the court bases its opinion that the county commissioners, or the public, accepted lots 131 and 132, subject to the making of a good deed at a later date, to wit, when Daniel Cooper had received his patent from the government. After receiving his patent from the government Daniel Cooper made the good deed and filed it of record and complied with the conditions of the contract with the county commissioners.

The plat of 1802 — if it may be called a plat, it is marked “plan” — was filed in Hamilton County, was not duly executed according to the provisions of the Territorial Law. Reference was made to the revised plat of January 3, 1809 and filed for record January 4, 1809, recorded in Deed Book B page 147. That was an alteration of the plat of 1803 which refers to the plat filed February 9, 1805 by the Act of Legislature, dated February 17, 1808, recorded in Volume 6, page 140 of the Laws of Ohio, which reads:

“An Act, authorizing the proprietor of the town of Dayton in the county of Montgomery to change the plan* of the same.

“Sec. 1. Be it enacted by the general assembly of the state of Ohio, that the proprietor of the town of Dayton in the county of Montgomery is hereby authorized to alter, amend, or correct the plat of said town with the approbation of a majority of the county commissioners and the trustees of the corporation of said town: Provided that no block of lots shall be vacated in which any individual shall have a claim without their consent.

“Sec. 2. And be it further enacted, That the plat of said town, so amended, and recorded, shall be as valid as the original: Provided, the same shall be done in twelve months after the passage of this act.

Philemon Beecher,

Speaker of the house of Representatives.

Thomas Kirker,

Speaker of the Senate.”

Accompanying the plat of 1809, and pursuant to the authorization of the State Legislature, the following explanation of the plat was made:

“Out-lots to remain agreeable to the original record.

D. C. Cooper

“Wilkinson Street 4 poles wide and the western boundary of the town lots. Third Street west of the town lots 6 poles wide.

“Lots numbered 94, 95, 96, 97, 98, 99, 100, 141, 142, 143 and 144 for the use of the town as a common.

“We, the subscribers, do hereby certify that the above plan is a true representation of the town lots and streets, etc., of the Town of Dayton.

“And under the restrictions of a law passed the 17th of February 1803 we do hereby agree that the original plan be so vacated and amended as is herein specified and it is agreed that the proprietor shall have the privileges contained in the original record and that all advantages not expressly given remain with the proprietor.

“Given under our hands and seals this 3rd day of January 1809.

James Welsh John Folkerth (Seal)

Hugh McCallem Daniel Hoover, Jr (Seal)

Wm. McGlure

B. Van Cleve Commissioners.”

Isaac G. Burnet

Members of Council.

It will be noted that there is nothing in this amended plat of 1809 that changes, in any manner whatsoever, the plat of 1803 filed September 9, 1805 with the contract with the county commissioners. The lots numbered in the explanation above quoted evidently are part of the Cooper Park, now occupied by the public library. Surely no one can contend, that there is a dedication of lots 131 and 132 by virtue of the filing of the amended plat of 1809. The explanation, reference to other lots and the width of Wilkinson Street and Third Street, speaks for itself.

It is the opinion of the court that Territorial Laws do not abbrogate the right of a contract between individuals, corporate bodies, or the right of contract between individuals and counties through their authorized representatives.

In considering number three of defendants’ notion:

“Surprise which ordinary prudence could not guard against-by reason of the loss of, or disappearance from custody of the official records of Montgomery County commissioners official records for years from 1803 to 1815 which covered the courthouse lots acts, and which said records are material to the issues involved.”

The court cannot consider something that is not introduced into evidence, nor can it speculate what such official records, if there ever were such records, contained.

As to the fourth branch;

“That no lawful service was made on Letitia Backus,”

the court is of the opinion that lawful service was made upon Letitia Backus, if living, and her heirs, if any are living.

Considering number one,

“That the findings of the court are not sustained by the evidence of records and are contrary to law,”

the court refers counsel to the original opinion in this case, in which the reasoning of the law is thoroughly set forth.

The court is of the opinion that the motion of the defendants for a new trial should be overruled.

CECIL and THOMAS, JJ, concurring.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    NICKERSON v. NICKERSON et al.
    Ohio Appeals, Second District, Montgomery County.
    Decided February 18, 1949.

      Gus Byttner, Dayton, for appellant.
    Landis, Ferguson, Bieser & Greer, Irvin C. Delscamp, Dayton, for appellees.
   OPINION

Per CURIAM.

This cause is submitted on motion of defendant Margaret Nickerson, appellee herein to dismiss the appeal or affirm the judgment on the ground that no bill of exceptions, assignments of error or brief had been filed by plaintiff, appellant herein.

Notice of intention to appeal on questions of law was filed on October 27, 1948. The failure to file a bill of exceptions within, the time prescribed by law does not necessarily require the dismissal of the appeal. If the errors complained of appear on the face of the record a bill of exceptions would not be required. There being no assignments of error, the court can not determine -whether a bill of exceptions is required. The motion will be overruled on that ground.

The filing of assignments of error and brief is controlled by Rule VII which requires the appellant to file the same within 50 days after filing notice of appeal. No good cause has been shown for failure to file assignments of error and brief within the required time.

This court has consistently held that the failure of the appellant to file assignments of error and brief within the time required by Rule VII is ground for dismissal of the appeal. Anderson v. Industrial Comm., 135 Oh St 77, 19 N. E. 2d 509; Peck v. County Com’rs, 28 Abs 702; Seifer v. Industrial Comm., 29 Abs 52; Brown, Gdn., v. Brown, 42 N. E. 2d 456; State ex rel. Merrill v. Moore, 84 Oh Ap 49, 82 N. E. 2d 765.

The motion to dismiss the appeal on the latter ground is sustained.

Motion sustained.

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


author: By HAM, J.

text:
    SMITH v. SMITH et.
    Common Pleas Court, Fulton County.
    No. 12780.
    Decided September 12, 1949.
    Cline & Schroeder, Toledo, Johnson & Williamson, Wauseon, for plaintiff.
    J. M. & C. M. Ham, Wauseon, for demurrant.
   OPINION

By HAM, J.

The plaintiff brings this action against John W. Smith, the father, and Ray L. Smith, his son, to recover for injuries sustained in a collision of plaintiff’s automobile with the automobile of the defendant, John W. Smith, which was then driven by his son. All the parties were and now are citizens and residents of Ohio, but the collision occurred at an intersection of highways in the State of Michigan. So far as the petition discloses, the defendant, John W. Smith, at the time of the collision, was at home, in Ohio.

The petition charges the defendant Ray L. Smith with failing to yield the right of way at this intersection, and with other acts of negligence.

As to John W. Smith, the petition alleges two grounds for recovery, (a) that he was the owner of the automobile, and (b) that the father negligently consented to the use of the automobile by his son. had knowledge of, and permitted such use, knowing that the son was an incompetent and reckless driver.

Defendant John W. Smith demurs to the petition.

That an action will lie in Ohio against one who commits a tort in Michigan is no longer debatable; nor that the law lex loci delicti governs in determining whether a legal liability exists; as accepted law also is the rule that the law of the forum controls in matters procedural.

The statute of Michigan provides, 9: 1446, Sec. 29:

“The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle * * *. The owner shall not be liable, however, unless said motor vehicle is béing driven with his or her express or implied consent or knowlédge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family.” (Emphasis ours.)

A non-resident of a state who is guilty of actionable negligence, while driving upon the highways of that state, which results in injury to another must submit to the jurisdiction of the courts of that state. That rule of law finds such a unanimity of support from the decisions of the courts as to deny debate thereon.

That rule is not confined to cases where the owner of an automobile is driving his own automobile at the time; but it extends to embrace cases where the owner is not present but his automobile is being driven by his agent or servant, acting, of course, within the scope of his employment.

That rule in Ohio is given effectiveness by §6308-1 GC which permits service of process upon the non-resident in his home state. Thus a non-resident who accepts the privilege of using ouf highways is compelled to accept and abide by the traffic laws regulating the use of such highways, and to respond in our courts for injuries arising from his negligent operation of an automobile on such highways.

In the case of Pray v. Meier, 69 Oh Ap 14, 23 O. O. 572, the court held that the traffic laws of Ohio applied not only to “the owner whose vehicle is being operated at his command by his agent” but also to a non-resident who is having another’s vehicle operated for the non-resident’s purposes in Ohio.

In that case, it seems to us, was proclaimed a principle of law that is very much like that present in and applicable to the instant case.

In that case the court recognized that the act of the agent was the act of the principal: that the agent was the alter ego of the principal.

We have never heard of an inanimate alter ego, but we believe the principle applied in the case cited is applicable here. What moots it whether that which was sent into a foreign state was a living creature or ,an inanimate object?

An examination of the decision in the case of Masci v. Young, 109 N. J. L., 453, 83 A. L. R. 869 will disclose a case that factually is on all fours with those in the case at bar.

We will content ourselves with quoting the first syllabus of that case:

“Liability imposed by the law of the state in which an automobile accident occurred, on the owner of the car, for the negligence of one driving it with his permission, will be enforced by the courts of another state, even though such' owner is a resident of the state of the forum and the lending of the automobile took place there.”

We also quote the second syllabus of the case of Heavilin v. Wendell (Iowa) 241 N. W. 654, 83 A. L. R., 872:

“The burden of establishing the fact that an automobile involved in an accident was being driven with the consent of the owner is on a plaintiff so alleging.”

See also Anno. pp. 878 et seq., 83 A. L. R. Text at Page 492, Volume 11, American Jurisprudence.

While we hold that the demurrant must respond for the negligence of his son in the operation of the demurrant’s automobile, we recognize a condition to the rule just discussed, i. e., in order to compel the owner to respond for the driver’s negligence, the plaintiff must plead, and at the trial, prove that the defendant John W. Smith’s automobile was being driven at the time on thé highways of Michigan by his son with the owner’s knowledge or consent that it was being driven on Michigan highways.

Nor do we believe that the statute of Michigan heretofore quoted aids the plaintiff in establishing such a consent. That, because, first, we think the presumption created by the Michigan statute is clearly limited in that it applies only to one who is a member of “the family”. There is no averment in the petition that any such family relationship existed between the defendants at the time; secondly: a more debatable and involved question is present; i. e., Could any such presumption prevail against the demurrant even though we assume that such a family relationship exists?

Surely, if the father had not given his consent, nor had such knowledge, he would not be subject to any provision of a statute wherein such a consent is a necessary and controlling factor. Of course this discussion is disconnected from what conclusions might be arrived at on the ‘reckless, incompetent driver’ phase to be discussed later herein.

In brief, only if and until by pleading and proof either that such a consent to drive in Michigan was given or knowledge thereof had by the father in Ohio, can the statute apply. Can the proof of such a consent in Ohio create and make operative in Michigan the resultant offspring of that consent, i. e., the subjection of the owner to the effectiveness of this presumption. Surely, the offspring cannot be the creator of its own progenitor.

Webster recognizes the similarity between a condition as applied in the law of contracts, wills etc, and that in the science of logic, when, in defining “condition”, he says, “a proposition either necessary or sufficient for the support of another.”

So here, we have a condition which must necessarily exist (akin to a condition precedent in contracts etc.), that is, the giving of a consent to another by an owner in Ohio to use his automobile in Michigan, before another, a secondary condition resultant from or supported by the first (i. e., the legal conclusion that such consent was given), can exist.

Most assuredly the priority of the two conditions cannot be reversed, and the legal conclusion arise and be operative to produce the supporting first before the existence of the first is established. No more can such an anomaly exist in law or logic, than could the child be the predecessor of the parent. It follows as of course that the proviso as to presumption is inoperative without the State of Michigan.

The court holds that the plaintiff must allege, and must prove at the trial, that such knowledge was had or such consent was given and do so unsupported by the presumption in this statute of Michigan.

So, plaintiff having failed to plead that the demurrant (owner) consented to or had knowledge of the use of his automobile in the State of Michigan, and the Michigan statutory provision as to the presumption being inoperative, the court concludes that on that ground (that plaintiff as the owner of this automobile is liable for his son’s negligence), the petition fails to state a good case against the demurrant.

As to the other ground of recovery, i. e., that the demurrant negligently gave permission and consented that his co-v defendant (son) drive his (the demurrant’s) automobile, knowing that the son was a reckless, incompetent driver, it will be observed that this is not charging the son with negligence, it is charging the father with negligence, not in a foreign state, but at home. For resultant injuries from such negligence the father would most certainly be liable, wherever the injuries occurred, state lines being no barrier to a recovery. Anno. 68 A. L. R. pp. 1013-1014, Cleveland v. Owens, 51 Oh Ap, 53, 3 O. O. 516.

The demurrer will be overruled with exceptions.


author: By HUNSICKER, J. By HUNSICKER, J.

text:
    FIRST FEDERAL SAVINGS & LOAN ASSN., etc., Appellee, v. WILLIAMS, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 3906.
    Decided November 28, 1947.

      Foust & Holden, Akron, for appellee.
    Gottwald, Hershey & Hatch, Akron, for appellant.
   OPINION

By HUNSICKER, J.

On July 22, 1947, The First Federal Savings & Loan Association of Akron, Ohio, as plaintiff (appellee in this court), filed an action in forcible entry and detainer in the Municipal Court of Akron to recover possession of premises leased to Frank R. Williams, defendant in that court (appellant in this court). The trial, to a jury, resulted in a verdict and judgment thereon for First Federal Savings & Loan Assn., the lessor. The Common Pleas Court of Summit County, in an appeal on questions of law, affirmed the judgment of the Municipal Court, from which judgment of affirmance this appeal on questions of law has been taken.

•The plaintiff (appellee), as lessor, and defendant (appellant), as lessee, entered into a written lease on October 29, 1943’, to begin December 1, 1943, and end November 30, 1946. The lease contained an option by lessee “to extend the term of this lease for a term of two years from the termination thereof upon such terms and conditions as the parties hereto shall mutually agree, provided always that it is also understood and agreed by the parties hereto that if the party of the first part (the lessor) should at any time during the said extended period of two years desire to ■ use and occupy the said premises for its own purposes then this lease can be terminated at the option of the party of the first part by giving the party of the second part (the lessee) a sixty-day written notice to so terminate the lease and vacate the premises.”

Notice to vacate the premises was given as required by the terms of the written lease, and the statutory three-day notice was served on the defendant-lessee. When the defendant failed to vacate, the forcible entry and detainer action was filed.

The defendant assigns as error the following: The court lacked jurisdiction because the Common Pleas Court had first acquired jurisdiction; the overruling of his motion for a directed verdict at the conclusion of appellee’s case; misconduct of the court in the presence of the jury, and misconduct of the jury; the admission and rejection of evidence; the charge of the court to the jury; the verdict is contrary to law and against the manifest weight of the evidence.

The first summons served in the forcible entry and detainer action described the wrong premises, and, upon motion of the defendant, Frank R. Williams, such summons was quashed. Before proper service was obtained, Frank R. Williams commenced an action in the Common Pleas Court of Summit County against the appellee herein and others, to enjoin them from “interfering with his peaceful use and occupancy of the premises.” A motion objecting to the Municipal Court proceeding with the trial because of lack of jurisdiction was overruled.

Complaint is here made that, by the commencement of the action in the Common Pleas Court, the Municipal Court was without jurisdiction to proceed in the action in forcible entry and detainer.

The forcible entry and detainer action was for possession only, the injunction action could not have awarded possession. The former action is at law, the latter in equity.

Where the causes of action are not the same, the action for injunction which was first commenced does not prevent the Municipal Court from proceeding with the forcible entry and detainer case commenced later.

State, ex rel. Maxwell, Pros. Atty., v. Schneider, et al., 103 Oh St 492.

Gladwell v. Hume, et al., 9 O. C. D. 767, 18 O. C. C. 845.

State, ex rel. Stewart, v. Miller, Judge, 14 Abs 627.

Raab, et al., v. Guest, 48 Abs. 29.

The record shows that one of the jurors during the trial was writing on a piece of paper. This conduct, unexplained, does not furnish the basis for a proper claim of prejudicial error.

Corbin v. City of Cleveland, 74 Oh Ap 199, at p. 202.

The testimony shows that the plaintiff-lessor intends to raze the building and erect a new structure on the land. The lessee-appellant says that the phrase “to use and occupy the said premises for its own purpose” limits the lessor’s right to repossess the property except for the purpose of occupying the building now on the land.

We do not believe this is a valid argument. The Oxford English Dictionary says that “premises” means “5. A house or building with its grounds or other appurtenances”; that “purpose” means “1. * * * the object which one has in view”; and that “use” means “7. * * * to employ for a certain end or purpose.”

The phrase set out above is broad enough to include the demolition of the lessee’s building and the erection on the land of a new building, a part of which the lessor will occupy.

Before the expiration of the three-year lease, conversations were had concerning rental payments for the new term, to begin at the expiration of the term provided for in the written lease. The defendant sought to show that, during the conversations concerning increased rental payments, a new oral lease had been entered into for a two-year period. The plaintiff claimed that all conditions of the written lease obtained except the amount of rental; defendant asserted that he was to be permitted to occupy free from interference or necessity to surrender before the expiration of two full years.

The court below refused to permit the introduction of any testimony by the lessee bearing on this question of an oral arrangement to remain in the premises. Proffer of such testimony was then made by lessee.

In the consideration of these claimed errors concerning the admission and rejection of evidence, we are met with the question, determinative in this appeal: Can a lessee in possession under a prior existing written lease, enter into a parol lease for an additional tenancy of two years?

One of our statutes of frauds (§8620 GC) says:

“No lease, estate or interest, either of freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, shall be assigned, or granted except by deed, or note in writing, signed by the party so assigning or granting it, or his agent thereunto lawfully authorized, by writing, or by act and operation of law.”

The doctrine of part performance has been held sufficient to take an oral contract of lease out of the operation of the statute of frauds. In the instant case, possession of the lessee is referable to the existing written contract of lease, which contained an option of renewal for two years, subject to lessor’s right to repossess upon notice. Lessee says that he entered into a new oral lease for two years without a provision to repossess, to all of which the lessor acquiesced.

In many of the states, the courts consider a continuance of possession under a prior existing contract of lease as referable to such lease and not to a new oral lease, and hence not such a part performance as will take the oral contract of lease out of the operation of the statute of frauds. 125 A. L. R. 1468, and cases there cited. This was the early rule in Ohio, as announced in Armstrong v. Kattenhorn, 11 O. 265. Thereafter Ohio relaxed this rule, and in the case of Buschman Co. v. Garfield Realty Co., 97 Oh St 54, at p. 58, the court said:

“The parol agreement was claimed to have been made at a time when plaintiff in error was in possession of the premises under a written lease. It is true that the landlord and tenant while the latter was in possession of the premises in question could have made a parol agreement before the expiration of the written lease for a tenancy of eight months to continue from and after the original term. But before such an agreement could have been binding the landlord at the expiration of the term of the written lease must have acquiesced in the continued possession of the tenant in pursuance of the oral agreement. Bumiller v. Walker, 95 Oh St, 344.”

See also:

Haggerty v. Maley, 32 O. C. A. 505.

Milano v. Merchant, 70 Oh Ap 142.

Desure v. Mitchell, No. 1426, Summit County Court of Appeals (unreported), decided June 28, 1928. (6 Abs 512.)

The court below should have received testimony bearing on the question of a new oral agreement of lease, as well as evidence of the tenant’s occupancy under such claimed new oral lease, and testimony of the lessor’s acquiescence in such occupancy. Buschman Co. v. Garfield Realty Co., supra.

The failure of the court to admit such testimony constituted error prejudicial to the rights of the appellant.

It is further claimed that the charge of the court was prejudicially erroneous. Pertinent parts of such charge on the subject of oral lease are as follows:

“The jury observed considerable argument and discussion among counsel and the court, some of it in the presence of the jury and some in the absence of the jury, regarding the law which would govern the admission of testimony in this case. This clause provides that the lease may be extended for a period of two years upon such terms and conditions as the parties hereto shall mutually agree, and the court permitted testimony as to those terms and conditions. There was testimony as to a change in the amount of rent to be paid, and in that conversation there was also some testimony regarding — there was also some testimony regarding that conversation which had to do with the extension of the term of the lease. I charge you that if any conversation was had which conflicted with the written terms of the lease it is not to be considered by you unless you find that that amounted to an entire abrogation of the lease and the making of a new oral lease. The other testimony was admitted because as the court remarked at the time it was difficult to distinguish between the proper testimony regarding the amount of rent which I think clearly comes under the usage of the words ‘terms and conditions’ and that which had to do with the extension of the lease.”

It is apparent from the language used that the trial court failed to submit to the jury one of the vital issues in the case —upon which the evidence would have been in dispute— except for the fact that the court erroneously excluded the lessee’s testimony upon the subject of an oral contract of lease.

We cannot, as a Court of Appeals, pass upon the credibility of the witnesses who might testify upon the subject of a claimed agreement as asserted by appellant-lessee. The credibility of the witnesses is solely within the province of the jury, when properly submitted to them under the evidence and the law.

In this case it is our conclusion that the evidence refused admission by the trial court was of such a character as to require its submission to the jury under proper instructions.

We have examined all other claimed errors, and find none prejudicial to the rights of the appellant.

The judgment is reversed and the cause remanded for further proceedings according to law.

DOYLE, PJ, and STEVENS, J, concur.

Foust & Holden, Akron, for the application.

Gottwald, Hershey & Hatch, Akron, for contra.

ON APPLICATION OF APPELLEE FOR A REHEARING

No. 3906. Decided December 17, 1947.

OPINION

By HUNSICKER, J.

Appellee in its application for a rehearing of this case, asserts that the defense of new oral lease is equitable in its nature, and hence not permissible as a defense in an action in forcible entry and detainer, an action at law, in the Municipal Court of Akron.

The fifth syllabus in Kling, Admr., v. Bordner, 65 Oh St 86, has been extended by express declaration in Hodges v. Ettinger, 137 Oh St 460, at p. 467, the syllabus of which case is as follows:

“The doctrine of part performance can be invoked, to take a case out of the statute of frauds in Ohio only in cases involving the sale or leasing of real estate, wherein there has been a delivery of possession of the real estate in question, and in settlements made upon consideration of marriage, followed by actual marriage. Such doctrine of part performance has no place in the law governing contracts for personal services. (The cases of La Bounty v. Brumback et al., 126 Oh St, 96, and Kling, Admr., etc., v. Bordner, 65 Oh St, 86, distinguished.)”

An analysis of the Hodges v. Ettinger case, supra, may be found in 8 Cincinnati Law Review 190.

In the instant case it is to be remembered that the trial court refused to permit the introduction of any evidence as to the claim of fact that there was a new oral agreement of lease entered into. There was no attempt on the part of appellant herein to invoke the equity power of the Municipal Court to declare specific performance of a contract to make a lease. Testimony was offered tending to prove that in fact a new oral lease had been made, that defendant held the premises thereunder, and that, by reason thereof, he was not guilty of the claimed holding over.

In the case of Utzinger Co. v. Schroyer, 67 N. E. (2d) 871, relied upon by appellee in this application, an attempt was made on the part of the lessee to set up a defense of an oral agreement to negotiate a new lease. In that case the opinion of the court states that the claimed oral contract of the lessee, Utzinger, “was set up defensively, considered and determined in that court” and resolved against the lessee.

In the case of Breuer v. Berold, 9 C. C. (N. S) 350, the action was brought by the tenant out of possession, claiming damages for breach of a claimed oral lease, and the court held that “His right of action depended upon part performance of the contract, the doctrine of which obtains in equity only, and does not avail to render a contract, which is void by the statute because unwritten or unsigned, capable of being sued on in a court of law.”

The case of Ossage v. Foley, et al., 20 Oh Ap 16, was similar to the Breuer v. Berold case, supra, in that the action was brought by the lessee, claiming damages for failure to execute a lease of lands pursuant to an oral agreement to make such a lease.

The evidence sought to be introduced in the case before us is a matter of defense, and not a request for equitable relief. There is sought to be introduced, evidence of the fact that a new oral lease had been agreed upon, and that possession was continued, as well as several months’ rent paid, under such new oral lease.

In the case of Kane, et al., v. Dominick, 21 C. C. (N. S) 500, the court said.

“It is true, of course, that equity can not be administered by a justice of the peace, but it is not true that it involves the exercise of equitable jurisdiction to receive evidence of an oral lease of land for one year.”

and it was there decided that a justice of the peace may receive evidence of facts which will take a case out of the operation of the statute of frauds.

See also:

Dennis v. Hanson and Weddell, Exrs., 5 C. D. 465, 12 O. C. C. 445.

Kent v. Kent, 27 Abs. 254.

Artcraft Specialty Co., et al., v. Center Woodland Realty Co., 40 Oh Ap 125, at p. 129.

The application for a rehearing is denied.

DOYLE, PJ, and STEVENS, J, concur.


author: By THE COURT.

text:
    LOTT, Plaintiff-Appellant, v. OWYANG, D. D. S., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4051.
    Decided October 27, 1949.
    Cecile J. Shapiro, Columbus, for plaintiff-appellant.
    Humphrey & Montgomery, Columbus, Robert J. Montgomery, of Counsel, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the Municipal Court of Columbus, Ohio, sustaining the defendant’s petition to vacate judgment after term.

The record discloses that the action was one for malpractice by the defendant in his profession of dentistry. Motions were sustained attacking the petition, the first amended petition and the second amended petition. A third amended petition was filed to which no answer was filed within rule, anr| a default judgment was taken in the amount of $300.00. At the succeeding term of court a petition to vacate judgment was filed alleging that the third amended petition was not filed as required by law; that no copy of the third amended petition was served upon the defendant or his counsel, and that judgment was taken without notice to the defendant or his counsel. A separate finding of fact and law was requested and the court in its finding held that all of the allegations of the petition to vacate the judgment had been sustained. The appellant is contending that the judgment of the court was contrary to law; that no answer was tendered showing an affirmative defense, and that there has been no such adjudication as required by §11637 GC; that even conceding the facts found by the trial court to be true they are not sufficient to sustain the judgment. The answer tendered is in the following words:

“Comes now the defendant and denies specifically that he was guilty of any negligence of any kind whatsoever at the time or times that he professionally attended the said plaintiff.”

This is all that is contained in the record with reference to any defense the defendant may have. The petition to vacate contains no allegation as to a valid defense and the record does not disclose that any evidence was offered at the hearing which would tend to show the sanie. This court has passed upon this question in the case of Canal Winchester Bank v. Exline, 61 Oh Ap 253, syllabi 2 and 3:

“2. To suspend a judgment during the term in which the judgment is taken, if any of the grounds set forth in §11631 GC, are assigned as a reason for the action sought, it is necessary that the court find that the ground set forth in the motion is well made and further that an answer has been tendered with the motion showing that there is a valid defense to the action in which the judgment was rendered, in compliance with §11637 GC, and until it is adjudged that there is a valid defense to the action, such judgment will not be vacated upon motion or petition.

“3. The prerequisites to an adjudication of a valid defense, in an action to vacate a judgment, require more than a general denial of the averments of the petition which would be sufficient to state a defense before judgment.”

At page 256, supra, the court quoted with approval from the case of Metzger v. Zeissler, 13 N. P. (N. S), 49, the third syllabus of which provides:

“At the same time the defendant should proffer a verified answer to the petition, setting forth affirmatively facts showing nonliability in whole or in part. If the answer does not state facts which, if established, would constitute a defense to the claim, the proceeding will be treated as at an end and the judgment will not be disturbed * * (Emphasis ours.)

The answer tendered by the defendant does not state an affirmative defense. It merely denies the alleged negligence on the part of the defendant which is a legal conclusion. It is not a factual allegation. The authorities for the rule that a showing be made which would constitute an affirmative defense are well discussed in the Canal Winchester Bank case, supra, and need no further comment.

We are of the opinion that the court erred in its judgment and that since the requirements of §11637 GC were not met, the judgment should have been in favor of the plaintiff-appellant. The cause is ordered demanded with instructions that such a judgment be entered.

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


author: By BELL, J.

text:
    MARCK v. GETTLER.
    Common Pleas Court, Hamilton County.
    No. A-108662.
    Decided August 5, 1949.

      Leo J. Brumleve, David B. Wood, Cincinnati, for plaintiff.
    Lucien G. Strauss, Robert P. Fosdick, Cincinnati, for defendant.
   OPINION

By BELL, J.

This is an action in which the plaintiff seeks an injunction and the defendant asks for money damages. The pleadings in the case consist of an amended petition, answer to the amended petition and cross-petition of the defendant, reply and answer to cross-petition and reply to answer to cross-petition.

The evidence discloses that the plaintiff, Marck, was and is the owner of the building known as 210-216 East Fifth Street, Cincinnati, Ohio. This building is a four-story brick, having four (4) stores on the ground floor and twenty-eight (28) rooms on the three upper floors. The plaintiff occupies one of these stores in his business and leases the other three to different tenants. The three upper floors are used for hotel purposes and this part of the building known as 210-216 East Fifth Street is known as the Mayfair Hotel.

The four (4) stores on the ground floor have each a separate entrance fronting on Fifth Street; none of these stores are connected with one another by doorways. The only means of access to the upper floors is by way of a separate entrance from Fifth Street and this is also the means of gaining access to the roof.

Pursuant to a proposal to lease that part of the building consisting of the three upper floors (which at the time of the proposal were, and at present are used for hotel purposes) submitted by the defendant Gettler to plaintiff, a lease for the term of five (5) years was entered into by.the parties on the 17th day of October 1946, said lease to become effective January 1, 1947.

The evidence further discloses that at the time this lease was entered into there were advertising signs attached to the outside, front walls of the building. It was further shown that there was a large sign on the roof of these premises for years prior to the occupancy by defendant; that this sign was erected and serviced pursuant to a space lease entered into by the then owner and the Federal Electric Sign Company; that after plaintiff purchased the building in question, he too entered into a space lease agreement for a term of three (3) years with the Federal Electric Sign Company for the erection and maintenance of a sign on the roof for the stipulated rental of one hundred and sixty-five' ($165.00) dollars per month. That for a period of over one year after the erection of this present sign on the roof, defendant offered no objection to the use of the stairways and corridors by employees of the Federal Electric Sign Company, who were pursuing their work of servicing said sign.

This cause resulted from the defendant’s action in padlocking a window in the corridor of the Mayfair Hotel, which window provided the only means of access to the roof. This window was used by employees of the Federal Electric Sign Company to gain access to the roof in order to service the sign.

The defendant, by way of counterclaim, asks for damages to the floor coverings in the corridors and on the stairways of the hotel, allegedly caused by the employees of the Federal Electric Sign Company, and for damages caused when plaintiff erected a flashing electric sign on the front wall of the building. The intermittent flashing of this sign, it is alleged decreased the rental value of several of the hotel rooms in the proximity of the sign. Defendant also claims that the lease of the premises includes the roof thereof, and asks that the rental payment for the sign be paid over to him.

This matter can be determined solely on the lease, the validity of which is not in question. This lease specifically demises the premises known as 212 East Fifth Street, Cincinnati, Ohio, consisting of twenty-eight rooms, to the defendant, to be used for hotel purposes. (Incidentally, 212 East Fifth Street is also the address of Fenton Dry Cleaners, one of the other tenants in the building.) The lease provides for a rental for a term of years at the fixed amount of one hundred and fifty ($150.00) dollars per month, and further provides that lessee shall keep the corridors and stairways in repair, as well as the sign on the outside of the building. It makes no mention of the roof. The lessor is to keep the outside of the building in repair.

There are four questions to be decided in this matter:

1. Whether the defendant has exclusive control of the stairways and corridors, or merely an easement in common with the Federal Electric Sign Company;

2. Whether the lease gives the defendant the exclusive right to the roof and the sign thereon, or whether he has merely an easement in the roof protecting him in common with the other tenants in the buildings, from the elements.

3. Whether the attachment of a sign to the outside wall of the building by plaintiff was a trespass, and if so what damage, if any, is defendant entitled to;

4. Whether plaintiff is entitled to an injunction ordering the defendant to keep the hall window unlocked and unbarred.

As to the first question, it is conclusively established by a reading of the lease, by the exhibits and by the sworn testimony, that the premises leased to defendant consisted of the twenty-eight rooms and appurtenances, and that as to the stairways and corridors defendant secured only an' easement to use in common with the roof tenant, Federal Electric Sign Company.

It was clearly shown by the testimony ,that the defendant intended to lease the same premises as the former lessee of the hotel, Mary Wolland, and he knew, or should have known, that the roof and sign thereon was not a part of the leased premises. This is evidenced by the statement in the proposal to lease, submitted by defendant, that “You are * * * to keep the outside of said premises, inclusive of the walls and roof, in good condition and repair”. (Emphasis added.) The evidence also disclosed that for some years immediately preceding the defendant’s occupancy of the premises a large sign was standing erected on the roof. There is no mention of a sign in either the lease or the proposal to lease.

The defendant had the benefit of counsel before signing the lease; if at that time he intended that the roof and sign be included as a part of the premises, it is logical to assume that they would have been included.

Vol. 51, Corpus Juris Secundum, page 944, paragraph 291 states:

“A lease of a particular part of a building gives the lessee no rights outside of such part except such as were intended to be included as appurtenant to the beneficial enjoyment thereof * * * the question ultimately depending on the intent of the parties as interpreted in the light of surrounding circumstances.”

The law is practically unanimous that a lease of a part of a building does not include the roof unless specifically stated. As an incident to this phase of the case it might be added that it would stretch the limits of credulity to ask this court to believe that the plaintiff-lessor intended to lease to defendant-lessee the premises in question for one hundred and fifty ($150.00) dollars per month and include in the lease as a part of the premises, the rent from the Federal Electric Sign Company which amounts to one hundred and sixty-five ($165.00) dollars per month, which this defendant claims he is entitled to. Therefore, as to this phase the court •concludes that defendant has only an easement in the roof, entitling him to protection from the elements.

According to the terms of the lease, the lessor was to keep the outside walls of the building in repair, and since there is no provision in the lease to the contrary, it must be assumed that control thereof remained vested in lessor.

There is no dispute that at some time after defendant assumed occupancy of the upper floors the plaintiff erected a new sign attached to the outside front wall of the premises. To secure the sign it was necessary to pierce the wall and fasten the sign to the wall from the inside, thereby causing some slight damage to the interior wall of part of the building leased to defendant. Although plaintiff may have had a right to erect the sign, it is quite clear that in doing so he trespassed on defendant-lessee’s property and is liable for damages.

There was also some testimony to the effect, that the flashing of this electric sign erected by plaintiff decreased the rental value of several of the hotel rooms; however, no evidence was introduced to show any amount of damages in this respect. Defendant was given the opportunity to show this by bringing in the records of his business, but he failed to take advantage of this right. Consequently, there is no evidence before the court upon which an adjudication of damages might be made. It is therefore ordered that nominal damages in the amount of one dollar be assessed against the plaintiff for piercing the walls of the demised premises.

In view of the fact that defendant has only an easement for use of the corridors and stairways, in common with the roof tenant the Federal Electric Sign Company, it is apparent that the window in question, which provides the only means of access to the roof, is likewise subject to the same conditions. It is therefore ordered, adjudged and decreed that the defendant keep the window unlocked and unbarred, and free access thereto provided.

It is further ordered that the costs of this action be paid by the defendant.


author: By MATTHEWS, PJ.:

text:
    RHUDE, Plaintiff-Appellee, v. ED. G. KOEHL, Inc., Defendant-Appellant.
    Ohio Appeals, First District, Clermont County.
    No. 177.
    Decided October 25, 1948.

      Nichols, Speidel & Nichols, Batavia, Harold Predmore, Hillsboro, for plaintiff-appellee.
    Rendigs & Pry, Cincinnati, Ely, White & Davidson, Batavia, for defendant-appellant.
   OPINION

By MATTHEWS, PJ.:

It is admitted that a collision took place between an automobile in which the plaintiff was riding and a truck owned by the defendant. The automobile in which the plaintiff was riding was moving along Public Highway 28. The defendant’s truck was stationary within the bounds of that highway. Whether the collision was caused by the automobile in which the plaintiff was riding departing from the traveled portion of the highway, or by the truck or some portion of it extending on or over the traveled portion was in dispute, and the evidence was conflicting. The jury found for the plaintiff. The jury must have found that some part of the truck extended on or over the traveled portion of the highway. On this record we must accept that fact as established. And accepting that as an established fact, there is ample evidence to justify the jury in concluding that the truck was parked in a negligent manner, and that such negligence contributed to the collision, creating a liability on the part of whoever was thus negligent for the injuries directly resulting therefrom

(2) There is no evidence that the plaintiff took any part in the operation of the automobile in which he was riding or that he had the right to control its operation. He was a guest. The action of the operator could not be imputed to him. It is true that the court left to the jury the issue of whether Wright was the plaintiff’s agent, but this was done at the defendant’s request, and, of course, it cannot predicate error upon it. The charge on the subject was correct.

(3) It is urged that the action of the operator of the truck can not be imputed to the defendant, because he was not acting for and on behalf of the defendant and in the scope of his employment at the time of the collision. The evidence on this issue is as' follows:—

The defendant’s feed and coal business was located in Beading, Ohio. It owned the truck with which the automobile collided. Gordon Russell was employed by it as a truck driver and made deliveries for it. He lived on Public Highway 28. where this collision took place. He had on many occasions used this truck to go to his home from the defendant’s place of business and return thereto, keeping the truck overnight in the yard at his home. Russell had some authority to solicit orders for defendant and in one instance had sold coal for defendant to one Jones who lived a mile or mile and one-half beyond his home on a road that intersected Highway 28. Sometime, perhaps a month, before this 'accident he had been authorized to solicit another order for coal from Jones, but had done nothing about it.

On the day of the collision, according to the testimony of Russell, he concluded to try to sell some coal to Jones and started from his home in the truck for that purpose. Before he reached the place where Highway 28 was intersected by the road on which Jones lived, he discovered that he had no cigarettes and concluded to go on beyond that point, a mile or so, to Goshen to get cigarettes. He went on to Goshen where he stayed an hour or so and then started back. As he approached the road on which Jones lived he could see his house and yard. He knew that Jones had the habit of parking his automobile in his yard, which could be seen from Highway 28. On this occasion Russell looked as he was returning and not seeing the Jones automobile in the yard concluded that Jones was not at home, and so proceeded to his (Russell’s) home without seeing Jones. He was obliged to cross Highway 28 and open a gate in order to get into his yard. To open the gate he had to park the truck. It was while the truck was parked and while he was pushing the gate opea that the collision occurred.

All these details were testified to by Russell. It is assigned as error that the court permitted counsel for plaintiff, who had called him as a witness, to refresh his recollection by calling his attention to statements made by him on previous occasions.

We see no error in this respect. The manner of conducting an examination rests largely in the discretion of the trial court. When -it is considered that Russell was the employee of defendant at the time of this accident and at the time of trial, and that he was charged with responsibility for this collision, we can see no abuse of discretion in allowing this method of examination. There was no harassment of the witness and when his memory was refreshed, he testified that what he had said on the prior occasion was the fact.

But it is strongly urged that this testimony is insufficient to show that Russell was acting for and on behalf of the defendant at the time of this collision, that he departed therefrom when he went to Goshen for cigarettes, and thereby engaged in his own enterprise, and never returned to the business of the defendant.

The evidence shows that as Russell approached the Jones’ residence in each instance his purpose was to interview Jones and endeavor to sell coal to him. That was his original purpose when he left his home, and it was his purpose when he left Goshen. To complete either purpose required his return to the place where the collision occurred. Had he actually solicited Jones, his purpose on his return trip therefrom would have been to reach his home, but still it would have been his employer’s business, because the return was a mere incident of his going. Amstutz v. Prudential Ins. Co., 136 Oh St, 404, at page 409. It was necessary to complete the execution of the áuthority conferred upon him.

It is not at all unusual to have the question of whether the employee is acting within the scope of his authority turn upon the motive or intent of the employee. If his purpose is to promote the business of the employer, the act may be within his authority, but if the purpose is to serve some other purpose and no purpose of his employer, it is without his authority. And usually such purpose or intent can only be proven by circumstantical evidence. This case is distinctive only in that the agent himself testified to his intention. That the employee’s intent or purpose is determinative in many situations is clear from the cases. In the second paragraph of the syllabus to Nelson Business College Co. v. Lloyd, 60 Oh St, 448, it is said:

“When the act complained of may or may not be, from its nature, in the course of the servant’s employment, and this depends upon the real motive or purpose of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence.”

This accident occurred at a place where Russell would have operated the defendant’s truck had there been no deviation. The accident did not occur on that part of the route made necessary to accomplish the purpose personal to Russell. Writing of the effect of a deviation by the employee from the course of his employment, it is stated in 35 Am. Jur., 990, that:

“A temporary deviation or departure from the employer’s business merely suspends the relation of master and servant and the liability of the master for the servant’s acts during-the period of the departure; when the object of that departure has been accomplished and the servant reengages in the discharge of his duty, the responsibility of the master for the servant’s acts immediately attaches. Where there is a temporary abandonment, the master again becomes liable for the servant’s acts when the latter once more begins to act in his business.”

And, at 992:

“According to the rule of many courts, the employer may be held liable for the torts of his servant which are committed after the personal business of the latter has been concluded and while he is returning to the place where he departed from the designated course. Some courts hold that the mere fact that an employee using the car for his own business or pleasure is returning to the master’s garage, or to his employment, when the injury occurs, does not alone constitute such a resumption of his master’s business as will render the master liable for the injury. The truth is that no hard and fast rule on the subject either of space or time can be applied. It cannot be said of a servant in charge of his master’s vehicle, who temporarily abandons his line of travel for a purpose of his own, that he again becomes a servant only when he reaches a point on his route which he necessarily would have passed had he obeyed his orders.”

We have considered other errors assigned and find none of a prejudicial nature. We are of the opinion that the issues were fairly submitted to the jury under a charge containing no substantia] error.

For these reasons, the judgment is affirmed.

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur in syllabus, opinion & judgment.


author: By WATTERS, J.

text:
    FOUTTS, Plaintiff, v. JOURNEYMEN BARBERS, LOCAL No. 105, etc. et., Defendants.
    Common Pleas Court, Summit County.
    No. 169512.
    Decided October 11, 1949.

      Fred Schnee, Scott Belden, Akron, for plaintiff.
    Edward Sheck, Ray McGowan, Akron, for defendants.
   OPINION

By WATTERS, J.

The facts of this case are practically all agreed upon as an agreed statement of facts in the record or by written filed stipulations, which will not be set forth in full herein.

For the purposes of this decision these are the fact's as the court finds them to be:

The plaintiff is an employer or'proprietor barber working with the tools of the trade, and owns and maintains his shop at 780 South Main Street, Akron, Ohio. He is a member of the Associated Master Barbers and Beauticians of America. He employs as assistants from time to time other barbers, who are members of the defendant Union. The plaintiff since November 19, 1936, operated a union shop, and employs as barbers only members of the defendant Union. The plaintiff possesses a union shop card issued to him by the defendant Union on November 19. 1936, in accordance with the terms, conditions and agreements contained on said card. There has been and there is no dispute between plaintiff and his employees and between plaintiff and the defendant union over hours of work or wages, but there is a dispute over the conditions of employment raised by the new constitution and bylaws adopted in September 1948, by the defendant Union, which became effective on January 1, 1949. (Plaintiff’s Exhibit 4)

Under the new constitution adopted as aforesaid by Article III, Section 1, local unions such as the defendant Union, were given authority to establish guilds composed of employers and proprietors as distinguished from employee or journeymen barbers. Under the new Constitution the plaintiff would fall under the following classification:

An employer (Article VIII, Section 3) He is any person who either owns or operates a barber shop and employs steadily one or more full-time barbers. If he works with the tools of his trade he must become a proprietor member of the local union. (Emphasis by this court.)

Under the so. called shop card agreement (Plaintiff’s Exhibits 2 and 3) provision is made that the employer, in consideration of being allowed to display the union shop card, agrees to comply with all the rules governing shop cards, which are printed on the back thereof, and any subsequent rules and laws of the International Union. He also agrees that the card is and shall remain the property of the International; that it is loaned to him only during such time as the conditions imposed are fulfilled by him, and that he will not sell or transfer the card. He also agrees on demand to allow, without interference, any duly appointed representative of the union to remove said union barber shop card from any point of display. He also agrees to be bound by the laws and constitution of the International Union, and local, with reference to prices, hours, wages and working conditions.

The new Constitution also provided (Article VII, Section 5) as follows:

“No shop card shall be displayed in a barber shop unless all persons working in the shop with the tools of the trade are members of the union in good standing.”

The defendant Union has demanded the union shop card of plaintiff because he refused to sign an application to join the guild of the local. If ’he joins, he claims he will have to resign and forfeit his membership in the Master Barbers Association, thus losing his insurance benefits and being over fifty-five years of age could not be a beneficiary member of the defendants’ guild. (See Article VIII.)

In the application for membership in Employers’ Guild No. 2 (Plaintiff’s Exhibit 5) in addition to being bound by the new constitution of the International, as it is now or hereafter amended, plaintiff would have to certify that he is not a member of any organization dual to this organization, and if accepted would not become a member of such a dual organization. He would also have to agree that the local defendant union would be the authorized bargaining agent on wages, hours and other working conditions.

A proprietor member working with the tools of the trade shall be entitled to a voice and vote in meetings of the local unions, but shall be ineligible to vote on matters pertaining to wages, hours of labor, etc. He shall be ineligible to any office in the local or International and ineligible to act as delegate or alternate to conventions.

It is admitted that if plaintiff loses his union shop card, all his union journeymen would walk out on him, as they are not permitted to work where such union shop card is not on display, and of course union men generally will not patronize a non union shop. So plaintiff claims his livelihood as a barber, and his insurance rights in the Master Barbers Association are at stake. He has been a barber for fifty-three years, and claims his age prevents any other gainful employment.

This court, however, holds under the testimony in the case, and by consideration of the written stipulations of counsel filed September 29, 1949, that the plaintiff can still remain a member of the Master Barbers Association in the nature of a non-active member, and can still, retain substantially all of his insurance rights in said organization if he joins the defendant union guild. Even though the court may be incorrect on this, I do not consider this matter decisive at all of the case

DISCUSSION OF THE LAW.

This court on August 24, 1948, decided the case of Iacomini’s Restaurant Inc. v. Hotel and Restaurant Employees and Bartenders Local No. 181, et al (54 Abs 33), now appearing in 38 O. O., page 552 (Ohio Law Rep. March 14, 1949). The case appears also in 85 N. E. 2nd, 534.

The syllabus as approved by this court held:

“A Labor Union does not lose its right to peacefully picket a non union business where the object is to secure a closed shop.”

In that case the business was non-union. There was no dispute of any kind between the employees and management. The union was picketing to secure a closed shop.

This court’s opinion was based on the case of A. F. of L. v. Swing, 312 U. S. 321, (Feb. 10, 1941) which held:

‘‘The constitutional guarantee of freedom of discussion is infringed by the common law policy of a State limiting peaceful picketing by labor unions to a case in which the controversy is between the employer and his employees.”

The union there sought to unionize a non union shop, (beauty parlor)

In the case of Crosby v. Roth, 136 Oh St, 352, the Ohio Supreme Court enjoined all picketing on the grounds that there was no legitimate trade dispute. This case was decided in January 1940, before the Swing case was decided.

The facts of the Crosby case were practically the same as those of the Iacomini case, there being no dispute between the restaurant management and its employees. During the picketing before the temporary injunction there was however extreme violence, the slashing of tires on patrons’ cars, throwing of stench bombs, assaults upon employees and customers, dynamiting of the employer’s residence, and the like.

In my opinion, by authority of the Swing case, there was a legitimate trade dispute in the Crosby case. The U. S. Supreme Court refused to review it. My opinion is that had they done so, peaceful picketing would have been refused because of the extreme violence.

The Supreme Court announced in Milk Drivers Union v. Meadowmoor Dairies, etc., 312 U. S. 287 (Feb. 10, 1941) that when the violence is of such magnitude originally that continuation of peaceful picketing will operate coercively, by exciting fear that the former violence will be resumed, then all picketing will be enjoined. This pronouncement was made on the very day the court refused to review the Crosby case.

The court will now discuss at some length the case of Riviello et al v. Journeymen Barbers etc. International Union of America Local No. 148, 199 Pac. 2nd 400, decided November 15, 1948, by the First District Court of Appeals of California (a court in the same relative position as our Ninth District Court of Appeals) and not the Supreme Court of California.

The questions involved and the facts were almost identical with ours. The plaintiffs filed a petition seeking to enjoin the local union, a member of the same international as is involved in our case, from removing the union shop card, and picketing plaintiff’s business to compel plaintiffs, who were working proprietors or employers, to join the employees’ union. The union membership offered plaintiffs was the same as in our case, that is, carrying practically the same restrictions and limitations as to voting, holding office, being delegates, etc.

On the preliminary hearing in which plaintiff sought a preliminary injunction, the defendants having demurred, the trial court (in the same position as our common pleas court) refused the injunction and sustained defendant’s demurrer. Before trial on the merits, the plaintiff appealed to the higher district appellate court.

The facts before both courts were practically agreed upon and were before said courts by affidavit and counter affidavit and otherwise.

The Appellate Court (199 Pac. 2nd page 400) held in Syllabus 3:

“The compelling of an employer who works at the trade in competition with union members, to join the union, is a proper labor objective, and is for the ‘mutual aid or protection’ of employees within statute declaring necessary the freedom of individual workmen to organize and choose representatives to negotiate terms of employment, and freedom of workmen from interference, restraint, or coercion of employers, in designating representatives for mutual, aid and protection.” (Emphasis by this court.) Citing California Labor Code, Sec. 923.

Syllabus (5) held that the Taft-Hartley Labor Bill was inapplicable, as this case was wholly intrastate.

Syllabus (6)

“Barbers union could not picket barber shop to try to compel employer-barbers to join union where the only type of membership offered employers was a sterile membership not entitling employers to vote, hold office or participate in any of the union affairs.” Labor Code 923.

Note by this court Section 923 of the California Labor Code referred to above is a statutory statement of Public Policy as to Labor organizations in California.

In Syllabus (7) the court held:

“Picketing and other forms of economic pressure are permissible when object sought to be attained is reasonably related to legitimate and lawful interest of organized labor, and where such concerted action is carried out peaceably and honestly, but where purpose sought to be obtained is unlawful or carried out forcibly and untruthfully, the picketing or other form of concerted action should be enjoined.”'

On page 405, paragraph (6) of the opinion, the court said in substance: The fact that it is lawful to picket to attempt to compel an employer who works at the trade to join the labor union with which he is competing does not settle the present controversy.

The defendants are threatening to remove that card (the union shop card) and are threatening to picket unless plaintiffs become non active members of the union. In other words plaintiffs cannot earn a living at their trade unless they join the union, and if they join, they become sterile members.

That cannot and should not be held to be a proper and lawful labor objective. (Emphasis by this court.) This ruling was based on James v. Marinship Corp. 25 Cal (Sup Ct) 2nd p. 721, or 155 Pac. 2nd page 329.

There the union sought to compel negro workers to join an auxilliary union where they would have no voting rights, etc. which of course directly involved the question of race discrimination, etc.

The court on page 404 also cited the case of Cafeteria Union v. Angelos, 320 U. S. (U. S. Sup. Ct.) 293 and said:

“The Angelos case stands squarely for the principle that a union may picket lawfully to induce the operator or owner of a business, who works for himself, to join the union.”

The United States Supreme Court in said connection, in the Angelos case cites with approval the Swing case, 312 U. S. 321, cited in this opinion (in connection with the Riviello case) and cited herein by this court in this, the Foutts case.

See also the Minnesota Supreme Court case, Coons v. Barbers Union, 222 Minn., 100; 23 N. W. Second, 345, decided on the basis of the Angelos case above.

It will be noted that the Riviello case is the interpretation of one of its courts of appeals of the law of California, as evidenced by its statutory law and the decisions of its Supreme Court.

CONCLUSIONS OF THE COURT.

It is the duty of the court in the instant case to interpret the law of this state and the law of the United States as it now is as evidenced by the Swing case supra (312 U. S. 321) and by the Cafeteria Union v. Angelos case supra (320 U. S. 293).

Under the law as this court views it, the defendant union has the right to peacefully picket the plaintiff’s shop providing it does so in a manner which honestly and truthfully has for its purpose the informing of the public as to the dispute between plaintiff and the defendant union, under and by virtue of the freedom of speech doctrine laid down by the Supreme Court of the United States in the Swing and other cases where there is a lawful labor dispute.

Under other Supreme Court cases the legislature of Ohio has full power to legislate against “closed shop” demands and demands such as in the instant case, and if it does legislate against it, the Supreme Court would recognize the State’s right to so do within reason.

The court also holds the defendant could not force the plaintiff to join the union or get out of business by taking from him the union shop card. That card was issued to him in 1936, and he has played fair and conducted a union barber shop ever since, and has met all reasonable and lawful provisions of the union nationally and locally which could have reasonably been anticipated by the contracting parties at the time. Surely plaintiff could not reasonably have even suspected that the international union would alter the statusquo to such an extent that plaintiff would be coerced to join the union or lose his entire business. That proposition, in the court’s opinion, transcends all principles of equity and justice, and would amount to “constructive force and violence” far more effective than actual force and violence, which is-of course not a legal or proper way to settle labor disputes; because it is conceded that if the union shop card is removed,, plaintiff’s union employee barber or barbers would be automatically forced to quit his or their employment.

The situation is further aggravated by the fact that if-he did join the union, he cannot enjoy the same rights that employee members enjoy.

Under the authorities I do not say that this is an unlawful demand on the part of the union, but it is certainly a phase-the court can consider as part of the “constructive force” theory the court has discussed above in relation to refusing, the union the right to lift the union shop card, under the-facts and the law.

In the court’s opinion this is the only legal fair and reasonable solution of this problem. Although the defendant union has not picketed the plaintiff, and apparently, locally at least, has not followed that policy, yet it has that right. Under the freedom of speech doctrine, it may peacefully picket, or by advertisement, etc., acquaint the public fully with the true dispute as it exists, and likewise plaintiff would also enjoy the right of freedom of speech and the press to put forth his side of the argument.

If we once destroy this mutual right of all to exercise this freedom of speech, we will destroy one of the greatest rights our people enjoy under our democratic form of government.

A journal entry may be drawn accordingly with exceptions to all parties.