author: By PHILLIPS, J.

text:
    KENNEDY, Plaintiff-Appellant, v. MERRITT et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Belmont County.
    No. 892.
    Decided May 18, 1953.
    Wilbur Y. Armstrong, Bellaire, for plaintiff-appellant.
    Cooper & Cooper, Bellaire, for defendants-appellees
   OPINION

By PHILLIPS, J.

In her petition filed in the court of common pleas against defendants to compei them to specifically perform the terms of the “purchase agreement” contract for the alleged sale of real estate plaintiff alleges that on the ninth day of November, 1951, defendants agreed with plaintiff to sell and convey, and plaintiff agreed to purchase, for the sum of $1,000.00 lot number one in the sub-division of lot number one of Sullivan, Barnard and Cowen’s Second Addition to the City of Bellaire, then owned by defendant, Carrie Merritt, in fee simple; that plaintiff paid $25.00 to defendant, receipt of which was acknowledged in the alleged contract: that defendants refused to comply with plaintiff’s demand for conveyance of such real estate to her; that she was willing and able to perform all the conditions and covenants of such agreement on her part to be kept and performed; and prayed for a decree of conveyance of such real estate to her.

Defendants answered admitting the ownership of the real estate described; that they entered into a written contract as alleged; but denied that the contract was for the sale of the real estate set forth in the petition.

By way of further answer defendants alleged that the real estate in question is a triangular parcel of land situated at the intersection of Washington and Boundary Streets in the city of Bellaire, upon which a four room dwelling house and garage were situated; that in the month of September 1951 plaintiff offered to pay defendants $5500.00 for such lot, and that during the month of October following advised defendants that she intended to sell a part of such lot to William M. Johnson for $1000.00, and desired that the lot be divided into two portions for which she would pay $1,000.00 for the northerly portion and $4500.00 for the southerly portion.

Further' in their answer defendants alleged that they entered into the contract alleged, but denied that it was for the sale of the real estate set forth in plaintiff’s petition; that they advised plaintiff that they would sell all of the lot for $5500.00, and were not interested in its division; that plaintiff agreed to buy, and the defendants to sell, an additional tract of real estate known as lot number 51 in Linwood Addition for the sum of $5500.00, which sale would result in two lots each of which was to be purchased and sold for $5500.00, or a total purchase price of both for $11,000.00; that in furtherance of that agreement plaintiff presented to defendants three separate papers stating to them that one was for the sum of $1,000.00 for the northerly portion of lot number one, one was for $4500.00 for the southerly portion thereof, and one was for $5500.00 for the sale of lot number 51 in Linwood Addition; that plaintiff then and there represented to defendants that the three separate contracts were presented to them for signature only because such arrangements would permit her to have the title to such real estate examined, and that she desired contract for lot number one to be split in order to permit her to sell the northerly portion, and that thereupon the three contracts were signed by defendants.

Defendants further alleged that all such representations made by plaintiff to defendants were false and were made with the intention to deceive defendants, and that plaintiff knew them to be false when made; that the contracts provided for the payment of $25.00 in cash on each contract as a part of the purchase price; that such sum of $25.00 was not paid; and that the representations of plaintiff to the defendants, upon which they relied as true, were made for the purpose of inducing defendants to sign such contracts, which they did believing that the contracts called for the sale of both lots in their entirety for $11,000.00. Defendants prayed that the contracts set forth in the petition be rescinded and cancelled, and ordered to be delivered up and for all other proper relief.

The trial judge made the following findings of fact and conclusions of law:—

“1. A consideration of $1,000.00 for all of Lot No. 1 is grossly inadequate.
“2. Three contracts calling in the aggregate for the sale and purchase of all of Lot No. 1 and Lot No. 51, Linwood Addition, were submitted to the defendants by plaintiff calling for the payment of $11,000.00 each contract calling for the payment of $25.00 cash in hand.
“3. Plaintiff failed to pay the said sum of $25.00 as called for by the contracts to the defendants, thereby breaching the contracts including the contract in question at the outset.
“4. That the whole negotiation by the plaintiff was designed for the purpose of purchasing all of Lot No. 1 for $1,000.00.
“5. The tender for $1,000.00 by a check drawn against funds on deposit with the Belmont Savings and Loan Company at Bellaire, Ohio, is untrue for the reason that said association carries no checking accounts and is not permitted to do so under the law. The tender also, if one was made, was illegal and not in conformity to law.
“6. The testimony of plaintiff was evasive in that said contract was not prepared by Attorney Wilbur Armstrong as claimed by plaintiff.”

The trial judge made the following conclusions of law:—

“The defendants having alleged fraud, it is incumbent upon them in order for that defense to be available in this action, to prove the same by clear and convincing evidence. Fraud is never presumed.
“Upon a consideration of all the evidence in connection with the findings of fact, the court finds, as a matter of law, that fraud by way of inducement upon the part of the plaintiff, when considering the inadequacy of consideration, the negotiations between the parties prior to the execution of the contract in question, the failure to pay the $25.00 upon the execution of the contract as set out therein, the uncertainty and evasiveness of the testimony of plaintiff, the failure to make a tender of the consideration, together with the deposit of $1,000.00 with the Clerk of Court, the fact that the contract was prepared in the office of W. M. Johnson and not by Wilbur Armstrong, counsel for plaintiff, are all unmistakable badges of fraudulent conduct upon the part of plaintiff.
“Defendants are people unused to transactions of this character who could see no wrong significance in the representations made by plaintiff as to the separation of Lot No. 1 into two tracts and were readily and fraudulently beguiled into executing this contract. No copy of same was left with the defendants, designed, the court feels, to deny defendants evidence as to the fact that three contracts were executed at the time in question.
“Further, in the opinion of the court, beyond any shadow of doubt, the defendants, their daughter and son-in-law were stating the facts in their testimony and so finding that actionable fraud entered into this transaction, the finding and judgment of the court is for the defendants and the petition herein is dismissed at plaintiff’s costs.”

Plaintiff appealed from the finding of the trial court, upon which judgment was subsequently entered, on questions of law and fact, and notwithstanding the appeal on questions of law and fact by assignments of error contends:—

“First, plaintiff-appellant contends that the finding and judgment of the court of common pleas is against the manifest weight of the evidence and unsupported thereby
“Second, plaintiff-appellant contends that the finding and judgment of the court of common pleas is contrary to law.”

Arguing those contentions plaintiff urges that:—

“The questions of law presented in this case are as follows:—
“First, whether or not this matter is properly before this court on appeal on questions of law and fact.
“Second, whether or not the finding and- judgment of the court of common pleas that plaintiff was guilty of actionable fraud is supported by clear and convincing evidence
“Third, whether or not the findings of fact by the court of common pleas were supported by clear and convincing evidence and by law.”

Plaintiff appealed properly to this court on questions of law and fact. See 37 O. Jur., Page 202; Hull v. Bell Bros. & Co., 54 Oh St 228, 43 N. E. 584; Pierce v. Stewart, 61 Oh St 422, 56 N. E. 201.

We have referred to the pleadings of the parties at sufficient length, and the trial judge has stated the evidence in sufficient detail in his finding of fact, to understand the questions presented thus obviating the necessity of our repeating the evidence. After a thorough consideration of the evidence and the law applicable thereto, we conclude that the decree of this court must be the same as that of the court of common pleas.

Finding and decree for defendants.

GRIFFITH, PJ, concurs.

NICHOLS, J, finds for plaintiff as prayed for.


source: Caselaw Access Project

author: By WOESTE, J.

license: Public Domain

text:
    ROARK, Plaintiff, v. LYLE, Coroner, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-131621.
    Decided May 7, 1953.

      J. W. Brown, Ben Gettler, Cincinnati, for plaintiff.
    C. Watson Hover, Pros. Atty., Wm. J. Schmid, Asst. Pros. Atty., Cincinnati, for defendant.
   OPINION

By WOESTE, J.

This cause is before the court on a demurrer to the petition. The petition reads as follows:

“Now comes the plaintiff, and for her cause of action states that she is a resident of the city of Cincinnati, Hamilton county, Ohio. Plaintiff further states that she is the widow and surviving spouse of Howard W. Roark, deceased, a resident of Cincinnati, Hamilton county, Ohio, prior to his death. Plaintiff further states that the defendant, Herbert P. Lyle, is the duly elected and acting coroner of Hamilton county, Ohio, and was such during all of the time mentioned herein.
“Plaintiff further states that on or about October 18, 1951, said deceased spouse, Howard W. Roark, was employed as a window washer by the Cincinnati Window Cleaning Company, and in that capacity was engaged in the washing of windows of the Fountain Square Hotel in Cincinnati, Ohio Said hotel is located at 420 Vine street, Cincinnati, Ohio While engaged in the washing of one of said windows on the fourth floor of said hotel, the safety belt of the said Howard W. Roark did accidentally break and the said Howard W. Roark fell to the street below. This fall resulted in the almost immediate death of Howard W. Roark.
“Plaintiff further states that on or about the 18th day of October, 1951, and thereafter, the defendant coroner did decide and incorporate in the death certificate filed with the registrar of vital statistics that the cause of death of the deceased Howard W. Roark was ‘suicide.’
“Plaintiff further states that defendant coroner’s determination was erroneous and without justification, and that the deceased’s death was caused solely by accidental means.
“Plaintiff further states that the defendant coroner’s action has prejudiced her in that it has caused the denial of various claims of the plaintiff as beneficiary of the deceased’s life insurance policies, as well as depriving plaintiff of the rights of a dependent under the Workmen’s Compensation Act of Ohio.
“Plaintiff further states that under §2855-16 GC (§313.19 R. C.), the cause of death, the manner and mode in which the death occurred, as delivered by the coroner and incorporated in the coroner’s verdict and incorporated in the death certificate filed with the registrar of vital statistics, shall be the legally accepted manner and mode in which the death occurred and the legally accepted cause of death, unless the Court of Common Pleas of the county in which the death occurred, after hearing, directs the coroner to change his decision as to the cause, mode and manner of death.
“Wherefore, plaintiff prays that this Court of Common Pleas of Hamilton County, after hearing, direct the coroner to change his decision as to the cause, mode and manner of death of the said Howard W. Roark to ‘accidental death,’ and change the death certificate filed with the registrar of vital statistics so that there is incorporated in said vital statistics the information that the cause of death of the deceased Howard W. Roark was ‘accidental.’ ”

The court for the purpose of pronouncing the law of the ease adopts the syllabi in State ex rel. Susan Dana, plaintiff-appellant v. Samuel Gerber, Coroner, defendant-appellee, reported in 79 Oh Ap 1, 34 O. O. 48, which reads as follows:

“1. By its enactment of §2855-16 GC (§313.19 R. C.), the legislature has attempted to vest the coroner with judicial power in civil matters between private parties which is repugnant to Section 1, Art. IV of the Ohio Constitution, vesting full judicial power in the courts.
“2. By its enactment of §2855-16 GC (§313.19 R. C.), the legislature has attempted to authorize the coroner to make ‘legally accepted’ findings having the force of judicial decisions affecting civil rights in ex parte proceedings and is invalid because it fails to make adequate provisions for persons adversely affected thereby to be made parties or become parties for the purpose of asserting and protecting their rights.
“3. That part of §2855-16 GC (§313.19 R. C.), which provides that the finding of a coroner shall be the legally accepted cause of death unless the Common Pleas Court of the county in which the death occurred, after hearing directs the coroner to change his decision, attempts to vest the Common Pleas Court with jurisdiction to review the findings of the coroner but does not provide the method or means by which such jurisdiction shall be invoked or exercised, and does not provide some mode or method which will guarantee the parties their constitutional rights to have their day in court and is inoperative and void for uncertainty and indefiniteness.
“4. Sec. 2855-16 GC (§313.19 R. C.) as enacted is invalid and void because it deprives a party of fundamental rights and is violative of Article 1, Sections 1 and 16 of the Bill of Rights of the Ohio Constitution; Article IV, Section 1 of the Ohio Constitution and is contrary to the Due Process clause of the 14th Amendment of the Constitution of the United States.”

With the adoption of this law and under the principle of stare decisis it follows that the demurrer herein should be sustained and an entry to that effect is authorized.


author: Per CURIAM.

text:
    ROARK, Appellant, v. LYLE, Coroner, Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7630.
    Decided November 17, 1952.
    J. W. Brown, Ben Gettler, Cincinnati, for appellant.
    C. Watson Hover, Wm. J. Schmid, Cincinnati, for appellee.
   APPEAL ON QUESTIONS OF LAW OPINION

Per CURIAM.

The judgment in this case is affirmed in accordance with the reasoning and conclusions contained in the case of State, ex rel. Dana v. Gerber, 79 Oh Ap, 1, 34 O. O. 48.

HILDEBRANT, PJ, MATTHEWS, J, concur.


author: By HACKETT, J.

text:
    YAKUMITHIS et, Plaintiffs, v. VENDING MACHINE SERVICE EMPLOYEES LOCAL UNION 410-T, Defendants.
    Common Pleas Court, Lucas County.
    No. 175936.
    Decided April 17, 1952.
    Dan H. McCullough, Merritt W. Green, Toledo, for plaintiff.
    Edwin J. Lynch, Moe L. Okum, Toledo, for defendants.
   OPINION

By HACKETT, J.

I think the evidence in this case at this point shows prima facie the existence of an unlawful conspiracy between this union and the Tristate Vendors Association.

Therefore, anything done, innocent or otherwise, in furtherance of that unlawful cónspiracy, is itself unlawful and may be received in evidence in furtherance of the conspiracy.

The evidence in this case prima facie establishes that there is no legitimate trade dispute between the plaintiff and the union, or any difficulty.

There being no legitimate trade dispute, no picketing, whether it be by violence or peaceful, is permissible under the established law of Ohio.

The established law of Ohio — this case is entitled Crosby, appellant v. Rath, et al. — that case was decided by Judge Frank Lausche while he was a member of the Common Pleas Court of Cuyahoga County, and while his decision in a sense did violence to the opinions of persons in labor law at that time, all courts are compelled to respect it and honor it until it is reversed. It stands unreversed.

In that case the evidence disclosed that plaintiff’s employees were not members of the union or represented thereby It disclosed that they did not desire such membership; that each employee was serving under a certain renewable contract, and so forth — it isn’t necessary to state all the facts in detail — there was picketing and calling of vile names and obsence names, and so forth, and violence.

The defendant unions disclaimed responsibility for all of these things and insisted that the contracts existing between the plaintiff and defendants were not valid.

The Court of Common Pleas rendered a verdict for the plaintiff. The verdict rendered was that the contracts were valid and that no legitimate trade dispute was involved, and enjoined the defendants from picketing or boycotting the plaintiff’s restaurant and from interfering with the operation of the plaintiff’s business.

That case was taken by the union to the Court of Appeals of Cuyahoga County on questions of law and fact, and the decree of the Court of Appeals was the same as the decree of the Common Pleas Court except that the court permitted picketing and boycotting.

The case was then taken to the Supreme Court of the State of Ohio, and in that case the Supreme Court of Ohio said that the controlling question in the case was whether the evidence disclosed the existence of a legitimate trade dispute, and then the court said that “here the difficulty simplified by the fact that both the plaintiff and the defendants rely upon the decision of this court in the case of La France Electrical Construction & Supply Company v. The International Brotherhood of Electrical Workers, 108 Oh St, page 61.”

It so happens that this court in practicing law wrote the briefs in the La France case and argued the law in the Supreme Court of Ohio.

In that case the Supreme Court says, “This court gave careful consideration to the principles of law relating to the subject of trade disputes, and affirmed the decision of the lower courts permitting picketing in the employer’s plant, but in the opinion it is clearly pointed out that ‘Upon the record with regard to this point there can be little doubt that a legitimate trade dispute existed in this case.’ ”

That is where the La France case differs from the case at bar. In that case they said that there was a trade dispute, “in which former employees of the plaintiff company were seeking to secure the right to work with the company under terms of employment different from those which their employer was at the time requiring. That being the case, the methods open to use in a legitimate trade dispute were open to strikers here.”

The court then goes on to mention other cases and, without taking too much time, the Supreme Court of Ohio cites two recent decisions: Meadowmoor Dairies, Inc. v. Milk Wagon Drivers Union, 21 N. E. 2d 308 and Roth v. Local Union, 24 N. E. 2d 280.

The court says that in the Roth case — one paragraph of the syllabus reads in part as follows: “The right to contract, the right to do business and the right to labor freely and without restraint are all constitutional rights equally sacred, and the privilege of free speech cannot be used to the exclusion of other constitutional rights nor as an excuse for unlawful activities in interference with another’s business.”

Apparently the court that had decided the Nicholson case in Akron had not seen that decision.

So, in the Crosby case the decree of the Court of Appeals was set aside by the Supreme Court of Ohio and the decision of the Common Pleas Court in that case was affirmed.

Now in that case, dissenting opinions were filed. Judge Myers filed a separate concurring opinion. Judge Day dissented. Judge Zimmerman wrote a lengthy, very lengthy dissenting opinion, and even in his dissenting opinion he concludes with this very significant paragraph — I quote from this dissenting opinion; “Furthermore” Justice Zimmerman says, “The representations of the defendants and the conclusion of the Court of Appeals as to the object of the ‘peaceful picketing’ cannot be ignored. If it were clear that the dominant motive was to ruin Mrs. Crosby’s business from a purely evil incentive rather than to promote the interests of union labor, a different attitude would be in order, for”— quoting again — “When the purpose for picketing is,to injure or destroy a business rather than to further the common interests of the worker, it is unlawful interference with the property rights of the employer and should be enjoined.”

With that language Justice Zimmerman concludes his dissenting opinion.

Now, this case was appealed by the unions to the Supreme Court of the United States. The Supreme Court of the United States refused to issue a writ of certiorari, thereby affirming the majority opinion and the decision of the present case stands unreversed and unmodified, whether we like it or not.

Subsequently, Crosby v. Rath was appealed to the Ohio Supreme Court and the court refused to review it on a petition as of right in 139 Oh St 151, 22 O. O.173. Certiorari was denied in Rath v. Crosby, 316 U. S. 687 on May 25, 1942.

Different rulings are made in those union cases before the National Labor Relations Board and in this case the court has held that because of the issues here joined, a different action is properly cognizable by this court.

Now, there are many unusual things that have happened in this case. Here is a charge against a labor union, the first charge of such character that has ever come to my notice— perhaps there have been others — I think there were out in California, years ago — but I don’t know of any charge that has been made in Lucas County, at least I am not aware of it — in which it is alleged that an organization functioning as a union is not a union but in fact a racket.

Certainly it is the first time that in any such case two members of organized labor of prominence and long standing such as Franz Berlacher and Harry Card have come in and testified that in their opinion this was not a legitimate labor union.

I think the evidence up to this point shows prima facie at least that this union was not organized primarily for the benefit of its members; I think it was organized primarily for the benefit of the association, and if its object, as the evidence tends to show, was to control the juke box industry in the county, it was organized for an unlawful purpose; it was unlawful and has'no standing in court.

There is evidence in this court by the defendant Coy .which he gave unwillingly, that this 410 T has nothing in the nature of a document which could by the longest stretch of the imagination be rightfully called a charter.

There is evidence in this case by men who were solicited to join this association that it was part and parcel of the union.

There is evidence in this case from which any logical mind might conclude that this union was a papier mache shield behind which this association worked to compel people using juke boxes to throw out those boxes against their will and take the boxes okayed by the association.

On the question of whether or not this violates any provision of the Constitution on free speech, the court calls attention to the case of Snapp v. White, 17 O. O. 186, decided by the Court of Hamilton County,—

“Under the rule announced in the case of Crosby v. Rath, * * * peaceful bannering or picketing should be enjoined where there is no trade dispute, strike or lockout between employer and employee, and there is no dispute as to wages, hours or shop conditions.”

In other words, no picketing can be lawful unless it is established first by the evidence that a legitimate trade dispute exists.

As to the right of free speech the court in the Roth case calls attention to the well known principle that “The right of free speech is not superior to the liberty to conduct one’s business as one sees fit, without violating any Statute or ordinance.” And that while the court did not say so, this court says that it is well remembered that these rights, constitutional rights are reciprocal rights; it cannot be said that one group of people has them and another group doesn’t have them.

Each citizen regardless of race, class or religion has the same right to protection under the same principles of the Constitution of the United States and of the State of Ohio.

The right to contract, the right to do business and the right to labor freely and without restraint are all constitutional rights equally secured and the privilege of free speech cannot be used to the exclusion of other constitutional rights, nor, as an excuse for unlawful activities in interference in another’s business.

Our Ohio Constitution says in its Bill of Rights the following: Article 1, Section 1 — “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

“Article I, Section 11: Every citizen may freely speak, write or publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press ”

The court in the Snapp v. White case then says: “Bearing in mind the foregoing constitutionai rights, the rationale of the majority opinion in the Crosby case either is that the right of free speech is not superior to the right of liberty secured by Article 1, Section 1, of the Constitution, or that peaceful bannering and picketing, in the absence of a labor dispute between the employer and his employees, are unlawful activities in interference with another’s business.”

And then that court says, as this branch of the court says:

“As the rule of law announced by the majority opinion in the Crosby case is binding upon this trial court, it is unnecessary to consider either the opinion of Judge Schneider in Scott Burr Stores Corp. v. Specter” or their own decision, and so forth, and I say for that reason it is unnecessary for this court to consider these cases which counsel for the defendants have cited contrary to the rule of law in the Crosby v. Rath case laid down by the Supreme Court of Ohio, and affirmed inferentially by the Supreme Court of the United States, and until it is changed it is the duty of any trial court to follow that last authority.
In the case of Snapp v. White, the court further says that. “Having reached the conclusion that the Crosby case is determinative of the instant case, nevertheless there still remains for consideration the question whether any of the provisions of the Constitution of the United States or decisions of the Supreme Court of the United States are in conflict with the rule announced by the majority opinion of our State Supreme Court in said Crosby case.
“Article I of the Amendments to the Constitution of the United States provides that:
“ ‘Congress shall make no laws * * * abridging the freedom of speech or of the press.’
“Article V of such Amendments provides:
“ ‘No person may be deprived of life, liberty, or property, without due process of law.’ ”

Article XIV of said Amendments provides:

“Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In 1925 the Supreme Court of the United States in New.York v. Gitlow, 268 U. S., 652, expanded the meaning of the word “liberty” as used in the due process clause of the fifth and fourteenth Amendments to the Federal Constitution. Speaking through Mr. Justice Sanford the court said:

“For present purposes, we may and do assume that freedom of speech and of the press — which are protected by the first amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the fourteenth amendment from impairment by the states.”

The last similar expression of the Supreme Court is through Mr. Justice Stone in the case of Hague, et al. v. Committee for Industrial Organization, et al., decided by the Supreme Court on June 5, 1939, wherein he said:

“It has been explicitly and repeatedly affirmed by this court, without a dissenting voice, that freedom of speech and of assembly for any lawful purpose are rights of personal liberty secured to all persons, without regard to citizenship, by the due process clause of the fourteenth amendment.”

See also article by Charles Warren, 39 Harvard Law Review, 431.

Except the case of Senn v. Tile Layers Union, 301 U. S. 468. no decision of the Supreme Court of the United States has been referred to bearing on the question of any conflict between the right of an employer to carry on his business as he sees fit and the right of labor unions to “banner” the place of business of such employer in an effort to bring about the employment of union labor by such employer. That case, far from assisting defendants in the case at bar, expressly determines that what constitutes a “labor dispute” is a question of state law. A careful reading of the opinion of Mr. Justice Brandéis in that case leads to the conclusion that he would not hold that the right of free speech in a case where there is no trade dispute between an employer and his employees is superior to the right of the employer to conduct his business as he sees fit, as long as it is conducted in a lawful manner.

In Lovell v. City of Griffin, 303 U. S. 444, at page 452, Mr. Chief Justice Hughes, in speaking of freedom of speech, said:

“The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.”

All the recent famous, well known decisions upon the question of liberty of speech or freedom of the press are cases in which the right of free speech or assembly for expression of opinion were solely involved. In none of said cases was there involved any question as to any conflict between such rights and the rights of liberty or property protected by the due process clauses of the fifth and fourteenth amendments to the Federal Constitution.

* * * “From a careful analysis of the decisions of the Supreme Court of the United States, and after fullest consideration, we can find nothing in the provisions of the Federal Constitution or in the decisions of the Supreme Court of the United States inconsistent with the conclusion reached by the majority of the Supreme Court of Ohio in the Crosby case

It follows from the foregoing that in our opinion the motion for a temporary injunction against bannering in the case at bar should be granted.”

In the state of the proof this court would be remiss in its duty if it longer allowed those pickets to remain in front of that establishment.

An order will be made at this time granting a temporary injunction against all forms of picketing, peaceful or otherwise, in front of 901 Monroe Street, and that that injunction will be in effect forthwith upon the giving of a bond in the sum of $200.00.


text:
    YAKUMITHIS et, Plaintiffs, v. VENDING MACHINE SERVICE EMPLOYEES LOCAL UNION 410-T, Defendants.
    Common Pleas Court, Lucas County.
    No. 175936.
    Decided April 23, 1952.
    Dan H. McCullough, Merrit W. Green, Toledo, for plaintiff.
    Edwin J. Lynch, Moe L. Okum, Toledo, for defendants.
   OPINION

By HACKETT, J.

At the time of the decision in the La France case, the law of Ohio was stated in Parker v. Bricklayers’ Union In the order in that case the court stripped the labor union of every possible right that a free man can have in his attempts to improve his economic conditions through the proper use of the union function in labor disputes.

That was the state of the law when this case of La France Electrical Construction Company was tried in the Supreme Court. That case involved a strike in the building of the Inverness Club at Toledo by the electrical workers and plasterers and all — practically all of the building trades in Toledo. An effort was made at that time to have the court write law which would forbid all forms of picketing, whether there was violence or not.

And while this was a long, drawn-out case, the nut of the decision in that case was that peaceful picketing may not be enjoined where there is a legitimate trade dispute- That ruling is subject to certain limitations.

The briefs were voluminous, and in them we discussed and distinguished, and digested every important case on labor which had been decided or tried up until that time.

I think the La France Electrical Construction case is the Bible where the truth may be found on the question of the right to picket and under what conditions picketing may be maintained.

The most important case decided in' this state since the La France Construction case is the case of Crosby v. Rath, in which Judge Lausche, of the Common Pleas Court of Cuyahoga County, following the La France Electrical Construction Company case and the reasoning in that case, enjoined all forms of picketing because he found from the evidence that no legitimate trade dispute existed in the Crosby v. Rath case.

The union appealed that case to the Court of Appeals and the Court of Appeals reversed Judge Lausche of the Common Pleas Court. The case was then taken to the Supreme Court of Ohio. The Supreme Court of Ohio reversed the Court of Appeals and affirmed the Common Pleas Court, and I think I mentioned this earlier, at least three dissenting opinions were written, a very long one by Judge Zimmerman.

The employers, the restaurant operators in that case, appealed that to the Supreme Court of Ohio. The Supreme Court of Ohio reversed the Court of Appeals of Cuyahoga County and affirmed the decision of Judge Lausche.

The unions then filed an application for a writ of certiorari in the Supreme Court of the United States and that court, examining the opinion and examining all the dissenting opinions, affirmed the Court of Common Pleas and refused to admit it. That establishes the law on picketing in the State of Ohio.

Now, there have been some cases decided by other courts since that time and in which a superficial reading of the cases would indicate that the judges attempted to hold differently and not to follow the Crosby case. It is hornbook law at the bar and bench that no court has that power. The law in the Crosby case will remain the law in Ohio until the Supreme Court of Ohio reverses it, no matter what any Akron court does or any Common Pleas sub-servient, below the Supreme Court does.

One of these judges attempted to distinguish by saying that the picketing should be permitted, peaceful picketing, because it deprived one of his Constitutional rights. The honorable court was wrong on two points: (1) He was wrong because there was no trade dispute; Therefore, there, couldn’t have been any picketing. (2) He was wrong because when he said that he was granting&emdash;resting his case squarely on the Constitutional right of free speech, the Constitutional right of free speech wasn’t in the case because there was no trade dispute, and even if it were in the case the law in Ohio is that the right of free speech is not superior to the liberty to conduct one’s business as one sees fit without violating any statutes or ordinances. What constitutes a labor dispute is a question of state law. Obviously, bannering and picketing should be enjoined where there is no trade dispute, thereby affirming the Supreme Court of Ohio and the Supreme Court of the United States.

Now, a lot more could be said on the law in this case but, in the first place, there is no legitimate trade dispute proved in this lawsuit. There was no misunderstanding, no dispute, legitimate or illegitimate, between the plaintiffs here and this picketing group, whether it be a union or otherwise. So that, therefore, under the rule in the La France case and under the rule of the Crosby v. Rath case, picketing was unlawful and should be enjoined, as the court did enjoin it.

There is ample proof in this case that this union grew out of an unlawful conspiracy between a group of vending machine operators and a group masquerading under the name of a union which was an appendage to the vending machine operators, and part of it, and was the recipient of some of the gains that came to it. It couldn’t have been a legitimate labor dispute because the object was unlawful. The object was to run this man’s business their way instead of his way, and they told him to throw out of his place a juke box he wanted and put in one that they wanted him to have.

We don’t iook to the meaning of words only to determine the lawfulness, or otherwise, of a deal, you examine the thing from all four corners. Now, if these men in this industry wanted their condition, working condition improved, and they wanted to join with the Teamsters Union&emdash;why didn’t they go to the Teamsters Union and have it done in Toledo? Why didn’t they go to Harry Card or Franz Berlacher? Why didn’t they go to the Central Labor Union? Was it because that wasn’t the kind of deal they wanted? Was it because they knew that that kind of deal, if they had wanted it, couldn’t be put over on these men in Toledo but, perhaps, it could be put over by contacting Presser and Coy?

Card and Berlacher testified in this case; their testimony wasn’t needed in this case. They came here, no doubt, prompted by the fact that they were outraged at the attempt to put over this deal in Toledo.

But, this conspiracy was proved without their testimony and the right to injunction was proved without -their testimony. While it added, it would have been done had they never showed up here.

And why did Flynn come here? And after he came, why didn’t he have the courage to return? The fact of the matter is that Mr. Flynn doesn’t know the provisions of the Constitution of his own organization. The Constitution of his own organization shows conclusively the illegality of this union. This union has no standing in Toledo and none in Cleveland and none in Indianapolis and I will prove it to you by the Constitution.

“The General President” — Article Six — “The General President shall have general supervision over the affairs of the International Brotherhood, which shall be conducted in accordance with the constitution.”
“The General President, when he deems it for the best interests of the International, is hereby empowered to remove any International Organizer.”

I think the President, the General President, right now has a job to do!

“Unless otherwise provided in this Constitution, the General. President, or General Secretary-Treasurer, when they deem it necessary to revoke a charter shall immediately notify the members of the General Executive Board, for their approval of same.”

And getting down now to the point, “Charter Members, Dues, Meetings of Locals” — Article Fourteen:

“Charter members shall consist of the names forwarded to Headquarters with the application for charter, and Local unions must procure initiation stamps for all charter members, but charter members shall not be required to pay per capita tax for the month in which they receive their charter.”

There isn’t a scintilla of evidence in this case that anybody belonging to this union, including Presser and Coy, ever paid a dime to the International organization. There is no evidence that they ever received any charter — the evidence is to the contrary. The evidence is that they never received any charter, and there is no evidence that 410 had any right to issue a charter. As a matter of fact, Mr. Coy, I am sure, testified that there was no charter issued by 410, or anybody else, to 410-T, and I think, in response to the court’s questions, and they are in the record, there is not even a piece of paper in support of it. That’s probably why they didn’t go to the members of the Central Labor Union in Toledo to organize.

And speaking again about charters on Page 48 of the Constitution:

“Thereupon, the General President shall consider the matter, and if he deems it for the best interests of the organization he may order and direct, subject to the approval of the General Executive Board, that a separate charter be issued to the group applying for same.”

If it was a voting union why didn’t they apply for it to the General President? There is no authority in the Constitution anywhere for Local 410, or any other local, to issue a charter, which issuance of a charter is solely and exclusively the power of and within the jurisdiction of the International officers.

The court sees no reason to change the order made at the conclusion of the plaintiffs’ case on this temporary order. This picketing was unlawful because, in the first place, there was no trade dispute. There being no trade dispute, even peaceful picketing is enjoinable. It was unlawful because it grew out of a conspiracy between organized vending machine operators and a group of people called a union, brought together by two people from Cleveland, Presser and Coy. It’s silly to say that Presser and Coy didn’t receive any money. Are they working for their health or what?

■ The evidence clearly shows, as the court said at the end of the plaintiffs’ case, that this union is simply an institution to screen the activities of this vending machine operators association which, no doubt, it intends by that scheme, to procure a monopoly on the vending machine business in Toledo, and after it procures a monopoly on the vending machine business, then to start into some other business and get a monopoly.

And that is based upon a proposition of illegality, not only because there is no proof of a trade dispute but because it constitutes a secondary boycott, and for any one of those reasons it should be and will be enjoined. This injunction will remain in force during the pendency of this action and until further hearing of the case upon its merits.


author: By SKEEL, J:

text:
    STATE, Plaintiff-Appellee, v. HAASE, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga uuunty.
    No. 22928.
    Decided December 7, 1953.

      Roger A. Zucker, Cleveland, for plaintiff-appellee.
    Wilson G. Stapleton, Ulmer, Berne, Laronge, Glickman & Curtis, Jerome N. Curtis, Robert L. Lewis, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions' of law from a judgment entered in the Police Court of the City of Cleveland Heights, Ohio, finding the defendant guilty of a violation of §13044 GC. (Sec. 3773.34 R. C.) The defendant is a part owner of a hardware store located at 2078 S. Taylor Rd., and known as the Barr Hardware Store. On Apr. 5, 1953, which was Sunday, or the first day of the week, an officer of the police department of the City of Cleveland Heights, went to defendant’s hardware store and found it open for business with the defendant in charge. One of the State’s witnesses testified that defendant told him that the store was open for business seven days a week. The defendant did not take the witness stand in his own defense or by his own testimony dispute any of the material allegations of the affidavit which was filed April 5, 1953, as the basis of this action. The defendant before trial filed a motion to quash, claiming §13044 GC (§3773.24 R. C.), to be unconstitutional and that, the affidavit does not state an offense punishable under the laws of Ohio. The motion' should have been designated “demurrer,” particularly in raising the question of the constitutionality of §13044 GC (§3773.24 R. C.), as provided by §2941.58 R. C. Davis v. State, 32 Oh St 24; State v. Bateman, 7 N. P. 487. The trial court overruled the motion.

Upon trial, the defendant proffered testimony that hardware stores in cities and villages contiguous to the City of Cleveland Heights were open on Sunday and that his opening on Sunday was necessary to meet such competition and that the following businesses were permitted to operate in the City of Cleveland Heights without being arrested for violating the Sunday closing law. (Sec. 3773.24 R. C.): Drugstores in which items of hardware (such as are for sale m defendant’s store) are offered for sale on Sunday; gasoline stations; garages; a radio and television sales and repair shop; real estate offices; shoe store; a store selling garden and lawn equipment, seeds, fertilizers and the like, and other stores of like character all of which evidence was excluded by the court.

The defendant claims the following errors;

1. In overruling motion to quash.

2. In exclusion of evidence of other businesses being operated and allowed to remain open on Sunday (said evidence being proffered by cross-examination of State’s witnesses and witnesses offered by the defendant).

3. In excluding the testimony of the arresting officer proffered on cross-examination as to what, in his opinion, was a work of “necessity.”

4. In refusing to enter judgment for defendant at the close of all the evidence.

5. In overruling defendant’s motion for new trial.

Three questions are presented:—

1. Did the state make out a case without proof that defendant’s business was not, as operated by him on Apr 5, 1953, one of “necessity” under the saving clause of the statute?

2. Is the statute constitutional? (Sec. 3773.24 R. C.)

3. Does the enforcement of the statute unequally, that is, causing defendant’s arrest for conducting his hardware business on Sunday, without interfering with others who conduct like businesses on Sunday which are not such as come within the saving clause of the Act, constitute a violation of defendant’s constitutional rights under the XIV Amendment of the Constitution of the United States and of Art. I, Sec. 2 of the Constitution of Ohio, guaranteeing to him equal protection under the law?

There is some authority in other States that one or more of the exceptions contained in the saving clause of the Sunday closing law, according to the facts of the case, must be negatived in the complaint and such negative fact established by the State in making out its case. 50 Amer. Juris. 828. But under the law of Ohio, unless such negative averment is necessary as a part of the description of the crime charged, it need not be alleged in the complaint or established by evidence as a part of the State’s case. In Billigheimer v. State. 32 Oh St 435, parag, 2 of syllabus, provides:

“2. a negative averment to the matter of a proviso in a statute, is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it.”

See also: Hirn v. State, 1 Oh St 16; Cheadle v. State, 4 Oh St 477, Becker v. State, 8 Oh St 391, Strenglien v. State, 17 Oh St 453; Moody v. State, 17 Oh St 111, Hall v. State, 58 Oh St 676, 153 A. L. R. 1277 (parag. 111, “exception not in the enacting clause”).

On page 461 of the opinion, in the Strenglien case, supra, the court quoted from 1 Wharton American Crim. Law, Sec. 378, as follows:

“If provisos and exceptions are contained in a distinct clause it is not necessary to state in the indictment that the defendant does not come within the exception or to negative the proviso it contains, ‘for all these are matters of defense, which the prosecutor need not anticipate, but which are more properly to come from the prisoner.’ ”

At the time that this prosecution was commenced' §13044 GC defined the elements of the crime charged against defendant, of keeping his hardware store open on Sunday for the transaction of general business.. The exceptions to the statute are contained in separate sections that is, §13045 GC and §13406 GC, the first of these sections providing for the exception contended for by defendant. So that here not only is the exception contained in a separate clause of the statute, but in a completely separate section. The fact is that in the Revised Code, effective in Ohio as of October 1, 1953, these three sections have been put into a single section (§3773.24 R. C.), but in separate paragraphs and the recodification did not change the meaning or interpretation of our statutes.

Under the Bigamy statute, §13026 GC (§2905.43 R. C.) the exception extended to one whose husband or wife has been absent continuously for five years next preceding the second marriage without being known to such person to be living within that time. The State need not negative such exception in the indictment and a defendant claiming to come within the exception must establish such claim as a defense. Strenglien v. State, supra.

Under the Carrying Concealed Weapons statute, §12919 GC (§2923.01 R. C.) an exception is provided in §13448-4 GC (§2845.76 R. C.) that if a prudent person would be justified in carrying a weapon in defense of himself, property or family, under the circumstances, and the defendant was engaged in a lawful business such circumstances shall require a jury tg acquit defendant. The courts have been unanimous in holding that this exception to the carrying concealed weapons charge constituted an affirmative defense and the state has no burden to negative it either in the indictment or on trial of the action. Porello v. State, 121 Oh St 280; Fink v. State, 40 Oh Ap 431; Hart v. State, 42 Oh Ap 501.

There is no doubt but that conducting a general hardware business on Sunday does not come within the exception of “necessity” under the saving clause of the statute, any more than would be true of carrying on a general dry-goods business, a millinery business, a bakery business or grocery business, and all businesses of like character. Of course, these businesses are very necessary as a part of our economic and social requirements, but this is not the meaning of the words,. “Work of necessity or charity” as used in §3773.24 R. C. (§13045 GC). People can, by ordinary foresight, provide themselves with whatever goods which to them seem convenient or necessary for their needs on days of the week other than Sunday. To provide against such business transactions on Sunday was the very purpose of the law. Judge Lieghley (formerly of this court), while on the common pleas court of Cuyahoga County, in the case of Straka v. State, 16 N. P. (N. S.) 554, in holding the operation of a bakery on Sunday to be a violation of §§13044 and 13045 GC (§3773.24 R. C.) said:

“It is my opinion that ‘necessity’ as comprehended by this section of the statute, with few exceptions, arises fropr conditions or circumstances caused by an agency, either in whole or in part, over which man has no control. For instance, it has been held that the distribution of milk upon Sunday is a necessity, in view of the fact that the production of fresh milk is by nature’s decree daily and therefore daily distribution of the same is necessary (58 Kans. 328-30). Again, it would' doubtless be regarded as a necessity that probably all stores might be open on Sunday, temporarily, following a catastrophe like the Dayton flood, or the Collinwood tragedy. For other instances see authorities cited above.”

We are therefore compelled to conclude that the State produced sufficient evidence to make out a case against the defendant under §3773.24 R. C., in opening his hardware store for regular business on Sunday, and if it was the defendant’s claim that what he was doing at the time of his arrest, comes within the exception of necessity, such claim would constitute an affirmative defense which the defendant must establish by the greater weight of the evidence. This he did not attempt to do.

The next claim of the defendant challenges the constitutionality of the statutes (§§13044 and 13045 GC, now §3733.24 R. C.). It is the claim of defendant that these sections together with the remaining sections in Chapter 13 “Sabbath Desecration” (which sections must be considered in pari materia) are unconstitutional:—

(a) As an arbitrary exercise of the police power of the State;

(b) In depriving the defendant of his property without due process of law;

(c) That in its enforcement as against him and not others similarly situated, is a denial of the equal protection of the law, in violation of the Fourteenth Amendment of the Constitution of the United States and Article I, Sec. 2 of the Constitution of the State of Ohio.

(d) In that the administration and enforcement of the statute renders it a denial of the equal protection of the foregoing constitutional provisions;

(e) That said statutes constitute an unreasonable interference with rights of private properties in violation of Section 19, Article 1 of the Constitution of Ohio.

Secs. 13044, 13045 and 13046 GC provide:

“Sec. 13044 GC: Laboring or requiring employe to labor on Sunday.
“Whoever being over fourteen years of age, engages in common labor or opens or causes to be opened a building or place for transaction of business, or requires a person in his employ or under his control to engage in common labor on Sunday, on complaint made within ten days thereafter, shall be fined twenty-five dollars, and for each subsequent offense, shall be fined not less than fifty dollars, nor more than one hundred dollars, and imprisoned not less than five days nor more than thirty days.”
“Sec. 13045 GC: Exceptions:
“The next preceding section shall not apply to work of necessity or charity and does not extend to persons who conscientiously observe the seventh day of the week as the Sabbath, and abstain thereon from doing things herein prohibited on Sunday.”
“Sec. 13046 GC: Further Exceptions:
“The provisions of section thirteen thousand and forty-four shall not prevent emigrating families from travelling, water-men from landing their passengers, or keepers of toll-bridges, toll-gates or ferries from attending them on Sunday.”

As stated above, these sections have now, by the recodification of the Ohio statutes, been incorporated into §3773.24 R. C., without change in the subject matter. The balance of the sections in Chapter 13 of “Part Fourth; Penal” of the General Code of Ohio titled “Sabbath Desecration" provides against “sporting, rioting, quarrelling, hunting, fishing, or shooting, participating in exhibitions to the public with or without charge, in a building, room, grounds or garden, a theatrical or dramatic performance or an equestrian or circus performance of jugglers, acrobats, rope dancing, or sparring exhibitions, variety shows, negro minstrelsy, living statuary, ballooning, baseball in the forenoon, exhibition of moving pictures in the forenoon * * *. These provisions permit baseball and moving picture shows in the afternoon on Sunday, trap-shooting in a regular gun or fishing club and conducting regular business on Sunday, if the one claiming the right, by reason of his religious belief, to conduct such business, observes the seventh day of the week as the Sabbath and also permits works of necessity or charity, and does not prohibit emigrating families from travelling, watermen from landing their passengers, or keepers of toll bridges, toll gates or ferries from attending them on Sunday.

It is to be noted that except for attending the means of public travel and engaging in sports (professional baseball being held to be a sport and not business by the United States Supreme Court, in Toolson v. New York Yankees, 98 L. Ed. 20, 1953) or other forms of public entertainment or recreation, the only permissible Sunday business activities are works of necessity or charity. The statutes of Ohio therefore do not permit some businesses to operate on Sunday and deny the same right to others of like character and the decisions holding Sunday closing laws unconstitutional, because they permit some businesses to operate on Sunday and deny the same right to others, are not applicable.

Allen v. Colorado Springs, 101 Col. 498, 75 Pac. 2d, 1490; Henderson v. Antonacci, 62 S. E. 2d, 5 (Fla. 1952).

In the case of Allen v. Colorado Spring, supra, Allen was convicted of operating a grocery store on Sunday in violation of Sunday closing ordinance in which exceptions were made as to some businesses, including within the exceptions a drugstore. The court said, in holding the ordinance unconstitutional: (Syllabus 1) (Syllabus 3)

“A city in exercise of its police power may, by general ordinance prohibit carrying on within its limits of all business or. occupations on Sunday, except those of necessity or charity* upon ground that thereby the peace, good order, good government and welfare of its inhabitants will be promoted.”
“3. An ordinance prohibiting operating of stores on Sunday which excepted drug stores from its restrictions was unconstitutional as discriminatory legislation as applied to a grocer where drug stores admittedly sold certain staple products usually carried by grocery stores.”

Many cases are not in accord with the foregoing authorities and hold that where discriminations are contained in an ordinance or law restricting business on Sunday, that the legislative body acted on the facts within its knowledge which justified its classification as reasonable and proper.

These cases are collected in a comphehensive note in 46 A. L. R. 290 (See parag. 11, page 292). The purpose of Sunday closing laws being in the interest of the public welfare, and in support of the religious and devotional life of the community, providing for a day of rest and possibly recreation, must be liberally construed in favor of their validity and as being within the constitutional powers of the legislature. In Vol. 35 O. Jur., page 349, the author says in paragraph 9:

“Justified as Exercise of Police Power:
“Laws relating to the observance of Sunday have been uniformly recognized as a legitimate exercise of the police power. These laws, fixing regularly running days of rest from all secular pursuits, are within the power of the legislature to adopt such wholesome regulations as may be necessary to promote the peace, health and well being of society. In fact, the state may, as a police regulation for the promotion of the physical, mental and moral welfare of its citizens, establish as a civil and political institution the first day of the week as a day of rest and prohibit the performance upon it of all labor or business except works of necessity or charity. Accordingly Sunday legislation including both statutes and ordinances, prohibiting common labor, barbering, baseball, hunting, etc., on Sundays, has been upheld.”

The constitutionality of Ohio laws passed in the interest of the observance of Sunday as a day of rest, have been upheld by the supreme court in the following cases:

State v. Powell, 58 Oh St 324.

Stanfeal v. State, 78 Oh St 24.

We conclude, therefore, that §13044 GC (§3773.24 R. C.) is not in conflict with any of the provisions of either the Federal or State Constitutions.

The claim of error in rejecting evidence as to probable violation of the Sunday closing laws by others, who were not prosecuted by the authorities, thereby depriving defendant of equal protection under the law, is not well taken.

From the record and the proffered evidence in this case it is probably so, that many violations of the Sunday closing law are not challenged by the enforcement agencies of the City of Cleveland Heights. It was claimed in argument that the provisions of the law in many respects seem not to fit into the pattern of modern living. It will come as a surprise to many ardent fishermen that the law prohibits them from enjoying such recreation on Sunday. No one, however, need come to the defense of the need for Sunday closing laws. In proper form they speak the will of the people. They have had a long history of supporting the public will that Sunday should be devoted to rest and religious devotion. Such laws are to be found in the history of legislation almost from the beginning of modern civilization, finding their support no doubt from the Third Commandment, “Remember that thou keep holy the Sabbath Day.”

In 83 Corpus Juris Secundum, page 800, paragraph II “Regulation and Enforcement of Sunday Observance” under the heading of “General History” we find the following:

“The observance of Sunday is recognized by constitutions and legislative enactment both federal and state; and Sunday prohibitory laws are said to have a religious or divine origin.
“Sunday legislation is more than fifteen centuries old; it originated in Rome in A. D. 321, when Constantine the Great passed an edict commanding all judges and inhabitants of cities to rest on the venerable day of the Sun. Sunday statutes were passed at an early date in England and 29 Charles II c 7 has been made the basis of similar legislation in many of the states * * V’

It might be said that a greater acceptance by the people of the fundamental purpose of these statutes, would help in solving many of our difficult social problems. Courageous leadership in bringing about a greater understanding of their value would indeed be most beneficial.

But these are matters which come exclusively within the jurisdiction of law enforcing officers, legislative 'bodies and educational leaders. Courts must impartially interpret the law in cases commenced within their respective jurisdictions The fact that one person is prosecuted and another is not, is a subject with which the court cannot deal.

In the case of Vermont v. Corologos, 143 Atl. 284, the Court, in dealing with this question as a defense, said:

“If so, it was a discrimination in the administration of the law, and not the law itself, and manifestly had no bearing on the question of respondent’s guilt or innocence. One offender cannot excuse his conduct by showing that some one else equally guilty has not been prosecuted.”

We find no error in excluding such evidence.

For the foregoing reasons, the judgment of the Police Court of the City of Cleveland Heights, finding the defendant herein guilty of violating §13044 GC (§3773.24 R. C.) is affirmed.

Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, concur.


author: By CECIL, J.

text:
    DEVLIN v. WEBSTER et al.
    Common Pleas Court, Montgomery County.
    No. 99901.
    Decided July 28, 1950.
    Nichols, Wood, Marx & Ginter, Cincinnati, Canny & Holzfaster, Dayton, for plaintiff-appellant.
    Estabrook, Finn & McKee, Arthur Meyring, Dayton, for defendants-appellees Zarbock, Golob, Meyring, Hummert, Wilcke, Ellinger and Casey.
    Guy Miller, Dayton, Alley, Cole, Grimes & Friedman, New York City, for defendant-appellee Standard-Thomson Corp.
   OPINION

By CECIL, J.

This case is pending before the court upon a motion of the defendant. Standard-Thomson Corporation, and a motion of the defendants, Robert Casey, Carl Wilcke, John Golob, Arthur Meyring, Albert H. Ellinger, L. G. Zarbock and R. H. Hummert, to require the plaintiff to amend her petition by striking certain allegations therefrom.

The first branch of the motion is directed at language which constitutes a substantial portion of the allegations of the second cause of action. We are cognizant of the force of the decision in the case of Shaw v. Midland Bank, 70 Oh Ap 181, 33 N. E. 2d 422 and are also aware that attorneys frequently file motions to strike language from a petition which constitutes the “guts” of the action. The court is, nevertheless, bound to supervise the pleadings filed in court and to strike from them language which is improperly pleaded.

In considering this first motion of the defendant, we are of the opinion that it is well taken and should be sustained. The plaintiff laid a foundation in the first cause of action for a charge of conspiracy against the defendants. The gist of the charge being that the defendants used their influence to have Standard-Thomson Corporation purchase other corporations for sums in excess of their value. In sustaining this motion, it is not the intention of the court to determine that the plaintiff does not have a cause of action and cannot properly allege one. The plaintiff might well have alleged, in furtherance of the conspiracy, that the defendants directed the purchase of “Clifford” by Standard-Thomson Corporation; that the price was in excess of its value naming the price, if known, and, if not, setting forth the reason for not giving the price; that, as a result of said purchase, Standard-Thomson Corporation suffered a loss naming the loss or, in the absence of knowledge, stating that such loss was not known.

The plaintiff has alleged “the consideration paid by Standard was greatly in excess of the true value of said stock and that the purchase price was grossly excessive and a waste of the assets of Standard.” The plaintiff has here expressed one idea in three different ways. The consideration paid, being greatly in excess of the true value, is the same as “that the purchase price was grossly excessive” and, obviously, if the purchase price was excessive, it was a waste of the assets of Standard.

The allegations that the defendant arranged and consummated the acquisition of 'Clifford wilfully and fraudulently contrary to the duties owed by them to Standard, as directors thereof, is not in furtherance of any cause of action pleaded by plaintiff. The basis of the cause of action is conspiracy. Plaintiff had the right to choose fraud as the basis of her action if she so desired. But, if she desired to charge fraud, then she should have laid her cause of action in fraud and alleged facts to support it. Then, if defendants are to be charged with gross misconduct in office and the mismanagement of a trust, facts charging these things should be alleged with some particularity. The charges should rise higher than suspicion. The plaintiff charges that the defendant, Webster, profited directly or indirectly as a creditor of Clifford, and, by virtue of the fact that “directly or indirectly through dummies or otherwise, he had been financially interested in Clifford prior to said acquisition.” How was he interested? What did he do? “Directly or indirectly through dummies or otherwise” alleges nothing with any particularity. Then, it is charged that the other directors made “secret profits.” This, in the absence of supporting facts, is a pure conclusion.

Motions two to eleven, both inclusive, of defendants’ motions are directed at language of the third cause of action. These motions, if sustained, would leave but a few scattered sentences in the plaintiff’s third cause of action. The motions are, in effect, a demurrer. Considering the third cause of action of the plaintiff, we find there is nothing charged therein that the directors of a corporation could not legally have done. The only allegation that the bonus arrangement set forth therein was not legal is the plaintiff’s characterization of it by use of the words “wrongfully, wilfully and fraudulently.” Such words are mere conclusions of the pleader and nowhere, in this third cause of action, are there any allegations by which the court could ascertain or draw a conclusion that the directors acted illegally. The language used is argumentative throughout and filled with innuendoes unsupported by allegations of fact. It might be said that the amount of the bonus was unreasonable and disproportionate to the total profits of the corporation. If such is the claim, facts could be alleged which would show such a situation. There are allegations at the top of page nine which would indicate that the directors improperly computed the amount of .the bonus by failing to deduct certain expenses and by improperly charging other items as income. If this is the basis of the action, facts could be alleged with particularity to show what expenses they failed to deduct and what improper items of income were considered.

Considering these branches of the motion, as a demurrer, the court will sustain it for the reason that there is no cause of action set forth in the plaintiff’s purported third cause of action. A demurrer admits all of the allegations of a pleading well pleaded. It does not admit conclusions. DeWeese v. Security Savings Ass’n of Dayton, 126 Oh St 480, 186 N. E. 4.


text:
    DEVLIN v. WEBSTER et al.
    Common Pleas Court, Montgomery County.
    No. 99901.
    Decided July 28, 1950.
    Nichols, Wood, Marx & Ginter, Cincinnati, Canny & Holzfaster, Dayton, for plaintiff-appellant.
    Estabrook. Finn & McKee, Arthur Meyring, Dayton, for defendants-appellees Zarbock, Golob, Meyring, Hummert, Wilcke, Ellinger and Casey.
    Guy Miller, Dayton, Alley, Cole, Grimes & Friedman. New York City, for defendant-appellee Standard-Thomson Corp.
   OPINION

By CECIL, J.

This case is pending before the court upon a demurrer of the defendant, Standard-Thomson Corporation, and a demurrer of the defendants, Robert Casey, Carl Wilcke, John Golob, Arthur Meyring, Albert H. Ellinger, L. G. Zarbock and R. H. Hummert, to the first cause of action of the plaintiff’s petition for the reason that it is barred by the Statute of Limitations.

The facts alleged in the petition are briefly that the plaintiff is a stockholder of the defendant, Standard-Thomson Corporation; that she brings this action on behalf of Standard-Thomson Corporation for the benefit of herself and all other stockholders of such Corporation who may desire to join with her in prosecuting the same; that the defendant, Reginald N. Webster, was the owner of a substantial majority of the outstanding voting stock of said Corporation and that he and the other defendants were directors thereof for the period set forth in the petition; that all of the defendant directors in or about the year, 1943, entered into a conspiracy whereby they agreed to have Standard-Thomson Corporation acquire companies in which they had a financial interest at cost greatly in excess of their true value; that such conspiracy “contemplated that such defendants would profit, directly or indirectly, because of their prior financial interest in said companies to be acquired, and make secret profits in connection with such acquisitions by means of concessions granted to them by the acquired concerns and otherwise, and did unlawfully and improperly obtain for themselves profits from Standard-Thomson in the form of bonuses and other forms of so-called incentive compensation, with the result that said defendants would make large profits and would be unjustly enriched at the expense of Standard;” that, in the pursuance of this conspiracy, Standard-Thomson Corporation acquired 346,250 shares out of 347,500 shares of American Aviation Corporation in August 1944 and gave in exchange therefor three-fourths of a share of Standard-Thomson Corporation for each share of American Aviation Corporation and that the investment in American Aviation Corporation by Standard-Thomson Corporation was a total loss.

The question presented to the court is whether or not the four-year limitation provided by §11224 GC or the ten-year one provided by §11227 GC is applicable. If the subject of the action is exclusively an equitable one, then the ten-year limitation applies.

Counsel for the plaintiff claim that the Courtright case, a Common Pleas Court decision by Kinkead, J., Glass v. Court-right, 14 Ohio N. P., N. S., 273 has been indirectly approved by the Supreme Court in the Scullin case, Scullin v. Mutual Drug Company, 138 Oh St 132, 33 N. E. 2d 992, and is decisive of the issue.

Counsel for the defendants claim that the Jensen case, a Common Pleas Court decision by Lausche, J., Jensen v. Republic Steel Corporation, 32 Abs 29, has been indirectly approved by the Supreme Court in the House case, State ex rel. Lien, v. House, 144 Oh St 238, 58 N. E. 2d 675, and that it is controlling.

Our conclusion is that the right of a stockholder to bring a derivative action on behalf of a corporation is an equitable one. The subject of the action or remedy by which redress is sought may be either legal, equitable or statutory. The reasoning in the Jensen case is sound and is supported by the decisions of the courts and by the text writers. The Courtright case, insofar as it differs with this, is not now the law. The Scullin case supports this view. The court said [138 Oh St 132, 33 N. E. 2d 994]: “In the absence of a statute to the contrary, such cause of action is of equitable cognizance only.” In other words, if there is no statute authorizing a stockholder’s suit to be brought for the benefit of a corporation. such an action is of equitable cognizance only. That is, there is no remedy at law to warrant such an action. The particular remedy invoked, in this case, by the stockholder for redress is a statutory one. §8623-123b GC. If this view of the law is accepted, all of the Ohio cases, except the Court-right case, can be understood and reconciled.

What then, is the nature of the remedy which the plaintiff invokes? It is conspiracy. Counsel for plaintiff have, in clear, concise and unmistakable language, set forth a cause of action under the common law action of conspiracy. This is an action at law. The measure of damages is the difference between the cost of the stock to the corporation and its actual value. Does the uncertainty of this amount and the aecounting features of the cause of action make it equitable instead of legal? We think not. In the case of Nordin v. Coulton, 142 Oh St 277, 51 N. E. 2d 717, 718, the court said:

“Under the general rule the nature of a case is determined from the pleadings and the issues presented thereby. It is equitable if it is necessary to determine first whether the plaintiff is entitled to equitable relief before legal redress can be granted. But, conversely, if the primary or paramount relief is legal and the equitable redress merely incidental, it is an action at law.”

The case of Squire v. Guardian Trust Company, 79 Oh Ap 371, 5th Syllabus, 72 N. E. 2d 137, 140. is as follows:

“Where the relief of accounting is merely ancillary to the principal relief of obtaining money, the action is one at law and not in equity.”

In this case, the court held that it was not necessary for the Superintendent of Banks to invoke equity jurisdiction, but that if he failed to bring the action and such an action was brought by a stockholder or creditor of the Bank, it would be necessary to invoke equity jurisdiction. The court held that the remedy invoked by the Superintendent of Banks was a legal one and that the four-year statute of limitations was applicable. The 22nd syllabus reads-as follows:

“In an action maintained by the Superintendent of Banks against directors of such bank for loss to the bank, due to wrongful acts of such directors, not amounting to fraud upon the bank, the Superintendent in such action represents depositors who upon his refusal to act, could have maintained such action, but such action by depositors would have been for the benefit of the bank and their action in such representative suit would have been subject to any statute of limitations applicable to the right of action of the bank. Such depositors as a class have no right of action independent of that of the bank for such wrongful acts and loss.”

The House case, supra, was likewise one brought by the Superintendent of Banks for malfeasance of directors and the court there held that such an action was an action at law and controlled by the four-year statute of limitations. This case supports the theory that the nature of the remedy sought by the plaintiff, in the case at bar, is legal. The court said IT44 Oh St 238, 58 N. E. 2d 678]:

“An action by a corporation to recover damages for the ultra vires and negligent acts of its former directors and officers is based on the common-law rule which renders every agent liable who violates his authority or neglects his duty to the damage of his principal, and such action is one ‘for an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated’ and must be brought within four years after the cause of action accrues.”

The case of Minster Loan & Savings Company v. Laufersweiler, 67 Oh Ap 375, 36 N. E. 2d 895, was an action by the corporation against the directors. The court held here that the remedy sought by the corporation against the directors was an action at law. It is our conclusion that the remedy sought by the plaintiff, in the case at bar, is an action at law. Therefore, subdivision four of §11224 GC is controlling. This provision of the statute is as follows: “For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated.”

Another claim made by the plaintiff is that even though the four-year statute does apply, the first cause of action is not barred because the statute of limitations is tolled while the corporation continues under the domination of the wrongdoers. In the House case, supra, the court held “The cause of action, if any, against the defendants as trustees arose when their jurisdiction and control over the res of the trust terminated.” This was an express trust and it has been held in Ohio that the directors of a bank or a corporation do not hold an analogous position to the trustees of an express trust.

In the Squire case, supra, the 12th Syllabus reads as follows:

“The relation of directors to a solvent bank is not that created by the obligations imposed upon the fiduciary of an express trust.”

And the 15th Syllabus is as follows:

“The statute of limitations commences to run from the time a wrongful act is committed by a director either involving a violation of his common law duty to ■the bank or a violation of statutory obligation.”

In the case of Hart v. Guardian Trust Company, Ohio Com. Pl., 75 N. E. 2d 570, 48 Abs 545, the 18th Syllabus reads as follows:

“Bank directors are not trustees of an express trust so as to suspend the operation of the statute of limitations until their service as directors is terminated.”

In the face of the above decisions and in the absence of authority to the contrary in Ohio, we conclude that the statute was not tolled while the defendants remained in office as trustees.

Counsel for plaintiff agree that the cause of action did not accrue in August, 1944. In support of this, it is said that the petition does not allege that the corporation suffered any damage at the time the transaction was consummated. “If the cause of action accrued at the time the damage was sustained, the Petition was not demurrable because the date does not appear therein.”

If this transaction were a wrongful act and the stock of the American Aviation Corporation, at the time of the purchase by Standard-Thomson Corporation, was worth less than was paid for it, Standard-Thomson Corporation suffered the loss at the time of the transaction and this is true even though the loss may not have been recognized by the plaintiff at the time. Indeed, the charge of the plaintiff is that the defendants conspired to do this very act to their own advantage and to the detriment of the corporation.

Argument is advanced by counsel for the plaintiff that the conduct of the defendants constitutes a continuing tort or wrong. They entered into a conspiracy, perpetrated the wrongs charged in the first, second and third causes of action and never sought legal redress on behalf of the corporation. In other words, they committed wrongs, did not make restitution therefor or sue themselves for their wrongs, and, therefore, the original wrongful act is a continuing one. This reasoning has a fallacious ring but it is, nevertheless, deceptive. It sounds like lifting one’s self by one’s own boot straps.

The quotation on page 20 of defendants’ Reply Brief from the case of Nurick v. Baker, Sup., 14 N. Y. S. 2d 503, 506 is applicable.

“The failure of the directors to bring an action on behalf of the corporation did not constitute a continuing wrong on their part which had the effect of extending the period during which an action might be commenced against them. Assuming that rights of action, other than those founded upon the allegedly wrongful payments, were created by the failure of the directors to bring suit, such additional rights of action also arose when the original wrongs were committed, for the directors could have instituted suit at once.”

Finally, it is claimed by counsel for plaintiff that the first cause of action is not barred by the statute of limitations because the time would not begin to run until the occurrence of the last of a contemplated series of overt acts. In support of this, is cited the case of Northern Kentucky Telephone Company v. Southern Bell Telephone & Telegraph Company, 6 Cir., 73 F. 2d 333, 97 A. L. R. 133. The first two Syllabi of this case read as follows:

“Conspiracy is not a continuing wrong in the sense that so long as damages flow, without a regard to the time of formation of the conspiracy or the commission of overt acts, the Statute of Limitations against an action therefor does not begin to run.”
“The Statute of Limitations against a cause of action for conspiracy begins to run upon the occurrence of an overt act resulting in damages, or the last of a contemplated series of such acts.”

We understand this to mean that the time runs as to any particular overt act and from the date of the overt act and not from the conspiration agreement. Otherwise, if the time limited by the statute expired between the agreement and the overt act, the overt act would be barred.

It is our judgment that the first cause of action in plaintiff’s petition accrued in August 1944 and that it is subject to the four-year statute of limitations. The demurrers will, therefore, be sustained.


author: By THE COURT. By THE COURT.

text:
    KELLY et, Plaintiff-Appellant, v. KELLY, Jr. et, Defendant-Appellee. KELLY, Plaintiff-Appellant, v. KELLY, Jr., Defendant-Appellee.

      Ohio Appeals, Second District, Franklin County.
    No. 4770.
    Decided May 16, 1952.
    Joseph G. Rotondo, John F. Seidel, Columbus, for plaintiff-appellant.
    Horace S. Kerr, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal for the reason that the order appealed from is not a final order. The order is in the following words:

“It is now ordered that at the end of the 1952 school year, the child of the parties hereto shall be surrendered to the defendant and he shall have said child in his custody until the end of the 1953 school year, in Columbus, Ohio, at which time the child shall be returned to the mother; and such alternative periods of custody shall continue until the further order of this Court.”

Decided October 22, 1952.

This Court held in the case of Arnold v. Arnold, 67 Oh Ap 282, that such an order was a final order and therefore appeal-able. See also, Brown v. Brown, 15 Abs 316; Lenz v. Lenz, 1 Abs 816; Bower v. Bower, 90 Oh St 172.

It is to be noted that the notice of appeal designates it as' being on questions of law and fact. This is not a chancery case and is therefore appealable only on questions of law. The Court on its own motion will dismiss the law and fact appeal and in accordance with Supplement to Rule VII will order the same retained for determination on questions of law only. The appellant will be granted leave to perfect said ’ appeal in accordance with said rule.

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

Ohio Appeals, Second District, Franklin County.

No. 4770.

Frank H. Ward, Joseph G. Rotondo, Joseph F. Seidel, Columbus, for plaintiff-appellant.

Horace S. Kerr, Columbus, for defendant-appellee.

OPINION

By THE COURT.

The appeal is from an order of January 31, 1952, of the Common Pleas Court, sitting in the Domestic Relations Division, modifying an order of March 29, 1948, awarding the custody of a child of the parties, Janet, to the plaintiff.

The original order made provision for right of visitation to the defendant and required him to make payment of $7.00 per week for the support of the child.

The files disclose several motions of the defendant for changes in the custodial order none of which, save one, was granted, except as to right of visitation. On February 15. 1951, an order was journalized refusing to change the custody of the child from the mother. However, on March 9, 1951, the Court awarded the custody of the child to the defendant with rights of visitation to the mother. Thereafter, in an entry of May 10, 1951, on motion of plaintiff to the effect that she had not received notice of the motion to change custody which was the subject of the order of March 9, 1951. the trial judge set aside the orders of February 15, 1951 and March 9. 1951, and provided that the “cause proceed on the motion of defendant filed in this Court of January 24, 1951,” and that it be assigned “to one of the Judges of the Court of Common Pleas of Franklin County or to some other Common Pleas Judge brought here for that purpose.” At the inception of the hearing it was stated by the Court and agreed by counsel that it was upon the application of January 24, 1951.

We have set out the proceedings and orders at some length so that we can determine what order and what motion we are to consider on this appeal.

The motion of January 24, 1951, seeks a modification of the final decree by changing the custody of the minor child of the parties from plaintiff to the defendant for the reasons that:

(1) The plaintiff is not giving said minor child proper care.

(2) The plaintiff is unfitted morally to have the custody of said minor child.

There is a motion of defendant of similar import of date March 12, 1951, but it was not the subject of consideration at the hearing.

The trial judge heard the motion 'and modified the former order by awarding the custody of the child to the defendant, beginning at the end of the 1952 school year and continuing until the end of the 1953 school year in Columbus, Ohio, at which time the child shall be surrendered to the mother; and said alternative periods of custody shall continue until the further order of the Court. Visitation rights were fixed.

Appellant assigns two errors: The first, the failure of the Court to grant the request of appellant for a separate finding of fact and law as provided by §11421-2 GC; the second, that the Court was not warranted under the evidence in making the change in the custodial order.

The trial was had on December 5th, 1951, the order of the Court was filed January 31, 1952, the application for special findings was filed February 6, 1952. This was too late under all of the authorities to require the Court to make the findings requested. The latest period within which the application may be effectively made is prior to the judgment or final order. Bittman v. Bittman, 129 Oh St 123; Bloom v. Klein, 36 O. L. R. 552; State, ex rel. Kerns v. Beightler, etc., 38 Abs 615; Setter v. Kleinmann, 34 Oh Ap 433; Nimon v. Klein, 43 Oh Ap 314. Some cases have held that to be timely it should be filed earlier. Toledo v. Barnes, 1 O. N. P. 188; Skillicorn v. McCormick, 29 O. L. R. 356; Parker v. Bales, 13 Abs 655.

The second assignment of error. Does the record support the order?

We approach this question with full appreciation of the wide discretionary power of the trial judge in resolving the evidence for or against either party and with that prerogative we must not interfere. We appreciate also that the test which must be applied in making a change in a custodial order is found in many adjudications but particularly, and controlling, in the 2nd syllabus of Dailey v. Dailey, 146 Oh St 93, that there must be either a change of conditions since the order sought to be modified or a discovery of material facts existent at the time of entering the previous order and then unknown to the Court. Manifestly, the only situation involved here is whether or not there has been such a change of conditions respecting the parties as to warrant a modification of the order.

There are two grounds of the motion to modify. The second, that the plaintiff is unfitted morally to have the custody of her child, fails because there is no evidence whatever to support it. Restricting consideration to the grounds of the motion only, as we are and the trial judge was required- to do, there is left only the first ground of the motion, that the plaintiff is not giving the minor child proper care Also restricting our review to the record, as we must, this question must be decided upon the conduct of the mother on two occasions: First, when she removed the child from a hospital, and, second, when she would not put leggings on the daughter when the father called to pick her up.

We cannot find upon the most favorable view of the evidence that either of these occurrences, in the light of the background and rights of the parties and the date of the application on hearing, is of sufficient consequence to support a change of the custodial order.

It is evident that the child, Janet, at the time she was taken to the hospital and prior thereto, had bad tonsils and adenoids. That they should be removed it was agreed but the time when the operation should be performed and the surgeon who should perform it was a matter of disagreement between the parties. But it is conceded that in June, 1951, and prior to the time of the hearing the operation had been performed. It was not shown that the delay caused by the postponement of the operation materially affected the health of the child or that the mother had any knowledge that a delay would seriously affect the health of the child.

Was the act of plaintiff in removing the child from the hospital such misconduct and so inconsiderate and harmful to the health of the child as to justify the Court in modifying the former order? Manifestly, if she showed a reckless disregard for the health or welfare of her child the Court would have been justified, indeed it would seem to have been a duty, to summarily take the child from her.

It develops that the father got the child on- Saturday It was then, or later, taken ill; he removed her to a hospital and possibly arranged with the surgeon to have her tonsils removed. The defendant notified the plaintiff on Sunday that Janet had been taken to the hospital but not of the purpose to have her tonsils removed. Plaintiff went to the hospital as soon as she was notified. It is the testimony of the plaintiff’s medical witnesses that certain preliminary treatment to remove infection was required before the tonsilectomy.

It will be noted that the defendant only had Janet by the visitation order which right ended Sunday at 6:00 P M. and the general right of custody was in the plaintiff Manifestly, if the operation was performed Janet would be held well beyond the expiration of the visitation period. The defendant did not inform the hospital of the true custodial situation and the child was thus accepted. The mother and her counsel, so she says, and it is undisputed, explained the facts to the hospital authorities who released Janet on the written authority of her mother. The mother wrapped the child in a blanket and removed her from the hospital. This may not have been the act of sober judgment, but in the emergency and stress under which the mother acted we cannot find that it establishes that the plaintiff was not giving the minor child proper and adequate care. Nor, is the custodial order as made, postponing the period when the mother should cease to have the child for almost a year consistent with the finding of neglect of the child by the mother who at all times had the prior right to determine if the operation should be performed.

The failure of the mother on one occasion to put leggings on the child was of insufficient consequence to support the modified order.

• At the time of oral argument many statements were made which, if supported by the record, were clearly more probative of the second ground of the motion than anything which is to be found in the record upon which the trial judge acted. But the conduct of the plaintiff alluded to by counsel for defendant took place after the hearing upon which this appeal is predicated and cannot be considered by us.

Although we have discussed the evidence in this case at considerable length there is a development on the record that in itself would make it difficult, if not impossible, to affirm the order. The application for modification of the custodial order was filed January 24, 1951, but the act of the plaintiff upon which defendant most relies, the removal of the child from the hospital, did not occur until February, 1951. Dr. Anderson who recommended the hospitalization and the operation did not see Janet until February, 1951. Manifestly, the defendant could not have had this subject matter in mind when he filed his application for modification and it was only admissible as corroborative of substantial proof of the first ground of the application. Independent of the hospital episode the evidence is entirely inadequate to support the order of modification.

The order must be reversed as against the manifest weight of the evidence. It will be so ordered.

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