author: By- STRAUB, J.

text:
    JOHNSON BROS. FURNITURE CO., Plaintiff, v. RETAIL CLERKS’ INTERNATIONAL ASSOCIATION, LOCAL 633 OF TOLEDO, OHIO, et al., Defendants.
    Common Pleas Court, Lucas County.
    No. 175243.
    Decided September 20, 1951.
    Harry S. Bugbee, Toledo, for plaintiff.
    Isadore Kohler, Toledo, for defendants.
   OPINION

By- STRAUB, J.

This matter came on to be heard by the court on motions filed by the two defendant labor locals, Local No. 22, Distribution and Warehouse Workers, and Local 633, the Retail Clerks’ International Association, to vacate the temporary injunction issued by this court on September 20, 1951.

At the hearing of the motion to vacate, there appears to be no controverted or disputed facts involved, from the evidence which was taken and upon the representations made by counsel for all parties. The facts which are material and pertinent to a determination by this court of this matter are as follows:

That plaintiff is a retail furniture store operating at 223 Summit Street, Toledo, Ohio, with a warehouse in the basement of said building, with an entrance thereto on Water street in the rear of the building.

That the plaintiff has four employees working in the warehouse department, and has four employees working as retail clerks in the retail sales store. None of the plaintiff’s employees in the warehouse are members of Local 22. In the retail sales division, one employee, Henry J. Sawicki, is a member of Local 633, and the other three employees are not members of that local.

That prior to August 13, 1951, members or representatives of Local 22 had solicited the employees of the plaintiff in the warehouse division to join and become members of Local 22, but all of such employees had declined to so join.

That prior to August 13, 1951, members or representatives of Local 633 had solicited the three employees of the plaintiff who are not members of that local, in the retail sales division, to join and become members of Local 633, but that all three of said employees in the retail sales division had declined to so join.

That on August 13, 1951, at or about 3:30 p. m., a representative of Local 22 and a representative of Local 633, acting in behalf of their locals, entered the plaintiff’s store, and each presented to C. Rowland Johnson, president and treasurer of the plaintiff company, copies of a form of agreement of their respective locals, and requested the said C. Rowland Johnson to sign said agreements.

That the agreement presented by the representative of Local 22 provided, in Article I of said form of agreement, as follows:

“ARTICLE I
“Section 1. The Employer recognizes the Union to be the sole and exclusive bargaining agent, in respect to wages, hours and conditions of work and employment, of all employees in the Toledo Warehouse of the Employer who are members of or eligible to membership in the Union, excepting and excluding supervisory employees, office employees, and salesmen.
“Section 2. The Employer may hire new employees for a probationary period of thirty (30) days and if an employee is retained he must become and remain a member of the Union for the duration of this Agreement. The Union shall be the sole judge of a member’s standing. The provisions of this section shall be operative for a period of one (1) year from the date hereof, and shall be further operative for the duration of this Agreement unless otherwise prohibited by law.
“Section 3. The Company agrees to check-off dues, initiation fees and assessments of regular and part-time employees.
“The company shall remit not later than the fifteenth (15) day of each month, all monies due the Union.”

That the agreement presented by the representative of Local 633 provided, in Article II of said form of agreement, as follows:

“All employees employed by the employer who are actively engaged in the selling of merchandise at Employer’s store at - Summit Street, Toledo, Ohio, except executives of the Co. (including the Manager and Assistant Manager) and excepting employees who spend more than three-fourths of their time with the Company in employment other than selling merchandise, shall be covered by this agreement. In the interest of harmony and efficient operation, it shall be the policy of the company that as a condition of employment all those employees who are now members, or may become members of the Union, shall continue to pay their dues and remain in good standing during the life of this Agreement. New employees shall be given 30 days to become members in good standing.”

That the representatives of the two defendant labor locals remained with Mr. C. Rowland Johnson for a period of only several minutes.

That Mr. C. Rowland Johnson declined and refused to sign each of the forms of agreement presented to him by each of the representatives of the two locals.

That at or about 5:00 p. m. of that same day, or within several hours of the time the representatives of the locals presented the forms of contract to C. Rowland Johnson, that pickets representing the two labor locals appeared at the front Summit street entrance of the sales store, and at the rear Water street entrance of the warehouse of plaintiff, and that picketing by the said locals began at that time and continued until restrained by the order of this court on September 20, 1951.

That following the presentation of the forms of contract by the representatives of the labor locals to Mr. C. Rowland Johnson, there were no further conversations, negotiations, or meeting held between representatives of the labor locals and the plaintiff or its agents.

As previously stated, the foregoing facts are the only facts pertinent and necessary in this controversy for a determination by the court of this case. At the hearings on the motion to vacate the temporary injunction, the court received the benefit of very masterful and scholarly presentations of the law on the questions of the rights of the parties, from counsel for all parties.

It is the contention of counsel for plaintiff that under the facts in this case, the plaintiff was entitled to a temporary injunction restraining the defendant locals from picketing their place of business on two grounds; first, that no legitimate labor dispute was involved between the plaintiff and its employees. Second, that the picketing of the defendant locals was for an unlawful purpose, namely, to compel the plaintiff company to coerce its employees in the warehouse and retail sales divisions to become members of the defendant locals representing their particular nature of employment.

To support this contention, counsel for plaintiff relies, among many others, upon the authority of Crosby v. Rath, 136 Oh St 352, 16 O. O. 496, decided by the Supreme Court of the State of Ohio in the year 1940.

It was the contention of the attorneys for the defendant locals that their defendant labor locals have the right to peacefully picket the plaintiff’s store with the purpose of influencing the general public and advertising the fact that the plaintiff had in its employ, employees who were not members of the unions.

To support their contention, counsel for the labor locals rely upon the authority, among many others, of the case of A. F. of L. v. Swing, 312 U. S. 321, decided by the Supreme Court of the United States in February of 1941.

There can be but one logical and reasonable conclusion drawn from the undisputed facts in this case, namely, that the foremost and primary purpose of the picketing by the defendant labor locals, of the plaintiff’s store and warehouse, was to have plaintiff sign the form of agreement presented by each defendant local, which would designate each defendant local the sole and exclusive bargaining agent in respect to all matters of work and employment of all employees of the plaintiff in plaintiff’s warehouse and retail sales division; and that under such form of agreement, all employees of plaintiff in its retail sales division and warehouse, if they wish to continue in the employ of plaintiff, must become members of either one of the two labor locals.

The facts in this case are parallel and identical with the facts in the case of Crosby v. Rath; and since that case is the latest pronouncement on this matter by the Supreme Court of the State of Ohio, this court holds that the case of Crosby v. Rath is the law of the State of Ohio, which authority holds that it is illegal and, therefore, a labor local does not have the right to engage in picketing when the object of such picketing is to force the employer to coerce the employes to become members of a labor local.

It is the contention of the defendant locals that the case of A. F. of L. v. Swing, decided by the Supreme Court of the United States in 1941, expressly overrules the Crosby case decided by the Supreme Court of Ohio in 1940; and counsel for defendant locals present decisions by several Ohio common pleas and appellate courts to substantiate their position. However, with this contention, this court cannot concur, and it is the interpretation of this court that A. F. of L. v. Swing did not overrule or nullify the case of Crosby v. Rath.

It is to be noted that the Supreme Court of the United States, at the exact time that it considered the Swing case, also had before it on a writ of certiorari the question of admitting the Crosby case to the Supreme Court docket for consideration; that on the same date, February 10, 1941, at which time the Supreme Court of the United States rendered its decision in the Swing case, on that same date the Supreme Court of the United States denied certiorari in the case of Crosby v. Rath. It is to be further noted that a second writ of certiorari was filed in the case of Crosby v. Rath in the Supreme Court of the United States, and that on May 25, 1942, some fifteen months after the decision in the Swing case, the Supreme Court of the United States again denied certiorari in the case of Crosby v. Rath.

Considering these developments, it-cannot be logically contended that the Swing case overruled or nullified the Ohio case of Crosby v. Rath. And, there can be noted a distinct variance in the facts of the two cases, upon which variance of facts the Supreme Court of the United States, by its denial of certiorari on two separate and distinct occasions in the Crosby case, established the law that the Crosby case is in no way affected by the decision in the Swing case. The distinguishing fact between the two cases is that in the Swing case there is no question of picketing for an illegal purpose. In the Crosby case, as in the case before us for consideration, the purpose and object of the picketing is manifestly illegal in that it attempts to force an employer to compel his employees to join a labor local after such employees have voluntarily declined to do so.

Since the decision in the Crosby v. Rath case by the Supreme Court of Ohio, several Ohio courts have interpreted the Crosby case to decide the proposition that even where the purpose of picketing is lawful, that such peaceful and lawful picketing would be restrained if there was no legitimate labor dispute involved between the employer and his employees. Certainly the syllabus and some of the dicta in the Crosby case can be interpreted to comply with some of those decisions. However, this court, in the determination of this matter, is not called upon to consider Crosby v. Rath, as an authority for the proposition that a labor local has no right to picket, even peacefully, where there exists no dispute between the employer and his employes. A case is determined by a court upon the facts in that case, and many times a decision based upon certain facts is quoted as the legal proposition to determine some other case involving distinguishable facts. Unquestionably, the Supreme Court of Ohio, in deciding the Crosby case, was influenced by the violence, coercion, and disorder engaged in by the pickets in the Crosby case, although it is to be noted that in the court’s opinion no reference is made in any way to this matter. It was this element of violence by the picketers, plus the unlawful objective of the picketing, which brought about the decision in the Crosby case, and unquestionably which caused the Supreme Court of the United States to deny certiorari of that case on two occasions.

As stated before, this court does not have the question to determine as to whether it is unlawful in the State of Ohio for a labor local to picket merely and solely because there is no labor dispute between the employer and its employees. Considering the element of violence and the unlawful objective of the picketing in the Crosby case, this court would be most reluctant to interpret the Crosby case to the extent that peaceful picketing by a labor local is lawful only when there exists a labor dispute between an employer and his employees. However, where the picketing, even though peacefully conducted, is carried on by a labor local for the express purpose of forcing the employer to compel his employees to become members of a union against their will, it is the decision of this court that the case of Crosby v. Rath is the authority on that subject in the State of Ohio.

Counsel for plaintiff also referred, among other authorities, to the case of Union v. Gazzam, 339 U. S. 532, 42 O. O. 76, decided by the Supreme Court of the United States in May of 1950, to substantiate their contention in this matter. Counsel for defendants have attempted to distinguish the Gazzam case from the case before us, in that there was an express legislative enactment in the State of Washington in the Gazzam case which made it illegal for a labor local to picket the employer, and compel him to force his employes to become members of the union. Counsel for defendants say that the Gazzam case was decided by the Supreme Court of the United States on the grounds that the legislative enactment in the State of Washington thereby established the public policy of the State of Washington on that question, and that the Supreme Court of the United States would not disturb or interfere with the public policy of a state after such public policy had been established.

In answer to this, it should be noted that in the decision of the United States Supreme Court in the Gazzam case, the opinion having been written by Mr. Justice Minton, that in 339 U. S., at page 537, 42 O. O. at page 78, in the opinion of Justice Minton, the Gazzam case states as follows:

“The public policy of any state is to be found in its constitution, acts of the legislature, and decision of its courts.”

From these express words in the opinion of the Gazzam case, the position of the Supreme Court of the United States in denying certiorari on two occasions in the Crosby case is very consistent; and the Supreme Court of the United States has recognized that the public policy for the State of Ohio with reference to a labor local picketing an employer to coerce his employees to become members of the union is an illegal and unlawful purpose.

It is the thought of this court in this opinion that the.paramount rights involved in this case are not the rights of the employer or the rights of the union. It is the thought of this court that the paramount rights involved in this controversy before it are the rights of the seven or eight employees of the plaintiff who have declined to become members of either one of the defendant locals, and who have, as indicated in Plaintiff’s Exhibit 4 introduced in evidence on this motion, signed their names under the following written declaration:

“We, the undersigned employed by The Johnson Bros. Furn. Co., 224 Summit St., Toledo, Ohio, not being a member of the Union and do not wish to become affiliated with the Unions —.”

Under the Constitution of the United States and the Constitution of the State of Ohio, individuals are endowed with certain rights, and certainly any coercion of any individual in this court or this state to compel such an individual to become a member of any organization is unconstitutional and, therefore, illegal.

We quote from 24 O. Jur., 632, under the topic of “Labor,” Section B, subhead “Labor Unions,” paragraph 20 on page 632, under the topic “Membership.”

“MEMBERSHIP IN A LABOR UNION IS VOLUNTARY.

“Every workingman has a right to belong to a labor organization if he chooses. He has an EQUAL right to refuse to belong and the denial of either right, whether by the labor or a capitalistic organization is a species of despotism.”

Further on this point, the court quotes Section 7 and parts of Section 8 of the National Labor Relations Act adopted by the Congress of the United States on June 23, 1947:

“Section 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3).”
“Section 8 (a) (1). It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7; * * *"
“Section 8 (b) (1). It shall be an unfair labor practice for a labor organization or its agents to restrain or coerce (A) employees in the exercise of the rights guaranteed in Section 7; * * *”

While the Crosby case, decided in 1940, establishes not only the public policy but the law of the State of Ohio on the matter before us-, there is little question in this court’s mind that if the matter was again to be determined by the Supreme Court of Ohio since the enactment of the National Labor Relations Act, the decision would be the same.

It is to be further noted that the illegal purpose involved in the picketing in this matter becomes very obvious when, under the provisions of Section 8-a-l of the National Labor Relations Act, the employer, if he acceded to the demands of the labor local and signed the form of contract presented to him, thereby forcing all of his employees to become members of the union, that he would become guilty of an unfair labor practice as an employer.

The motion of each defendant, Local 22 and Local 633, to vacate the temporary injunction issued by this court on September 20, 1951, is hereby overruled, and each defendant’s exceptions hereby saved.


source: Caselaw Access Project

author: By HACKETT, J.

license: Public Domain

text:
    GULF REFINING CO., etc., Plaintiff, v. OIL WORKERS INTERNATIONAL UNION, etc. et, Defendants.
    Common Pleas Court, Lucas County.
    No. 177108.
    Decided March 1953.
   OPINION

By HACKETT, J.

The-petition herein was filed March 7, 1953, by Gulf Refining Company, as plaintiff, against Oil Workers International Union, C. 1. O., an association: Oil Workers International Union, C. I. O., Local 346; and several other persons, officers or members of such unions, as defendants.

At the same time plaintiff requested a temporary restraining order as prayed for in the petition. The court granted a temporary restraining order. Thereafter, on March 9, 1953, the plaintiff filed a motion requesting an order of temporary injunction. This motion came on for hearing before the court on Monday, March 9, 1953, at 2:00 ofclock p. m.

It appears here from the allegations of the petition or from the evidence, or both — the petition having been sworn to positively — that the plaintiff Gulf Refining Company is a Delaware corporation with a place of business, an oil refinery, terminals and bulk plants situated in Toledo. The company is engaged in the manufacture and distribution of gasoline and other'"petroleum products.

The defendant Oil Workers International Union, C. I. O. is an unincorporated voluntary association of individual members known as a labor organization affiliated with the Congress of Industrial Organizations;

The defendant Oil Workers International Union, Local 346, is an unincorporated voluntary association of individual persons known as a labor organization and is duly constituted body within the Oil Workers International Union. The members of said local are members of Oil Workers International Union;

The defendant, William V. Flower is the duly appointed and acting international representative of Oil Workers International Union and as such representative is the duly appointed agent, representative and advisor of Oil Workers International Union, Local No. 346.

The names, status, and positions held by other of the defendant members of the union are set forth in the petition.

It is further alleged in the petition that there are other persons not named in the petition who are, likewise, members of Oil Workers International Union and its Local No 346, as such persons are too numerous to be named in the petition and that the questions involved are of common and general interest to all of the defendants and to all the members of Oil Workers International Union and its Local No. 346.

Plaintiff owns and operates, as a part of its Toledo sales division, terminals and bulk plants located at 2762 Front Street, Toledo, Ohio, and 2952 Front Street, Toledo, Ohio; that in the operation of said terminals and bulk plants plaintiff has employees who are members of Petroleum and Allied Workers, Local No. 530, a labor organization affiliated with the American Federation of Labor, and that such Petroleum and Allied Workers, Local No. 530 represents the employees of plaintiff at such terminals and bulk plants.

On July 29, 1952, plaintiff. and said Petroleum and Allied Workers, Local No. 530, A. F. L., entered into a collective bargaining agreement effective June 1, 1952, to remain in force and effect until midnight, May 31, 1953. The agreement provides that during the term thereof there should be no interruption or stoppage of work by said union through strikes, or otherwise, and no lock-outs by plaintiff. No labor dispute exists between plaintiff company and said Petroleum and Allied Workers Union, No. 530, A. F. L.

A labor dispute does exist between plaintiff and the defendant, Oil Workers International Union and Oil Workers International Union, Local No. 346, C. I. O.,' as a result of which dispute employees of the plaintiff at its Toledo refinery, who are represented by such defendant unions, are now on strike.

Since February 25, 1953, at 11:30 o’clock p. m. to the date of the filing of the petition herein the defendants Oil Workers International Union and Oil Workers International Union, Local No. 346, and the individual defendants named in the petition have picketed plaintiff’s refinery at 2935 Front Street, Toledo, Ohio, the legality oí which action is not placed in issue in this action.

Beginning, however, on March 6th, 1953, at 9:30 a. m. and continuing to the date of the filing of the petition herein said defendants have picketed plaintiff’s terminals and bulk plants located at 2762 Front Street, Toledo, Ohio, and 2952 Front Street, Toledo, Ohio, which said terminals and bulk plants are separate operations at separate locations from plaintiff’s refinery. Plaintiff contends that the purpose of such picketing is to cause and induce plaintiff’s employees at such terminals and bulk plants to stop work and thereby violate the provisions of their collective bargaining agreement between the plaintiff and said union, Petroleum and Allied Workers, Local No. 530, A. F. L.; and, further, that as a consequence thereof plaintiff’s employees, who are members of Petroleum and Allied Workers, Local 530, A. F. L., have breached their agreement with plaintiff.

It further appears from the evidence that plaintiff has now in force in the city of Toledo and vicinity 13,697 contracts to furnish fuel oil to that number of residences, hospitals and schools; that it has, also, and in addition, from 1200 to 1500 contracts with commercial concerns for the product of plaintiff company. Plaintiff contends it will be unable to perform these contracts if picketing continues at its terminal and bulk plant facilities; and that a continuation of such picketing, which plaintiff alleges to be illegal and unlawful, will continue unless enjoined by order of this court.

The plaintiff alleges that the continuance of the picketing will result in danger to life and limb of plaintiff’s employees at said terminals and bulk plants, and that irreparable loss and damage to plaintiff’s property and plaintiff’s business will result, for which plaintiff has no adequate remedy at law.

It appears further from the evidence that plaintiff has an investment in Toledo approximating $25,000,000.00; that it employs at the refinery between 295 and 300 people who are represented by Oil Workers International Union, C. I. O., Local 346; that the plant has been shut down by a strike since February 25, 1953; that no agreement for settlement has been reached; that one or two members of the C. I. O. Union work approximately 65 per cent of their time at the bulk terminal; that the contract between plaintiff and Petroleum and Allied Workers, Local 530, A. F. L., marked Exhibit (1), is in full force and effect and expires, unless extended, on May 31, 1953; that such contract covers all employees at the bulk terminal other than clerical employees; that there is no dispute between the employees at the bulk terminal and plaintiff; that on March 6th, 1953, the gates at the bulk terminal were picketed; that the pickets were members of the C. I. O. Union who are on strike at the refinery; that the pickets refused to let the drivers of bulk terminal trucks through the gates; Charles Crawford, a member of the C. I. O. Union, testified that he picketed the bulk terminal in front of both gates; William V. Flower testified that he is a member of the C. I. O. Union; he testified that the picketing is for the purpose of establishing that the union has a dispute. He further testified, without objection, that his union does not have any dispute with the bulk terminal.

In oral argument made at the hearing counsel for the defendants quoted at length from the case of W. E. Anderson Sons Company v. Local Union No. 311, 156 Oh St, 451,’ 46 O. O. 460. In that case a building trades union was involved in a labor dispute with one of several contractors on a construction job. The union maintained pickets who carried banners. The trial court granted an injunction against such picketing. The Court of Appeals on a trial de novo denied the injunction. The Supreme Court of Ohio, one judge dissenting, reversed the Court of Appeals and rendered final judgment of injunction.

The facts in that case and in the case at bar are substantially parallel. Here we have a plaintiff conducting its business in two separate divisions. One, the business of refining crude oil into various petroleum products. The other in distributing products to consumers. The latter division operates independently of the former. The refinery reports to the president in charge of such operation in Pittsburgh, Pennsylvania.

As to this operation it is admitted by plaintiff in the petition that a labor dispute exists and a strike is being carried on and production has ceased. In the Sales Division, which has an A. F. L. contract, there is no labor dispute and the contract under which the employees of such division work, and which is made for the benefit of the employer and the employees, is in full force and effect.

A witness called by defendant C. I. O. unions who testified that he was a member of such union said that he carried a banner on the picket line at the bulk terminal for the purpose of advertising the fact that they had a dispute. We are not so naive as to be impressed by this bit of whimsey. Before the witness appeared deliveries from the bulk plant went on without interruption. Deliveries ceased immediately upon his appearance on the picket line. It would seem that the only purpose of the picketing was to bring pressure on the plaintiff by stopping its deliveries and, thereby, compelling plaintiff to meet the demands of the striking C. I. O. union.

The evidence disclosed that as a part of the picketing operation at the bulk plant there were times when the pickets carrying banners were walking in circles or ovals in front of the gates. It is contended by defendant C. I. O. union that the picketing was peaceful.

In the course of the opinion in the Anderson case, supra, the court said:

“However, the privilege of picketing or bannering is limited to peaceful persuasion and is lost when there is resort to violence, intimidation, falsehood, defamation, obstruction of highways, obstruction to means access to employer’s place of business, or other unlawful means.”

And the syllabus of the Anderson case recites the following:

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

The plaintiff has a property right in the existing contract, between itself and the A. F. L. union covering its employees. The picketing conducted by the C. I. O. union, designed to cause a breach of that contract is therefore, unlawful and should be enjoined.

The court further says at page 562 of the opinion (Anderson case):

“The supreme test in determining the right to apply economic pressure is legality. The right to peacefully picket or banner is not free from limitation and does not extend beyond the bounds of legality.”
“The reasons for the legal distinction between primary and secondary boycotts that the latter are unlawful and enjoin-able are that they constitute an unlawful interference with the rights of innocent third persons and of the rights of the public generally, and that one not a party to industrial strife may not, against his will, be made an ally of either one of the parties for the purpose of accomplishing the destruction of the other.”

When the purpose of picketing is to induce a breach of contract, as in the instant case, it constitutes an unlawful interference with the rights of innocent persons and will be enjoined. The privilege of picketing is lost when it is carried on by obstruction to means of access to the employer’s place of business or other unlawful means.

Counsel for the defendants in oral argument stated that the decision of Honorable, John M. McCabe, judge of the Court of Common Pleas of Lucas County, in the case of Standard Oil Co. et al. v. Oil Workers International Union, C. I. O., et al., was a parallel case with the one at bar and established the law in this jurisdiction. In that case the union representing the employees in the Sales Division of the Standard Oil Company (which union compares with the A. F. L. union involved here), joined with their employer in seeking an injunction against the C. I. O. union, which was on strike at the refinery and which, as here, was attempting to picket the Sales Division of the company. Counsel for the defendants in the case at bar told the court that Judge McCabe had limited the pickets in that case and that such order constituted a binding precedent which should be applied in the instant case.

We have learned, however, from Judge McCabe that he was not called upon to decide any question as to the scope of the injunction. On the contrary, counsel for the company, counsel for the plaintiff union representing the employees of the Sales Division, and counsel for the defendant C. I. O. union representing the employees of the refinery division agreed upon the terms and conditions of the injunction to be issued and the injunction as thus stipulated by counsel was simply approved by the court. The members of the bar well know that the disposition of litigation through agreement of the parties cannot be regarded as establishing any legal precedent, whatsoever, for future cases, particularly when the court hears no evidence and is not called upon to adjudicate issues either of fact or law.

The motion for a temporary injunction is granted and will be effective upon the signing of the order of the court and the posting of a bond in the amount of $500.00.


author: By STEVENS, J.:

text:
    ACCURATE DIE CASTING CO., Plaintiff-Appellee, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22641.
    Decided February 25, 1953.

      Ewing & Hecker, Baker, Hostetler & Patterson, Cleveland, for plaintiff-appellee.
    Joseph H. Crowley, Law Director, Joseph F. Smith, Asst. Law Director, Cleveland, for defendant-appellant.
    (DOYLE, PJ, STEVENS, J, and HUNSICKER, J, of the Ninth District sitting by designation in the Eighth District.!
   OPINION

By STEVENS, J.:

Plaintiff, a corporation, was engaged in the business of making high pressure, precision die castings of metal alloys, on die casting machines located in its plant at 3089 East 80th Street, Cleveland, which plant is located in a watershed known as Kingsbury Run.

On June 2, 1947, plaintiff’s plant was flooded by the waters resulting from a heavy rain, and substantial damage was sustained by it.

The plant was again flooded on August 30, 1947, and on March 21, 1948, as the result of heavy rains, and further damage accrued on each of said dates.

Plaintiff then sued defendant City, and certain other defendants, for damages incurred in each of said floods, and for injunction, the action being based on plaintiff’s claim of negligence of said City, which it was alleged proximately caused plaintiff’s damage. Damages in the amount of $331,877.12 were claimed.

During the trial, all defendants except the City of Cleveland were dismissed on application of plaintiff, and the action proceeded against the City as the sole defendant.

After a lengthy trial, the case was submitted to a jury, which returned a verdict for plaintiff in the amount of $130,000

Motion for a new trial was duly filed, and overruled, and judgment entered upon the verdict.

An appeal on questions of law brings before this court the propriety of said judgment.

The errors assigned and argued by appellant (City) are as follows:

1. The evidence was insufficient to establish a cause of action against the defendant City.

2. The plaintiff failed to exercise ordinary care for the protection of its property.

3. Error in admission of testimony offered by the plaintiff.

4. Error in exclusion of testimony offered by the defendant.

5. Misconduct of the prevailing party, and the court.

6. Error as to charges given or refused by the court.

Plaintiff based its claim against the City upon two grounds:

1. That in the construction of sewers by the City, and in the adoption of privately-constructed sewers for public use, the City caused a concentration of the flow of water from the Kingsbury Run watershed, augmented by additions of water artificially collected from other watersheds and cast into the Kingsbury Run sewer, knowing that the sewer west of plaintiff’s plant was inadequate to handle the flow of water present in times of heavy rainfall; with the result that water which should have gone into said sewer overflowed therefrom or could not get into said sewer, and flowed onto plaintiff’s property.

2. That the City, by its adoption of the grade at East 79th Street, and by filling to said grade line, caused to be erected a dam or barrier across Kingsbury Run. without providing a large enough outlet there through, so that the natural flow of the water could escape from said outlet, with the result that said water so imprisoned was cast over and upon plaintiff’s property, to its damages.

There is credible evidence contained in this record that the City did divert water into the Kingsbury Run sewer east of plaintiff’s plant which normally would have flowed into said sewer at a point west of said plant, thereby substantially increasing the flow of storm water and sewage in Kingsbury Run.

There is also credible evidence that the City did use the culverts under the New York Central and Pennsylvania Railroad tracks at a point easterly of plaintiff’s plant, and con-' nected its Kingsbury Run sewer thereto; that the construction at the juncture of the New York Central and Pennsylvania culverts was such as to constitute a trap, with an outlet of smaller diameter than the inlet into the open catch basin; that at times of high water the catch basin overflowed, and the water therefrom drained to the west, and over plaintiff’s property.

There is further credible evidence that the sewer at East 79th Street was so constructed as to be unable to discharge the flow of surface water and sewage in times of heavy rain, with the result that the water and sewage were held on plaintiff’s property, which was located at the low point on East 80th Street.

The evidence shows that the defendant City knew of all the foregoing prior to the first flood on June 2, 1947, and in fact, with the exception of the construction of the culverts under the railroad tracks, created the conditions of which plaintiff complains.

The law with reference to the liability of a municipality for flooding one’s premises seems to us to be well stated in Price v. City of Akron, 23 Oh Ap 513, where Washburn, J., said, at p. 519:

“If I have a low lot which needs draining, and which adjoins a city street, and the city adopts a plan of drainage for that neighborhood, and constructs the same in said street, and the drain so provided fails to drain my lot, the city would not be liable to me; but, if the drain so provided by the city not only fails to drain my lot, but casts upon it water that otherwise would not have flowed or reached my lot, and thus adds to the depth of water standing on my lot, and the city has notice that such drainage system so operates to injure and damage my property, it becomes its ministerial duty to remedy the situation so as to discontinue such direct invasion of my rights, and it is liable for a negligent failure to perform that ministerial duty.”

To the same effect are: Doud v. City of Cincinnati, 152 Oh St 132, paragraph 2 of syllabus; McBirde v. City of Akron, 12 C. C. 610; City of Toledo v. Lewis, 17 C. C. 588 (affirmed, 52 Oh St 624).

Under the law as above set forth, and in the face of the evidence contained in this record, we are unanimously of the opinion that there was presented a proper case for submission to a jury, and that the trial court did not prejudicially err when it overruled defendant’s motions for a directed verdict.

Appellant next claims that appellee was guilty of contributory negligence as a matter of law in: (a) selecting its factory site at the low spot on East 80th Street, and (b) in failing to exercise ordinary care for the protection of its property.

The record evidence shows that the plaintiff’s president, Mr. Suvak, knew that 80th Street in front of its plant had been flooded prior to the time of the formation of plaintiff corporation and its acquisition of the factory in question, but Mr. Suvak testified he did not know that the factory had ever been flooded until after he had moved into the factory. The floor of the factory is four feet above the low point on East 80th Street, and hence water would have to reach a depth of four feet in the street before it could enter plaintiff’s factory.

Certainly no reasonable person would anticipate that the City would create a situation where the water in the street would attain a depth of four feet and then flow into plaintiff’s plant, rather than be carried off by the sewers, in the absence of an act of God.

The evidence shows that plaintiff did much to protect itself against flooding damage. It organized and instructed its employees as to steps to be taken in the event of heavy rains, which included placing barricades in 80th Street and removal of manhole covers, and before the flood of March 21, 1948, it installed flood doors to protect against a rise in excess of four feet in East 80th Street. Also, it complained to the City concerning the flooding of its premises.

But, despite defendant’s motion therefor, the trial court did not resolve the question of plaintiff’s claimed contributory negligence as a matter of law, instead, it submitted that issue to the jury, under a proper charge.

In so doing, we think no prejudicial error intervened.

The next error assigned has to do with the manner in which plaintiff proved many of the items of damage, allegedly suffered by it because of the several floods.

The method adopted by plaintiff was the presentation of four summaries of damages, identified as plaintiff’s exhibits 55, 56, 57 and 58, wherein the various items of damage in four different categories were set forth.

These summaries were prepared by Mr. Hozza, cost accountant of plaintiff, with the assistance of Edward Kovachy, C. P. A., and auditor for plaintiff, in accordance with a request made by counsel for defendant at the time of taking the deposition of Mr. Suvak, president of plaintiff company .

While no legal importance can be attached to said request in a consideration of the propriety of such method of proving damages, it appears to us that, under the circumstances shown by this record, such method of proof was the only one available to plaintiff, and that objections thereto went to the weight rather than the competency of such evidence.

It is shown that no perpetual inventory of office supplies, repair parts, work in process, or finished merchandise, was kept by plaintiff. That after each of said floods, compilations of the damage caused thereby were made by Hozza with the aid of Kovachy, in the several categories covered by the four exhibits mentioned above. Those compilations were made from documentary evidence furnished by foremen, timekeepers, and the several employees in charge of the various departments, of plaintiff. Much of the supporting documentary evidence, which was very voluminous, was in the court room in several large cardboard cartons. Some had been lost in the first two floods, and some for the third flood had been destroyed after being entered on the summaries by Hozza.

As to much of the material, Hozza could not possibly have had personal knowledge, and he entered on the summaries the information furnished him by those in charge of the particular departments of plaintiff. Such method of proof has been held competent in Ford v. State, 20 O. C. C. 592, which provides:

“2. Where books and documents are multifarious and voluminous, abstracts and schedules which have been prepared therefrom by an expert accountant may be admitted in evidence, but in such case the books and documents must either be first offered in evidence or be in the custody of the court so that the party against whom such abstracts and schedules are offered may have an opportunity from their examination to verify their correctness.”

See also, Boston & Worcester Rd. v. Dana, 67 Mass 83.

The admission or rejection of the summaries was a matter which largely rested in the sound discretion of the trial court, and in admitting said summaries into evidence we find no abuse of discretion by the court.

It is strenuously argued by appellant that in almost all of the items of damage sought to be proved by plaintiff, replacement cost, rather than the reasonable value of the item before and after the damage thereto, is shown.

That is true, but the evidence of Mr. Suvak is to the effect that the replacement costs of the various items were the fair and reasonable costs thereof at the time of the damage, and again we believe that the objection goes to the weight to be given to the evidence, rather than to its competency. There was no showing here that the cost of replacement exceeded the difference in value of the property before and after the injury.

It is asserted that, as to labor costs of cleaning up the plant and machinery after each flood, the evidence shows the employment of high-priced employees of plaintiff in doing such work.

It must be remembered that the machinery, equipment and product of plaintiff were of precision type, and that the cleaning-up process involved the disassembling of intricate machinery, cleaning it, immersing it in oil, and then reassembling it. The cleaning of the-product involved metallurgical knowledge and processes — scarcely work for common labor.

The flushing down of the plant and equipment is shown by the evidence to have been done by common labor.

The employment of plaintiff’s employees in the cleaning-up process, it appears to us, may have saved, and probably did save, an aggravation or enhancement of plaintiff’s damages through breakage and injury to machinery and equipment, which undoubtedly would have ensued had unskilled labor been employed.

It is further claimed by appellant that evidence as to damage to the rear wall of plaintiff’s plant, and as to the cost of the relief sewer built by plaintiff, should not have been admitted.

In that connection, the second amended petition, upon which, together with the amendment thereof, the case was tried, prayed for $331,877.12 in damages. The verdict was for $130,000.

No interrogatories or special findings were submitted, so there is no possible way in which this court can know what damages were considered and awarded by the jury, except the amount thereof And even though error may have intervened in the proof of damages, once liability was established, errors in the admission or rejection of evidence, where the amount claimed exceeded the amount of the verdict, became immaterial.

“Where a cause of action is stated against a municipality, and the uncontradicted evidence shows liability for whatever damages resulted, and also that the plaintiff suffered greater damages than were allowed him by the jury, errors of law in the charge to the jury or in the admission or rejection of evidence become immaterial.”

City of Cincinnati v. Roettinger, 11 C. C. (N. S.) 501.

The question of damages was submitted to the jury under a charge which required the jury to attach such weight to the testimony of Hozza and Kovaehy, and the exhibits above mentioned, as the jury believed them entitled to receive. The weight to be given the evidence was clearly a question for the jury, and in view of the verdict of the jury, untested and unexplained, we find no reversible error upon the question of damages.

The next error assigned treats of the claimed error of the court in refusing appellant the right to introduce evidence showing that financial inability of the City caused its delay in building the relief sewer, which it did build in 1949 and 1950.

The reason assigned by the court for sustaining the objection to that evidence, was that it opened up too many collateral issues.

The evidence shows that the City knew as early as 1938 that the Kingsbury Run sewer from 80th Street west, had too little capacity to handle the flow of water from heavy rainfall; that in 1945 Mr. Richardson, the City’s engineer, designed a’ relief sewer, and that said sewer was not built until 1949.

Why it was not built, unless plaintiff was responsible for the failure, could have no bearing upon the question of liability or non-liability of the City for the damage of which plaintiff complained.

We think the court did not prejudicially err in excluding that evidence.

As to the claim of misconduct of the court and of counsel for plaintiff, we have examined this record in its entirety, and at no place therein do we find a predicate for any claim of misconduct of either the court or of counsel. We hold that claim to be without merit.

Appellant next complains of the special charges of appellee, given before argument.

Charge No. 1 is taken from the case of Price v. City of Akron, the law of which we have herein earlier approved. We find no error in the giving of that charge.

Charge No. 2 dealt with the legal consequences attendant upon the City’s raising the grade of East 79th Street, so as to dam the natural flow of the water in Kingsbury Run. and providing inadequate drainage through said, dam to permit the escape of the water there-through, with the result that the water was penned in upon 80th Street, and caused to run into and upon plaintiff’s property. The charge provided that if the jury found that the City did these things, and if such act was a proximate cause of plaintiff’s plant being flooded, plaintiff was entitled to recover its damage so sustained.

The evidence bears out the claim of plaintiff as to the change of grade, and as to the subsequent flooding of plaintiff’s premises.

The charge contains a correct statement of the applicable law, and we find no error in its being given.

The third charge given at the instance of plaintiff was taken from paragraph 2 of the syllabus of the case of Doud v. City of Cincinnati, supra; it is a verbatim statement of said paragraph, except for the omission of the words “and assumes the management and control of” from the final line thereof. The charge, with the words in question deiected therefrom, states a correct proposition of law applicable to the facts of the instant case. No error intervened because the charge was given.

Charge No. 4 given at the request of plaintiff was an exact copy of the charge specifically approved by the Supreme Court of Ohio in City of Piqua v. Morris, et al., 98 Oh St 42.

Inasmuch as the appellant defended against liability on the basis, as to each of said floods, that they were acts of God, the charge in question was entirely germane to the case, and, needless to say, must be taken as a correct expression of the law therein contained. We hold that no error intervened because of the giving of said charge.

Charges Nos. 4 and 7 requested by the City, where refused by the court, and properly so. Each of said charges dealt with a factual situation which the evidence in this case did not present.

Charge No. 4 dealt with acceleration of flow in a natural watercourse, which was not the case here presented.

Charge No. 7 treated of a situation where plaintiff knew that its lot was subject to flooding, but built its plant thereon despite such knowledge.

There was no such evidence here presented.

Concerning the general charge of the court, the somewhat nebulous complaints of appellant thereto are not substantiated by a complete reading of the charge. While not as full and complete in some respects as might have been desired, yet it did correctly set out the law governing this case. We find no prejudicial error in the general charge as given.

The members of this court are unanimously of the opinion that substantial justice has been accomplished in this case.

The judgment is therefore affirmed. Exceptions noted. Order see journal.

DOYLE, PJ, HUNSICKER, J, concur.


author: By McCRYSTAL, J.

text:
    COUNCIL OF OAK HARBOR, Election of, In re.
    Common Pleas Court, Ottawa County.
    No. 13499.
    Decided December 30, 1953.
    Myron Rosenstreter, Pros. Atty., for the Board of Elections.
    True & Meyer, Port Clinton, for contestors.
    William Moon, Port Clinton, for contestees.
   OPINION

By McCRYSTAL, J.

This action arose by virtue of a petition filed by at least twenty-five qualified voters, residents of Oak Harbor. Ottawa County, Ohio, who voted in the election of November 3. 1953, for or against eight candidates for the City Council of the Village of Oak Harbor. The signers of the petition are referred to as the contestors and the eight candidates for the office of council are referred to as the contestees The petition filed by the contestors prays that the election of November, 1953, in the Village of Oak Harbor for the offices of council of the village be set aside and that another election regarding said offices be held according to law.

On the 30th day of November, 1953, the Contestees. upon oral motion, moved that the action be dismissed for want of jurisdiction in the Court of Common Pleas. The contestors' claim is based on the fact that §731.44 R. C. (§4237 GC) vests the city council with the exclusive jurisdiction to be the judge of the election and qualification of its members. Sec. 731.44 R. C. reads as follows:—

“The legislative authority of a municipal corporation shall be the judge of the election and qualification of its members # * * it

Sec. 4327 GC reads as follows:—

“Council shall be the judge of the election and qualification of its members * * *.”

In view of §1.24 R. C. declaring the legislative intent of the Revised Code, this court for the purposes of this opinion will interpret §731.44 R. C. as meaning that council shall be the judge of the election and qualifications of its members, rather than using the term “the legislative authority.” Whether or not the latter meaning enlarges or derogates from the word “council” need not be decided in this case.

The contestors meet the argument of the contestees by claiming that their petition is filed under the authority of §3515.08 R. C. (§4785-166 GC). The pertinent part of this section reads as follows:—

“* * * In the case of all other offices or issues, except judicial offices, such contest shall be heard and determined by a judge of the Court of Common Pleas of the county in which the contest arose.”

Upon reading §731.44 and §35Í5.08 R. C. there is an apparent conflict. In looking to the legislative history of each of these sections, we find that §731.44 R. C. was enacted prior to 1900. Sec. 3515.08 R. C. became effective in 1930. Prior to 1930, the election laws of Ohio on this subject read as follows:—

Sec. 5169 GC. “The election of any municipal officer, except a member of council, may be contested in the manner herein-before provided for contesting * 4 4.” (Emphasis ours.)

Prior to the change in the election laws in 1930, courts of ■ this state had held that by virtue of the section of the Municipal Code, making council the judge of election and qualification of its members, that this section was the exclusive remedy for the contesting of an election for the office of City Council. 28 O. Ju'r. 259.

Since the enactment of the revised election laws in 1930, this question has not been squarely presented to any court and the apparent conflict between the election code and the municipal code has not been decided.

It is the opinion of this court that §3515.08 R. C. vests the Court of Common Pleas with the jurisdiction to hear and determine questions involving the contests of elections of the offices of city council. The clear, unambiguous wording of that section wherein it states “in the case of all other offices,” indicates that it was the intent of the legislature that the Common Pleas Court have jurisdiction in this type of ease. Whether or not it was the intent of the legislature to deprive the village council of its right to judge the election and qualifications of its members is not clear and for the purpose of this proceeding, it is not necessary to decide that question.

This court looks with disfavor upon the practice of some courts in deciding more than the issue required and for that reason will not indulge in any opinion as to the validity of §731.44 R. C.

It is therefore, the opinion of this court that §3515.08 R. C. gives the Common Pleas Court jurisdiction to hear and determine the present case. This court does not pass on the question of whether the remedy set forth in §3515.08 R. C. is exclusive or concurrent with the village council by virtue of §731.44 R. C. The motion of the contestees is thereby denied.


text:
    COUNCIL OF OAK HARBOR, Election of, In re.
    Common Pleas Court, Ottawa County.
    No. 13499.
    Decided December 30, 1953.
   OPINION

By McCRYSTAL, J.

This case was submitted on an agreed statement of facts, which reads as follows:—

It is stipulated and agreed by and between the parties hereto:

1. That said Board of Elections originally furnished 200 ballots to each precinct and thereafter, on November 3, 1953, anticipating a possible shortage, ordered further ballots and at about 6:10 P. M. furnished an additional 100 ballots to each precinct and no more.

2. That ail polling places of said village are in the village hall which is located in Precinct No. 3; that no polling places were provided in precincts numbered 1 and 2 for said election and said Board of Elections took no action in regard thereto; and that Precinct No. 2 is adjacent to Precinct No. 3, but Precinct No. 1 is not adjacent to Precinct No. 3.

3. That the vote cast for Governor at the November 4, 1952 election was as alleged in the petition.

4. That said polls closed promptly at 6:30 P. M. on November 3, 1953, but that all persons then in line and waiting to vote, were permitted to vote.

5. That contestor Louis Brindley received 330 votes and the next higher candidate for council. Lewis Wistinghausen, received 374 votes.

6. That testimony of qualified electors of said village would show that not less than 46 electors of said village came to said polling places when no ballots were available and upon being advised that no ballots were then available left said polling-places and did not return, and

7. That no active fraud, done or permitted by any person or board, is alleged or claimed.

It is further stipulated and agreed that the foregoing stipulation shall be all of the evidence before said court, for decision in this-Case No. 13,499, and no other evidence shall be introduced.

Dated December 9, 1953.

The contestors pray the court to declare the election held on November 3, 1953, in the Village of Oak Harbor for the office of council void.

The basis for their claims are two admitted and undisputed violations of the election code of Ohio, viz, §3505.11 R. C. (§4785-111 GC); and §3501.19 and §3501.21 R. C. (§4785-22 and §4785-24 GC).

Sec. 3505.11 R. C. reads in part as follows:

“The ballots XXX shall be bound into tablets for each precinct which tablets shall contain at least ten per cent more ballots than there were votes cast for the office of Governor in such precinct at the last preceding general election. (Emphasis added.)

No statute could be written in a more clear and concise manner. The use of the words “shall” and “at least” remove all doubt as to the intent of the Legislature. This section sets up a mandatory minimum requirement. In the instant case there was not even substantial compliance. Whereas, at least 1512 ballots should have been in the precincts when the polls opened, only 600 were issued and later after the damage had been done only 300 more were provided. Why the provisions of this section were not complied with will not help us here, but some fundamental observations may help prevent a similar occurrence in the future.

In oral argument, counsel for the contestees stated that the Board of Elections was somewhat misled by a pamphlet or instruction book which attempts to guide and advise election officials. Whether or not such booklet would mislead election officials, it should be pointed out that §309.09 R. C. (§2917 GC) makes the prosecuting attorney the legal advisor of the Board of Elections and nothing in §3501.05 R. C. (§4785-7 GC) derogates from this power and duty of the prosecuting attorney. All questions as to the interpretation or construction of election laws should be presented to the prosecuting attorney, and it is his duty to give an opinion to the Board of Elections, or to secure an opinion from the attorney general.

It is all too common practice for public officials to ignore this mandatory function of the prosecuting attorney and attorney general, and to rely on unofficial pronouncement of administrative officers, having no duty or legal right to render legal opinions to public agencies. It is inconceivable that any prosecuting attorney or attorney general would have advised so flagrant a violation of the law as occurred in this case. No pamphlet, newspaper article or other publication of an administrative official is a substitute for a legal opinion of the attorney charged with the duty of giving legal advise to. the Board of Elections.

Since this statute creates a mandatory minimum requirement. what is the effect of a violation of its terms? It is the opinion of this court that said violation voids the election for the office of council. Much stress has been placed on the fact that a trend was established in the election at 5.00 P M. and that to set aside the election, the court must indulge the presumption that those voters refused a ballot, would have voted in such a way as to have changed the outcome. This court is of the opinion that in cases of this nature, courts should indulge in no presumption. The fact that one person was refused a ballot under the circumstances existing here, would be enough to put the election in doubt and to void that election. The knowledge that the ballots were exhausted, might keep many from even approaching the polls, and this court might with the same degree of relevancy indulge the further presumption that those who approached the polls during the period would be merely those who “didn’t get the word.” If courts decide contested election cases on such doubtful presumptions, it will have the effect of rendering our election laws directory only, and result in the eventual abolition of the traditional safe guards of voting. For a Board of Elections to fail to furnish the minimum ballots required by law, and subsequently have the ballots exhausted before closing time, would render the total vote in these precincts void irrespective of the number of people refused the right to vote. The election laws that pertain to the fundamental operation of voting, such as ballots and the make-up, should be rigidly enforced. Any relaxation of such enforcement will only invite fraud and corruption.

Contestors raise a second ground for voiding the election, viz, a violation of §3501.19 and §3501.31 R. C. (§4785-22 and §4785-24 GC).

Sec. 3501.19 R. C. provides in part as follows:—

“In order to provide for the convenience of the voters the Board of Elections may locate polling places for voting or registration outside the boundaries of precincts, providing that no polling place shall be located beyond the boundary of any of the next adjoining precincts.”

Sec. 3501.21 R. C. provides for the steps that must be taken in the event the Board of Elections decides to change or locate the polling place outside the boundaries of a precinct.

In this case it is admitted that neither section was complied with. Again these statutes are clear and unequivocal. Their meanings are obvious and their requirements are mandatory. These sections are of such a nature and pertain to such a vital and fundamental part of an election that the effect qf a violation cannot with reasonable certainty be measured by any court. The outcome of an election should not depend on the decision of any court as to whether there was a substantial compliance, or whether sufficient voters absented themselves so as to raise a doubt as to the outcome. These sections are mandatory; the subject matter essential and fundamental and it is the duty of the Board of Election to comply therewith.

To validate an election held in violation of the fundamental statutes governing (1) the providing of the ballot itself and (2) the place where the ballots shall be cast, because it appeared that the result would have been the same even in a strictly legal election, is to open the door to election officials to bold illegal elections and to gamble on the results thereof. If the result is favorable to the candidate or issue such officials desire to prevail, the election may be 'validated, but if the result is unfavorable to such candidate or issue, the result may easily be set aside by revealing the illegal procedures indulged in. No deviation from laws governing such fundamental prerequisites to a valid election can be permitted

While either of tbe grounds set forth in the contestors’ petition and amended petition would be sufficient to void this election, the presence of both grounds in the same election makes it clear that it is the duty of the Court to find as it now' declares that the election held on November 3, 1953, in the Village of Oak Harbor, for the office of council is void.


author: Per CURIAM.

text:
    STATE, ex rel. PERA, Relators-Appellees, v. MADSEN, As Mayor of the Village of Geneva-on-the-Lake, Ohio, Respondent-Appellant.
    Ohio Appeals, Seventh District, Ashtabula County.
    No. 498.
    Decided March 13, 1953.

      Howard M. Nazor, Ashtabula, for relators-appellees.
    Lyle F. Merritt, Geneva, for respondent-appellant.
   OPINION

Per CURIAM.

Respondent, the Mayor of the Village of Geneva-on-the Lake, Ohio, called respondent in this opinion, appealed to this court on questions of law from a judgment of the court of common pleas entered in relators’ action in mandamus filed therein ordering respondent to approve relators’ oral and written applications to construct, by forcing them under ground, two inch water lines under Golf Avenue and Golf Drive, situated in that village, and connecting them with the water system thereof for the purpose of serving properties owned by them with water.

Subsequent to the issuance of such order relators withdrew their applications to which reference has been made, because they were securing water from sources wholly unconnected with the proceedings we review, and the necessity for constructing the pipe line which forms the subject matter of this controversy exists no longer.

Upon withdrawal by relators of their application the issues involved therein have become moot since the trial judge issued such order in mandamus on March 30, 1951.

Relators’ proceeding and respondent’s appeal are dismissed at relators’ costs. See 2. O. Jur., Section 497, Page 889, where it is said:—

“The rule is well settled in Ohio that where, pending an appeal on questions of law, by a change of circumstances or otherwise, the questions which would be presented to the reviewing court have become purely academic or abstract, and any judgment which it might render thereon would in no way avail, or be beneficial to, any party, the proceeding will ordinarily be dismissed, because it is not the duty nor responsibility of the court to answer moot questions. So the proceeding will be dismissed if the order of judgment which the appellant seeks to reverse, not having been stayed, has been carried out or if the thing which he seeks to prevent or avoid has been accomplished, and the situation is such that reversal would be wholly ineffectual to re-establish the status quo or to afford

any relief or advantage to the appellant; or if the situation has so changed that the relief sought by the appellant has become unnecessary.”

See also Hagerman v. Dayton, 147 Oh St 313 at 326:—

“ ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence.’ ”

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


author: By MILLER, J.

text:
    OVERMAN, a minor, Plaintiff-Appellant, v. YAKE, Defendant-Appellee.
    Ohio Appeals, Second District, Clark County.
    No. 493.
    Decided November 24, 1952.

      Frank L. Nevius, Springfield, for plaintiff-appellant.
    Corry, Durfey, Martin & Browne, Anson E. Hull, of Counsel, Springfield, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court sustaining the appellee’s motion to dismiss the petition for the reason that the plaintiff failed to comply with the statutes relative to the revivor of actions.

The record reveals that the action was one for damages for injuries sustained by the plaintiff as the result of being struck by an automobile driven by the defendant. The petition was filed on May 3, 1944, by Emil R. Overman as next friend of the plaintiff, Ray Overman, a minor. After several amendments had been made to the petition the defendant filed his answer on April 19, 1946. The case lay dormant until June 21, 1951, when defendant filed his motion to dismiss for failure to revive.

The facts pertinent to the question presented disclose that Hiram Yake, the defendant herein, died on May 1, 1949; that on May 6, 1949, his will was admitted to probate, Emerson Yake being appointed executor of his estate; that the administration was completed and final account filed on November 14. 1949. and the same being approved the executor was on said date discharged.

It further appears that no notice was served upon the plaintiff notifying him of the Probate Court proceedings and that he had no knowledge of the same. Several months after the defendant had filed his motion to dismiss, the plaintiff filed a motion to revive the action against the defendant’s personal representatives. He also filed on the same date a supplemental petition for revivor of the action against the personal representatives. The Court sustained the motion to dismiss the petition without passing on the plaintiff’s motion and petition to revive, all of which the appellant urges was erroneous.

The first question to be considered will be the legality of the order sustaining the motion to dismiss the petition which, if properly made, would eliminate the questions of revivor, as there would be no action pending to revive. Under §11397 GC this action did not abate upon the death of the defendant. Sec. 11261 GC provides that,

«* * * upon the disability of a party, the court may allow the action to continue by or against his representative, or successor in interest; provided that no order shall be made for the continuation of an action for the recovery of money, pending at the death of the defendant, except upon motion, of which written notice shall be given to the executor or administrator within the time provided for the presentation of claims by creditors in §10509-112 GC. * * *”

It will be noted that this section permits the action to continue against the defendant’s representative or successor in interest. Sec. 11408 GC is also applicable to the case at bar making it mandatory that the action proceed against the personal representative and that the application to revive shall be made within the time provided for the presentation of claims by creditors as set forth in §10509-112 GC. Sec. 11408 GC reads as follows:

“Upon the death of a defendant in an action wherein the right, or any part of it, survives against his personal representative, the revivor shall be against him. An action for the recovery of money pending at the death of the defendant shall not be revived against the executor or administrator as provided in any of the sections in this subdivision of this chapter, unless written notice of the application or proceedings for such revivor shall be given to the executor or administrator within the time provided for the presentation of claims by creditors in §10509-112 GC. The revivor may also be against the heirs or devisees of the defendant or both, when the right of action, or any part of it, survives against them.”

It will be observed that this section provides for a definite procedure when an action for the recovery of money is pending at the date of the death of the decedent, which is clearly our case. The requirements of this statute were not met by this appellant as he failed to make application within the maximum time allowed by §10509-112 GC to revive the action.

The appellant next contends that the plaintiff being a minor was under a legal disability and was entitled to revive his action within one year after the disability was removed. Citing §10509-218 GC. The answer to this proposition, it seems, is found in §10509-134 GC which extends the time for filing-claims to nine months in certain cases. This statute provides:

“A claimant who has failed to present his claim to the executor or administrator within the time prescribed by law may file a petition in the probate court for authority to present his claim after the expiration of such time. * * * If upon hearing the court finds * * * (a) * * * (b) * * * (c) that the claimant was subject to any legal disability during such period or any part thereof, then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period; provided, however, that a claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to all parties, including devisees, legatees and distributees, and no payment shall be made nor any action maintained thereon, except as otherwise provided in this chapter with reference to contingent claims.”

This section, we think, is clear, definite and certain and subject to only one interpretation, to wit, that under the conditions enumerated in (a), (b) and (c), supra, the statutory period of time for the filing of a claim under §10509-112 GC may be extended to nine months and no longer. Any claim not presented within that time is forever barred and may not be revived under any of the otherwise pertinent revivor statutes.

The appellant also urges that his claim for damages is a contingent one and the limitation period for filing his claim or reviving the action is not fixed by §10509-112 GC and §10509-134 GC, but that under §10509-216 GC he may revive the action at any time before the expiration of two months after the cause of action accrued. We cannot agree, however, with the appellant as to the nature of the claim for the reason that §10509-112 GC expressly includes claims arising out of tort, which is precisely our case. In Pierce v. Johnston, 136 Oh St 95, the Court held that one who has a claim for damages arising out of tort is a creditor under the statute, the first paragraph of the syllabus of which provides:

“A person having an unliquidated claim for damages arising out of tort is a creditor within the meaning of §10509-112 GC, requiring presentation of claims by creditors to the executor or administrator within a specified time.”

The appellant is therefore not entitled to the benefits of §10509-216 GC.

It is our conclusion that since the appellant failed to comply with the statutory law with reference to the maintaining of actions he is now barred from reviving the action under any of the revivor statutes; that by virtue of §11412 GC the trial court properly sustained the motion to dismiss the action.

We find no error in the record and the judgment is affirmed.

HORNBECK, PJ, and WISEMAN, J, concur.


author: By HUNSICKER, J:

text:
    SURSO et, Plaintiffs-Appellants, v. LUCAK, Admr. et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County,
    No. 22686.
    Decided June 3, 1953.

      Feighan & Feighan, Cleveland, for plaintiffs-appellants.
    H. E. Zdara, Cleveland, for defendants-appellees.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

An action for a declaratory judgment was filed in the Probate Court of Cuyahoga County by some of the heirs of Mike Suvak, a. k. a. Michael Suvak, deceased, concerning certain assets of the estate of Mary Suvak, the deceased wife of Mike Suvak. This action sought to establish the right of such heirs to an interest in a certain bank account, by virtue of §10503-5 GC known as the half-and-half statute.

Mike Suvak died in 1945, and his wife, Mary, died some years later. There was no issue of this marriage. Mike Suvak. by will, gave his entire estate to his wife, Mary, and named her as executrix.

Among the assets of the estate of Mike Suvak was a bank savings account No. 580195, in the amount of $9,655.97. On March 6, 1945, Mary Suvak, executrix of the estate of Michael Suvak, by means of a withdrawal form provided by the bank, acknowledged the receipt from the bank of the sum of $9,655.97 from the account of her deceased husband. On this withdrawal form is noted a statement in writing, “Transferred to A56594.”

An account No. A56594 in the same bank was then opened on the same day — towit March 6, 1945 — in the name of Mary Suvak, executrix of the estate of Mike Suvak, and on that day Mary Suvak withdrew the sum of $1064.50 from this account No. A56594. No other withdrawals or additions, except interest accumulations, were made, and the account remained as indicated until after the death of Mary Suvak.

Mary Suvak died intestate, and her administrator, Michael Lucak, the appellee herein, took possession of the money. Thereafter some of the heirs of Mike Suvak filed their action, claiming that the bank account No. A56594, standing in the name of Mary Suvak, executrix of the estate of Mike Suvak, deceased, was, at the time of the death of Mary Suvak. the identical • property left to her by Mike Suvak at the time of his death.

The trial court determined that the funds deposited in the bank known as a savings account No. A56594, were not the identical personal property owned by Mike Suvak at the time of his death. From the judgment so entered, an appeal on questions of law is before this court.

The only assignment of error is:

“The trial court erred in holding that the bank account held by defendant’s decedent at the time of her death was not the identical property owned by her husband. Mike Suvak, at the time of his death.”

Sec. 10503-5 GC in part says:

“When a relict of a deceased husband or wife dies intestate and without issue, possessed of identical real estate or personal property” then the provisions of this statute shall take effect. (Emphasis ours.)

This section of the General Code, a part of the Chapter on “Descent and Distribution” is commonly referred to as the “half-and-half” statute. The general provisions of this part of the Code, similar to those now in effect, have been a part of the law of this State for many years. The purpose of the law is to provide a method for the succession to real and personal property which comes to a relict of a deceased husband or wife who dies intestate and without issue. The property, inheritance of which is thus provided for, must be the identical property which the relict received from the deceased spouse. In order that both sides of the relationship receive a portion of the estate to be distributed, an equal division is made thereof, and one-half goes to those entitled to receive who are related to the relict in the manner set out in the statute, and the other half is given to those entitled to receive who are related to the deceased husband or wife, as provided in the statute.

The word “identical” was made a part of the “half-and-half” statute in August, 1941, but our courts had construed the earlier language of the statute to mean the “identical” property.

Guear et al v. Stechschulte Admr. et al, 119 Oh St 1 at p. 6; Wilson v. Eccles, 119 Oh St 184 at p. 188.

A recent Ohio Supreme Court opinion declares the purpose of this statute (§10503-5 GC) to be “to preserve equity as between the next of kin of the two spouses in property which has passed from one spouse to the other by way of inheritance.” Barlow v. Winters Natl. Bank & Trust Co., 145 Oh St 270 at p. 280.

It would seem certain, too, that the equity to be administered is to be sufficiently exact for practical purposes, for the legislature did not intend to invite a struggle over the meaning of a word.

The Oxford English Dictionary defines “identical” as “1. the same; the very same * * “2. Agreeing entirely in material, constitution, properties, qualities, or meaning * * * ” No definition has been given in the Ohio cases, although fact situations have been reviewed setting out what is not identical property within the meaning of the section.

Speidel Admr. v. Schaller, 73 Oh Ap 141; Snyder Admr. v. Howe et al, 73 Oh Ap 518; Wilson v. Eccles, 119 Oh St 184; Knauss Admr. v. Knauss, 58 Oh Ap 183.

The financial institution in which the Suvak money was placed on deposit is shown, by the exhibits, to be “Society for Savings of Cleveland, Ohio.” The exact nature of this institution is not established by the bill of exceptions, and we are in no position to speculate as to its corporate structure and authority. It is referred to by counsel as a bank, although; its name may show it be to be a savings society operated under authority of §710-148 et seq., GC. The difference may be-appreciated when we examine the authorities with reference' to the relationship between a bank depositor and a savings society depositor.

“1. The relationship between a bank and a general depositor is that of debtor and creditor.” Speroff v. First-Central Trust Co., 149 Oh St 415.

“2. * * * the relation of savings societies, such as defendant, and depositor is that of agent and principal * * V’ Collett Treas. v. Springfield Savings Society, 13 O. C. C. 131 at p. 134; affirmed without opinion in 56 Oh St 776.

In any event, the contract relationship established by Mike Suvak with Society for Savings, and the contract relationship existing between Mary Suvak and such financial institution, were similar. Each had the right to have his or her deposit returned to him or her, or, as in the instant case, to his or her personal representative.

Mike Suvak, during his lifetime, by deposit of money in the financial institution, in effect entered into a contract with such institutions, whereby it agreed to accept and use his money, and, upon the happening of certain conditions, it agreed to repay to him a like amount of money and something additional for the use thereof. Whether this additional payment is interest or dividend is not entirely clear., for on one of the exhibits (the account card) both the word “interest” and the word “dividend” are used.

The contract which Mike Suvak had with Society for Savings was cancelled after his death, and a new contract with Mary Suvak was entered into. In this new contract. Society for Savings was no longer obligated to Mike Suvak or his estate, but to Mary Suvak. The property which Mike Suvak possessed at his death — the right to have his contract completed according to its terms — was no longer in existence. When Mary Suvak died, she was in possession of a new and different obligation.

At the time the new obligation was entered into between the financial institution and Mary Suvak, the “identical” property left by her husband ceased, to exist, and a new property came into being.

A case analogous to the instant action is Speidel Admr. v. Schaller, 73 Oh Ap 141, wherein the court said:

“6. Where, during her lifetime, a widow transferred the title to bonds, received from her deceased husband, to the treasurer of the political subdivision issuing them, agreeing to accept refunding bonds therefor, such refunding bonds having been delivered after her death to the administrator of her estate, pass to her next of kin. under provisions of §10503-4 'GC, the contract right to the refunding bonds not being the ‘identical’ property coming from the deceased husbands within the meaning of §10503-5 GC.”

The court in that case dlso said at page 150:

“Unless the same property has continued to be owned by the intestate and forms an asset of his or her estate, the statute has no application. The doctrine of tracing property into a transmuted form familiar in the law of trusts, has no relevancy to this inquiry.”

Although we do not find any case directly in point on the question before us, yet other cases of interest on this subject are Kolthoff Admrx. v. Kolthoff et al, 79 Oh Ap 427, decided by this court in an opinion written by Judge Stevens and Smith Admr. v. Unterburger, et al, 86 Oh Ap 237.

We determine, therefore, that the Society for Savings Account No. A56594, in the name of Mary Suvak. executrix of the estate of Mike Suvak, at the time of her death was not the identical property which she (Mary Suvak) received from the estate of her deceased husband, Mike Suvak.

The judgment is affirmed.

DOYLE, PJ, STEVENS, J, concur.


author: By MILLER, J.: By THE COURT:

text:
    WEIKERT, Plaintiff-Appellee, v. WEIKERT, Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 133.
    Decided March 27, 1954.
    Gibbs & Gibbs, Donald M. Gibbs, of Counsel, Urbana, for plaintiff-appellee.
    Harvey Crow, Urbana, for defendant-appellant.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Common Pleas Court decreeing a divorce to the plaintiff-appellee, disposing of the marital property and denying the appellant’s request for permanent alimony.

The petition set forth a cause of action for divorce on the sole ground of gross neglect of duty, the same being filed on June 11, 1952. On June 30, 1952, an answer and cross-petition was filed by English & English, Attorneys. On August 5, 1952, an application was made by Aaron J. Halloran for leave to file an amended answer and cross-petition, which was duly allowed. On August 5, 1952, an amended answer and cross-petition was filed in which the appellant denied that she had been guilty of gross neglect of duty as charged, and the cross-petition charged the appellee with extreme cruelty, prayed for a division of property and also temporary and permanent alimony.

On December 5, 1952, the appellee filed a reply to the cross-petition denying the allegations charging him with extreme cruelty. Then on December 18, 1952, Harvey Crow, the third set of counsel, appeared for the appellant in the case, filed a motion to make the petition definite and certain by stating facts which constituted the gross neglect of duty charged in the petition. This motion was overruled, which-appellant urges was erroneous. Clearly the motion was well taken had it been seasonably filed, but it was not filed within the required time; hence, leave to file was necessary and the ruling upon the same rested within the discretion of the court. See Bates Pleading, 4th Ed. Sec. 408, 409 b, and 414. The Court properly exercised its discretion and committed no prejudicial error in so doing.

The next alleged errors for consideration relate to the sufficiency of the evidence and to the court’s refusal to state in writing its conclusions of law in accordance with §11421-2 GC. Since there was a conflict in the testimony on many of the charges made against the appellant, we must have the court’s conclusion of fact, if the appellant is entitled to the same, before we can determine whether or not the judgment is in accordance with law. Some of the acts complained of may not come under the classification of gross neglect of duty and if not should not be considered.

In considering the appellant’s rights to have the court’s conclusions of law and fact it becomes necessary to inquire into the time the application was made. If it was seasonably filed, failure to give the same constituted reversible error. Now the record discloses that on July 25,1953, at approximately 11:00 A. M. counsel for the appellee presented to counsel for appellant an entry journalizing the court’s decision; that counsel for appellant refused -to approve the same and soon thereafter it was filed with the Clerk without the knowledge of opposing counsel. At 1:35 P. M. of the same day the appellant filed her application for conclusions of law and fact, which was denied.

Affidavits were filed by each of counsel from which we determine that each knew several weeks prior to the date of filing that the court verbally announced it would grant a divorce to the appellee and suggesting that the parties attempt to arrive at an agreement as to property rights. An attempt was made to do so but resulted in failure; hence, counsel for the appellee prepared the entry and filed the same as aforesaid.

The record discloses that counsel for the appellant had no prior knowledge as to the manner in which the property was to be distributed.

It is urged that the entry was prematurely filed as the rule of court provides that opposing counsel shall approve or reject the same within three days after its submission to them, It therefore appears that the entry was prematurely filed; that the appellant should have the full three day period in which to file her application for conclusions of law and fact under §11421-2 GC.

In the case of Levick v. Bonnell, 137 Oh St 453, the Court held that such an application was timely filed when it was filed the day following that of the judgment entry when it was filed without being submitted to opposing counsel. In Fisk v. Glechoff, 61 Abs 597, paragraph 3 of the syllabus provides:

“Where the judgment of the Municipal Court of Cleveland was entered in the absence of the parties and upon notice of the entry of such judgment the plaintiff, on the day following the court’s notice of entry of judgment, filed a request for separate findings of fact and conclusions of law, such request, even though made after judgment, is timely and should be granted.”

In Bauer v. Cleveland Railway Co., 141 Oh St 197, our Supreme Court held that §11421-2 GC confers a substantial right, is mandatory and refusal in a proper case to comply with the same is reversible error unless it appears from the record that the party making the request is not prejudiced by the refusal. We think from the evidence in this case that the requested conclusions were proper and the court’s failure to make such finding constituted prejudicial error.

We do not pass upon the other assigned errors at this time for the reason that, until the facts are determined, we can not tell whether or not those are prejudicial which are found to be well made. The application for temporary alimony will also be passed until the Court’s conclusions are properly filed.

Decided April 19, 1954.

We have reached the conclusion that it is not necessary to re-try this case, but that it is only necessary to reverse and remand the same with instructions to the trial court to make findings of fact and conclusions of law and to vacate the judgment and re-enter the same as of the date of the filing of such findings of facts and conclusions of law, thus reserving to the parties their respective rights of appeal after such findings have been made. An entry may be made accordingly.

WISEMAN, PJ, HORNBECK, J, concur.

ON APPLICATION FOR REHEARING

No. 133.

OPINION

By THE COURT:

This is an application for a rehearing for the reason that the Court was in error in stating that counsel for appellee drew the entry; that the same was drawn by the Court and filed with knowledge of the appellant. These facts do not change the law applicable tp the issues involved. The application will be denied.

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