text:
    JACOBS et, Appellants, v. CLEARING MACHINE CORPORATION, Appellee.
    Ohio Appeals, First District, Butler County.
    No. 1007.
    Decided July 24, 1952.
    Sol Goodman, Cincinnati, for appellants.
    Taft, Stettinius & Hollister and J. Mack Swigert, Cincinnati, for appellee.
   OPINION

By THE COURT:

This is an appeal on law from an order sustaining a motion to dismiss this action for a declaratory judgment on the ground that the court lacked jurisdiction to entertain the action and to make the declaration.

The plaintiffs allege in their petition that they and about 180 other production and maintenance employees of the defendant corporation were and are members of Hamilton-Thomas Workers’ Union, and that they, representing all said employees under the name of Clearing Machine Corporation Workers’ Union, on October 3, 1951, entered into a contract with the defendant; that thereafter on May 1, 1952, acting in accordance with the constitution and by-laws at a duly called meeting, a majority of the members of said Hamilton-Thomas Workers’ Union resolved “to disorganize said Union and to affiliate directly with the UAW-CIO.” The plaintiffs also allege that they made application to the UAW-CIO for a charter which was granted and they thereupon became an affiliate of said union, as Local No. 1190, and thereupon they requested the defendant to recognize them under the agreement that had been entered into on October 3, 1951.

The plaintiffs also allege that as the result of an order and certificate of representation, issued on January 29, 1952 by the National Labor Relations Board, this union was duly designated as the bargaining agent for all of the defendant’s employees in its Hamilton Division.

These allegations are followed by allegations that the plaintiffs individually and as a class, by reason of what had taken place, “represent all of said employees as a UAW-CIO Union and have made due application for a charter as a local Union” of the UAW-CIO which seems to be inconsistent with the previous allegations that the Union had been “chartered as Local No. 1190.”

The plaintiffs then set forth certain provisions of the contract of October 3, 1951, by which the defendant recognized the union then existing as the exclusive representative of all the employees for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment, etc., and that all new employees should within 90 days of employment become members of the union as a condition of employment and remain members in good standing during the term of the agreement. No other terms, if any, of the contract were set forth.

It is alleged in the petition that the defendant has refused to recognize said Local 1190 UAW-CIO as the bargaining agent for said employees and has manifested said refusal in various ways by “elimination” of plaintiffs and others similarly situated as members of said union and by sponsoring a company dominated union, and by bargaining with individual employees as to rates, wages, hours of employment and other conditions of employment “in direct violation of the National Labor Relations Act, and that defendant has dealt with another group of employees as representatives of the whole and has discharged some and threatened to discharge others for nonpayment of dues to that group, notwithstanding said group does not represent the majority of said employees.

The plaintiffs assert that they have no available relief because an election to determine the bargaining agent had been held, and that under the law no other election could be held until the expiration of 12 months thereafter.

The prayer is for a declaration of rights and specifically that the court declare that the plaintiffs, through UAW-CIO, constitute the bargaining agent, that the defendant be required to bargain with them, that the defendant be declared without right to discharge employees for non-payment of dues to the other group, or for failure to become members of such group, and, finally, that defendant be enjoined from taking any action contrary to the declared rights and for a money judgment.

The foregoing, we think, is a summary of all the material allegations of the petition. We have set them forth because the sole question presented on this appeal is whether they set forth a cause of action entitling the plaintiffs to relief within the jurisdiction of the Common Pleas Court to award and which it is required to award.

The Common Pleas Court held that it was without jurisdiction to grant the relief sought. In this position we concur. We also think the Court might very well have refused relief on the ground that no relief that it might grant would end this controversy, and, for that reason, under §12102-6 GC, it refused to exercise the jurisdiction to declare rights.

It seems clear that this petition does not state a cause of action by an individual employee against his employer for violation of a duty owing to him alone. The wrongful acts charged are those owing to the collective body of employees, and if those acts are wrongful, it results from violation of duties created by the National Labor Relations Act and the Labor-Management Act, and those Acts of Congress provide for a board to administer them and to coerce compliance therewith. There is no allegation that the administrative remedies have been exhausted. We do not mean to imply, however, that recourse could be had to a state court for relief even though the administrative remedies had been exhausted.

After summarizing the allegations of the petition, Judge Boli said:

“Thus, the alleged acts of the defendant complained of by the plaintiffs in their petition constitutes unfair labor practices forbidden by the act. Section 10 (a) of the act provides:
‘The Board is empowered, as hereinafter provided,.to prevent any person from engaging in any unfair practice (listed in Section [a]) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.’

It seems, clear from the provisions of the Act we have quoted that here again the exclusive jurisdiction to hear and determine the matters complained of in plaintiffs’ petition lies with the Board.

That plaintiffs do have some relief by way of injunction appears in Section 10 (j) of the act which provides:

‘The Board shall have power, upon issuance of a complaint as provided in Subsection (b) charging that any person has engaged in or is engaging in unfair labor practice, to petition any District Court of the United States within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the board such temporary relief or restraining order as it deems just and proper.’

Plaintiffs cite the case of Jennings v. Jennings, 56 Abs 258, and Huntsman v. McGovern, 56 Abs 170, in support of their position. Those cases have to do with disputes between the individual members of local unions or between a union and its individual members and, therefore, in our opinion, have no application to the case at bar.”

We believe that is a correct statement of the law.

For these reasons, the judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS, J, concur.


source: Caselaw Access Project

author: By CONNELL, J.

license: Public Domain

text:
    RICHMAN BROTHERS COMPANY, a corporation, Plaintiff, v. AMALGAMATED CLOTHING WORKERS OF AMERICA, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 641936.
    Decided April 14, 1953.
    Jones, Day, Cockley & Reavis, Cleveland, for plaintiff.
    Moses Krislov, Corrigan, McMahon & Corrigan, Cleveland, for defendants.
   OPINION

By CONNELL, J.

This matter-came before the Court on the motion of the plaintiff for a temporary injunction against various defendants. For expediency, we will herein call plaintiff, The Rich-man Brothers Company, — the Company; we will call the defendant, Amalgamated Clothing Workers of America, along with various other Amalgamated associations, officers, and members of Amalgamated Unions — the Amalgamated.

This cause has had a procedural history worthy of mention, before discussing the matter before this court. The activities of which the Company here complains against the Amalgamated began in March, of 1951. Plaintiff filed its petition for permanent injunction and equitable relief against Amalgamated on October 18, 1952, along with the within motion for a temporary injunction. Amalgamated had the cause removed to the U. S. District Court shortly thereafter, on the ground that only that Court had jurisdiction. The Federal Court, in an excellent opinion rendered by Judge Charles J. McNamee, remanded the case back to this court on January 7, 1953, on the ground the Federal Court had no jurisdiction. Amalgamated applied for re-hearing in Federal Court and was overruled, a second time by Judge McNamee.

This cause was then set for hearing before the Common Pleas Court herein for March 24, 1953. On January 28, 1953, defendants filed a motion to dismiss in the Court of Common Pleas on the ground that the Court of Common Pleas had no jurisdiction in the matter on the theory that Congress has “pre-empted” the right of any State, or any State court to take jurisdiction of this kind of action, and on March 12, 1953 this court overruled such motion to dismiss, treating it as a demurrer to the petition on the ground that this court did not have jurisdiction of the subject of the action. Defendants then applied to Federal Court on March 23, 1953 in an effort to stay the hearing set in Common Pleas Court for March 24, 1953 on the ground that only the Federal Court had jurisdiction of the action and defendants were again overruled by Judge McNamee. On March 24, 1953 hearing began before us, on the within matter. The above references concerning these procedural matters will explain the seeming delay of this court in finally commencing hearings on March 24, 1953, on a motion of plaintiff for temporary injunction which had been filed five months before, to wit, October 18, 1952.

In accordance with §11890 GC, this matter was submitted, on affidavits by both sides, along with the oral testimony of defendant, Beryl Peppercorn, who is the manager of the Cleveland Joint Board of Amalgamated Clothing Workers of America. Peppercorn testified that he is in general responsible in northeastern Ohio, for the activities of various defendants, with which we are here concerned. Beryl Peppercorn has been prominently identified with the work of the Amalgamated in this area for many years and he testified that over a period of many years he had often gone to the vicinity of the Richman Brothers Plant on East 55th Street, in the city of Cleveland, for the purpose of distributing literature to the employees of the plant as they left same; that over the years he had had no success in attempting to organize the employes of the Company, and he expressed it as his opinion that the company was preventing his success in his endeavor.

He testified that he had some employes of the company in his union but refused to say how many; he stated that he had not informed the company of such fact; he stated that there is no dispute between the company and the union, and that all of the activities in which these defendants have engaged and with which we will be herein concerned are for “advertising purposes” only.

He testified that he had heard that at some Company gathering a Mr. Richman had at some past time said that “Richman would never have a Union.” The Court considers such testimony as being hearsay and having no probative value.

Peppersorn testified that some time in the month of March, 1951, he wrote a letter to Mr. Richman, president of the Company, suggesting that they have a conference. Prior to that he said he had never met the management at any time in his life; that this was his very first effort at a conference with them. One or two days later he received a letter from Mr. Richman’s secretary advising him that Mr. Richman was then out of town, and that after his return, in a matter of three or four days, Richman would contact him. Immediately, and with no further legal justification than is here outlined, and before the three or four days mentioned had elapsed, the Amalgamated put picket lines, not on the Richman plant on 55th Street where some 1400 employees whose unionization was desired by the Amalgamated performed their task of making clothes, but on approximately seventy stores throughout the entire length and breadth of the United States, at which the company sold its merchandize, which seventy stores, including three in the city of Cleveland have been bannered and picketed continuously for a period of over two years ever since, on only that provocation herein mentioned.

Thus it is apparent that the activities of the Amalgamated as hereinafter described, and which have continued for over two years and up to date, are without any legal justification whatever, unless they can be said to come under its privilege of free speech or advertising, as it claims.

It is perfectly apparent that when Peppercorn, after having waited two decades to win employees, and having utterly failed of their unionization, then wrote the company for the first time, but refused to wait two days for Richman’s return to Cleveland to confer with him, he was trying altogether too hard to create that provocation which in his judgment would justify the economic war which he had so well prepared in advance, and which he immediately set into action.

In addition to picketing such seventy stores for such two year period, the voluminous file of affidavits herein indicate that demonstrations have been held at various stores at various times, two of which were held in the city of Cleveland, in which parades of workers, parades of men from the headquarters of the Amalgamated, carrying banners and baloons, have marched to the store fronts of Richman’s and made what they considered demonstrations before the same, photographs of which are included in the record as appended to affidavits, and the same has happened in many cities throughout the country. The record is replete with various types of interference on the part of the pickets with prospective customers, it is replete with incidents of prospective customers “unwilling to cross a picket line”; of union mechanics called to service the stores and buildings “unwilling to pass a picket-line,” of truck-drivers about to deliver or about to accept their shipments “unwilling to pass a picket-line.” In fact, the great accomplishment of all the activities of the Amalgamated herein described, has been in the number of prospective customers, union mechanics and drivers who refused to cross “the picket-line,” whereas Peppercorn was the first in this hearing to state that it was not at all a picket-line. The Amalgamated claims it is all advertising. The Amalgamated has herein filed affidavits to the effect that they instructed their pickets not to interfere with such customers, or mechanics or drivers, and say they had no knowledge of such interference if, in fact, it took place.

It is the defense of the Amalgamated that it has a perfect right to conduct itself as it has because such is in accordance with its right of free speech and unlimited expression, and it is their claim that all of their activity has been done for the sole purpose of informing the public that the clothes sold by Richman are not “union made”; it is their claim that all of such activity has been for the sole purpose of promoting the sale of clothes to which is appended the “union label” and it is their claim as evidenced by various resolutions, including the “Mandate” of their Convention, that all has been in accordance with their right to advertise the desirability of “union labeled” clothing.

Defendant’s eminent counsel argue that the Amalgamated has been doing a perfectly lawful thing, while Company’s eminent counsel argue that what has been done by Amalgamated herein has been done unlawfully. All counsel agree that the intention and purpose of the Amalgamated must be here considered, and that the court must, on the one hand, consider the good intentions which Amalgamated here expresses when it says it has instructed its pickets to be very circumspect, and when it says it never knew that any harm arose from its activities, if in fact it did. On the other hand, we must consider what has been actually done on these seventy picket lines, and what has been the effect of the Amalgamated’s activities; we must judge intention on the one hand by what is said, and on the other by what is done, because conduct can sometimes talk louder than words.

The Company has submitted affidavits from many cities describing the result of Amalgamated’s activities; there is no question but that the language on the banners with which the seventy stores are picketed may be legally harmless and may indeed tell the truth. The banners merely say “Rich-man Brothers Clothes are not union made. Buy union made clothes. Richman Brothers’ clothes do not have a union label. Buy clothes which have a union label.”

Such banner may be innocent, and harmless; it may express absolute truth; but such banner on the doorstep of seventy stores, continuously for two years, may very well create a mental impression on the part of the public which is not at all contained within the language on the banner. It may well be that the Amalgamated has here figured out an ingenious device for creating in the mind of the public, including those who drive for unions, those who are members of unions, and those sympathetic to unions, the impression that a legal dispute exists between the Company and the Amalgamated; that the Company does not treat its employes fairly; that something is amiss, which causes the employes to place a picket line before the door of the company; that the company and its employes are having a dispute over working conditions or wages of its employes and that a strike is in actual progress at the immediate place of business being picketed.

The Amalgamated may here be taking advantage of that American psychological weakness whereby our minds receive and retain a first impression, because the American rarely reads fine print. Much litigation comes to all court-houses because the average American does not read the fine print in his own contracts, or in his own insurance policies; that is why much embarrassment comes to Americans who sign papers never knowing who they have proposed for public office. It is proverbial with us that we are motivated by a first impression and do not have time or do not take time to read in full all that the banner has to say. Based on past experience we all immediately assume that a legal strike is in progress though we read not one word on the banner.

That such false impression was here many time created, no one can deny; the Amalgamated merely says “we didn’t tell any tradesmen not to cross the picket line.” The record is replete with instances of mechanics called to stores to do repair work, — because seventy stores in the course of two years require occasional outside maintenance by plumbers, electricians, glaziers and others, — and in many instances union mechanics refused to “cross these picket lines” because what these defendants were then doing had every appearance of being a legitimate picket line placed there over a legitimate dispute between employer and employee. They have here used such indicia of a legal dispute between employer and employee to the point where the banners have fooled even the members of the unions called to do mechanical work among these seventy stores listed. In some instances the mechanic realized that the picket line was only synthetic; that it was not real; and while he would refuse to cross the “picket line” while the banner man was marching, many mechanics would carry on their work before the “picket line” began and after it'ended; thus, a few union men, who knew this picket line was not what it appeared to be, ignored it to that extent. However, the false impression was nevertheless created by the mere appearance of the bannering that a strike existed, that there was a difference of opinion between employer and employee, that employees were therefore out of work, and the sympathy which naturally flows to working men out of work has consequently flowed to the Amalgamated here, and it has thus in an indirect manner derived from its activities the very self-same benefits it would have derived if it actually did represent the employees of Richmans, and if they really did have a dispute with the employer, and if they really represented the employees of the employer, which in truth and in fact they do not.

As far as this court is concerned, there is no evidence before us that they represent a single employee of this company, because the witness before me refused to say how many, and rather boldly said that he would not answer the question of counsel if it was put. Therefore, to whatever extent the Amalgamated can indirectly benefit from whatever direct harm it has done to the Richman Company, it has herein improperly benefited.

There can be no doubt that many, many prospective customers stayed away because they “will not cross a picket line.” There is no doubt but that the Company had had great difficulty getting merchandise delivered to them or sending shipments out; in some instances, members of the teamsters’ union, who are very alert and who might understand that this was not a legal dispute at all, have made deliveries and accepted shipments; but nevertheless, the Company has been caused great inconvenience and difficulty, as the record shows, because of the false impression herein created by the false appearance of a legal picket line. To members of unions, drivers, union sympathizers, and the general public, the mere presence of the banner men in front of any one of these seventy stores is sufficient proof of a legal strike and is therefore very destructive of their business.

To make the claim that Richman suffered no loss in spite of these country-wide activities, Beryl Peppercorn testified from a newspaper clipping that the Company did better in ’52 than in ’51. Such testimony was not objected to. The Court considers his reading from some newspaper clipping as to the Company’s profits as having no probative value. We also consider that the repeated assertions contained in the affidavits of Amalgamated to the effect that they had no intention of shutting off the service of mechanics and maintenance men is of very little probative value; no one knew better than did the Amalgamated that the minute it created these seventy picket lines on the seventy door-steps of the Company, that no mechanic would cross the line; no delivery men would deliver; no delivery men would receive. No one knows better than the Amalgamated that the instant the picket line is created, even though they call it an advertising line, that its mere appearance, and its mere existence, though it says not an audible word, nevertheless gives an immediate, inaudible, but definite and certain command to any member of a drivers or other union not to cross that line; the Amalgamated knew full well that in so far as advertising is concerned any mere advertising that the union label could get on that picket line would be of infinitesimal efficacy. Its real efficacy came from the false impression it created that the employer and employee have a legal dispute. The Amalgamated knows that that picket line constitutes an invisible barrier which puts every driver and mechanic in a position where he may cross it only at his peril both before the Amalgamated and his brother unionists. Unquestionably, thousands of customers stayed out of Richman’s seventy stores these two years because they got a similar impression; they do not read the fine print, nor can they ascertain the significance legally, of the difference between the kind of a banner the Amalgamated here put out, and the kind of a banner they see when they approach any other picket line; to all appearances, there is no difference. The public was fooled as completely as were union mechanics and drivers.

The Amalgamated says it did not know that the Company was deprived of services of mechanics; it doesn’t have to know; it knows that it has set up an invisible barrier which they do not dare to cross; it also knows that the invisible barrier is not there for its advertising efficacy but that it is there to accomplish the purpose it did accomplish, to wit: the isolation of seventy stores from union services, truckers or customers.

When the Amalgamated kept score-cards on how many people and packages entered or left, I believe they’d know a union driver when they saw one. When they motiviated all other unions in America susceptible of their influence into importuning the Company by mail, I take it they knew what was going on in all phases of their war. They knew full well of all results accruing from their improper campaign.

Thus, we find that when a store had to be moved from Brilliant, Ohio to Steubenville, Ohio that they had to do their moving in “off hours”; in the Cincinnati area, air-conditioning work had to be done ahead of time; in Cincinnati, representatives of five unions called on a store manager to tell him they represented forty thousand people who were offended at this so-called controversy. In Youngstown, repairs could not be obtained at a certain store; electricians would not cross the line; in Chicago, a neon sign could not be repaired. In St. Louis six delivery agencies refused deliveries; in one instance a store window was broken on June 29, 1951, which up to the date of the affidavit, 11-3-52, has not as yet been replaced. The Amalgamated’s claim that it does not know of these preventions of mechanical maintenance work is not here the test; we must choose here between talk and results. The fact that the Amalgamated has set up an “advertising line” which looks so much like a “picket line” that it has deceived so many different classes of union-men and others, must be here considered, because conduct here indicates intentions far different than that of advertising only.

While the Amalgamated says it has not really harmed Rich-man, its newspaper continuously gloats over the degree of destruction of the Company’s business which it has accomplished; it really exults over the damage it says it has done. It talks in terms of what percentages of its business the Company has' been caused to lose; it claims that 30 to 50 percent of Richman’s business was destroyed in one area whereas another suffered a loss of only one third of its business

If the Amalgamated itself should believe that its purpose here was the innocent purpose of advertising only, it should not have announced to the world through its official paper how effective it had been, percentage wise, in its intentional effort to destroy this company. It should not gloat in its paper over the destruction it accomplished and then tell even a state court that it really did not so intend.

No one can question the right of Amalgamated in the proper manner of telling the world and everybody in it what it thinks of this company. No one can question anothers right of free speech unless it is so used as to deprive others of their rights, equally sacred. No one can, in pursuance of his claimed right of free speech, destroy the rights of others to property, the right of peaceful conduct of business, the right to protect and maintain their buildings, the right to create work for their twenty-five hundred odd employees, or the right of those twenty-five hundred to do the work; or the right to have seventy doorsteps untrammeled by an alleged advertising line which is a disguised picket line. This court does not believe they have such right and so declares. The Amalgamated has no monopoly on rights and has herein misused its own and destroyed the rights of many others.

Jacob S. Potofsky, general president of the Amalgamated, herein submitted an affidavit seeking to justify the conduct of Amalgamated throughout; he relates that it was all in conformity with the right of free speech and done in accordance with “a mandate” from their “convention,” and all for the purpose of promoting the use of the union label. He rather bitterly attacks the Company and its history and says that he will not “get down in the gutter with them.” Most of his affidavit consists of hearsay, opinions and conclusions. It is perfectly apparent from a reading of the affidavit that he has an utter personal detestation of the employer because he has been unable to unionize its employees. In fact, the feeling among the defendants in general, is that the Company has wronged them because its employees are not unionized. Beryl Peppercorn made it very clear that his feelings against the Company arise from what he claims is their “prevention” of unionization of their own employees. There is nothing in the entire record to indicate that the Company has ever done anything to prevent such unionization. The only evidence before the court is that this entire economic war was started on no more provocation than one man’s anxiety to start it before another had a fair chance to answer a letter. Why the Amalgamated gave up on unionizing the employees and seeks to have the employer do this job, the court does not know, but Peppercorn’s testimony as to how the employees have ignored him for decades gives rise to the inference that the employees do not so desire, either because they are well treated or for other reasons. Nevertheless, the Company herein has a right to operate its business without unionized employees; the employees have a right to remain unorganized and the union has a perfect right to try and organize them in every possible proper way, but it has no right to bludgeon the Company into doing its work of organizing employees just because it prefers that the Company perform its own task.

It is the claim of the plaintiff herein that the Amalgamated has declared this economic war upon it for the purpose of forcing it to force its employees to join Amalgamated. It is perfectly apparent that the Amalgamated has made suggestions for decades to these employees and the employees have never chosen to become organized; it is likewise equally apparent that if they are to be organized, that is the job of the union and not the company. No other method is ever good for unionism itself.

Defense counsel suggests that Company’s delay of eighteen months before filing this action should deprive them of relief on the ground of laches. Even though this Company had the patience of Job, the court does not agree that its patience gives defendants any rights to an injustice in perpetuity.

It is this court’s opinion that the Amalgamated is not engaging in the activities alleged for any advertising purpose at all. Whoever invented this ingenious method of deriving benefits from the false impressions created did not have advertising in mind, as his primary purpose. The whole procedure of seeking to gain this end by embarrassing others, by spending years on their doorstep, by the use of marchers and baloons and banners and circular and rectangular parades and all of the other methods of embarrassment, harrassment and damage herein created, smacks of a psychology wholly alien to ours; it is easy to see that if it is ever approved by courts it will be but a preliminary to other and more drastic moves such as have been utilized in alien lands where demonstrations are made for the purpose of demonstration.

The greatest protection unionism has in these United States is the right to properly picket an employer with whom it has a dispute; its most effective method of getting help from its friends is by letting the world know of its difference with an employer when it has such a difference; and any union that pretends to have such a difference when it doesn’t have such a difference, and which sets up a pretended picket line for the purpose of deceiving other union members and the public for the benefits thereby accruing to it from such unlawful misconduct, is jeopardizing the right of all unions to the use of their most effective weapon. Defendants have here harmed Rich-man greatly, but they have harmed legitimate unionism far more.

The cleverly disguised method whereby Amalgamated has herein benefited at the expense of the company constitutes the obtaining of whatever benefits it derived by the false pretense that it set up a legitimate picket line, which it most certainly did not. This court does not agree that defendants are entitled to derive such benefits perpetually under such conditions.

The within hearing has been delayed for five months so that the Amalgamated could carry to the limit its claim that States or State Courts have no longer any right to assume jurisdiction over its within activities. This court disagrees as thoroughly with Amalgamated on this proposition as did the U. S. District Court. We hold they are amenable to our State laws and the jurisdiction of our State Courts. We hold that under our laws their actions have not been for the advertising purpose they pretend but for the unlawful purpose of forcing an employer to force that unionization of its help which for years that same help has refused at the behest of Amalgamated. We hold it unlawful to thus seek to strangulate Richman’s business unless it will perform Amalgamated’s task of organization; that it violates the public policy of Ohio to thus punish another for one’s own failure; that’it was contrary to all law and justice to have subjected Richman to such nation-wide attack because the recipient of a letter was out of town a few days, and its sender was over-anxious to be offended.

Of course, if there was any sincerity in Amalgamated’s claim to advertising herein, then in these two years of -picketing, surely there would have been at least one occasion where its pickets would have said to one union driver, or one union mechanic: “Go on in. This is not a strike; this is not a picket-line. We are only advertising.” Not one such instance ever took place. Instead, the Amalgamated invented and devised many new methods of pressuring other unions into pressuring this employer into pressuring its employees. Its sole purpose and accomplishment was pressure.

Considering the damage daily done by the unlawful activities of Amalgamated, both of a tangible and intangible nature, we do not believe Richman has an adequate remedy at law; its remedy is in long-delayed equity.

As Judge A. V. Baumann recently stated in cause No. 645,411 in this court as of March 19, 1953, the case of Crosby v. Rath, 136 Oh St 352 is still our leading authority on the subject.

The fourth syllabus in Andersen v. Brotherhood, 156 Oh St 541 has most direct application hereto and in one sentence it decides our question, to this effect:

“The right of free speech is predicated on the lawful exercise of such right, and if, through conspiracy or unlawful conduct, the result of its exercise by such means unlawfully injures another in his property rights, the guaranty ceases and the exercise of the claimed right by such means may be enjoined or prohibited.”

Because such is our law and our public policy and because Amalgamated has unlawfully injured so many others in their rights, injunction must be had against it. Counsel will please prepare a Journal Entry accordingly.


author: By MILLER, J:

text:
    PIATT, Exr., Plaintiff-Appellee, v. PIATT, Defendant, PIATT, Defendant-Appellee, STATE, DIVISION OF AID FOR THE AGED, Defendant-Appellant, and PIATT, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 700.
    Decided April 30, 1952.

      Spidel, Staley & Hole, Hugh A. Staley, of Counsel, Greenville, for plaintiff-appellee, Carl J. Piatt.
    Floyd D. Smith, Greenville, for defendant-appellee, Betty Jean Piatt.
    Lewis F. Byers, Columbus, Jerome H. Goubeaux, Greenville, for defendant-appellant, Division of Aid for the Aged.
   OPINION

By MILLER, J:

This is a law appeal by the State of Ohio, Division of Aid for the Aged, from the judgment of the Probate Court. The action was brought by the executor of the estate of Lydia M. Henderson, for the sale of real estate to pay debts. The facts may be epitomized briefly as follows:

Lydia M. Henderson, the decedent, became a recipient of aid for the aged in 1940. Before she received her first warrant she executed a trust mortgage to the Division of Aid for the Aged on her residence property in Greenville, Ohio. In 1948 she became seriously ill, was taken to the Wayne Hospital in Greenville and was later removed by her grandson Carl J. Piatt, at the request of the local subdivision manager of the Aid for the Aged. The Court found that at the time of the grandmother’s removal there was an understanding that the Piatts would be compensated, but the amount thereof was never fixed. The decedent in May, 1948, executed a deed conveying the residence property in question to her grandson Carl J. Piatt, which ded had not been recorded up to the time of her death.

Upon the death of Lydia M. Henderson her last will and testament was filed for probate and record. The inventory and appraisement showed that the estate had only one asset, namely, the residence property. Thereupon the executor filed his petition to sell the real estate to pay debts and determine the equities.

The legal issues were raised by the answer and cross-petition of the State of Ohio, the answer and cross-petition of Betty Jean Piatt and the answer and cross-petition of Carl J. Piatt. It was the contention of the State of Ohio that its mortgage is the first and best lien and that the Piatts have no equity in said property for their services. Carl J. Piatt urged that his deed conveyed a good title and that the Court should cancel the trust mortgage; Betty Jean Piatt contended that she was entitled to compensation for her services performed for the deceased, and that the same constituted a lien upon the real estate.

It is first urged that the Court erred in overruling the motion of the Division to require Carl J. Piatt to elect whether he would proceed under the theory that the decedent died seized of the premises or the theory that the decedent had conveyed the premises to him in her lifetime. An examination of the petition discloses that the petition first alleges that Lydia M. Henderson died seized of certain real estate. It later alleges that on May 13, 1948, she executed a deed to Carl J. Piatt which was not recorded, and that it is necessary that the same be set aside to pay debts. It is claimed that under the latter allegation, if true, that the deceased was not the owner of the real estate at the time of her death and under this theory the action was wrongfully instituted. It is urged that there is a direct conflict between the two allegations and therefore for this reason the plaintiff should be required to elect the theory he desired to stand upon. This motion was overruled, which we think was proper as we do not think the two" allegations are entirely inconsistent. The second allegation seems to question the legality of the deed executed on May 13, 1948, which was not recorded, and which was sought to be set aside in order to pay debts.

It is next urged that the Court erred in assuming jurisdiction in trying the case. The appellant concedes that §10510-2 GC confers jurisdiction upon the Probate Court to entertain actions of executors and administrators to subject property of a deceased person to sale for the purpose of paying the decedent’s debts under certain conditions, but it is urged that when the Court found that the real estate was not an asset of the decedent’s estate, and that the deed to Carl J. Piatt conveyed good title, that the Court’s jurisdiction terminated and the proceeding should have been dismissed. We think the question arising here is whether after determining the title issue there were any other matters properly before the Court. If so, §10501-53 GC, which confers upon the Probate Court plenary power at law and in equity fully to dispose of any matter properly before the Court, would have application and the Court would have jurisdiction to proceed and determine the same. The only issue remaining was whether or not the state of Ohio had waived its priority existing by virtue of the trust mortgage and released its lien to the extent of the value of the services rendered by Carl J. Piatt and Betty Jean

Piatt. The Probate Court is not a court of general jurisdiction but is limited to those powers conferred upon it by §10501-53 GC. The only sections of this statute that could possibly have application would be Sections (3) and (13), both of which authorize the Probate Court to direct and control the conduct of fiduciaries and settle their accounts. Since it clearly appeared that there was no account to settle these sections could confer no power. The matter was therefore not properly before the Court and that part of §10501-53 GC conferring “plenary power” has no application.

In the case of In re Estate of Dickey, 87 Oh Ap, 255, this Court said at page 264:

“The Probate Court does not have general equity powers conferred upon it under that section (§10501-53 GC). That section gives the Probate Court, in matters within its jurisdiction, the authority to exercise equity powers in disposing of matters where there is no legal remedy or where the legal remedy is inadequate.”

Similar declarations are found in Abicht v. O’Donnell, 52 Oh Ap 513, and Bolles v. The Toledo Trust Co., 136 Oh St 517.

We hold that the Court should not have proceeded further after finding that the title to the property was in Carl J. Piatt, but should have dismissed the action.

We will now proceed to pass upon the other errors assigned in the event that it should be determined that the Court had jurisdiction to proceed further.

The third error assigned is that the Court should have dismissed Betty Jean Piatt as a party defendant upon motion of the appellant. An examination of the petition discloses that this defendant was merely listed as a creditor for care, nursing and medical expenses in the sum of $1986.50. She then filed a cross-petition in which she alleges that she and her husband, Carl J. Piatt, entered into an arrangement with the State of Ohio, Department of Welfare, Division of Aid for the Aged, whereby in consideration of their services to the deceased the State of Ohio would waive its priority and release its lien and trust deed upon the said real estate to each or either of them; that thereupon the said Lydia M. Henderson executed to said Carl J. Piatt a deed to said real estate which had not been filed for record. The appellant urges that the trial court never found that Betty Jean Piatt acquired a lien on the property and therefore she would be only an unsecured creditor and should have been dismissed. As to the Court’s finding on this question we must examine the journal entry, which provides as follows:

“It is further considered, ordered, adjudged and decreed that at, or approximately, the time of the execution of said deed the defendant, the State of Ohio, Division of Aid for the Aged, Department of Public Welfare, entered into an agreement with the said Carl J. Piatt, whereby if the said Carl J. Piatt should move into the home of said decedent, Lydia M. Henderson, and care for her during the remainder of her life and the said State of Ohio, Department of Welfare, Division of Aid for the Aged would waive the priority of its lien acquired by virtue of the trust deed of Lydia M. Henderson to the Division of Aid recorded in Volume 170, at page 262 of the Mortgage Records of Darke County, Ohio, to the extent of the value of the services so rendered by the said Carl J. Piatt and his wife, Betty Jean Piatt; that the services were rendered by the said Carl J. Piatt and his wife, Betty Jean Piatt, in accordance with said agreement; that the said State of Ohio, Department of Public Welfare, Division of Aid for the Aged has breached its agreement by reason of its refusal to waive the priority of its lien as aforesaid; that the court is without jurisdiction to now determine the value of the services so rendered by the said Carl J. Piatt and his wife, Betty Jean Piatt.”

We are in accord with the appellant on the question presented by this assignment and hold that she was not found to be a lienholder on the real estate. She was therefore an unsecured creditor and not a proper party to the land sale proceedings. Sec. 10510-15 GC provides the necessary parties to such an action.

The fourth assignment of error is well made for the reasons given in the third assignment.

It is next claimed by the appellant that the Court erred in finding that it could enter into a contract for the care and support of a recipient. The Court did not make such a finding, but found only that the State of Ohio waived the priority of its lien acquired by virtue of the trust deed of Lydia M. Henderson. Such a waiver is permitted under §1359-6 (E) and (F) GC.

The sixth and seventh assignments of error relate to the finding in favor of Betty Jean Piatt which is well made as we have previously found that she should have been dismissed as a party.

The judgment is reversed and cause ordered remanded with instructions that the action be dismissed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By THE COURT:

text:
    O’KEEFE, Plaintiff-Appellant, v. JONES, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2186.
    Decided May 29, 1952.
    Myers, Mills, Boesch & Cline, Orel J. Myers, James T. Cline, of Counsel, Dayton, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Warren A. Ferguson, of Counsel, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiff’s amended petition upon a general verdict of a jury on behalf of the defendant together with its answers to several interrogatories submitted to it by the trial judge.

Counsel for appellant assign eight errors in their brief on behalf of appellant but upon oral presentation none was urged except those which relate to the claim that the verdict of the jury is contrary to, against the manifest weight of the evidence and is not sustained by sufficient evidence.

We have read all of the voluminous bill of exceptions in this case except so much as pertains to the nature and extent of plaintiff’s injuries.

Upon the pleadings the issue of the negligence of the defendant was clearly drawn. These are the averments of the amended petition.

“Plaintiff * * * avers that on or about April 10, 1949 she was the owner of a 1946 Chevrolet automobile, and on the aforesaid date she was operating her said Chevrolet westwardly on Bast Third Street near Delmar Avenue in the designated lane of traffic for west traveling traffic. * * * that while proceeding westward on East Third Street as aforesaid, * * *, a Ford Coach automobile owned and operated by the defendant, John D. Jones, was proceeding westwardly on East Third Street at a fast rate of speed and negligently and violently collided with the rear of the Chevrolet of the plaintiff * * *.”

Then follows specific charges.

Defendant answering said:

“the collision was caused by the negligence of the plaintiff * * * in operating her automobile into East Third Street from Delmar Avenue immediately ahead of defendant’s automobile and without yielding the right-of-way to the defendant * *

This specific denial followed a general denial of the averments of the amended petition.

Counsel for the parties, in their specific statements to the jury elaborated somewhat upon their respective claims in the pleadings. Counsel for appellant advanced the theory that the collision between plaintiff’s Chevrolet and defendant’s Ford occurred on Third Street west of its intersection with Delmar Avenue after the Ford had struck a parked car on the north side of Third Street, and that the Chevrolet was struck in the rear. Counsel for appellee stated that when plaintiff was making her turn in the intersection from Delmar Avenue into Third Street defendant’s car struck the Chevrolet over the right rear wheel. Later he said “and if the police report taken by the Police Department of the City of Dayton doesn’t come in and show that this accident occurred right up near the intersection, then, give the plaintiff a verdict.” It was not vital to plaintiff’s case under her amended petition that she prove that defendant’s automobile first struck the parked car nor was defendant absolved from liability, if it appeared that the accident occurred right up near the intersection provided it occurred after plaintiff had gotten into and was moving westward on Third Street.

Something is said in the brief for appellant to the effect that plaintiff might recover upon the doctrine of last clear chance even though the collision occurred in the intersection. This might be true if it were pleaded but it was not. The trial judge in the general charge drew the issues upon which liability depended.

It is not necessary for this Court to state for the benefit of experienced counsel the limitations upon our authority to reverse a verdict of a jury on the weight of the evidence. Conceding to the jury its right to determine the credibility of the witnesses, weigh the disputed issues of fact and to resolve them, we may not reverse this judgment. .

There is much support for plaintiff’s contention in her amended petition as to the place where and manner in which the collision occurred. We find no direct testimony which lends any support to the claim that defendant’s automobile struck the parked car before it struck plaintiff’s automobile. Plaintiff did not know the course of the Ford before and at the time that it struck her car nor did any of her witnesses. The physical fact which carries most weight as to the place where the collision occurred was the damage to the left front wheel of defendant’s car which, in all probability, collapsed at or about the time of his collision with the Chevrolet. If this be true, he did not move very far after he struck plaintiff’s car for the obvious reason that he could not move far with the broken left front wheel. The distance from the intersection where he stopped does not rule out the possibility that plaintiff’s car was west of the intersection when struck. Nor, do the photographs negative completely the possibility that plaintiff’s car was struck on its right rear after it had moved into Third Street.

But defendant’s testimony and that of his former wife is to the effect that the collision occurred while the plaintiff was yet in the intersection and in the act of turning from Delmar Avenue into Third.

In a situation as is presented in this case circumstances and physical facts co'nstitute basis for inferences as to how and where the collision occurred. They are susceptible of so many interpretations as to the determination of which the jury must be given the widest latitude.

The jury returned answers to three special interrogatories with its general verdict. It said that the collision was proximately caused by the combined negligence of the plaintiff and the defendant; that the plaintiff’s automobile was turning at the time it was struck and that the collision between the plaintiff’s automobile and the automobile of the defendant occurred before the defendant car collided with the parked car. The answer that both parties were negligent may have supported plaintiff’s contention that the defendant was driving at an excessive rate of speed and/or that he was intoxicated. The negligence of the plaintiff which the jury must have found is that she also was negligent in making the turn at the intersection before taking proper precautions to determine that she could do so safely. The answers to the interrogatories also require the conclusion that the jury was of opinion that the collision occurred in the intersection and that the parked car was struck after the first collision. Both of these issues were resolved against the plaintiff.

Upon a careful consideration of the record, although we doubt if we would reach the same conclusion as the jury, the full membership of this Court cannot agree that the judgment should be reversed.

It will, therefore, be affirmed.

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


author: By THOMAS, J.

text:
    EDWARDS, Plaintiff, v. WIGGINS, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 623295.
    Decided March 27, 1953.

      Richard B. Kay, Henry S. Golland, Cleveland, for plaintiff.
    R. Crawford Morris, Arter, Hadden, Wykof & Van Duzer, Cleveland, for defendant.
   OPINION

By THOMAS, J.

Plaintiff’s motion for new trial challenges the correctness of the verdict directed in favor of the defendant at the end of plaintiff’s case.

The motion requires a re-examination of the controlling question of whether the plaintiff presented sufficient evidence to state a cause of action under her petition.

Plaintiff asserts in her petition that:

“on or about September 26, 1950 and continuously therefrom until on or about October 18, 1950 said defendant in his capacity as a practicing physician attended and treated said plaintiff during her pregnancy, until plaintiff passed the fetus by a miscarriage on October 11, 1950; and until said defendant gave plaintiff a release so that she might go for further treatments at the clinic of the University Hospitals in Cleveland, Ohio, on or about October 18, 1950.”

Plaintiff further says that defendant was negligent:

“in that after becoming aware of plaintiff’s condition prior to and immediately after the fetus was passed, that he wholly and entirely failed to take any steps or prescribe or give any treatment or treatments to allay or correct the subsequent infection of the sexual organs.”

Plaintiff further says that the defendant was further negligent:

“in that after knowing said plaintiff was suffering from her pregnancy and subsequent miscarriage; and that after knowing of the infection and that the sexual organs of said plaintiff were endangered thereby; that he nevertheless wrongfully and negligently concealed said fact, whereby said plaintiff and her family were prevented from having and from knowing the necessity of the great care and attention which said plaintiff’s physical condition then demanded and required.”

Plaintiff further says:

“that had the defendant made known the true physical condition at the time her condition became known to said defendant and had the defendant given said plaintiff during the times aforesaid, the hospital and medical care and attention which her condition then required, the pain and suffering and the possibility of sterility which has resulted from said negligence would not have occurred.”

In condensed language these allegations of plaintiff’s petition charge that her sexual organs became infected following a miscarriage, that the defendant knew of the infection, but that he nevertheless (a) failed to take any steps to prescribe or give any treatment to allay or correct the infection, (b) failed to give her the hospital and medical care and attention required, and (c) concealed knowledge of said infection from the plaintiff and her family.

Now does the evidence support these claims? A composite of the evidence most favorable to the plaintiff’s case (and which principally came from the plaintiff and her husband) tends to establish the following facts.

Plaintiff first consulted defendant doctor, a general practitioner, at his office on or about September 23, 1950. She informed him that she had missed her last two menstrual periods, felt weak and nauseated. The defendant took her blood pressure and gave her a tonic prescription of di calcium phosphate which she had filled and used.

On September 30th he saw her again in his, office. She had been spotting. She was weak and anemic. Defendant ordered her to stay off her feet. He told her she needed rest and if not careful she might go into T. B. He diagnosed pregnancy.

On October 3rd the defendant was called to plaintiff’s home, was told she was still bleeding and was suffering pains. The defendant took her temperature and pulse, told her to stay off her feet, and prescribed sulpha which she obtained and started taking.

On October 7th the defendant was informed by telephone that the plaintiff had passed a small clot and his attendance was requested. After a second phone call he responded, arriving about 11 A. M. He took her temperature, her pulse, and pressed her stomach.

At nine in the evening of October 9th the defendant was called and told that the plaintiff had passed several clots. He was asked to come to see her and did. While there he took her temperature, and found that she had a slight fever. According to the plaintiff and her husband he told her that he was afraid she might lose her baby, to look for it in any discharge and explained that it would look like a sac.

On October 10th the defendant was notified by telephone that the plaintiff was having severe pains. He said that there was no reason to come to see the plaintiff unless she was flooding.

The next day, October 11th, the plaintiff had more cramps followed by passage of a sac. When the defendant was informed by telephone he is quoted as saying that the sac should be flushed down the toilet. The defendant was further informed that the plaintiff was in pain and was bleeding. He did not come to see her.

On October 12th the defendant was again informed by telephone that she was in pain and was asked to come to see her. The defendant stated that there was no reason to come if the plaintiff was not flooding.

The defendant was not called again until October 17th when he was notified that the'plaintiff had a high fever and was still bleeding. Further he was told that the drugstore refused to refill the prescription (presumably the sulpha prescription). The doctor thereupon called the drugstore and either ordered a refill or gave a new prescription.

On October 18th the defendant was informed that the plaintiff’s fever was higher and he was asked to come to see her. He did. He gave the plaintiff a shot of penicillin and when he stated that the cost would be $15.00 he was told by the plaintiff’s husband that they could not afford to pay that much for treatments. He was asked if his wife could be admitted to a hospital and he said he thought she could. He gave her a slip to present to University Hospitals which read:

“This patient has an elevation of 101.2 following a spontaneous abortion. She is hereby referred to the hospital for adequate attention and advice.”

On October 19th she presented herself to the out patient department of University Hospitals who referred her to the gynecology department, where she gave a medical history which in part follows. The abbreviations and symbols have been spelled out.

“. . . Perfectly well till three weeks ago when she began to have cramps and increase in bleeding — 8 days ago profuse bleeding and fetus and placenta were passed — placenta appeared complete. No bleeding since then except when patient on feet to bathroom etc. Has been in bed since. Fever started last week (about Monday 10-9-50) grew worse yesterday and was seen by local medical doctor who treated with penicillin intramuscularly. . .”

She was admitted to the hospital the same day where she gave a similar medical history part of which follows. The abbreviations and symbols have been spelled out.

“. . . had an uneventful pregnancy up until about 10/11/50— when she began to have vaginal bleeding — followed by lower abdominal cramps — then passed fetus and after birth at home on 10/11/50. Was treated at home by local medical doctor for bleeding and abortion. Patient has bled very little since the abortion was completed. Patient began to get feverish four days ago but no chills and treated with one shot of penicillin on 10/18/50 by local medical doctor and then referred by local doctor to clinic.”

A physical examination in the gynecological department on the 19th day of October revealed that her temperature was only slightly elevated (37 degrees centigrade or 99.2 fahrenheit); that the cervix was soft, that there was some ulceration around the os; that the uterus was enlarged and soft; and that there was no bleeding.

The impression of the examining doctor was that she had an infected, incomplete abortion.

The plaintiff was scheduled for surgery on the 20th of October but on the evening preceding she developed a fever of 39 degrees centigrade (102.2 fahrenheit) and the operation was cancelled. She was started on penicillin but when the temperature failed to respond she was given aureomycin. To this new treatment she responded well and on October 26th a dilatation and curettage (D & C) of her uterus was performed. She was discharged from the hospital on the second post operative day without symptom or fever. The laboratory diagnosed the 15 cc endometrial curettings (scrapings of her uterus lining) as an infected incomplete abortion.

It has been noted that each of the plaintiff’s claims of negligence is premised upon the contention that the plaintiff’s sexual organs were infected, knowledge of which infection the defendant is claimed to have had.

Thus it is essential to each of the plaintiff’s claims of negligence to show that subsequent to her spontaneous abortion on October 11, 1950, and before the defendant ceased treating her on October 18, 1950 her sexual organs were infected to the knowledge of the defendant.

.The direct evidence reveals that the infected condition of her uterus was first tentatively diagnosed on October 19, 1950 when she was examined in the gynecology department at University Hospitals. At that time the examining doctor noted on the hospital record “impression, infected incomplete abortion.” On October 26th following her D & C operation the pathological examination of the curettings surgically removed from her uterus established that she had been suffering from an infected incomplete abortion. But the record contains no direct evidence that infection pre-existed October 19, 1950, to the knowledge of the defendant.

In the absence of direct evidence was there any circumstantial evidence to this effect?

There were previous symptoms oí illness. These included a slight fever on October 9th (two days before the spontaneous abortion) but no serious fever until October 17th; cramps on the 10th and 11th of October preceding and accompanying the abortion and some pain thereafter on the 12th; profuse bleeding on the 11th, the day of the spontaneous abortion but only a little bleeding afterwards.

Isolating and tagging the origin and cause of such symptoms would require special information and training not within the common knowledge and experience of laymen.

Accordingly the jury could not be granted the option of inferring from those symptoms that to the knowledge of the defendant the plaintiff prior to October 19th while under the defendant’s care was suffering from an infected incomplete abortion.

Missing therefore is the foundation upon which the plaintiff rests each claim of negligence contained in her petition. For the record contains no direct evidence and does not circumstantially justify the conclusion as plaintiff claims that the plaintiff’s sexual organs were infected, while defendant was treating her and within his knowledge.

Further as to each of the other elements of the three claims of negligence appearing in plaintiff’s petition there is a failure of proof.

Thus no evidence was offered that good medical practice required the defendant to prescribe any medicines which he failed to give, or required him to hospitalize the plaintiff sooner, or required him to disclose information to the plaintiff or her family which he did not reveal.

Hence it must be concluded that the allegations of negligence in the plaintiff’s petition are not supported by the evidence.

Actually, however, the plaintiff in the trial of her case altered her underlying claim that she was suffering from infection in her sexual organs with defendant’s knowledge.

Instead the plaintiff took the position during her trial, and now takes the position on her motion for new trial that the defendant’s negligence consisted not in his knowledge of any infected condition, but rather in his failure,' by vaginal examination or otherwise, to discover the presence of her incomplete abortion.

Thus in her motion for new trial the plaintiff says that the “specific acts of negligence of the defendant were as follows:

“1. The omission by defendant of the necessary examination of the vagina, in order to determine if the abortion had been complete; constitutes an act of negligence.
“2. The omission by the “defendant to come to see his patient who was in ill health and in a weak condition when he was called on numerous occasions by plaintiff’s husband, after plaintiff had expelled from her body a sac, later identified as fetus; constitutes an act of negligence.
“3. Even after it was discovered by the defendant, that plaintiff had a high fever a week after the incomplete abortion, he still neglected and omitted to make the proper examination.”

Necessarily the plaintiff’s right to a new trial depends on whether the claims of negligence appearing in the petition are supported by evidence. Since, however, the claims of negligence set forth in plaintiff’s motion for new trial actually were relied on by the plaintiff during the trial without objection by the defendant, it seems prudent even if not essential to examine them in light of the evidence to see if these substituted claims of negligence are supported.

It is claimed that the defendant was negligent in failing to make a vaginal examination.

But the short answer to -this claim must be that there is no evidence in this record to the effect that good medical practice required the defendant to make a vaginal examination following a spontaneous abortion.

With reference to the second and third claims of negligence recited in her motion for new trial, it is relevant to note that the defendant was first notified of the plaintiff’s increase in fever on October 17th. The next day October 18th when the defendant was told that the fever had gone higher he went to see her, gave her a shot of penicillin and gave her a written authorization to University Hospitals.

No direct evidence was offered which showed that his course of conduct was less than the standard of skill and care required of the defendant.

And here again it cannot be said that the claimed “want of skill or lack of care is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it.” Modrzynski v. Lust, 55 Abs 106. Expert testimony was necessary to establish the negligent character, if any, of defendant’s conduct in this respect. None was offered.

In sum it is determined that neither the claims of negligence in the petition nor the different claims of negligence set forth in plaintiff’s motion for new trial and asserted at the trial have been supported by sufficient evidence to warrant submitting the issue of defendant’s alleged negligence to the jury.

Furthermore it does not appear that on this record the jury would have been entitled to find that the plaintiff suffered any actionable injury or damage.

It is true that if a patient suffers pain in a prolonged convalescence because the treatment accorded the patient is less than ordinarily prudent the physician becomes legally accountable. Bradshaw v. Wilson, 87 Oh Ap 319.

But if the length or extent of convalscence is only shown to be POSSIBLY due to the doctor failing to exercise ordinary prudence or to conform to good medical practice any associated pain or suffering cannot be regarded as the proximate result of such negligence.

This essential distinction between the probability and possibility of proximate connection was recognized by our Supreme Court in Kuhn v. Banker, 133 Oh St 304.

There the evidence permitted a finding that the defendant surgeon was negligent in failing to x-ray the neck of a femur after some union had occurred but before allowing the patient to bear weight on the hip. But the evidence failed to disclose the probability that the subsequent ununited fracture resulted from such negligence.

The significant evidence consisted of several questions put to Dr. Stern, an orthopedic surgeon, called as plaintiff’s witness.

Recross Examination.

“Q. (By Mr. Nesbitt) You used the word ‘possibility.’ Of course, if there had been an absorption of this callus of this bone by nature, there would be very much probability after that of any uniting of that bone by any natural process, would there?
“A. Not much probability.
“Q. There would be very little probability, would that be true?
“A. It would be enough that I would think warranted in trying it.
“Q. Would you say to the jury had that been done, that the probabilities are that this condition that you found would not have resulted and the work that you were required to do, would not have had to be performed?
“A. No, I can’t say that.”

This is undoubtedly the evidence that prompted Judge Williams to say in his opinion that “Loss of CHANCE of recovery, standing alone, is not an injury from which damages will flow.” (Emphasis added.)

Applying the principle of the Kuhn case, to require submitting to the jury the issue of an actionable injury it was necessary that the evidence directly or circumstantially justify reasonable men in concluding that it was more probable than not that the plaintiff’s pain and discomfort subsequent to the occurrence of her spontaneous abortion proximately flowed from the claimed acts of defendant’s negligence.

It seems sufficient to say that this record does not contain the evidence which would permit reasonable men to reach such a conclusion.

A thorough re-examination of the issues raised by the motion for new trial convinces the court that it did not err in directing a verdict for the defendant. Plaintiff’s motion for new trial therefore is overruled.


author: By WISEMAN, J:

text:
    COTTRELL, Plaintiff-Appellant, v. GEHLE, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 694.
    Decided November 15, 1951.

      Spidel, Staley & Hole, Greenville, for plaintiff-appellant.
    Marchal & Marchal, Greenville, for defendant-appellee.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the Common Pleas Court of Darke County. The action grew out of an automobile collision which occurred on the public highway in Mercer County, Ohio. The cause was tried to a jury which returned a verdict for the defendant on plaintiff’s petition and for the plaintiff on defendant’s cross-petition.

Plaintiff-Appellant assigns as error the admission of evidence offered by the defendant over the objection of the plaintiff. Both the plaintiff and defendant were arrested after the collision and taken before a Justice of the Peace where they both pleaded guilty. Defendant introduced into the evidence over the objection of the plaintiff the record in the Justice’s court in which plaintiff was charged with excessive speed. The plaintiff contends that the Justice had no jurisdiction and, therefore, the record should not have been admitted. The record shows that the collision occurred outside of the Township in which the Justice resided, but within the county of his residence. The provision conferring county wide jurisdiction in criminal matters is controlling. The point is made that the affidavit was made by a Deputy Sheriff and not by the “Sheriff,” as provided in §13422-2 GC. We hold that an affidavit sworn to by a Deputy Sheriff is within the purview of that section. The sheriff- may detail deputies to enforce traffic laws. In Vol. 36 O. Jur., Page 697, Sec. 86 it is stated:

“The general common-law principle that a deputy and his principal occupy a single office applies to sheriffs. Such deputy, when appointed, is vested with authority to perform every ministerial act that the principal can perform.”

See also Mitchell v. Industrial Commission, 57 Oh Ap 319, 322. Furthermore, we fail to see how the introduction of the record was prejudicial to the plaintiff since both plaintiff and defendant were examined and cross-examined at length about the criminal charges and their pleas of guilty thereto.

Plaintiff claims that the court erred in giving Special Instruction No. 3, requested by defendant, which is as follows:

“I charge you that if plaintiff, Earl H. Cottrell, had the right-of-way as he approached the point of collision, provided he was proceeding in a lawful manner, and if you find that he was not proceeding in a lawful manner, he forfeited his right-of-way and was relegated to his common law rights.”
The claim is made that the charge was erroneous in providing that “if plaintiff” had the right-of-way, and that to state the law correctly the jury should have been charged that plaintiff had the right-of-way and that he forfeited the right-of-way if the jury should find that he proceeded in an unlawful manner. We are of the opinion that the instruction was in all respects a correct statement of the law on this point, and further, the court was not required to elaborate or define “his common law rights.”

The plaintiff claims the court erred in its general charge in instructing the jury relative to the charge of negligence against the plaintiff as alleged in defendant’s cross-petition. The court in his general charge stated:

“Therefore, should you find that the defendant was not operating in a lawful manner, it would then become necessary for you to determine under these three (3) issues whether or not he acted in the control and operation of his automobile as a reasonably prudent person would do under the same or similar circumstances.” (Emphasis ours.)

In making specific application the court used the term “defendant” rather than the term “plaintiff.” We do not believe this part of the charge was so prejudicial as to require reversal. We must look to the charge as a whole to determine the prejudicial character of one statement in the charge. Kleinhans v. American Guage Co., 83 Oh Ap 453; Rhoades v. Cleveland, 60 Abs 159, 164. Since the charge applied to a finding of negligence on the part of the plaintiff we do not deem it to be prejudicial to plaintiff-appellant.

It is contended the court committed prejudicial error in charging on the “last clear chance” doctrine. The plaintiff was driving in a southerly direction at about 1 P. M. on a clear day and on a dry pavement on a main highway; the defendant approached the highway from the west driving out of a lane. The defendant testified he stopped as he reached the highway right-of-way, but did not see plaintiff’s automobile approaching. The defendant then drove slowly out on to the improved portion of the highway and was in the act of making a left turn preparatory to driving in a northerly direction when the impact occurred. The evidence shows that the defendant never stopped his automobile as he approached the improved portion of the highway and his automobile was still in motion at the time of the impact. The evidence further shows that the plaintiff upon seeing the defendant drive out on to the improved portion of the highway applied his brakes and immediately before the collision swerved his car to the left in order to avoid the impact. The evidence shows that the front of the defendant’s car struck the right side of the plaintiff’s car near the center. In our judgment the doctrine of last clear chance had no application though pleaded in the defendant’s cross-petition. In Vol. 29 O. Jur., Page 579, Sec. 113 it is stated:

“The ‘last clear chance’ rule presupposes antecedent fault or negligence on the part of the plaintiff. The doctrine does not apply -where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of the defendant, directly contributes to produce the injury; it apples only where there is negligence of the defendant subsequent to, and not contemporaneous with, the negligence of the plaintiff, so that the negligence of the defendant is clearly the proximate cause of the injury, and that of the plaintiff the remote cause. In other words, the doctrine of ‘last clear chance’ is not available for the purpose of excusing contributory negligencce which continues up to, and at the time of the accident. For a person to bring himself within the rule, the evidence must tend to show that while his negligence may have contributed toward getting him in the position of danger, all negligence on his part had ceased for a sufficient time prior to the accident to have enabled the defendant, after he knew of the plaintiff’s situation of peril, in cases where actual knowledge is essential, to have avoided the accident.”

In Vol. 39 O. Jur., Page 955, Sec. 368, the text is as follows:

“The scope of an instruction in a particular case is to be determined not alone by the pleadings therein, but also by the evidence in support of the issues between the parties; in fact, it is the proof adduced rather than the pleadings that determines the proper scope of instructions in the particular case, as is particularly evidenced by the propriety of instructions on issues raised by the evidence, but not pleaded; according to a prominent text authority, instructions have no connection with the pleadings except through the evidence; the charge should be directed to the facts in issue, which the evidence tends to establish or disprove.”

See Boviard Mfg. Co. v. Maitland, 92 Oh St 201, 206.

It is reversible error to charge “last clear chance” where there is no evidence tending to prove a state of facts bringing the case within the rule. Pennsylvania Company v. Hart, 101 Oh St 196. See also Fitzgerald v. Chemical Service Corp., 84 Oh Ap 423, 441. In our opinion the charge complained of was misleading to the jury and clearly prejudicial. The additional charge given at the end of the general charge upon request of plaintiff to charge on sudden emergency is likewise prejudicial.

Plaintiff also contends that the court erred in giving the following charge:

“It is also a provision of law that if the testimony of plaintiff’s own witnesses raises any presumption of contributory negligence on the part of the plaintiff, it then becomes the duty of the plaintiff to dispel that presumption.” (Emphasis ours.)

Did the use of the words “to dispel” place too great a burden on the plaintiff? The plaintiff was not required to remove such presumption entirely; all plaintiff was required to do was to furnish such proof as would be sufficient merely to equal or counterbalance the evidence tending to show contributory negligence. The plaintiff was not required to present evidence to over-balance or outweigh it. Tresise v. Ashdown, 118 Oh St 307, 316. Heidle v. Baldwin, 118 Oh St 377, 390; Vol. 29 O. Jur., page 662, Sec. 170. In C. C. C. & St. L. Railway Company v. Lee, 111 Oh St 391, the court on page 396 used the term “to dispel that presumption,” and on page 398 used the term “to dispel that inference,” but the court did not have in that case a charge before it involving these terms. The court did not state that the use of such terms in a charge was correct or incorrect. The question does not seem to be well settled in Ohio. In Wizalis v. Koch, 13 Abs 389, these words were held to impose an unwarranted burden on the plaintiff in that case. We approve the reasoning of the court in that case and adopt as our own statement of the court found on page 390, as follows:

“To dispel, according to the best authorities, we believe, means to obliterate or to banish entirely. The law does not require that quantum of proof. It is to be noted in the instant case that the court instructed the jury that there would have to be produced sufficient evidence to dispel the presumption of contributory negligence upon the part of plaintiff’s decedent. This left the matter very much in doubt as to how much evidence the plaintiff would be required to introduce to dispel said presumption and the jury had no definite guide to show them just how much evidence would have to be considered from the entire case. In order to have been clear, the court should have stated to the jury that only sufficient evidence need appear from the record to equal or balance the amount of evidence which raised the presumption against plaintiff’s decedent. The form in which the court gave this portion of his charge to the jury in the case at bar we believe was confusing, erroneous, misleading and prejudicial.”

At the end of the general charge counsel for plaintiff requested the court to charge on “sudden emergency.” The court then briefly re-iterated its charge on the “last clear chance” and concluded with this statement:

“The court will say to you further that should you find that situation existing, and that plaintiff was placed in a position of emergency, he would use only the reasonable care as a prudent person would do under the same or similar situation.”

While the court should have elaborated on the care required to be exercised by the plaintiff if a sudden emergency existed, nevertheless, the statement as given is correct. See Vol. 29 O. Jur. Page 568, Sec. 109. Also, Pennsylvania Railroad Company v. Lindahl, 111 Oh St 502, 511. If counsel for the plaintiff was dissatisfied with this statement of the court he should have requested the court to give a more elaborate instruction on the issue of sudden emergency.

We do not find the verdict and judgment to be against the manifest weight of the evidence.

For errors herein found to be prejudicial to the rights of the plaintiff the court should have granted plaintiff’s motion for new trial.

Judgment reversed and cause remanded for further proceedings according to law.

HORNBECK, PJ, MILLER, J, concur.