author: By DULL, J.

text:
    STATE, Plaintiff, v. REGEDANZ, Defendant.
    Common Pleas Court, Mercer County.
    No. 3400.
    Decided December 12, 1953. .

      Don W. Montgomery, Pros. Atty., Celina, fo.r the state.
    James C. Blair, W. Howard Everett of Everett and Blair, Lima, for defendant.
   OPINION

By DULL, J.

A certain request in writing from counsel for defendant was submitted in open court to the prosecuting attorney. The request was orally refused by the prosecuting attorney. The request reads as follows:

“Now come James C. Blair and Howard Everett, attorneys for the defendant and demand an inspection and copy or permission to make copies of the hospital report concerning a certain blood test purportedly taken of the defendant; and the right to interview the technician who was the party who prepared said purported report.”

The matter was submitted to the court upon the memoranda of counsel for defendant and of the prosecuting attorney.

The first part of the request demands “an inspection and copy or permission to make copies of the hospital report concerning a certain blood test purportedly taken of the defendant.” Sec. 2317.33 R. C. (§11552 GC) provides:

“Either party, or his attorney, in writing, may demand of the adverse party an inspection and copy, or permission to take a copy, of a book, paper, or document in his possession or under his control, containing evidence relating to the merits of the action or defense, specifying the book, paper, or document with sufficient particularity to enable the other party to distinguish it. If compliance with the demand within four days is refused, on motion and notice to the adverse party, the court or judge may order the adverse party to give the other, within the time specified, an inspection and copy, or permission to take a copy of such book, paper, or document. On failure to comply with such order, the court may exclude the paper or document if offered in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such as such party, by affidavit, alleges it to be. This section does not prevent a party from compelling another to produce any book, paper, or document when he is examined as a witness.”

Sec. 2945.41 R. C. (§13444-1 GC) provides:

“The rules of evidence in civil causes, where applicable, govern in all criminal causes.”

The court has been unable to find any cases containing a ruling directly upon a demand to inspect and copy the report of á chemical test of blood voluntarily submitted to by the defendant, nor has counsel submitted any, with the possible exception of State of Ohio v. Hahn, citations infra. However, the matter of demands to inspect and copy written statements and confessions of the defendant has been ruled upon by the courts in connection with §2317.33 R. C. (§11552 G. C.). The analogy between a report of a chemical test of blood voluntarily submitted to by a defendant and a written statement or confession of a defendant is a peculiarly close one. Each must be voluntarily submitted to or made. Each is a record or statement against interest. The admission of each in evidence must be carefully safeguarded. Once admitted, the weight of each must be carefully considered. Hence, the rulings in the cases relative to demands to inspect and copy written statements and confessions of the defendant provide the court with some authority for ruling in the present case.

The last time the Supreme Court of Ohio made any comment on the matter was by way of dictum. In the State of Ohio v. Fox, 133 Oh St 154, decided January 12, 1938, Judge Zimmerman in the course of the opinion on pages 158 and 159 states:

“Under §13444-1 GC, the rules of evidence in civil cases, in so far as applicable, shall govern all criminal causes. Counsel for the defendants in the instant case could have inspected the written confession of their client Barker in the hands of the prosecuting attorney before trial by invoking the provisions of §11551 et seq., GC, if necessary, and could have predicated an application for a separate trial of their client Fox on the basis of the contents of such confession. This was not done, so we have no issue relating to an abuse of discretion on the part of the trial court in refusing to order separate trials. 70 A. L. R., annotation beginning on page 1185.
“Sec. 13444-1 GC, became effective in July of 1929, more than four years after the decision in State v. Yeoman, 112 Oh St .214, 217, 147 N. E. 3.”

In such statement the State of Ohio v. Yeoman,- 112 Oh St 214, decided March 17, 1925, was overruled by implication. In the Yeoman case the Supreme Court in the syllabus held that: “In a criminal case, the defendant cannot compel the prosecuting attorney to submit to him or his counsel a written confession, signed by the defendant, and in the possession of the prosecuting attorney, for the purpose of inspection and copy. Neither §11552 GC, nor §13664 GC, requires the giving of such inspection.”

However, in State of Ohio v. Hahn, 10 O. O. 29, decided November 28, 1937, the Common Pleas Court of Hamilton County, in the syllabus held that: “2. Sec. 11552 GC, granting the right to inspect and copy any paper or document in the possession of the adverse party has no application to a criminal case.” The Hahn case was affirmed in the Hamilton County Court of Appeals, 11 O. O. 560, decided February 7, 1938. But an appeal to the Supreme Court was dismissed, 133 Oh St 440, decided April 13, 1938.

Again in State v. Johnson, 57 Abs 524, decided May 5, 1950, the Montgomery County Court of Appeals in the syllabus held that: “2. Secs. 11551 and 11552 GC, which define the rights of a party to books or writings in the hands of the other party are not applicable in a criminal case.” Again an appeal to the Supreme Court was dismissed, 154 Oh St 236, decided October 11, 1950. By permitting the Hahn case or the Johnson case to come before it, the Supreme Court could have decided whether or not §11551 and §11552 GC (§§2317.32 and 2317.35 R. C.) were applicable in criminal cases. But in two instances the Supreme Court refused to do this.

Still again, in State v. Major, 60 Abs 271, decided November 16, 1950, the Common Pleas Court of Summit County, in the syllabus held that: “1. Neither §11552 GC, nor §13444-1 GC, entitles the defendant in a criminal case to compel the prosecuting attorney to turn over to him or his counsel for the purpose of inspection and copy written statements and confessions of defendant which are in the possession of the prosecuting attorney.”

But in State of Ohio v. Cala, 20 O. O. 400, decided January 10, 1940, the Court of Appeals of' Cuyahoga County, in the syllabus held that: “5. The granting or denying of defendant’s request for an order to require the prosecuting attorney to permit defendant to inspect and make a copy of confessions is within the discretion of the trial court; and a review of a denial of such request is limited to a determination of whether there has been an abuse of discretion.” In the course of the opinion on page 402 the court reviews the history of the pertinent statutes and leading cases. It stresses the fact that the language contained in the Statute (§2317.33 R. C.) is permissive: “the court ‘may order’ the adverse party to give the other party within the ‘time specified’ a copy or inspection. Who will specify the time? Manifestly, the court. And then if the order is not complied with the court ‘may exclude’ the document if it is offered in evidence. All this is language appropriate for vesting power or discretion in the trial court, to be exercised in the light of all the surrounding circumstances under which the request is made. It conveys no thought of a non-discretionary duty.”

The position taken by the court in the Cala case is the one that most strongly appeals to this court’s sense of justice and fair play. The prosecuting attorney has informed counsel for defendant both orally and in the memorandum submitted in this matter that the chemical test of defendant’s blood showed the percentage of ethyl alcohol to be in excess of .15% which percentage has been accepted by some scientific authorities, and not accepted by others, as sufficient to cause the defendant to be under the influence of alcohol. Further, at the time a sample of blood was taken from the defendant by the state, the defendant could have had another sample taken and tested for his own use inasmuch as the blood was taken and tested at a local hospital. The counsel for the defendant will not be handicapped in the preparation of the defense, nor will the defendant himself be denied any opportunity that he did not have in the preparation of evidence by the court’s denial of the demand of counsel for defendant for an inspection and copy of the report of the test of the defendant’s blood.

The second part of the request demands the right to interview the technician who tested the defendant’s blood and prepared the report of the test. This, in effect, is an application to the court for a commission and order of the court to take a deposition of a witness for the State.

Sec. 2945.50 R. C. (§13444-11 GO provides:

“When an issue of fact is joined upon an indictment and a material witness for the state or the defendant is sick or infirm, or about to leave the state, or is confined in prison, or resides out of this state, the prosecuting attorney or the defendant may apply in writing to the court of common pleas for a commission to take the depositions of such witness. The court or a judge thereof may grant such commission and make an order stating in what manner and for what length of time notice shall be given to the prosecuting attorney or to the defendant, before such witness shall be examined. Such commission shall not be granted and such order shall not be made until there is filed with the clerk of the court of common pleas, an affidavit stating in substance the evidence sought to be secured by the deposition, and that it is competent, relevant and material, and the court finds that such evidence is relevant, competent and material.”

This statute provides that it is applicable only when an issue of fact is joined upon an indictment. The present action is based upon an information (in turn, based on an affidavit) filed by the prosecuting attorney. No indictment has been returned by a grand jury against the defendant.

In Yunker v. The State of Ohio, 8 Oh Ap 157, decided December 15, 1917, the court in the syllabus held that: “1. Sec. 13668 GC, authorizing the taking of depositions by an accused or the state, has no application when a prosecution is had before a justice of the peace, but applies only when an issue of fact is joined upon an indictment.”

It is true that the prosecution is not being had before a justice of the peace but in the Court of Common Pleas. However, the prosecution could have been had before a justice of the peace. The defendant is not before the Court of Common Pleas as a matter of right.

The statute further provides that the application should show the existence of certain grounds or conditions upon which the taking of the depositions is authorized. That is to say, that the witness “is sick or infirm, or about to leave the state, or is confined in prison, or resides out of this state.” No such grounds or conditions are stated in the defendant’s request.

The statute further provides that such commission shall not be granted “until there is filed with the clerk of the court of common pleas an affidavit stating in substance the evidence sought to be secured by deposition, and that it is competent, relevant, and material, and the court finds that such evidence is relevant, competent, and material.”

In State of Ohio v. Carney, 14 O. O. 298, decided April 13, 1939, the Common Pleas Court of Franklin County in the syllabus held that: “7. Sec. 13444-11 GC, provides that a commission to take the deposition of a witness in a criminal case shall not be granted until there is filed an affidavit stating in substance the evidence sought to be secured, and it appears to the court that such evidence is relevant, competent and material.” No affidavit has been filed 'by the defendant in the present case.

However, even if all of the conditions set forth in the statute had been met by the defendant, the granting of such commission would rest in the discretion of the court.

“* * * the granting of the commission rests in the discretion of the court, it would seem to be proper, in all cases, to state in the application that the probable effect of the existence of the particular statutory ground assigned as a reason for taking the deposiiton would be to prevent the personal attendance of the witness at the trial in court, since it seems to be the policy of the law, in view of the nature of the grounds specified for taking depositions in criminal cases, to permit such taking only where there exists some degree of probability that the attendance of the witness at the trial cannot be secured. In this respect, the taking of depositions in criminal cases differs from their taking in civil actions. 14 O. Jur., pages 16 and 17.

Again in State of Ohio v. Anthoulis, 62 Oh Ap 113, decided April 15, 1939, the court in the course of the opinion on pages 120 and 121 held that: “However that may be. under the provisions of §13444-11 GC, discretion is vested in the court, and this court will not disturb discretion so vested unless abused. The statute provides that the court or judge may grant such commission. Under the circumstances in this case we think there was no abuse of discretion in this action of the trial court. In the case of Hunker v. State, 8 Oh Ap 157, the court stated in commenting on §13668 GC, now §13444-11 G. C., that the granting of such commission rests in the discretion of the trial court and that ‘a reviewing court would therefore not be justified in reversing the ruling of the trial court thereon unless it clearly appeared from the record that the trial court had abused its discretion in refusing such request.’ ”

Again it is the opinion of the court that counsel for the defendant will not be handicapped in the preparation of the defense, nor will the defendant himself be denied any opportunity that he did not have in the preparation of the evidence by the court’s denial of the application of counsel for the defendant for a commission and order of the court to take a deposition of a witness for the state.

Therefore, the entire request of counsel for defendant containing a demand for an inspection and copy of the report of the test of defendant’s blood and an application for a commission and order of the court to take the deposition of the technician, a witness for the state, is denied.

•Exceptions to this ruling are granted to the defendant.

The prosecuting attorney will prepare a journal entry accordingly.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    BEHALA, Plaintiff-Appellant, v. ANTHONY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Ashtabula County.
    No. 500.
    Decided March 13, 1953.

      Arthur Rinto, Ashtabula, for plaintiff-appellant.
    Conners & Clarke, Cleveland, for defendants-appellees.
   OPINION

Per CURIAM.

Plaintiff appealed from the judgment of the trial court, entered upon the jury’s verdict for defendant. It is the claim of counsel for plaintiff that defendants’ counsel was guilty of misconduct and the trial judge of abuse of discretion by refusing to withdraw a juror and continue the case: and that the verdict of the jury and judgment entered thereon are against the manifest weight of the evidence and contrary to law.

About 4:30 P. M. on August 23, 1950, plaintiff was a passenger on defendants’ bus, which was traveling in a northerly direction in a long line of traffic in the second lane from the east curb of Broad Street, in the city of Conneaut (the most easterly lane being occupied by parked automobiles), when a northbound automobile cut into the second lane of traffic forcing the vehicles therein to stop. As the operator of defendants’ bus was setting the hand brake, with which it was equipped, the bus was struck from the rear by another north bound automobile and driven into the automobile immediately in front of it and “ticked it.” In the trial of her action in the court of common pleas plaintiff claimed personal injuries resulting allegedly from the negligence of the operator of defendants’ bus in controlling it, “it went on a sudden stop,” although she did not know the reason therefor.

In his opening statement to the jury counsel for defendant said that he expected the evidence to show that the operator of the automobile which “cut in” was as “described by our driver (bus operator) as a hot-rodder * * *.” Counsel for plaintiff objected.

Ruling on plaintiff’s objection the trial judge instructed the jury to disregard the statement, reminded them that counsel’s statement was not evidence, and overruled plaintiff’s motion to withdraw a juror and continue the case, after which counsel persisted in mentioning what he claimed the bus driver told him about the operator who “cut in” being “a hot-rodder.” We do not approve the action of defendants’ counsel, but cannot conclude that such misconduct was so prejudicial as to warrant reversal, especially in the light of the admonition of the trial judge.

“ * t If the trial court promptly intervenes by admonition to counsel and appropriate instruction and it appears that a verdict for the party represented by such offending counsel is clearly justified by the evidence, the verdict may be allowed to stand.” Golamb v. Layton, 154 Oh St 305.

“Ohio permits the withdrawal of a juror and the continuance of a cause whenever, in the opinion of the trial court, justice requires this to be done.” 39 O. Jur., Section 97, Page 676.

Request for withdrawal of a juror is a matter addressed to the sound discretion of the trial judge. We find no abuse of discretion in this case. 39 O. Jur., Section 99, Page 678.

“ ‘The trial judge who hears the arguments of opposing counsel is in a better position than the appellate court to determine whether he should interfere because of improper remarks, it being a matter within his sound discretion, and it is only where such discretion has clearly been abused that the Supreme Court will reverse the judgment for such cause.’ ” Golamb v. Layton, supra.

Counsel asks this court to reverse the judgment of the trial court and remand the case for a new trial on the ground that the collision could not have occurred as defendants contend:—

“* * * in order to reverse, the reviewing court must be fully and clearly satisfied from an examination of all the evidence and of the whole record, that the judgment is in fact unsupported by, or against the manifest weight of, the evidence, and the court will not be thus satisfied unless there projects from the record some fact or circumstance indicating that the jury lost its way and went in the wrong direction in reaching its verdict, resulting in error and injustice shocking to the senses and to the conscience of the court, and clearly showing that the jury misapprehended the facts or were influenced by sympathy, bias, prejudice, wilful disregard of duty, perversity, corruption, or other improper motives. In other words, there must be impressed upon the evidence a status which shows that the conclusion of the jury is unreasonable, ■improbable, and illogical to such a degree that it is possible to say that the testimony affords no reasonable foundation for the verdict or findings, or that unbiased, unprejudiced minds could not, from the evidence, have reached the conclusion which was reached by the jury or the trial court.” 2 O. Jur., Page 1157, Section 635.

“If upon any reasonable interpretation of evidence court could have'properly reached conclusion represented by judgment, it should not be disturbed.” Blair v. Riley, Exr., 37 Oh Ap 514.

We cannot conclude that the verdict of the jury is against the manifest weight of the evidence.

“The mere occurrence of a jerk does not constitute evidence of negligence on the part of a common carrier of passengers in the operation of its cars.” Yager, Recr., v. Marshall, 129 Oh St 584.

The judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, PHILLIPS, & NICHOLS, J, concur.


author: By REYNOLDS, J.

text:
    APEX SMELTING COMPANY, Plaintiff, v. CORNELL, etc., Defendant.
    Common Pleas Court, Franklin County.
    No. 184522.
    Decided May 17, 1954.
    Walter J. Mackey, Columbus, for plaintiff.
    C. William O’Neill, Atty. Geni., John Hardwick, Asst. Atty. Geni., Columbus, for defendant.
   OPINION

By REYNOLDS, J.

This case is before the court on appeal from the decision of the Administrator of the Bureau of Unemployment Compensation, denying appellant the right to enjoy the benefit of the merit rating of the National Smelting Company, a major portion of the business of that company having been taken over by appellant on January 2, 1948.

Prior thereto Apex Smelting Company secured an option from National Smelting Company of Cleveland, Ohio, to purchase all of the latter’s plant and equipment, together with its good will, trade mark, trade name, etc.

At that time National Smelting Company was engaged in the business of smelting aluminum or aluminum alloys at a plant located at 6700 Grant Avenue in the City of Cleveland.

It also had been operating a plant on. Diese Avenue for the production of magnesium alloys for the United States Government, but after VJ Day in 1945 this operation was materially lessened.

National Smelting Company did not own the buildings at the Diese Avenue plant, but instead leased the plant and much of the equipment from the United States Government under a rental agreement.

Since there was no longer a demand for the products of the Diese plant, Apex Smelting Company did not wish to become a party to any extension of the contract with the Government, and so in exercising its option with National Smelting Company, did so only as to the Grant Avenue plant After the acquisition of that plant it continued with the business of aluminum smelting, with virtually the same personnel theretofore used by National Smelting Company, with the exception of a small reduction of number made possible by improved methods of operation used by Apex.

In its report to the Bureau of Unemployment on the disposition of its business to Apex Smelting Company, the following statements were made:

“Is new owner taking over your entire business organization and assets? Answer: No.
“If answer is ‘no’ what per cent, of business is retained? Answer 7%.”

During the year 1948, after the transfer of its aluminum business to Apex, National Smelting Company continued as an employer to make monthly payments to the Bureau, listing the number of its employees as follows:

January, 1948 76
February, 1948 68
March, 1948 59
April, 1948 56
May, 1948 46
June, 1948 42
July, 1948 33
August, 1948 33
September, 1948 31
October, 1948 32
November, 1948 33
December, 1948 34

And during that year it continued to receive the benefit of the merit rate of 0.4% which it had earned during the previous years of its experience with the Bureau in connection with both plants, and the number of employees as reported for the year 1948 would indicate that National Smelting Company must have carried on some active operation at the Diese plant.

On pure reasoning a strong argument can be made, and has been made by counsel for Apex, as to why, when it took over the Grant Avenue plant and continued its operation, as shown, that it should have the advantage of the merit rating earned by its predecessor.

The difficulty however with the argument is that the statutory provisions governing transfer controls.

The statute governing to wit §1345-4 (c) GC provides as follows:

“If an employer shall transfer his business or shall otherwise reorganize such business, the successor in interest is hereby required to assume the resources and liabilities of such employer’s account, and to continue the payment of all contributions due under the Unemployment Compensation Act.”

This statute was enacted in 1941, being an amendment to a former statute which then provided as follows:

“If any employer shall transfer his business in whole or in part or shall otherwise reorganize such business, the successor in interest is hereby required to assume (in proportion to the extent of such transfer, as determined by the commission) the resources and liabilities of such employer’s account, and to continue the payment of all contributions due under this act.”

For some reason, not readily apparent, the Legislature sought to make the change to the form first above quoted, which remained in effect during the times involved in the case here under consideration. In 1952 the legislature again amended the statute, affecting transfers, said statute as amended providing as follows:

Sec. 1345-4 (c) (1) D GC. — “* ' * If an employer acquires substantially all of the assets used in a trade or business of another employer, or a clearly segregable and identifiable portion of an employer’s enterprise, and immediately after the acquisition employs in his trade or business substantially the same individuals who immediately prior to the acquisition were employed in the trade or business or in the separate unit of such trade or business of such predecessor employer, then, upon application to the administrator signed by the predecessor employer and the acquiring employer, the employer acquiring such enterprise shall be deemed the successor in interest. In the case of a transfer of a portion of an employer’s enterprise, only that part of the experience with unemployment compensation and payrolls that is directly attributed to the segregated and identifiable part shall be transferred and used in computing the contribution rate of the successor employer or the next computation date. The administrator by regulation may prescribe procedures for effecting transfers of experience as provided for herein.”

Had this amendment been in effect at the time Apex acquired the aluminum smelting business from National, it, of course, could have acquired the merit rating earned by that company in connection with the business transferred, but unfortunately this amendment was not enacted until long after the time here under consideration.

In the case of Eiber Realty Company v. Dunifon, 84 Oh Ap 532, the Court had under consideration a case, the facts of which were very similar to those in the instant case, and which arose at a time when the statute relating to transfers was the same as the time of the transfer here under consideration, the court held as follows:

“In order for an employer to transfer his business so that his successor in interest will acquire and assume the resources and liabilities of the former’s account, including the merit rating earned by him, under the Unemployment Compensation Act, he must transfer the business in its entirety, and such rule is not changed by the fact that the employer, who has only one account with the Bureau of Unemployment Compensation, conducts two separate and different types of business.”

In its opinion, after quoting the statute §1345-4 (c) 1 GC, the court said:

“We are of the opinion that the above statute requires that an employer, in ord'er to transfer his business so that.his successor in interest acquires and assumes the resources and liabilities of such employer’s account, transfer the business in its entirety. The fact that they are two separate businesses and different types of business does not change the situation because he is considered as only one employer and to transfer the account so that one gets credit for the contributions paid on which the merit is based, it is necessary that he transfer all his business. The rate is determined from all the contributions he makes even though it be on different types of business. His rate is based upon the experience shown by all his activities. If he transfers only one of his businesses he still retains the merit rate, but the transferee, if he succeeds to only a part of the employer’s business, has to take the new rate. Our conclusion on this interpretation of this section of the General Code is fortified by the fact that prior to October 1, 1941, the appellee would be entitled to the relief it is seeding here. This section then provided:
“ ‘If any employer shall transfer his business in whole or in part or shall otherwise reorganize such business, the successor in interest is hereby required to assume (in proportion to the extent of such transfer, as determined by the commission) the resources and liabilities of such employer’s account, and to continue the payment of all contributions due under this act.’ (Emphasis ours.)
“It will be noted that section provided for a partial transfer of an employer’s business, which provision has now been eliminated. It must clearly be presumed that the Legislature intended to abolish a portion'of a transfer of an employer’s business when it struck out of the act the words ‘in whole or in part.’ Counsel for the administrator properly call our attention to the fact that, even though it so desired, the appellant could not establish a merit rate when a partial transfer of the business is made, as no separate record is required to be kept by the administrator for each separate business of an employer. The act considers the employer as conducting only one business even though it may consist of several independent units.”

This decision was by our own Court of Appeals and is controlling on this court and while the conclusion reached seems harsh and inequitable, it must be regarded as the law.

In accordance with this decision this court concludes that the decision of the Administrator of the Bureau of Unemployment Compensation must be and the same is hereby affirmed.


author: By SKEEL, J.:

text:
    CARTER, Plaintiff-Appellant, v. BIRNBAUM et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22754.
    Decfiided May 11, 1953.
    H. L. Deibel, E. J. Sawicki, Cleveland, for plaintiff-appellant.
    B. A. Robbins, Louis R. Lanza, Cleveland, for defendantsappellees.
   OPINION

By SKEEL, J.:

This appeal comes to this court on questions of law from a judgment entered for the defendants in the Common Pleas Court of Cuyahoga County.

The action is one seeking to impress a trust on certain property, both real and personal, now claimed by the heirs at law and administrator of the estate of Ella Lumpkin, now deceased. The plaintiff’s petition might also be interpreted as one seeking a declaratory judgment as to the ownership of such property. The judgment was entered for the defendants on the trial of a motion seeking a temporary restraining order in which the Common Pleas Court held it was without jurisdiction to entertain the cause of action stated in plaintiff’s petition.

The facts stated in plaintiff’s petition are as follows: George Lumpkin and the deceased were married in the state of Georgia on April 6, 1919 and that such relationship continued until her death January 24, 1952 and that this plaintiff, without knowledge of such marriage, entered into ceremonial marriage with said Ella Lumpkin on June 13, 1930, It is further alleged that, believing Ella Lumpkin was his lawful wife, the plaintiff upon the purchase of a house and lot known as 8215 Gill Avenue, on October 15, 1943, without intending to relinquish ownership, had title placed in the name of “Ella Carter” (his supposed wife) and that his savings were deposited under the same circumstances by his employer with the Warsaw Savings & Loan Association at his direction in the name of “Ella Carter.”

The plaintiff then prays for a decree or declaration that said property is in iaw and fact his property and was held by “Ella Carter” during her lifetime in trust for him and that such decree or declaration, directing the administrator to convey the legal title to him as such lawful owner.

The Common Pleas Court, by its journal entry, held that it was “without jurisdiction of the subject matter of the action as appears upon plaintiff’s petition.” The court thereupon entered final judgment for the defendant.

The appellant claims the court was in error in holding it was without jurisdiction of the subject matter of the action.

The Court of Common Pleas is a court of general, civil and equitable jurisdiction. Darst v. Phillips, 41 Oh St 514. A Probate Court (a court of limited jurisdiction) is vested with jurisdiction in equity only to the extent necessary to dispose of any matters properly before the court. Sec. 10501-53 GC. The question presented by the plaintiff in this action is his immediate and exclusive right to the property, described in the petition, and now in the name of the deceased, and inventoried in her estate, when it was assumed that the plaintiff was her surviving spouse.

If the plaintiff is successful the estate will be entirely divested of any right in the property, and on the other hand, if the defendant prevails, in this action, the plaintiff can claim no legal interest therein. This must be the result where one who does not have legal capacity to enter into a marital relation because she is then lawfully married, assumes such relation with another who, because of such supposed relationship, puts title to his property in her name as his wife. The plaintiff does not seek an interest in property which is, or may be, in whole or in part property that is subject of administration in the estate of which the defendant is administrator. He seeks the property as his own clear of any claims of the estate of Ella Lumpkin.

This being so, it comes clearly within the rule as pronounced by the Supreme Court in the case of Transport Co. v. Matyas, 159 Oh St 300, wherein the syllabus provides:

“1. Where a person claims the title to and the right of immediate possession of specific personal property and that such property is being wrongfully detained from him, he has the right to recover possession of such; property by an action in the Court of Common Pleas under §12051 et seq, GC.
“2. In such a case the person claiming to be the owmer of the specific personal property may institute an action in the Court of Common Pleas for its recovery against the administrator of an estate, who is wrongfully detaining the possession of the property from such owner where there is no question of a divided interest or ownership between such owner and the estate. (Lingler v. Wesco, Admr., 79 Oh St 235, distinguished.)

And at page 303 of the opinion the court said:

“The plaintiff here is not claiming the chattels in question as an heir, a legatee, or a creditor of the estate of the defendant’s decedent. It has no interest in the estate or claim against it and therefore has no claim to present to the defendant. Plaintiff simply avers that the chattels in question belong to it and are being wrongfully detained by defendant, and, in fact, so far as the record shows, there is no evidence as to how defendant came into their possession. If plaintiff is the owner of the chattels and is entitled to their possession, it is not required to present a claim to the administratrix for them or to except to an inventory, for the reason that plaintiff has no claim against the estate and is not interested in the inventory.”

The question of whether or not plaintiff is entitled to the return of his property, title to which he put in the name of the deceased under mistake of fact or because of the fraudulent conduct or representation of Ella Lumpkin made by her during • her lifetime states a cause of action coming within the equity power of the Common Pleas Court and the fact that defendant is an administrator does not oust it of such jurisdiction.

For the foregoing reasons the judgment of the Common Pleas Court is reversed and the cause is remanded to said court with instructions to rule upon plaintiff’s application for a temporary restraining order and for such further proceedings as provided by law. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, concur.


author: By RENNER, J.

text:
    RANDOLPH, Plaintiff, v. FIRST BAPTIST CHURCH OF LOCKLAND et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-134017.
    Decided April 6, 1954.
    Myron S. Rudd, Cincinnati, for plaintiff.
    John A. Wiethe, Cincinnati, for defendant.
   OPINION

By RENNER, J.

Immediately after the court had announced its decision, a verbal motion was made by counsel for the defendant, The First Baptist Church of Lockland, for separate findings of fact and conclusions of law, at which time they advised the court that they also wished to submit certain written interrogatories in connection therewith. Thereafter a written motion for separate findings of fact and conclusions of law and answers to interrogatories were filed. Plaintiff then filed objections to this motion, which objections were heard by the court and are considered and determined herein.

Coming now to consider the general findings of fact requested, the court finds:

That the First Baptist Church of Lockland, Hamilton county, Ohio, also known as The Lockland Baptist Church, is an Ohio corporation not for profit;

That Mary Randolph, the plaintiff, was a member of this church at the time of the attempted expulsion of her by the membership of the church on August 7, 1952, and had been a member for approximately fifteen years prior to that time;

That a Constitution (Exhibit No. 1) was adopted by the membership of the defendant church on February 2nd, 1951, which was replaced by a new Constitution (Exhibit No. 2) adopted by the membership at the regular business meeting of the members on August 7, 1952, immediately prior to the attempted expulsion of Mary Randolph;

That Ñola Loggains and Sherman Waddell, members of the defendant church, visited plaintiff’s home in the early part of February 1952 and they discussed with plaintiff her husband’s, her son’s and her absence from Sunday School and her attitude, and that of others, towards the church;

That Escar Dalton, chairman of the board of deacons, visited with the plaintiff in March 1952 and also talked to plaintiff about her absence from church, the church program and her attitude, and that of others towards the church;

That on the two Sundays preceding Thursday, August 7, 1952, the Reverend John Rawlings announced that the church would withdraw the hand of fellowship from certain' belligerent people, without naming them, who had opposed the advancement of the program of the church;

That at the special meeting of July 17, 1952, the Reverend John Rawlings announced “that in our next business meeting, on August 7th, that certain members, whom the deacons had talked to and were trying to reconcile with the majority of the body of the church, if reconciliation was not made, that we would withdraw the hand of fellowship from the group of them,” again without naming the individuals;

That at the meeting of August 7, 1952, as the next order of business, immediately after the adoption of the new Constitution, a recommendation of the deacons (Exhibit No. 4) which was dated that same day (August 7, 1952) was read. A motion was then duly made, seconded and carried that the recommendation of the deacons be concurred in and fellowship be withdrawn from those named in the recommendation; (Exhibit No. 3.)

That at no time prior to the submission of this recommendation at the regular business meeting of the members on August 7, 1952, was Mary Randolph specifically mentioned by name as one of the persons to be dealt with, nor was she notified, orally or in writing, that she was one of those to be dealt with;

That Mary Randoph was at the July 17, 1952, special business meeting, but was not present at the August 7, 1952 regular business meeting;

That at no time prior to the meeting of August 7, 1952, was . Mary Randolph furnished with any information or specification of charges by the church, by its membership or by any officer or any member of the church;

That Mary Randolph received no noticce in advance of the August 7th meeting that she was one of the persons who was to be dealt with at the August 7th, 1952, meeting;

That each of the Constitutions (Exhibits No. 1 and 2) contains the following introduction or preamble;

“Since we believe that the local Church is a Democratic Body, and that it is to do all things decently and in order, and order of the government of the body so that its members may better understand their duty, rights and responsibilities, and believing that it will promote harmony and good-will; we have therefore adopted this constitution.”

That Article X of the old Constitution (Exhibit 1) reads as follows:

“ARTICLE X — DISCIPLINE
“SECTION I — The sole power of discipline shall be vested in the Church. Members shall be excluded from the membership of the Church upon a sufficient evidence of gross sin and failure to repent thereof.
“SECTION II — No member shall be excluded from the membership-of the Church without the privilege of a fair and impartial investigation and trial. Such action shall be according to Matt. 18: 15-17. (Moreover if thy brother shall trespass against thee, go tell him his fault between thee and him alone; if he shall hear thee, thou hast gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be establsihed. And if he shall neglect to hear them, tell it unto the Church; but if he neglect to hear the Church, let him be unto thee as an heathen man and a publican.”
That Article X of the new Constitution (Exhibit 2) reads as follows:
“ARTICLE X — DISCIPLINE
“SECTION I — The sole power of discipline shall bé vested in the church. Members shall be excluded from the membership of the church for conduct unbecoming a Christian.
“SECTION II — No member shall be excluded from the mem-, bership of the church without the privilege of a fair and impartial investigation and hearing. Such investigation shall be conducted by the board of deacons and pastor, and reported to the church.”

On the hearing of the demurrer to the petition and throughout the trial of this case counsel for defendant, The First Baptist Church of Lockland, have consistently urged that the court has no jurisdiction of the subject of this action.

One reason advanced is the constitutional restrictions pertaining to the separation of church and state. There are many instances in which this rule has been invoked. That it has no application to the facts in this case at bar is shown by numerous decisions, throughout the United States in which the civil courts have granted relief in church controversies of various kinds and the court deems it unnecessary to discuss this' contention any further.

The other argument advanced and urged strenuously was that courts of equity lack jurisdiction in church expulsion cases.

In support of this contention a number of authorities were cited in the memorandum attached to defendant’s demurrer where relief was denied by the courts. The following is a general summary of the theories advanced by the courts in these cases, viz: that churches, such as the defendant Baptist Church, have an independent or congregational form of government in which the body is self-governing, each single church administering its own government; that as such it is a pure democracy and it is the duty of the minority to submit to the expressed will of the majority; that questions of faith and practice of the church and its members belong to the church judicatories to which members voluntarily submit themselves, and, however much they are dissatisfied with the exercise of that jurisdiction they have no right to invoke the supervisory power of civil courts, so long as their civil or property rights are not involved; that a church may make rules for expulsion or excommunication of its members and such rules are binding on its members; that the relations of a member to his church are not contractual but pertain only to spiritual affairs and the courts are without jurisdiction by mandamus or otherwise to annul proceedings expelling members; that membership in a church does not constitute a civil or property right; that churches stand upon a different and higher plane than other voluntary societies formed for business, social, literary or charitable purposes, and that the right of a church to decide for itself who shall be expelled or excluded cannot be questioned by the courts when no civil or property rights are involved, even though such proceedings are irregular and contrary to and in violation of the provisions of the church constitution, rules and regulations controlling such proceedings.

That the defendant church, and other Baptist churches like it, are autonomous, and that the minority must submit to the majority is universally recognized. But does it follow that such bodies, therefore, may expel members with entire disregard of unequivocal constitutional provisions governing expulsion from membership? This seems to be the crux of the present action.

Many courts, recognizing such democratic form of church organization and, although finding that the methods used were irregular and in violation of constitutional provisions, nevertheless have denied relief to expelled members. The basic reason usually assignd for such action is that membership in a church does not constitute a civil or property right and, therefore, that civil courts are not competent to question or review church action in expelling members where no such rights are involved.

But nowhere is any basis presented for the dogmatic conelusion that expulsion from a church does not involve civil or property rights. Inherent in memberships • in churches, or any other non-profit incorporated or unincorporated organizations and societies is the right to a share of the organization’s properties. Even though the chance of a division of the net assets of the organization is very remote and the value of such interest may be limited, a property right does exist.

That such property right in memberships in organizations not for profit, incorporated and unincorporated, does exist and is universally recognized by courts, is shown by the many cases involving the right to church properties between warring factions of the church. Actions for relief in such instances are usually brought by a minority group of members of the church. Very seldom have courts refused to accept jurisdiction in such controversies. The right to institute such actions emanates from the membership of each of those constituting the group. Here is a clearly and universally recognized right of property in membership. How or why it is lost to a member who may be named for expulsion has not been satisfactorily explained.

In some instances, the theory that there is no civil or property right inherent in membership is the only reason assigned. In others, the courts have resorted to other doctrines or philosophies to lend aid or support to .their unconvincing pronouncements that civil or property rights do not exist.

Typical of these supporting declarations are found in the cases above referred to which were cited by defendants viz.:

Thomas v. Lewis, 224 Ky., 307 (cited by defendant), holding that Baptist and other churches have an independent or congregational form of government, are self-governing, each church administering its own government; and

Mitchell v. Church of Christ, 221 Ala., 315 (cited by defendant), holding that each Baptist church is within itself a pure democracy and that it is the duty of the minority to submit to the expressed will of the majority.

The fact that such churches are so constituted certainly should not grant to them the unbridled right to disregard and to violate the provisions of their own written by-laws or constitutions; nor in the absence of a constitution or bylaws to deal with the rights of minorities in a manner repugnant to democratic and common law principles.

In Minton v. Leavell, et al., 297 S. W., 615 (cited by defendant), to support the no-civil-or-property-rights theory in an expulsion case the court advances another principle, viz.: that membership in a church creates a different relationship from that which exists in other voluntary societies formed for business, social, literary or charitable purposes; that it stands upon a different and higher plane and that the right of a church to decide for itself who may be expelled from its fold cannot be questioned by courts when no civil or property rights are involved, even though the proceedings are irregular.

What is the basis or logic for such legal principles or theories which sanction and condone irregular practices because the practitioners are found in a high level classification? We must not lose sight of the fact that church memberships are made up of lay people as are the memberships of other societies, and as such they are subject to the same human frailties and weaknesses.

Strict adherence by courts to such doctrines would make it possible for a self-willed minority group to gain control of all of the properties of the church by indirection when it could not be accomplished by direct action. By arbitrary expulsion of members, such a minority group could establish complete control of membership, if the courts are without jurisdiction to require that such expulsion be in conformity with the adopted constitution of the church.

Counsel for defendant urge that this court’s decision is novel and new and is not supported by legal precedent. While it is true that the doctrines hereinbefore discussed are still followed in some jurisdictions, other courts have diverged from these and have adopted what earlier in this century has been referred to by some legal authorities as the modern view, and have granted relief in expulsion cases.

In granting relief some have done so on the theory of a limited property right in the membership in the church. Other courts have moved entirely away from this theory, recognizing the right of courts of equity to entertain jurisdiction because of the humiliation and hurt to personality, the injury to character, reputation, feelings and personal rights and human dignity.

Earlier in this century, and while the departure from the older rule which denied recourse to the civil courts in expulsions was slowly developing pertinent articles by authors of renown appeared in a number of legal periodicals. The origin of the old rule and its weaknesses were discussed and criticized and the need for a better protection of interests of personality was emphasized.

Roscoe Pound, who became Dean of the Harvard Law School in 1916 wrote an article “Interests in Personality” which was published in 28 Harvard Law Review 343. His profound articles on various branches of the law, and his reputation as an authority on law, are well recognized and often quoted by the courts. This article, which was published in 1915, traces the growth, development, and broadening of legislation and the judicial system to meet the ever increasing demands of individuals upon government. A year later, April 1916. another article by the same author, “Equitable Relief Against Defamation and Injuries to Personality” appeared in 29 Harvard Law Review 640. Dean Pound opens this article with the following paragraphs:

“The hesitation if not downright refusal, of American law to allow preventive remedies in order to secure interests of personality, where redress by way of damages is often obviously inadequate or even wholly inapplicable, has frequently been criticized. Reading the American cases on this point, one may recall the words of Mr. Justice Holmes upon the subject of trespass ab initio:
“ ‘It is revolting to have no better reason for a rule of law than that it was laid down in the reign of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.’ ”

At page 670 the following appears:

“In a note to Chappel v. Stewart, which has frequently been quoted, the doctrine of that case is vigorously criticized. The editor says that the proposition announced ‘taken literally and in its full meaning would make the system of equity suitable only to a semi-savage society which has much respect for property but little for life.’ ” He adds:
“ ‘Our equity jurisprudence does not quite deserve sc severe a reproach. It does, indeed, do much for the protection of personal rights, although it has not been willing to acknowledge the fact, but has persisted in declaring the contrary.’ ”

And further, at page 672, it is stated:

“* * * a third no less significant may be added, namely, the cases of wrongful expulsion from social clubs where the real wrong complained of is the humiliation and injury to feelings. Here, as we shall see presently courts of equity generally insist upon some shadow of a property interest, however trivial; actually protecting the feelings, but purporting' to protect only the pocketbook. The analogy to what we have seen taking place in the cases as to defamation and disparagement of property is suggestive. In each case the courts protest that the law is unchanged. The old doctrine is announced with conviction. But its whole spirit is rejected and in the result it is evaded. Something is found which gives the camel’s nose legitimate standing in the chancellor’s tent, and the whole beast follows in order to dispose of the case completely. Such devices never obtain except when dealing with a moribund rule.”

In the article appearing in 34 Harvard Law Review, page 388 (1919-1920) “Progress of the Law, Equitable Relief against Torts” Zechariah Chafee, Jr., who published a number of recognized works, one of which is “Cases on Equitable Relief Against Torts,” at. page 407 states:

“The first determined onslaught on the oft-repeated doctrine that equity protects only rights of property was made by Louis D. Brandéis and Samuel D. Warren in the pages of this Review thirty years ago. A quarter of a century afterwards an article by Dean Pound renewed the attack on a still broader front. Each year brings increasing evidence that their views will eventually be accepted by courts and legislatures. The law courts from early times have protected interests of personality, for example, by actions of slander and libel. What rational principle forbids the application to such rights of the familiar rule that if there is a remedy at law which is inadequate, then equity gives relief, unless special considerations .restrain the. exercise of its jurisdiction?
“The extension of equitable jurisdiction for the protection of human dignity and peace of mind has been made much easier through the ever widening meaning attached to the conception of property. The gulf between an acre of land and the right of privacy may have been too broad for equity to bridge but its jurisdiction over property has now extended from land and chattels to far more intangible human interests.”

In another article published in May 1930, 43 Harvard Law Review, 993, “The Internal Affairs of Associations Not For Profit,” again by Zechariah Chafee, Jr. we find the following expressions at page 998, after referring to wrongful expulsion cases:

“When we turn aside from the authorities and consider the actual human interests which suffer from an expulsion, it becomes apparent that in many cases they are chiefly interests of personality. The expelled club member finds his social reputation blasted, and is likely to be blackballed by other desirable clubs. The former trade unionist is ostracized by union members. A student like Shelley who has been excluded from college is branded for years to come, and deprived of intimate associations with places and companions. Excommunication from a church means loss of the opportunity to worship God in familiar surroundings with a cherished ritual, and inflicts upon the devout believer loneliness of spirit and perhaps the dread of eternal damnation. In comparison with such emotional deprivations, mere losses of property often appear trivial. It would seem natural that courts of equity should consider the desirability of remedying such injuries to personality, but they are hindered from doing so by the oft-repeated doctrine that equity protects only property rights. Dean Pound and others have shown the unsubstantial basis of this doctrine in the older cases, and its unfortunate effect in restricting the ability of courts to remedy many of the evils of modern life. Injunctions and similar flexible remedies of equity are much better suited than a speculative action for damages to protect interests of personality when the injuries to them are sufficiently serious to warrant the interference of the courts. The trend of the decisions today is toward such protection, éven in the courts of last resort, and an examination of unreported cases in the lower courts collected from newspapers indicates that such courts are willing to go farther than the appellate judges in frankly protecting interests of personality. Such press items are also significant to show the frequency with which citizens are now seeking equitable remedies against this kind of injury. Law in action is breaking away from the property limitation which still receives much sanction from law in books. In spite of these modern tendencies, however, the time has not yet arrived when we can expect courts of equity to look squarely at the interests of personality involved in expulsions from associations, and we are still obliged to seek the basis of relief elsewhere.”

And, at page 1008:

“Sometimes the relations, unlike membership in business corporations and partnerships, may involve only interests of personality, but the courts should still consider whether justice and policy require them to protect it. For a time, under the influence of the traditional limitation, of equitable jurisdiction to interests of substance, the courts are likely to continue to insist on finding some property element in the relation before they will prevent its destruction, but this tradition will probably die out soon.”

That courts have moved away from the theory of non-interference except in cases in which property rights are involved and that equity will grant relief in expulsion cases is shown by many reported cases in the United States.

In Ohio, the Circuit Court of Fulton County, Munsel v. Boyd, 10 C. C. (N. S.) 121 (decided May 11, 1907), granted relief to expelled members of a church. Syllabus 4 of this case reads as follows:

“The fact that members of a church have become dissatisfied with the pastor, and disapprove of the control into which the church has fallen and cease to attend its services, does not afford ground, without some rule or law of the church therefor, for their dismissal or expulsion without notice or an opportunity to appear and defend; and a vote of expulsion under such circumstances does not terminate membership.”

An older case decided in 1884, and which has been cited numerous times, is Gray v. Christian Society, et al, 137 Mass. Reports, 329. The opinion in this case was written by Oliver Wendel Holmes, then an Associate Justice of the Supreme Court of Massachusetts and who later became an Associate Justice of the Supreme Court of the United States. It is unnecessary to comment further upon his qualifications and high standing as a lawyer, author, professor of law and jurist. At page 331 of its opinion the court had this to say:

“But, again, the grounds on which a member is to be deprived of his membership are both of them indefinite, involving questions of, more or less, possible disputes of fact, and certain differences of judgment. Not only is the number of times a man has attended, or the amount he has contributed, to be settled, but then comes the question whether the facts amount to ceasing regularly to worship with the society, or to a substantial failure to contribute. These questions are not to be decided by a moderator when a person offers his vote. They are judicial questions, to be determined by the society, after giving the member notice and an opportunity to be heard. The necessity of complying with these requirements of common justice has been so.uniformly asserted, that only a few cases need be cited in addition to those last referred to, to show how unwilling courts have been to admit that charters, by-laws, or rules could be intended to deprive a man of his membership without a hearing. Dean v. Bennett, L. R. 6 Ch. 489. Fisher v. Keane, 11 Ch. D. 353, 359. Queen v. Saddlers’ Co. 10 H. L. Cas. 404. Innes v. Wylie, 1 Car. & K. 257, 263. State v. Adams, 44 Mo. 570, 586.
“As there had been no hearing, and no vote of the society that their names should be dropped from the list, the persons who were prevented from voting were wrongfully prevented.”

Berrien v. Pollitzer, et al (decided December 15, 1947, by the United States Court of Appeals for the District of Columbia) 165 Fed. Rep. (2d) p. 21, is a complete departure from the old rule, syllabus 1 and 2 of which read:

“Equity jurisdiction is not limited to the protection of property rights and may be invoked for protection of personal rights. “District court has jurisdiction to grant injunction against exclusion of plaintiff and similarly situated members of the National Woman’s Party from the party’s headquarters.”

The case was originally tried in the District Court of the District of Columbia and after a hearing on a motion for a preliminary injunction, the complaint was dismissed on the ground that the court had no jurisdiction to grant an injunction because it could interfere only to protect property rights. The Court of Appeals held that the District Court erred in its decision. The court in its opinion on page 22 says:

“The doctrine that equity jurisdiction is limited to the protection of property rights conflicts with the familiar principle that equity may give preventive relief when the legal remedy of money damages, if available at all, is inadequate to redress a wrong. Obviously money has little in common with such personal rights or interests as reputation, domestic relations, or membership in nonprofit organizations. Money, one form of property, has much more in common with other forms of property. Invasions of personal interests are accordingly less capable of translation into money terms than invasions of property interests. No one can seriously contend that money is an adequate remedy for all sorts of personal wrongs. Clearly ‘injunctions and similar flexible remedies of equity are much better suited than a speculative action for damages to protect interests of personality * * *.’
“ ‘The tradition that equity protects only property rights has been traced to a dictum of Lord Eldon which was not only unnecessary but contrary to the decision which evoked it. The decision was that a defendant should be restrained by injunction from publishing personal letters which the plaintiff had written to him. Dean Pound has pointed out that the real injury in Gee v. Pritchard was an invasion of the right of privacy. In result therefore, a case in which we are told that equity has no jurisdiction to secure interests of personality, and the case always cited since for that proposition, was a pioneer decision finding a way for securing the then unknown right of privacy * * *. Property which had no value as property * * * was a mere formal peg on which to hang the substantial relief.’
“ ‘Law in action is breaking away from the property limitation which still receives much sanction from law in books.’ Even in books, the limitation has begun to lose ground. Judge Qua, for the Supreme Judicial Court of Massachusetts, has just reviewed the subject in a distinguished opinion from which we quote. ‘In reading the decisions holding or stating that equity will protect only property rights, on.e is struck by the absence of any convincing reasons * * *. We cannot believe that personal rights recognized by law are in general less important to the individual or less vital to society or less worthy of protection by the peculiar remedies equity can afford than are property rights. * * * We believe the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction. * * * A number of courts have tended toward this view. Legal writers support it. There is no such body of authority opposed to it in this (jurisdiction) as to preclude its adoption here.’
“Even thirty years ago, when Dean Pound published his article on Equitable Relief Against Defamation and Injuries to Personality, there were a few classes of cases in which the property limitation, though often respected in form, was disregarded in substance. One such class involved ‘wrongful expulsion from social clubs where the real wrong complained of is the humiliation and injury to feelings. Here * * * the courts of equity generally insist upon some shadow of a property interest, however trivial; actually protecting the feelings, but purporting to protect only the pocketbook * * *. Something is found which gives the camel’s nose legitimate standing in the chancellor’s tent, and the whole beast follows in order to dispose of the case completely. Such devices never obtain except when we are dealing with a moribund rule * * *.’ ‘It seems plain that the club member’s interests of personality should be the object of consideration regardless of the nature of the club, and that the real question is whether the injury to these interests is sufficiently serious to warrant judicial interference with the internal affairs of a social organization The court’s willingness to decide this fundamental question ought not to depend on the presence or absence of an insignificant interest in club property * * *. The member’s relation to the association is the true subject matter of protection ’
“Approximately this view has long been enforced, if not distinctly expressed, in some jurisdictions including the District of Columbia. A plaintiff expelled from a corporation or association not organized for profit need not show that he has even a nominal property interest to protect. Fifty years ago this court recognized that if a member of an incorporated club were expelled without a ‘regularly conducted’ trial, on due notice, by ‘constituted corporate authorities,' and a ‘judgment arrived at * * * in good faith,’ specific relief could be granted. Relief was denied solely because the club had met those requirements. The case contains no suggestion that a property right is necessary. Some years later we squarely held that a property right is not necessary. Though courts are sometimes reluctant to interfere in the internal affairs of churches, we held that a member expelled from a church in violation of its procedural rules was entitled to relief in equity, and we pointed out that ‘no temporal rights’ of the member were involved.
“It is obviously immaterial that the National Woman’s Party is called a party and not a club or a church.
“Appellees suggest that appellant has not been expelled. We think the resolution purports to expel her, but we also think it immaterial to the court’s jurisdiction whether she has been expelled from membership or merely excluded from a member’s essential privilege of using the Party’s quarters. She has been excluded without'a ‘regularly conducted’ trial, on due notice, by ‘constituted corporate authorities,’ and a ‘judgment arrived at * * * in good faith.’ The District Court has jurisdiction to grant an injunction. It should proceed to determine whether it should exercise this jurisdiction.”

A number of other cases which follow and are cited in support of the right to a fair and impartial hearing or trial also indicate the abandonment of the old theory of non-interference in expulsion cases.

The court’s verbal decision rendered at the close of the case was based upon the ground that Mary Randolph was not given a fair and impartial trial or hearing in accordance with the terms of either the old or new Constitution. The old and the new Constitutions both provided methods for expelling members. The causes for which members could be expelled in either the old or the new need not be discussed inasmuch as the decision reached was upon the irregularity of the proceedings and not whether Mary Randolph’s conduct was sufficient to warrant expulsion. The old Constitution provided for a fair and impartial investigation and trial, and the new one provides for a fair and impartial investigation and hearing in expulsion cases. As used in Article X of the old and the new Constitution there is little, if any difference, in the use of the word “trial” or “hearing.” Both of these words, in their ordinary acceptation-, in a democracy, comprehend an orderly procedure whereby the accused party is entitled to notice of such trial sufficiently in advance so that he may prepare his defense and summon witnesses. And, in a trial or hearing the accused also is entitled to be named specifically as one of the accused and to be apprized of the charges to be made against him at the trial in order to prepare a defense

Mary Randolph was given no notice naming her specifically as one of the accused, nor was she notified in advance of the trial of the accusations made against her. She was present at the July 17th meeting when the announcement was made by the Reverend Rawlings to the effect that belligerent people would be dealt with, and that the church would withdraw the hand of fellowship from certain belligerent people who had violently opposed the advancement of the program of the church, and who were approached by the deacons with a view to reconciliation with the majority body of the church. The announcement did not by name mention who these people were.

The following are some of the many authorities which support the court’s decision:

Jones v. State, 28 Nebraska 495, and which was cited by defendant in support of the demurrer to plaintiff’s petition. Syllabus 2 of this case'reads:

“A church organization may make rules by which the admission and expulsion of its members are to be regulated and the members must conform to these rules. If, however, it has no rules on the subject, those of the common law prevail, and before a member can be expelled notice must be given him to answer the charge made against him and an opportunity offered to make his defense, and an order of expulsion without such notice and opportunity is void.”

And, on page 499, the court says:

“The right of membership is a valuable privilege of which no one should be debarred, except for adequate cause, shown either by the rules of the society or after a fair examination of the charges, after due notice. As neither of those things appear to have taken place, the order of expulsion would seem to be void.”

Gray v. Christian Society, 137 Mass., 329, supra, syl. 1:

“A by-law of a religious society provided as follows: ‘Any member who shall either cease to regularly worship with the society, or who shall fail to contribute to the support of its public worship for the term of one year, shall have his or her name1 dropped from the list of members.’ HELD, that a member could be deprived of his membership only by a vote of the society, after a hearing.”

And at page 331, Justice Oliver Wendel Holmes writing the opinion stated:

“They are judicial questions to be determined by the society, after giving the member notice and an opportunity to be heard. The necessity of complying with these requirements of common justice has been so uniformly asserted, that only a few cases need be cited, in addition to those last referred to, to show how unwilling courts have been to admit that charters, by-laws, or rules could be intended to deprive a man of his membership without a hearing.”

Munsel v. Boyd, 10 O. C. C. (N. S.) 121, supra, syl. 4:

“The fact that members of a church have become dissatisfied with the pastor, and disapprove of the control into which the church has fallen and cease to attend its services does not afford ground, without some rule or law of the church therefor, for their dismissal or expulsion without notice or an .opportunity to appear and defend; and a vote of expulsion under such circumstances does not terminate membership.”

The court at page 125 states:

“Many of the expulsions to which I have referred, or attempted expulsions of members of the church, were had without any previous notice to the persons so sought to be expelled, so as to enable them to resist or defend against the attempted expulsion if they saw fit. * * * We think this could not be done * * *.”

Monstakis v. Hellenic Orthodox Society, etc., 159 N. E. 453, at pp. 455-6, the court said:

“The report shows that both these classes of individuals were all members in good standing in the corporation, that they were expelled from such membership by vote of the standing committee, without notice, without opportunity to be heard, and without any valid reason, and that it would be vain for them to seek redress from the corporation itself. No rule or by-law of the corporation justified any such summary action. In the absence of express authority for arbitrary expulsion from membership, reasonable notice of charges made and fair opportunity to be heard are commonly required.”

Kreeker v. Shirey, 30 Atl: 440, the Supreme Court, at page 443 stated:

“Upon questions arising under the discipline, as upon those arising under the articles of faith, the decisions of the ecclesiastical courts are ordinarily final and they will be respected and enforced toy the courts of law. * * * But if such decisions plainly violate the law they profess to administer, or are in conflict with the laws of the land, they will not be followed.”

Kerr’s Appeal, 89 Pa., 97, syl. 3:

“The decree of a church judicatory is binding only where it is affirmatively shown that it has acted within the scope of its authority, and has observed its own organic forms and rules.”

David v. Carter, 222 S. W. (2d) 900, the Court of Civil Appeals (Texas) in syl. 4:

“The courts will not disturb any action by church in accordance with rules governing it, but‘will grant church members relief from disciplinary action shown to be a radical departure from church’s accepted customs and rules.”

Longmeyer et al v. Payne, et al, 205 S. W. (2d) 263, syl. 8:

“Where pastor at conclusion of service announced that he would ‘set’ the congregation for business meeting and those present at the purported meeting without any prior notice to anyone involved and without a hearing voted to. exclude opposing faction from membership, such action not being in accord with accepted ecclesiastical procedure of the church did not deprive opposing faction of membership.”

The court therefore concludes:

1. That it had jurisdiction to hear and determine the issues in this case.

2. Whether under the old or the new Constitution, Mary Randolph was not given a fair and impartial investigation and trial or 'hearing and the action of the membership, on the night of August 7, 1952, attempting to expel Mary Randolph as a member of the defendant church is therefore, void and of no effect.

The interrogatories included in defendant’s motion for separate finding of facts and conclusions of law raise questions of law which were not raised when defendant’s demurrer to the petition was argued nor during the trial of this case. To avoid repetition and to explain the reasoning underlying the answers to some of the interrogatories certain facts and the law applying to these facts will be discussed before answering each of them.

Interrogatories Nos. 1 and 2 ask respectively if the old or new Constitution was in effect at the time of expulsion. These are followed by a series of questions which ask for further findings in the event the court finds that the old Constitution was in effect or relate to the old (Interrogatories 3, 5, 6, 7. 14) and others which ask for further findings in the event the court finds that the new Constitution was in effect or relate to the new Constitution (Interrogatories 4, 8, 15).

There was no provision in the old nor the new Constitution postponing the effective date of the new Constitution. The action taken at the meeting of August 7, 1952 (Exhibit 3) adopted the new Constitution to replace the old one. The old Constitution was repealed and replaced by the new immediately after the vote was taken on the motion to adopt the new It was immediately after this action that the recommendation of the deacons to expel Mary Randolph and others was presented to and acted upon by the membership.

No provision was made in. the old or new Constitution saving existing or pending actions or prosecutions, such as is found in §§26 and 26-1 GC, now §§1.20 and 1.21 R. C. whenever a

state statute is amended or repealed. These saving sections of the Ohio Statutes apply exclusively to statutory enactments of the legislature.

In re: Ex Parte Clifton Brown, 6 O. O. 44:

“Sec. 26 GC (§1.20 R. C.), providing that repeal or amendment of a statute shall not affect pending actions, prosecutions or proceedings unless otherwise provided in the amending or repealing act, does not apply to a municipal ordinance ”

Earnhart v. The Village of Lebanon, 5 C. C. 578:

“HELD: That the bill of exceptions thus taken properly raises this question, and the ordinance on which the prosecution was based having been repealed without any saving clause, this operated to put an end to the pending prosecution, and the court erred therefore in rendering a judgment on such verdict.”

The preliminary steps of investigation and the prosecution of Mary Randolph under the old Constitution, Section X, ended with the adoption of the new Constitution. The old Constitution was not in effect at the time of the expulsion of Mary Randolph.

The direct answer to Interrogatory No. 2 is that the new Constitution was in effect, as the church Constitution, at the time of the attempted expulsion of Mary Randolph as shown by the above discussion of Interrogatory No. 1. Interrogatory No. 2, as framed, is indefinite when appplied to the facts and law and does not call for a finding of ultimate facts nor probative facts from which ultimate facts can be inferred.

The question for determination is not whether the new Constitution was in effect at the time of the attempted expulsion of Mary Randolph but what effect this new Constitution had on the rights of Mary Randolph as a member of the church. In other words, could the church membership try or prosecute Mary Randolph under the provisions of the new Constitution which came into effect only minutes before her attempted expulsion, as shown by the August 7th minutes (Exhibit 3), and the testimony of the witnesses. That the acts which the deacons alleged she was guilty of occurred before the adoption of the new Constitution is shown by their recommendation, dated August 7, 1952, to withdraw fellowship (Exhibit 4), and the sequence of events at that meeting which was not attended by Mary Randolph.

To so attempt to invoke the provisions of Section X of the new Constitution to acts or conduct transpiring before the new Constitution was adopted was contrary to and in violation of the spirit and intent of the Constitution of the United States, Article I, Sections 9 and 10, and the Constitution of Ohio, Article II Section 28 relating to ex post facto and retroactive and retrospective laws.

These constitutional limitations apply to by-laws and regulations of private corporations and societies and proceedings under such by-laws and regulations.

In Albers v. Merchants’ Exchange of St. Louis, 140 Mo. App. Rep. 446, the court held that by-laws providing expulsion of members are penal in character. Syllabus 1 of this case reads:

“In a proceeding to expel a member oí a merchants’ exchange, if the authority therefor is sought to be sustained by implication' arising from the by-laws, it should be denied .on the ground the proceeding is penal in character, and hence the by-laws should be strictly construed and should not be extended by implication, so as to effectuate a forfeiture.”

In a Michigan Supreme Court case, The People ex rel John Pulford v. The Fire Department of the City of Detroit, 31 Michigan 458, syl, 8 reads:

“By-laws or regulations are properly only rules for future action; and ex post facto laws are no more lawful for corporations than for states; and all by-laws contrary to the general principles of the common law or the policy of the state are void.”

Complying with defendant’s request the court therefore submits the following answers to the interrogatories:

Interrogatory One.

Does the court find that the old constitution, which was in force prior to August 7, 1952, was the constitution in effect at the time of the expulsion of Mary Randolph by the church membership on August 7, 1952? No.

Interrogatory Two.

Does the court find that the new constitution, adopted the night of August 7, 1952, was the constitution in effect at the time of the expulsion of Mary Randolph by the church membership on August 7, 1952?

The new Constitution, as the Constitution of defendant church, was in effect at the time of the attempted expulsion of Mary Randolph by the church membership on August 7, 1952; however, as just indicated in the introductory discussion of the law applying to interrogatory nos. 1 and 2 the provisions of Article X of the new Constitution could not be invoked or be effective in the attempted expulsion of Mary Randolph.

Interrogatory Three.

In the event the old constitution was in effect, does the court find that the old constitution included the modes and manner of expulsion?

The old Constitution was in effect as the Constitution of defendant church from February 2, 1951, until the new Constitution was adopted at the meeting of August 7, 1952 and it included modes and manner of expulsion which became ineffective, however, with the adoption of the new Constitution.

Interrogatory Four.

In the event the new constitution was effective, does the court find that the new constitution included the modes and manner of expulsion?

The new Constitution was effective as the Constitution of the defendant church from the time of its adoption at the meeting of August 7, 1952 and it included modes and manner of expulsion for infractions by members occurring after its adoption as heretofore indicated in the introductory discussion.

Interrogatory Five.

Does the court find that it has jurisdiction to determine what constitutes “sufficient evidence of gross sin and failure to repent thereof,” as set forth in the old constitution as the ground for expulsion in The Baptist Church of Lockland?

The right to expel Mary Randolph for infractions in violation of the provisions of the old Constitution were lost when the new Constitution was adopted. Consequently, this court’s interpretation of the terms of the old Constitution are not in issue in the case. The court does not have jurisdiction to make such determination.

Interrogatory Six.

Does the court find that it has the power and jurisdiction to interpret the scripture of Matthew, 18th Chapter, 15th to 17th Verses, as set forth in Article X of the old constitution of the Lockland Baptist Church?

No, for the same reason set forth in Interrogatory Five.

Interrogatory Seven.

In the event you find the old constitution governs, does the court find that the Lockland Baptist Church gave Mary Randolph a fair and impartial investigation and trial according to Matthew, 18th Chapter, 15th to 17th Verses?

As already indicated the old Constitution did not govern the attempted expulsion of the plaintiff.

Courts are required to answer all interrogatories eliciting ultimate facts or probative facts from which ultimate facts can be inferred as a matter of law. Any answer to this question would not come within these categories. Even though a court had found that the old Constitution governs certain procedures with reference to the attempted expulsion of Mary Randolph, the question would not be whether Mary Randolph was given a fair and impartial investigation and trial according to Matthew. The question would be whether Mary Randolph was given a fair and impartial investigation and trial under all the provisions of Article X of which Matthew Chapter 18, 15th to 17th Verses was only a part.

Interrogatory Eight.

Does the court find that it has jurisdiction to determine what constitutes “conduct unbecoming a Christian” as set forth in the new constitution, as a ground for expulsion in the Lockland Baptist Church?

Because the provisions of the new Constitution are properly only rules for future conduct and action, and ex post facto and retroactive prosecutions-are prohibited by law Mary Randolph could not be prosecuted under these provisions for alleged offenses occuring prior to its adoption.

The question, in any event, would not be whether the court has jurisdiction to determine, generally, what constitutes “conduct unbecoming a Christian” as set forth in the new Constitution as a ground for expulsion. The question would be whether specific acts or conduct of Mary Randolph were such as to constitute “conduct unbecoming a Christian.” Because of the general nature of the question the answer is no.

Interrogatory Nine.

Does the court find that Mary Randolph, as a member of the Lockland Baptist Church for seventeen years, submitted to and knew of the manner of giving notice in matters of expulsion of said church?

The answer to this interrogatory would determine no ultimate , facts nor probative facts from which ultimate facts could be determined. The court, therefore, declines to answer this interrogatory.

Interrogatory Ten.

Does the court find that Reverend John Rawlings made an announcement from the pulpit on July 17, 1952 in which he stated in essence: “The belligerent members that were visited by the deacons will be dealt with in a meting on August 7, 1952,” at which said July 17, 1952 meeting Mary Randolph admitted being present?

The court finds that the Reverend John Rawlings made an announcement from the pulpit on July 17, 1952 in essence, but not as a direct quote, as set forth in the interrogatory. Mary Randloph did admit being present at the meeting of July 17th and the court so finds.

Interrogatory Eleven.

Does the court find that plaintiff, Mary Randolph, attended every monthly business meeting of the church in 1952 up to the month of August except the business meeting at which the hand of fellowship was withdrawn from her on August 7, 1952?

No. The court, however, finds that Mary Randolph attended practically every monthly business meeting of the church in 1952, up to the month of August, and that she did not attend the business meeting of August 7, 1952.

Interrogatory Twelve.

Does the court find that Dr. John Rawlings is a Doctor of Theology, an officer of various Baptist ministerial associations, and a practicing Baptist minister for thirteen years?

Yes.

Interrogatory Thirteen.

If the answer to question 12 is “Yes” or “No,” does the court find that Dr. John Rawlings is one qualified as an expert to interpret holy scripture from the standpoint of the Baptist religion and belief?

The court finds that the Reverend John Rawlings qualified sufficiently to admit his testimony as an expert witness to interpret Holy Scriptures from the standpoint of the Baptist religion and belief on matters relevant and pertinent to the issues in this case.

Interrogatory Fourteen.

In the event the court finds the old constitution is in effect, and in the event the court finds the old constitution does not prescribe the mode and manner of expulsion, on what basis did the court find that plaintiff, Mary Randolph, was expelled from the membership of the Lockland Baptist Church?

Interrogatory Fifteen.

In the event the court finds the new constitution is in effect, and in the event the court finds the new constitution does not prescribe the mode and manner of expulsion, on what basis did the court find that plaintiff, Mary Randolph, was expelled from the membership of the Lockland Baptist Church?

The premise on which both of these questions, 14 and 15, are propounded is erroneous. The court did not find that Mary Randolph was expelled. To the contrary the court found that plaintiff was not given a fair and impartial investigation and trial and that the procedures adopted by the membership to expel Mary Randolph were irregular and, therefore, were null and void.

Interrogatory Sixteen.

Does the court find that expulsion from the membership of the Lockland Baptist Church deprives the plaintiff, Mary Randolph, of an ecclesiastical right of freedom of worship?

Interrogatory Seventeen.

Does the court find that expulsion from the membership in the Lockland Baptist Church deprives the plaintiff, Mary Randolph of a civil right of freedom of worship?

These interrogatories, 16 and 17, do not elicit ultimate facts nor probative facts upon which ultimate facts could be found. The court, therefore, declines to answer them.

As stated preliminary to the answers to the interrogatories, the questions of law raised by them had not been previously raised, but the facts involved and the law applicable to them afford additional and distinct support to the court’s original decision, that the attempted expulsion was null and void and of no effect.


text:
    STATE, Plaintiff-Appellee, v. EYER, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3562.
    Decided April 3, 1953.

      D. F. Rendinell, Youngstown, for defendant-appellant.
    I. Freeman, H. Fugett, Asst. Law Directors, Youngstown, for plaintiff-appellee.
   OPINION

Per CURIAM.

By leave of this court, plaintiff appealed to us on questions of law from a judgment of the court of common pleas affirming a judgment of conviction, fine and jail sentence of the Municipal Court of Youngstown entered upon a jury verdict returned against defendant in his trial there on the charge of unlawful possession of liquor in violation of §6064-54 GC.

About 3:10 A. M. on March 10, 1951, officers of the State Liquor Department, armed with a search warrant issued by a judge of the Municipal Court of Youngstown, sought admission to the Parachute Club, situated at 750 Mahoning Avenue, Smith Township, East Alliance, Mahoning County, Ohio, for the purpose of searching it for intoxicating liquor allegedly unlawfully kept, or sold, in violation of the State Liquor Control Act.

Upon arrival at the club, of which defendant was a member and bartender, some of such officers stationed themselves at the front door of the club, rang the bell, displayed their authority, sought and were denied admission. The other officers stationed themselves at the rear door of the club.

Upon refusal of admittance some person in the club room yelled “its a raid, take it off, take it off,” and the officers at the rear door of the club were advised that admission had been refused and were requested to gain admission at the rear door.

When admission to the club was gained by forcing the front door defendant was standing behind the bar, on which a partly filled glass of whiskey was found, the front and sink of which, and the floor immediately in front of which, were filled with whiskey scented glasses.

One of the approximate sixty-five persons in the barroom called out “its in the safe,” which was found in a small room adjacent to the bar room. The safe, knowledge of the combination of which defendant denied, was moved to the bar room, tilted, and whiskey taken therefrom, bottled and analyzed subsequently by a chemist of the city of Youngstown, who found it to contain 39% Ethyl alcohol proof 78%, and another bottle thrown from a window during the search contained 41.08% alcohol proof 83.6%. Pour hundred dollars in money was found in the rear of the barroom.

We find no irregularity in the issuance or execution of the search warrant; and the evidence in the case we review was admitted properly, and, in our opinion, presented questions for the determination of the jury. Accordingly, the trial judge did not err in overruling defendant’s motion for a verdict to be directed in his favor made at the close of all the evidence, as defendant maintains.

Defendant waived his right to rely on the claimed error that the trial judge erred to his prejudice in overruling his motion for a verdict to be directed in his favor when he accepted the ruling of the court and proceeded with his defense and introduced evidence in his own behalf. Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

The evidence was sufficient to sustain the verdict of the jury, which was not against the manifest weight thereof nor contrary to law, as urged by defendant.

A “reading of the record” does not show to us “many (nor any) instances of misconduct” of the state’s attorney, as defendant argues.

We cannot conclude that reference by the state’s attorney to the club as a “boot leg joint” or “cheat spot,” in view of the admonition of the court to the jury to disregard it, was such prejudicial error as would warrant a reversal under the peculiar facts and circumstances of this case wherein the verdict was clearly justified by the evidence. See Golamb v. Layton, 154 Oh St 305, wherein Judge Zimmerman said:—

“Now as to the misconduct of counsel in his opening argument to the jury. The part of such argument to which the defendant Layton takes exception has been set out above in the statement of facts. Those remarks, although somewhat obscure as to their precise meaning, were highly improper and should not have been made; they cannot be defended. However, the trial judge promptly and emphatically told the jury to disregard them, which was a plain indication of his disapproval.
“Under the circumstances narrated, a majority of the court is not prepared to hold that the argument of counsel was so vicious and reprehensible as to call for a reversal of the judgment in plaintiff’s favor.”

In the case of Golamb v. Layton, supra, the court did not reverse for such misconduct of counsel.

The judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, PHILLIPS and NICHOLS, JJ, concur.