author: By KOVACHY, J:

text:
    PFISTER, Plaintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22638.
    Decided February 9, 1953.

      Sindell & Sindell, Cleveland, for plaintiff-appellant.
    R. F. Mooney, Richard Green, Cleveland, for defendant-appellee.
   OPINION

By KOVACHY, J:

This is an appeal on law from a verdict of a jury and a judgment in the Common Pleas Court of Cuyahoga County for $6000.00 for personal injuries sustained by plaintiff below, while a passenger on a street car operated by defendant below. Defendant admitted liability during the trial of the cause and the case was submitted to the jury on the question of damages.

Plaintiff-appellant complains that the amount allowed was grossly inadequate and makes these assignments of error:

I. Trial court erred in failing to grant new trial for gross misconduct of defense counsel in final argument.

II. Trial court erred in giving defendant’s special charge number one.

III. Trial court erred in failing to exclude Defendant’s Exhibit H and testimony referring thereto.

IV. The verdict was grossly inadequate and against the manifest weight of the evidence.

We give consideration to these matters in the order presented.

I. Plaintiff claims that a new trial should have been granted in the court below on the ground of gross misconduct of defense counsel for saying in argument:

“This is George Pfister’s only time in court; this is the only time that he can be awarded damages and any verdict you award him will be tax free.” (Emphasis added.)

We find from the review of the record that no objection was made by the plaintiff at the time this statement was made in argument by defense counsel and that the matter was first raised during a motion for new trial to the trial court.

Under the Internal Revenue Code compensation for injuries received is tax exempt. The Internal Revenue Code, Section 2 (b) (5) in providing for exemptions, says:

“COMPENSATION FOR INJURIES OR SICKNESS:
“Except in the case of amounts attributable to (and not in excess of) deductions allowed under section 23 (x) in any prior year, amounts received, through accident or health insurance or under workmen’s comqensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received whether by suit or agreement on account of such injuries or sickness, and amounts received as a pension, annuity or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country.”

Technically, it would seem that compensation for loss of wages should be taxable, but where a verdict is general, there is no way of determining the amount apportionable to wages, so that the entire verdict in practice becomes tax free. Perhaps for absolute exactitude and justice, the jury should be so told and instructed to make an allowance in its general verdict for such item, but the formula for determining such tax element is so complicated that an instruction with respect to it would be most confusing to the jury and at best most difficult of ascertainment. As a practical solution, therefore, the tax factor is ignored by the trial court in charging the jury. See 9 A. L, R. 2d, 318 to 321.

We are of the opinion that since the trial court says nothing and the record is silent about tax requirements in determining-damages in a personal injury suit, reference to the verdict being tax free,in final argument to the jury, even though true, is highly improper. Moreover, the payment of income tax holds no mystery to the average juror for it has universal application today. We, therefore, are of the belief that an objection by the plaintiff at the time of the occurence with a request of the court to instruct the jury to disregard the improper remark could have cured any harm done and that failure to so do was equivalent to a waiver of the incident. We find a situation comparable to the one at bar in Walsh v. Thomas’ Sons, 91 Oh St 210. At page 217 Judge Jones had the following to say:

“The argument of counsel in this connection was wholly improper and beyond the field of legitimate argument * 4 *. An examination of the record, however, will disclose that opposing counsel did not make any objection at that time. At the close of the entire argument a general objection was made. In view of the fact that the court’s attention was not directed at the time to the improper remarks, so that the court might take proper action thereon, this question is not available to plaintiff in error.”

Wilson v. Wesler, Admrx. etc., 27 Oh Ap 386. Paragraph 1 of syllabus:

“Alleged misconduct of counsel in argument to jury cannot be complained of, where no objection was interposed at the time, nor was court requested to caution or instruct jury, and no exception was taken to any part of argument.”

See also: Scott v. State of Ohio, 107 Oh St 474; Bartlebaugh v. Penna. R. R. Co., 78 N. E. 2d 410; Zielinsky v. Cleveland Ry. Co., 6 Abs 636; Hermman v. Levy et al., 9 Oh Ap 269.

II. Plaintiff claims error in the giving of defendant’s special charge No. 1, before argument, which included the statement:

“You must not be persuaded or influenced by bias, prejudice, or argument of counsel, but must apply your judgment to the facts and the evidence in the case” (Emphasis added.)

urging that the language used instructed the jury that final argument has absolutely no meaning in the trial of a civil case. If such were the effect of this statement, we should not hesitate to declare it prejudicial error and cause for reversal of the judgment in the court below. However, this language was preceded by the following:

“The question of damages is a matter to which you should apply your sound judgment and discretion, taking into consideration all the evidence, the facts and all the circumstances disclosed by the evidence. It is important that this defendant be not required to pay one cent more than full and just compensation, and it is equally important that the plaintiff be paid every cent which the evidence shows he should receive as fair and just compensation.”

It is our view that the statement objected to is corelated to the language immediately preceding it, and its intimate meaning gathered from a consideration of the entire statement made. The statement as a whole thus interpreted is to the effect that the jury, on the question of damages apply its sound judgment and discretion and be guided by all the evidence, all the facts and all the circumstances disclosed by the evidence and not be persuaded or influenced by bias, prejudice or argument of counsel to require the defendant to pay one cent more or to give the plaintiff one cent more than fair and just compensation, applying their judgment to the facts and evidence in the case. It thus seems clear to us that the jury is in no way urged to disregard the arguments of counsel but is admonished not to permit themselves to be swayed away from and beyond the facts and evidence in the case bearing on the question of damages and thereby moved to give more or less than what is fair and just compensation.

We accordingly find no prejudicial error in this assignment. See Morgan Engineering Co. v. Bowser, 32 Abs 322 at page 327.

III. Plaintiff claims that error was committed in permitting an incompetent document, “Exhibit H” to be introduced with testimony referring thereto.

We find the following proceedings on page 362 of the record:

“Mr. Lombardo: I would like to offer defendant’s Exhibit H.
“Mr. Sindell: I object on the ground it is too general, Your Honor, please.
“The Court: Let me ask, have you covered all the categories in here?”
Then follow eleven pages of testimony, much of it concerning the contents of this exhibit, and on page 374 the following occurs:
“Mr. Lombardo: I will re-offer Exhibit H again.
“The Court: It will be received for what it is worth, under all the explanations that have been made about it.”

It would seem from the above that Exhibit H was received in evidence without objection by plaintiff and for that reason no error can be claimed therefrom.

The record presents another reason why plaintiff cannot claim prejudicial error in the admission of this exhibit. He permitted the reading of the document to the jury without objection before its introduction as an exhibit.

In Sandusky Packing Co. v. Huffman, 129 Oh St 300, the syllabus reads as follows:

“A judgment will not be reversed for error in the admission of an incompetent document, over objection and exception, where the record discloses that parol evidence as to the incompetent contents of the document was received without objection and exception.”

For the reasons stated we hold no reversible error in this matter.

IV. Plaintiff says that the verdict was grossly inadequate and manifestly against the weight of the evidence. The law on this proposition is well stated in the syllabus of a case decided by our Supreme Court Toledo Railway & Light Co. v. Mason, 81 Oh St 463:

“1. In an action to recover damages for personal injuries, a new trial may be granted on the ground of inadequacy of the damages found by the jury, when it appears upon the facts proved that the jury must have omitted to take into consideration some of the elements of damages properly involved in the plaintiff’s claim.
“2. On error in the circuit court to the overruling of a motion for a new trial, on the ground of the inadequacy of the damages found by the jury in an action for personal injuries, the circuit court may reverse the judgment of the court of common pleas and grant a new trial on the ground that the verdict is not sustained by sufficient evidence.”

It is based upon a consideration of paragraph 6 of §11576 GC (formerly §5305 GC):

“A former verdict, report or decision shall be vacated and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantial rights.
* * *
“6. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law.”

The plaintiff was injured on March 13, 1950, while riding in a street car trailer of a train of two cars operated by the defendant. He was thrown to the floor as a split rail derailed the trailer and was knocked unconscious for from two to five minutes. Taken to Glenville Hospital he complained of “severe headache and feeling of nausea, also blurred vision and photophobia.” The hospital reported:

“Head contusion of right temporal region. No depression of skull. Final diagnosis: Cerebral concussion.”

Plaintiff went home after two full days in the hospital and remained there until March 22, 1950, when he returned to his regular work as a maintenance electrician at Reliance Electric & Engineering Company until May 14, 1950, when he laid off work until July. From July 17, 1950, on he worked continuously at his job with short interruptions including a stay at Cleveland Clinic Hospital for five days, until the day of the trial. His attending physician at Glenville Hospital gave his employer a letter stating he could return to work after one week. He sought the help of Cleveland Clinic on May 23rd, 24th and June 30, 1951, complaining of “(1) Headaches, (2) impaired hearing and earache, right ear; (3) occasional roaring and sounds like he is in a barrel; (4) poor balance most of time; (5) vertigo at times; (6) blurred vision; (7) pain in the cervical spine; (8) stiff, painful neck and shoulders.” The findings of the Clinic were:

“1. Marked loss of hearing ón right side, slight on left; (2) Nystagmous movement of the eyes; (3) The tendon reflexes in the lower extremities, slightly more action than normal; (4) Swaying and unsteadiness when standing with eyes closed (Rhomberg test); (5) Psychiatric examination normal; (61 Mild Periarthritis of cervical spine (findings are meagre); (7) Electro-encephalogram, normal; (8) X-rays of skull, negative.” The final diagnosis made July, 1950, was:
“Labrinthine vertigo, post concussional syndrome, periarthritis of the cervical spine, perception deafness in the right side.”

Dr. Zucker, Neurologist, permitted plaintiff to return to work in July, 1950

The defendant presented no testimony to contravert these complaints and findings, other than a doctor who gave plaintiff a routine examination at his home a few days after the accident and before the symptoms above described had fully developed. It seems most probable to us that the jury found these complaints in the main to be valid and gave due consideration to them in arriving at their verdict.

The chief divergence between the plaintiff and the defendant, with respect to the injuries suffered by plaintiff, comes into play from the standpoint of the permanency of his injuries, particularly the perceptive deafness of the right ear and the vestibular vertigo due to injury to the eighth nerve. Plaintiff’s experts were of the opinion that these deficiencies were of a permanent nature because they had not cleared up in the two-year period during which plaintiff was treated. They also said that the only alleviation so far as the vestibular vertigo was concerned was an operation sectioning the vestibular portion of the eighth nerve. Defendant in opposition to the claim of permanency presented an Otolarynologist who examined the plaintiff on April 5, 1951, and testified that according to his tests plaintiff at that time “had a moderate hearing loss of under or to 25% in each ear,” and that his tests “of the labyrinthine or balance part of the ear” disclosed normal reactions as to each ear and that all tests made by him were objective findings.

The $6000.00 allowed by the jury in this case, in our opinion, is adequate compensation to the plaintiff for his injuries, loss of earnings (about three months) and $700.00 medical expenses provided the deafness of his right ear (his doctor claimed total) and the vestibular vertigo are not permanent in nature. The jury obviously determined such injuries not to be permanent.

After a careful study of all the testimony and the exhibits in the record, on the question of injuries suffered by the plaintiff directly flowing from this accident, we come to the clear conclusion that there was sufficient evidence presented at the trial of this cause to warrant the jury in finding that the total deafness of the right ear and the damage to the eighth nerve producing the vestibular vertigo was not permanent in nature.

Nystagmus movement of the eyes, the Rhomberg and the Coloric tests, are objective tests of the labyrinthine or balance part of the ear. Nystagmus movement of the eyeballs was present and the Rhomberg test was positive in the first visits of the plaintiff to the Cleveland Clinic confirming the subjective complaints of the plaintiff as to poor balance and vertigo. However, at the visits to the Clinic on October 17, 1950, March 15, 1951, April 19, 1951 and February 22, 1952, these two tests were negative, despite the fact that the complaints of the plaintiff continued the same. His eyes, examined on February 22, 1952, were reported normal in reaction to light and accommodation with pupils equal. The hearing was tested by an Audiometer in which the plaintiff was required to respond to tones electrically transmitted to his ear. This test is subjective and depends for accuracy upon the will and desire of the subject. Defendant’s expert tested the hearing with tuning forks used in such a way that the patient, in response to the tones produced by them, was unable at the time to tell whether the sound .was heard by his right ear or left ear, thereby permitting the doctor to give absolute verity to the response given. This expert also reported the Nystagmus movement of the eyes and the Coloric tests negative.

It is fundamental that the jury determines the weight to be given the opinions of expert witnesses and can believe one or the other of two conflicting conclusions, depending upon which one, in their judgment, is the better sustained by the facts on which based and the reasons advanced. Clark v. State of Ohio, 12 Ohio 483.

We are consequently constrained to hold that the verdict was not grossly inadequate nor manifestly against the weight of the evidence.

Columbus Railway Light & Power Co. v. Pickles, 28 Oh Ap 183, paragraph 3 of syllabus:

“To what extent injuries sustained by plaintiff, when street car ran into rear of the automobile, were permanent, held question for jury.”

Stremmel v. Lynch, 17 Abs 197, parag. 2 of syllabus:

“It is the obligation of a reviewing court to support the judgment of a trial court if it can be done; to reverse a judgment on the weight of the evidence, the verdict must be so contrary to the probative effect of the evidence as to shock the conscience.”

We accordingly find no prejudicial error' in this case and affirm the judgment rendered. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    HECK, Plaintiff-Appellant, v. FAULKNER, Exr., Defendant-Appellee.
    Ohio Appeals, Second District, Champaign County.
    No. 126.
    Decided October 27, 1951.
    Harvey Crow, Urbana, Leo Duroker, St. Paris, for plaintiff-appellant.
    Richard P. Faulkner, Urbana, Shipman & Shipman, Troy, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to dismiss the appeal for failure of plaintiff-appellant to file briefs within the time provided by Rule 7 of the Court of Appeals.

The rule provides that upon failure of appellant to file his assignments of error, his briefs or bill of exceptions within the time provided, namely; 50 days after the filing of the notice of appeal, in law appeals, unless good cause be shown to the contrary, the case will be dismissed for want of prosecution or otherwise disposed of at the discretion of the Court.

The notice of appeal was filed on the 12th of June, 1951. The briefs of plaintiff-appellant were filed on September 18, 1951, some 96 days after the filing of the notice of appeal and more than 40 days after the time had elapsed within which they should have been filed under the rule.

An affidavit is filed by Mr. Crow of counsel for plaintiff wherein there is set up facts which are intended to establish that there was good cause for the failure to file the briefs. We cannot so determine. The rule is promulgated by the Court of Appeals of Ohio and this Court has enforced the rule almost without exception. Appellant was represented by two counsel and it is not sufficient to say that because one of them did not fully realize the import of the rule it should not be enforced. It is the obligation of the counsel to be informed on matters of procedure affecting a case in which they are employed. There was ample time before affiant went to Cleveland to have filed the briefs. As a matter of fact, they were due before the first of August. The proper procedure for counsel to observe if it is found that they will not be able to file their briefs within the time prescribed by the rule is to take an extender of leave which should always be done before the time has elapsed within which the briefs should be filed.

Many of our cases are reported wherein we have supported the enforcement of the rule which counsel can find if they care to examine them. Suffice to say, we recognize that a strict enforcement of the rule at times works hardship but over all the effect of such enforcement accomplishes prompt disposition of cases and the better administration of justice.

The order will be that the judgment be affirmed, inasmuch as the appeal has been perfected, for failure to observe Rule 7 in the filing of the briefs of appellant.

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


author: By BARTLETT, J.

text:
    WORLEY, Plaintiff, v. DICKERSON et, Defendants.
    Common Pleas Court, Franklin County.
    No. 180627.
    Decided April 1, 1953.
    Ray E. Hughes, Columbus, for plaintiff.
    C. M. Addison, Columbus, for defendants.
   OPINION

By BARTLETT, J.

1. THE MOTION OP PLAINTIFF TO STRIKE FROM THE FILES AND DISMISS THE ANSWER HEREIN IS OVERRULED.

2. THE MOTION OF THE DEFENDANTS, FILED AUGUST 7, 1950, TO VACATE THE COGNOVIT JUDGMENT ENTERED HEREIN, JULY 17, 1950, HAS BEEN RECONSIDERED: THE COURT HEREBY CONFIRMS THE COURT’S ORDER THEREON, CONTAINED IN THE ENTRY FILED AUGUST 8, 1950, AS MODIFIED BY ITS CORRECTED ENTRY (FEBRUARY 4, 1953), FILED AS OF AUGUST 12, 1950; AND THE COURT FURTHER FINDS THAT THE ANSWER TENDERED AUGUST 7, 1950, AND FILED BY LEAVE OF THE COURT HAS NOT AND SHOULD NOT BE SET ASIDE, AS IT SETS UP WHAT IN LAW IF ESTABLISHED WOULD BE A DEFENSE: IT IS, THEREFORE, ORDERED THAT SAID ANSWER BE DEEMED FILED AS OF AUGUST 8, 1950.

3. PLAINTIFF IS GRANTED LEAVE TO FILE HIS REPLY WITHIN RULE DAY: AND THE JUDGMENT DATED JULY 17, 1950, SHALL REMAIN SUSPENDED UNTIL THIS CAUSE SHALL BE TRIED ON ITS MERITS.

This matter is before the Court on plaintiff’s motion to strike from the files and dismiss the answer of the defendants filed August 7, 1950; and the motion of the defendants filed August 7, 1950, to vacate the cognovit judgment entered July 17, 1950, is, also, before the Court, by virtue of the Court’s order as of August 12, 1950, reserving the consideration of said motion on further hearing, after having modified its order of August 8, 1950, that said judgment (of July 17, 1950) be suspended until further order and that the execution thereon be re-instated and held in suspension until further order of the Court. The entry of modification under date of August 12,1950, makes no reference to the defendants’ answer tendered August 7,1950, but the Court’s entry of August 8,1950, expressly ordered the tendered answer to be filed.

The Court having found on August 8, 1950, that the motion to vacate the judgment was well taken, and the answer tendered stated facts which if established would constitute a proper defense, the Court should have ordered “the judgment suspended until the cause should be tried on its merits.” Meyer, et al. v. Meyer, 25 Oh Ap 249.

“It is only necessary to support an asserted ground for vacation of a judgment by a prima faccie showing of a defense, * * *.” Mosher et al. v. Goss, 42 Abs 404 (2nd District Court of Appeals).

The successive steps to vacate a judgment, after term, as in the foregoing cases, under §11631 to §11637 GC, inclusive, are outlined First National Bank, etc. v. Mullen, et al. 7 N. P. (N. S.) 313.

The procedure laid down in §11631 to §11637 GC relates to the vacation and modification of judgments by the Court, after the term at which they were made, and does not limit a court of general jurisdiction in the exercise of the control over its judgments during the term, which control may be exercised within the sphere of sound discretion, as an inherent right founded upon common law. First Nat’l. Bank etc. v. Smith, 102 Oh St 120; Daugherty v. Wilson and Son (2nd Dist. Court of Appeals), 14 Abs 655; Canal Winchester Bank v. Exline, et al., 61 Oh Ap 253; and Metzger v. Zeissler et al. 13 N. P. (N. S.) 49.

In the case of Trustees v. McClannahan, et al., 53 Oh St 403, Williams, J., in his opinion observes:

“The hearing upon the motion is not the mode provided by law for the trial of the issues joined in the action, and neither party can be deprived of the lawful mode of trial by the decision on the motion, whatever it may be. * *• * A hearing upon the motion was not designed to take the place of a trial. It may be had upon affidavits taken without opportunity for cross-examination, and is not in any proper sense a trial.”

The original cognovit judgment was taken upon a petition verified on belief by his attorney and not the plaintiff. The answer was tendered August 7, 1950, duly sworn to by both defendants. The records fail to disclose any denial of the allegations contained in the answer, during the two and one-half years the answer has been pending. There is some showing that counsel for plaintiff, at one time, claimed the issues raised by the answer were res judicata.

“A former recovery relied upon as an estoppel should be pleaded; * * *.” Meiss v. Gill, 44 Oh St 253; Petersine v. Thomas, 28 Oh St 596; and Werner v. City of Cincinnati, 3 C. C. (N. S.) 276, affirmed April 5, 1904 by Supreme Court, without opinion.

An “oral hearing” was requested, if that meant to offer oral testimony on the motions, it would seem to be impropei under the observations of Williams, J., in case of Trustees v. McClannahan, et al., supra, and R XV of this Court provides oral testimony will not be received except by permission of the Court. The Court feels this is not the time for oral testimony. If oral argument was all that counsel anticipated, better than thirty days have elapsed without fixing a time for game.

In any event the Court, after a careful review of the record, is convinced that a limited oral argument on these motions, would not serve a useful purpose.

It is, therefore, ordered that plaintiff’s motion to strike from the flies and dismiss the answer, be overruled.

On reconsideration of the defendants’ motion, filed August 7, 1950, to vacate the cognovit judgment entered July 17, 1950, the Court hereby confirms its order, based upon said motion, as contained in the entry filed August 8, 1950, as modified by its corrected entry filed as of August 12, 1950, the Court further finds that the answer tendered August 7, 1950, and ordered filed by the Court, August 8, 1950, has not and should not be set aside, as it sets up facts which if established, would be a proper defense. It is, therefore, ordered that the answer be deemed filed as of August 8, 1950.

Plaintiff is granted leave to file his reply within rule day; and it is further ordered that the judgment entered July 17, 1950, shall remain suspended until this cause shall be tried on its merits. Entry to be prepared accordingly with exceptions by counsel.


author: By THE COURT. By THE COURT.

text:
    GRAVES & SON, Inc., Plaintiff-Appellee, v. COOPER & SON MOTOR SALES, Inc. et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4603.
    Decided July 11, 1951.
    Owen B. Sherwood, Columbus, for plaintiff-appellee.
    George E. Tyack, Irving M. Gertner, Columbus, for defendants-appellants.

      Decided August 27, 1951.
   OPINION

By THE COURT.

The' question presented by this appeal is whether or not an unsatisfied chattel mortgage on an automobile, properly executed and recorded in South Carolina, is a valid lien on an automobile in Ohio when it is in the possession of a purchaser for value and in good faith in reliance upon an Ohio certificate of title showing the same to be free and clear but which certificate was acquired by fraud practiced by the mortgagor upon the Clerk of Courts who issued the certificate.

The judgment here was entered on March 1, 1951, at which time there was a conflict on this question in several reported opinions of Ohio Courts of Appeals. This conflict was passed upon on June 13, 1951, by our Supreme Court in the case of Kelley Kar Co. v. Finkler, 155 Oh St 541, wherein it was held that under the provisions of §6290-4 GC, an Ohio Court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle sold or disposed of or mortgaged or encumbered in Ohio after the effective date of that section of the Code unless such right, title, claim or interest is evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the provisions of the Certificate of Title Act.

Since the trial court held the mortgage to be a valid lien contra to the decided case, the judgment will be reversed and cause remanded.

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

ON APPLICATION FOR REHEARING

No. 4603.

OPINION

By THE COURT.

The application for rehearing will be denied.

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


author: By TOBIN, J.

text:
    TENNESSEE GAS TRANSMISSION CO., a Delaware Corporation, Plaintiff, v. CLEVELAND TRUST CO. et, Defendants. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. WARD et, Defendant. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. EDGERTON et, Defendant. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. ZELLERS et, Defendants. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. SCHWAB, Defendant. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. EATON et, FIRESTONE TIRE & RUBBER CO., New Deft., Defendants. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v COPE et, Defendants. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. DELL et, Defendants.
    Probate Court, Columbiana County.
    Nos. 49019, 49020, 49021, 49022, 49023, 49024, 49047, 49048.
    Decided February 6, 1953.

      Harrington, Huxley & Smith (By Robert A. Manchester), Youngstown, Moore & Moore (By W. B. Moore Jr.), Lisbon, for plaintiff.
    Baker, Hostetler & Patterson (By Spencer W. Reeder), Cleveland, Vodrey, Vodrey, Buzzard & Shay (By Raymond S. Buzzard), East Liverpool, for defendants The Cleveland Trust Co., The Cleveland Trust Co. as Trustee and The Firestone Tire & Rubber Company.
    Frank W. Springer, East Palestine, for defendant S. E. Ward et ux and for defendant Wm. N. Cope et ux.
    Fitch & Kendall, Salem, for defendant Jos. B. Edgerton et ux; Lois H. & Chas. H. Zellers; Herman Schwab and James F. Dell et ux.
    Vodrey, Vodrey, Buzzard & Shay (By Raymond S. Buzzard), East Liverpool, for defendants Wilmer J. Eaton et ux and The Firestone Tire & Rubber Company in Case No. 49024.
   OPINION

By TOBIN, J.

The parties throughout, will be designated Plaintiff for the Tennessee Gas Company and Defendant for the Cleveland Trust Company and Firestone Tire & Rubber Company, et al.

Plaintiff filed, on November 20, 1952, Petitions regular in form, stating it is a Delaware corporation; that it is qualified to do business as a foreign corporation in the state of Ohio; that its charter permits the construction, ownership and operation of pipe lines to transport and distribute natural gas in interstate commerce from Texas through the state of Ohio and Pennsylvania and for ultimate use by residents of these states; that it has a Certificate of Public Convenience issued by the Federal Power Commission authorizing further constrnotion of pipe lines; that pursuant to said order it is securing easements to so construct pipe lines through Defendants’ property, and that same is necessary. The property desired to be taken is described in detail, together with a map showing what is desired to be taken; the purpose is specifically described.

Plaintiff further states it has negotiated with the Defendants and has been unable to agree as to compensation. The use the land is to be subjected to is specifically stated. The prayer asks for proper steps to appropriate same and to acquire easements.

To this Petition, Defendant filed Motions to dismiss, claiming lack of jurisdiction over the subject matter by this Court and stating the Petition does not show sufficient facts to give this Court jurisdiction over the subject matter, and affirmatively states facts that exclude jurisdiction of this Court over the subject matter.

All parties filed Briefs and Defendants filed a Reply Brief.

All parties agree, that there is not before this Court, for its determination, the question either of the constitutionality of the Natural Gas Act; the power of the Federal Government to delegate the right of eminent domain, to this or any other corporation; nor the right generally, of this or any similar corporation acting under Federal granted powers, to appropriate land in Ohio. These will be assumed for the purpose of this Motion. Thus the question before this Court has been narrowed down to a single issue: — Whether this corporation may maintain this action to appropriate and condemn Ohio land in this particular Court. The Plaintiff’s contention is that if this is a Court that may properly hear appropriation cases generally (and it is) then this Petition must be entertained at this time since this Court has jurisdiction of the subject matter as subject matter is defined by said Plaintiff. Defendants state that jurisdiction of the subject matter means, in Ohio, the right to appropriate, for public use and/or as a common carrier.

The test of jurisdiction is described as,

“Whether or not the tribunal has power to enter upon the inquiry — better expressed as follows:
“Jurisdiction of the subject matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question and to determine whether or not they are sufficient to involve the exercise of that power. It is not confined to cases in which the particular facts constitute a cause of action, but it includes every issue within the scope of the general power vested in the Court, by the abstract question.”

Foltz v. St. Louis & S. F. R. Co., 8 C. C. A., 635; U. S. App. 576.

Tube City Mining & Milling Co. v. Otterson et al., 16 Ariz. 305; 146 Pac. 203; 1916E L. R. A., 306.

Sec. 11042 GC grants Probate Courts jurisdiction in appropriation proceedings by corporations in accordance with §11039 GC. This latter section states:—

“Appropriations can be made only when the corporation is unable to agree with the owner * * * as to compensation to be pa\d * * * for the land * * * therein sought to be appropriated.”

For the purposes of this Motion, all facts stated in this Petition must be taken to be true. The Plaintiff states it is unable to agree with the owner as to compensation and that it is a corporation.

Therefore, this Court, being empowered to hear appropriation cases by corporations who are unable to agree as to compensation with the owners, has jurisdiction to entertain this case.

The Defendants raise another question, namely, that the Plaintiffs are not such a corporation as contemplated by this and similar appropriation statutes in the Ohio General Code; that this Court is limited to Ohio corporations with power of eminent domain, derived from the State of Ohio, or those foreign corporations who can qualify under the Ohio statutes, to have the right of eminent domain, as foreign railroads going through this state from another state. Sec. 10128 et seq. GC, also R. R. Sections.

I will examine this contention.

The word “corporation” as used in §11038 et seq. GC, clearly does not mean all corporations. It means corporations who have been granted the right to eminent domain to appropriate, or who can qualify within the various statutes granting certain types of corporations such rights, i. e. hydraulic companies, railroads, common carriers, etc. §10128 et seq. GC.

It has been decided that it does not mean corporations whose right to appropriate is derived from the sovereign power of a sister state. Postal Tel. Cable Co. v. C. C. C. of St. Louis Ry. Co. et al., 94 Fed. Reporter, 234.

The phraseology of the. §§10120 and 10128 GC containing the words “organized in this state” and the words found in §10132 GC “subject to all the duties and liabilities of such (common) carriers under the laws of this state would indicate that the word “corporations” in §11038 et seq. GC, means Ohio corporations with power of eminent domain.

The single new factor injected into this case is that while this is a Delaware corporation, yet it derives the power' of eminent domain from the Federal Government by virtue of the Natural Gas Act, 15 U. S. Code Ann. Section 717F (h).

Is such a corporation entitled to bring an appropriation action in this Court?

The Plaintiff validly has the right of eminent domain and it has so been decided by the Federal court. Thatcher v. Tenn. Gas Transmission Co., 84 Fed. Suppl. 344; 180 Fed. 2nd, 644.

Therefore, it is a valid corporation with a lawful federally granted power of eminent domain and as such may appropriate property for its proper use in the State of Ohio and in this county. Is it, however, entitled to use this Court to do so?

The Natural Gas Act states:—

“When a holder of a certificate of Public Convenience and Necessity (and for the purpose of this motion Plaintiff is such a holder) cannot acquire by negotiation, a necessary right of way, it may acquire same in the district courts of the United States or in the State Courts.”

The right of the United States to use the State Courts in appropriation cases is amply discussed in the case of United States v. Jones, 27 L. Ed. 1015, at page 1017; 109 U. S., 1015.

In this case the Federal law transferred to the State (of Wisconsin) Board and State Courts the function of ascertaining the value of property taken by the United States in condemnation proceedings. The point was raised that this being a power vested in the United States Government, the exercise of this power of eminent domain of the Federal Government by a state, or a State Court, is prohibited as if expressly stated.

The Court states:—

“Yet from the time of its establishment that (federal) government has been in the habit of using, with the consent of the States, their officers, tribunals and institutions, as its agents. Their use has not been held violations of any principle derogating from the sovereign power of the Federal Government, but as a matter of convenience and as tending to a great saving of expense.”
“The use of the Courts of the States in applying rules of naturalizations prescribed by Congress, the exercise at one time by State Justice of Peace of the power of committing magistrates for violation of Federal law, the use of State Penitentiaries for confinement of convicts under such law, are instances of the employment of state tribunals and state institutions in the execution of powers of the general government. At different times various duties have been imposed by Acts of Congress on State tribunals, they have been invested with jurisdiction in civil suits and over complaints and prosecutions for fines, penalties and forfeitures arising under the laws of the United States and, though jurisdiction thus conferred, could not be enforced against the consents of the States, yet, when its exercise is not incompatible with State duties, and the States made no objection to it, the decisions rendered by the state tribunals have been upheld.”

Sec. 13768 GC passed in 95 Ohio Laws, page 536, May 10, 1902, gives consent to the United States to acquire property an ?' makes the mode of assessment and collection of compensation outlined in 69 Ohio Laws, page 88, passed April 23, 1872, and all acts amendatory thereof, applicable to cases brought by the United States. The act in 68 Ohio Laws, page 88 sets up the entire procedure in the Probate Court for appropriations by corporations and is the forerunner of our present appropriation statutes.

It is true that this section and those following, apply only to property acquired by the United States of America. But it is the only clear expression of the State on the question of the use of its tribunals, and particularly the Probate Court in condemnation proceedings under Federal Acts. It is an indication that the policy of this State is to permit such a use.

The next question would be: Does the effect of this consent carry over to corporations acting solely by Federal authority? In the absence of express withdrawal of consent, it is the belief of the Court that such consent does carry over to all matters of use of tribunals under Federal law and Federal authority. The Plaintiff has cited Williams et al v. Transcontinental Gas Pipe Line Corporation, 89 Fed. Supp. page 485. This case is as closely related by facts as any case cited by any of the parties to the instant case. The finding in the Williams case is to the effect that a corporation similarly claiming authority to appropriate property, by virtue of the Natural Gas Act in South Carolina, may do so and may use the State Courts even though South Carolina had no statutes granting power of condemnation to pipe line companies. The reasoning in the Williams case is adopted by this Court. While this Court does not entirely agree with the expressed doctrine of expediency as shown in the Court’s language on page 488 which states:

“It may be noted that if the petitioners are correct in their contention that the defendant is barred from condemning in the State Court by the fact that South Carolina legislation has never set up a special procedure for gas pipe line condemnation, any intended pipe line, despite Federal Gas Act, could be blocked from crossing South Carolina by a single landowner * * *. In all such cases defendant would be powerless to act if it did not have the right to condemn in the State Courts. I am unwilling to conclude that Congress accomplished such a futility when it passed the Natural Gas Act.”

Nevertheless, in view of this case, the other cases herein cited and the reasoning above outlined, this Court adopts the finding in the Williams case and does find that it has jurisdiction of the subject matter and of this case.

The right of the Plaintiff to condemn land in Ohio by the authority of the Natural Gas Act having been held to be valid, at least for the purpose of this Motion, the only question remaining is whether the Federal Government enlarged the jurisdiction of the Probate Court, which is a creature of the State. This Court finds that it did not. If this Court had no powers to hear appropriations cases at all, then the Federal Act stating that cases may be heard in this Court would be an attempted enlargement and would be ineffective. A better example would be language in a Federal Statute of this nature authorizing the use in condemnation cases of our Municipal Courts. It would be ineffective. But this being a Court that has this general power to condemn given to it by the State of Ohio, which created it, then the use by a corporation who claims appropriation powers solely derived from the Federal Government and where said Federal Government, in its Act, provides for the use of State Courts with such powers, is valid. Particularly so in the absence of an express denial of such rights to use its tribunals by the State of Ohio; where it has given consent to the United States Government itself to use its Courts and method of procedure; where.it lends its Courts to collection of judgments under the various Federal Rent Control Acts; and in naturalization matters, etc., thus generally indicating a consent by the State to such a use.

The powers of this Court are still granted solely by the State. The use of it by the Federal Government, and those claiming power from it, does not affect jurisdiction at all, either to enlarge or diminish. This is merely a case of the Federally authorized use of an existing State tribunal, which use has not been denied by the State of Ohio.

To recapitulate this Court’s findings:—

1. This being a Court with powers granted to hear condemnation proceedings generally, it has jurisdiction of the subject matter in the present case since it is a case involving condemnation of private property.

2. Corporations deriving their power of eminent domain through Acts of the Federal Government, may use the State Courts, and this Court, for the exercise of said power in proper cases when the Act of Congress so permits it and there has been no specific denial of such right to use said tribunal or Court by the State of Ohio. The Plaintiff so qualifying under the Natural Gas Act, which also provides for the use of State Courts, may thus so maintain this action.

3. The State of Ohio has not prohibited the use by the Federal Government or those corporations or agents it has granted power of eminent domain the use of its Courts. All indications of law and usage indicate a contrary policy by the State of Ohio.

EXCEPTIONS ALLOWED TO ALL PARTIES.


text:
    TENNESSEE GAS TRANSMISSION CO., a Delaware Corporation, Plaintiff, v. CLEVELAND TRUST CO. et, Defendants. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. WARD et, Defendant. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. EDGERTON et, Defendant. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. ZELLERS et, Defendants. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. SCHWAB, Defendant. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. EATON et, FIRESTONE TIRE & RUBBER CO., New Deft., Defendants. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. COPE et, Defendants. TENNESSEE GAS TRANSMISSION CO., Plaintiff, v. DELL et, Defendants.
    Probate Court, Columbiana County.
    Nos. 49019, 49020, 49021, 49022, 49023, 49024, 49047, 49048.
    Decided April 24, 1953.
   OPINION

By TOBIN, J.

The Defendant, by its Demurrer, has raised two questions:—

I.

PLAINTIFF CORPORATION DOES NOT HAVE THE PROCEDURAL RIGHT TO MAKE THE APPROPRIATION IN THE JURISDICTION OF THE FORUM, BECAUSE ONLY THOSE CORPORATIONS SPECIFICALLY AUTHORIZED BY OHIO STATUTE TO MAKE THE APPROPRIATION HAVE SUCH RIGHT WITHIN THE MEANING OF §11046 GC, AND NO OHIO STATUTE AUTHORIZES PLAINTIFF CORPORATION TO MAKE THE APPROPRIATION.

II.

PLAINTIFF DOES NOT HAVE A VALID FEDERAL SUBSTANTIVE RIGHT TO APPROPRIATE, IN THAT SECTION 7 (h) OF THE FEDERAL NATURAL GAS ACT, IF APPLICABLE HERE BY REASON OF ANY SUPPOSED STATUTORY GRANT OF THE PROCEDURAL PORTION OF OHIO’S POWER OF EMINENT DOMAIN, IS UNCONSTITUTIONAL AND VIOLATIVE OF THE FIFTH AND TENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, AND OHIO CONSTITUTION, ARTICLE I, SECTION 19.

I will discuss this in its reverse order.

This Court adopts the reasoning and decision of Thatcher v. Tenn. Gas Co., 180 Fed. 2nd, 644. The denial of the Writ of Certiorari in that case — 340 U. S. 289, 95 L. Ed. 609 — is indicative to this Court that this matter has been passed upon by the Supreme Court of the United States and has resolved the Constitutional questions involved. The reasoning in this case is persuasive to this Court. Therefore, this Court, by adopting the decision and reasoning of the Thatcher case, decides specifically that the Congress had the Constitutional right to pass the Natural Gas Act of 1938 and 1942 and its subsequent amendment 1947; that said Act is constitutional as being a regulation of Interstate Commerce; that the transportation of gas from Texas to and beyond Columbiana County, Ohio, is Interstate Commerce; that the granting of the power of eminent domain to corporations acting under this Act is constitutional as

“proper to make provisions whereby the full statutory scheme of control and regulation could be made effective by the grant to such company of the right of eminent domain. The possession of this right could well be considered necessary to insure ability to comply with the Commission requirement as well as with all phases of the statutory scheme of regulation.” Page 647 of Opinion in Thatcher case — 180 Fed. 2nd, 644. That this is not a taking of private property for private use, but is within the public use.

The contrary view would, of necessity, condemn the gas deposits in Texas to remain there. The fact that this company is the “wholesaler,” taking said gas from its place of origin, in Texas, to points in Ohio, Pennsylvania and beyond, and making them available to the public, most assuredly does not make this corporation any less a public one. This Court is assuming this fact, that said Plaintiff transports to these parts beyond Texas for exclusive resale to public utility Gas Companies in the various states of ultimate destinations, or, in these states of ultimate destinations, final sale is made available by the Plaintiff to the public generally and indiscriminately as any public utility must do. If this fact is wrongly assumed under Plaintiff’s statement in its Petition “and in the sale of such gas for ultimate public use by the residents of said states” and said sale is made, not exclusively to state controlled public utilities or is not made available generally and indiscriminately to the public, but is resold directly to private corporations or persons etc. under private agreements, then a contrary view would be held by this Court.

This Court would like to draw Counsels’ attention to the case of West v. Kansas Natural Gas Company et al, 221 U. S. Supreme Court Reports, Page 220, 55 L. Ed. 716. Therein a Kansas statute, which, among other things, conferred exclusive rights to transport gas by pipelines and gave exclusive right of eminent domain, in this field, to domestic corporations, and denied these rights to foreign corporations, was found to be unconstitutional as an unjustified interference with interstate commerce. This case was decided in 1911. Justice McKenna uses these significant words:—

“No state by the exercise of, or by the refusal to exercise, any and all its powers may prevent or unreasonably hinder, interstate commerce within its borders in any article thereof.” “No state, by the exercise of or by the refusal to exercise, any and all its powers may substantially discriminate against or directly regulate interstate commerce or the right to carry it on.”

Justice McKenna, replying to the contention that Congress had not granted the right, in these type cases states, “the inaction of Congress is a declaration of freedom from state interference with the transportation of articles of legitimate interstate commerce.” If this is so, that inaction by Congress gives freedom from state interference, most assuredly action in the form of the Natural Gas Act certainly preempts this field. Thus, this Act in all its forms to include 7(h) of said Act is a legitimate regulation of interestate commerce.

This Court, then, has found that:—

1. The Natural Gas Act of 1938 as amended, is constitutional as an exercise of the powers of Congress over interstate commerce and that the movement of gas by pipelines across state lines is interstate commerce.

2. That this Act is a proper regulation of interstate commerce, and not Congress entering into interstate commerce.

3. That the Federal government has the power of eminent domain and may delegate same to proper corporations engaged in interstate commerce of this nature, i. e., transportation of natural gas.

4. That plaintiff corporation is such a proper corporation since it transports gas across state lines for the sale to state regulated public utilities or sells indiscriminately to the public generally in the terminal states. This finding, however, is solely for the purpose of the Demurrer and this Court may change its mind if evidence proves the contrary to be true.

5. That the Federal power of eminent domain must, of necessity, be exercised within a state’s borders inasmuch as the Federal Government, generally speaking, has no property within its borders that is not also within the borders of some state (exceptions being the territories and the District of Columbia) .

Since it has long been settled that the Federal Government can so delegate its power of eminent domain to a corporation, and, within the limits it grants said power to said corporation, said corporation may exercise same within any states; then the plaintiff corporation, having been so granted said power of eminent domain under the Natural Gas Act, may exercise the same for its proper purpose within this state. Williams v. Transcontinental, 89 Fed. Supp. 485. Thus, this Court holds that the plaintiff corporation has the substantive right to appropriate or condemn property for its proper use in the State of Ohio and this county, said right being derived from the Federal Government by virtue of the Natural Gas Act. Any other consideration would, in effect be a denial to the Federal Government to effectively regulate this form of interstate commerce, i. e., the transportation of gas across state lines.

Having decided the second part of the Defendants’ argument, this Court will now discuss and decide the first argument of the Defendant, namely:

PLAINTIFF CORPORATION DOES NOT HAVE THE PROCEDURAL RIGHT TO MAKE THE APPROPRIATION IN THE JURISDICTION OF THE FORUM, BECAUSE ONLY THOSE CORPORATIONS SPECIFICALLY AUTHORIZED BY OHIO STATUTE TO MAKE THE APPROPRIATION HAVE SUCH RIGHT WITHIN THE MEANING OF §11046 GC, AND NO OHIO STATUTE AUTHORIZES PLAINTIFF CORPORATION TO MAKE THE APPROPRIATION.

The right to use the State Courts is amply discussed in U. S. v. Jones, 27 L. Ed. 1015, at page 1017, 109 U. S. 1015 (see this Court’s opinion page 5, 6). The pertinent language to be considered now is “against the consents of the States.” (Page 1017, U. S. v. Jones.)

Chappell v. U. S. 40 L. Ed. at page 510 also uses these words “proceedings in the Courts of the States with its consent.”

A careful study of the Defendants’ first argument indicates that it is directed to these above quoted words.

In other words, the entire argument of Defendants is this: —That the legislative history, the present statutes and the Constitution of Ohio permit only those Ohio corporations or those other corporations to whom the State of Ohio has granted the right of eminent domain to have the procedural right to use the Ohio Courts to condemn Ohio land. Thus Defendants state that these statutes are indicative that Ohio not oniy has not consented to the use of its Courts by foreign corporations even with federally derived powers of eminent domain, but has actually prohibited the same and is a direct denial of such a right.

This question the. Court discussed amply in its former opinion on the Motion to Dismiss and does' arrive at the conclusions expressed on pages 4 through 8 of said Opinion.

The Ohio statutes cited deal with the granting of the substantive right of eminent domain and naturally deal with Ohio corporations or such foreign corporations as Ohio has granted this right of eminent domain, since Ohio could only grant its own power of eminent domain. It quite naturally had no control over the Federal power or its delegation. Therefore, these statutes are so worded. Are they meant to be also an exclusion from the procedural use of the Courts of such corporations whose sole authority to condemn stems from the Federal power of eminent domain?

There is no specific word of denial of the use of the State courts to such corporations. The language of §11038 GC uses the word “corporations” only without any qualifying words or phrases. So do §11039 and 11042 GC. While it necessarily does not refer to all corporations but only those possessing the right of eminent domain, and, while I think it refers to those corporations given this right by the State of Ohio, it does not necessarily follow that we can read into these statutes a meaning that Ohio has withdrawn all consent to the procedural use of its courts by a corporation who is furthering the power of the Federal government in its regulation of interstate commerce and who has a valid federally granted power of eminent domain.

I have no doubt that the State of Ohio may specifically refuse consent to such uses of its court, but I believe, in the face of years of past cooperation and permissions of such use that it would need do so specifically. I believe and find that ail indications have been that such use is permitted and the State has so consented.

There are many examples of this cooperation.

Take the matter of naturalization, purely a Federal government function. Title 8, §357 et seq., of the Federal Act on naturalization gives exclusive jurisdiction to naturalize to the following Courts “U. S. District Courts * * * also Courts of record in any state or territory having a seal, a clerk and jurisdiction in actions at law, as equity, or law and equity, in which the amount of the controversy is unlimited (Fed. Code Ann. 2nd Vol. Page 4131.

Article 10, Section 4 of the Ohio Constitution states for our Courts of Common Pleas, that “the jurisdiction of the Courts of Common Pleas, and of the Judges thereof, shall be fixed by law.”

A careful study of the statutes discloses complete silence on the matter of Ohio granting or withholding from said Court of Common Pleas the right to handle naturalization matters. Yet said Courts have handled such matters in conjunction with the Federal government for many years. Why, in the absence of any specific directive in the form of a statute authorizing the same?

The answer is found in cooperation between State and Federal government and the use of State facilities, in the absence of a specific denial to do so by the Federal government. Another example would be the Federal Rent Control Act wherein its civil penalties can be enforced in State courts.

In the instant case the Probate Court is empowered to entertain and decide proper cases of condemnation by private corporations with the power of eminent domain. This Court holds that the Ohio statutes that must be complied with for Ohio corporations to prove their substantive right to condemn and fixing the Probate Court, among others, as one of the forums to try the same, do not exclude foreign corporations with federal granted power of eminent domain from the procedural use of said Court when, as in this case, the Federal Act permits said use, and in the absence of a specific Ohio statute denying such use.

Application of U. S. Housing Authority, 11 Ohio Supp. 9, (49 N. E. 2nd 1943 — Bd. of Tax Appeals of Ohio) decide that the United States holds property in slum clearance areas as a proprietor and not as a government and so does not come within §13770 GC ceding jurisdiction over such lands to the United States as required in Art. I, Sec. 8, Clause 17 of the Constitution of the United States. The within ease deals with Federal eminent domain as used in the regulation of interstate commerce.

To use the Defendants’ own division of the problem: The Ohio statutes (exclusive of §11038 et seq. GC) deal with the conferring of substantive rights of eminent domain to certain corporations. Naturally, since Ohio is granting part of its own power of eminent domain, it deals mainly with Ohio corporations.

Sec. 11038 et seq. GC, deals with the procedural right to proceed in the Ohio courts to condemn. Therein, significantly, is not found any words of modification to the word “corporations.”

Can we read into the statutes, §11038 et seq. GC, a denial by Ohio of the use of its courts by the licensees of the Federal government? I believe not. While Ohio could validly deny such use to the Federal government itself and for its licensees, I do not believe that this implication can be read into these statutes.

This reasoning, coupled with this Court’s adoption of the decision in the Williams case (Williams et al v. Transcontinental Gas Pipe Line Corp., 89 Fed. Supp., page 485) as expressed in the former opinion of this Court, brings this Court to the decision that the Plaintiff has the procedural right to use this forum.

DEMURRER OVERRULED — Exceptions to all Defendants.


author: By CROSSLAND, J:

text:
    STATE, ex rel. DEPARTMENT OF HIGHWAYS, Plaintiff, v. BALTIMORE AND OHIO RAILROAD COMPANY, Defendant.
    Common Pleas Court, Muskingum County.
    No. 37446.
    Filed November 26, 1952.
    C. William O’Neill, Atty. Genl., Columbus, Hugh E. Kirkwood, Jr., Asst. Atty. Genl., for plaintiff.
    Graham, Graham, Hollingsworth, Gottlieb & Johnston, Zanesville, for defendant.
   OPINION

By CROSSLAND, J:

Pursuant to the pleadings, amended petition, amended answer thereto, and reply to the amended answer, and the issues thereby made of plaintiff’s claim for $7,918.09 and 6% interest thereon from October 1, 1950, and the Agreed Statement of Facts, the cause was submitted to the Court.

The pleadings and the agreed statement show that after present State Highway No. 666 was originally laid out, defendant’s predecessor in title acquired land for the railroad, and that the overhead bridge or trestle was thereafter constructed, but that before the railroad land was acquired the present highway underpass was a forded ravine or run, and “that no part of the expenditure by the State had anything to do with supporting and maintaining the abutments to the bridge.”

The provision of law relied upon by the State in requesting defendant railroad company to do certain work necessary to maintain traffic on the already previously existing highway beneath the trestle and then itself doing the job when defendant refused in 1947, and seeking to recover from defendant therefor, is the last paragraph of §1182-20 GC.

It will be noted that such provision specifically eliminates all defined separated crossings as set forth in said section, in the act and in other code sections, and by such excepted exclusions leaves no other specifically indentifiable and defined separated crossings at which a railroad company is required to maintain the highway.

The language “whether at grade or otherwise” could hardly have been intended to include or mean what the legislature so plainly denominated “separated crossings” when it specifically otherwise provided for all situations of “separated crossings” and called them “separated crossings,” not “or otherwise.”

But if “or otherwise” is the same as “separated crossings,” it is further particularly and specifically provided that the required maintenance shall be of crossings and approaches thereto “across its tracks,” not “beneath its tracks” or “under its tracks,” but “across” or over, its tracks.

Furthermore, both §§6956-34 and 8879 GC are declaratory of the plain and positive intention of the legislature “when the public way passes under a railroad,” to require in such instance that “the public way and its approaches shall be maintained and kept in repair by the county in which they are situated or by the State of Ohio as may be provided by law;” and §1182-18 GC is of similar import.

The situation referred to and dealt with in the 1927 A. G. Opinions, page 1273, concerned the reconstruction of a bridge carrying the public highway over the tracks of the railroad company and where the highway was laid out and opened after the construction of the railroad. This -was an altogether different kind of situation. The bridge supporting the overhead highway was made 'necessary by reason of the pre-existing railroad track beneath, in order to have and maintain a separated crossing. In this case the railroad constructed and already fully maintains the overhead bridge supporting its railway tracks and no overhead structural highway maintenance is required. Since the explicit requirement upon the railroad in the instant situation is to keep and maintain “the bridge and its abutments,” which was all that was required of the Pennsylvania Railroad in the Caldwell situation of the Attorney General’s opinion and which the State’s expenditure had nothing to do with herein, this defendant, The Baltimore and Ohio Railway Company, is manifestly unobligated..

There is no statutory authority for the plaintiff’s claim and there could be none constitutionally, as the railroad in this case is not and could not be served or benefited in any manner whatever and owes no special duty of its own to maintain a highway underpass, which is wholly unaffected by its over head crossing, so long as the bridge and its abutments supporting such crossing are properly kept and maintained.

Accordingly, the Court finds upon the issues and facts for the defendant and against the plaintiff and the plaintiff’s amended petition is dismissed at the plaintiff’s costs, with exceptions to plaintiff.

Journal Entry may be prepared by defendant counsel embodying the foregoing facts and conclusions and judgment for the defendant, submitted to plaintiff counsel for approval and then to the Court for its approval for filing.


author: By REYNOLDS, J.

text:
    POLANER, etc., Plaintiff, v. GOLD MEDAL GRILL, INC., etc. et., Defendants.
    Common Pleas Court, Franklin County.
    No. 182975.
    Decided July 2, 1951.
    John C. Duffy, Edward F. Lynch, Columbus, for plaintiff.
    Alfred Henney, Columbus, for defendant.
   OPINION

By REYNOLDS, J.

In this action plaintiff is seeking a mandatory injunction to compel by mandatory injunction the performance of the terms of a contracct entered into between the Hotel, Restaurant Employees and Bartenders Union Local No. 505, A. F. L. and Frank Kutak, owner of Gold Medal Grill.

On September 5, 1950, the contract was entered into by the terms of which Kutak agreed among other things, that for one year beginning on September 5, 1950 and running until September 4, 1951, that it would hire and retain in its employ only members in good standing in the local union, and that in the event non-union members were employed that they would become members within fifteen days from the time of employment.

The contract further provided that it was to be binding upon any successor or assignee of the parties.

At the time the contract was entered into, the Gold Medal Grill was owned by Frank Kutak, who in May of this year sold the business to Gold Medal Grill, Inc., a corporation, which corporation proceeded to discharge the union employees and hire non-union ones.

There is no question but that the contract was a valid and binding agreement enforceable against either of the parties thereto, and the only thing which the court has to decide, is whether the successor or assignee of the original owner of the business is bound by the terms thereof.

The union members who were in the employ of Kutak at the time the contract was entered into had and have an interest therein as it was made in part at least for their benefit and by their representatives and care was taken to provide that it should be binding not only on the parties to the contract but also their successors and assigns.

The purchaser of the business knew of the contract with the union and must be regarded as having taken over the business subject to the contract terms and conditions.

The court can see no reason why the courts should not enforce such a contract as against the assignee of the business involved, the same as it would in case there had been a breach by one of the original parties thereto.

Much criticism has been directed against the use of injunctions against labor organizations and there is no doubt but that this weapon has been unfairly used at times, and trespassed upon constitutional rights, although it is fairly well established that injunctions now may only be granted to prevent unlawful acts or unfair labor practices.

• We now have a situation, which in the past has indeed been rare, where a labor organization appeals to a court of equity to enforce its contractual rights and where, as the court finds, here those rights have been violated, they should be protected where feasible and possible.

The plaintiff is to be commended for appealing to this branch of the government for the protection and enforcement of contractual rights through peaceable and legal means, and where the plaintiff’s rights have been established, equity must support them. It is therefore ordered that defendant be ordered to abide by the terms of the contract and is enjoined from the violation of its expressed terms.


author: By McBRIDE, J.

text:
    NEFF, Appellant, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION et, Appellees.
    Common Pleas Court, Montgomery County.
    No. 105745.
    Decided December 4, 1953.

      Raymond S. Caulfield, Dayton, for appellant.
    Cowden, Pfarrer & Crew, Dayton, for General Motors Corporation.
    John W. Hardwick, Asst. Atty. Geni., Columbus, for Board of Review.
   OPINION

By McBRIDE, J.

This case is one on appeal by the claimant from a decision of the Board of Review under the Unemployment Compensation Act denying a claim for benefits.

Virginia M. Neff, the claimant, is a married woman, the mother of three children, and an employee of Frigidaire Division, General Motors Corporation, at Dayton.

Claimant was employed by Frigidaire since January, 1948. She remained there until June 15, 1951, when she stopped working because she was pregnant. As authorized by the terms of the collective bargaining agreement between the employer and the union representing the employees, she applied for and was granted a “maternity leave of absence.” Her absence from work was excused by the employer during pregnancy and for a period of six weeks after delivery. Claimant was delivered November 18, 1951; and she was apparently ready and physically able to return to work during the first week in January, 1952.

After claimant had stopped working in June, and after she had been granted her maternity leave of absence, Frigidaire reduced its work force, in inverse order of seniority. About August 1, 1951, claimant received notice of layoff due to lack of work. The sequence of layoff and notice conformed to the bargaining agreement. She was not recalled to work by Frigidaire until March 5, 1952, and remained unemployed until the date of her recall.

On January 9, 1952, she filed her application and claim for unemployment compensation benefits for the benefit year beginning January 6, 1952. Her claim was allowed initially by the Administrator on January 25, 1952. Frigidaire then appealed. A hearing was held on the appeal pursuant to §1346-4 GC (§§4141.07, 4141.16, 4141.28, 4141.99 R. C.) on August 14, 1952. The referee, by decision dated September 19, 1952, reversed the administrator and held that claimant should be denied benefits under the act since she had not sustained the burden of proof to establish herself as being available for work and actively seeking work within the meaning of the act, immediately before, during, and just subsequently to the mandatory waiting period week.

On September 26, 1952, claimant filed her application for leave to institute a further appeal to the Board of Review, which was granted. A referee was appointed for the purpose of taking additional testimony, and upon completion of the further hearing on December 9, 1952, the entire record of the claim was returned to the Board of Review for its decision.

On February 23, 1953, the Board of Review announced its unanimous decision denying claimant’s right to receive benefits under the act. The decision of the board was grounded on the fact that claimant became unemployed due to pregnancy and had not become reemployed and earned wages equal to her weekly benefit amount. The board said:

“The law disqualifies for benefits any applicant for unemployment compensation for the period of unemployment with respect to which it appears that the claimant became unemployed because of pregnancy. The period of unemployment subsequent to such separation can only be terminated by the individual’s return to work pursuant to the provision of the statute above set forth.
“In the present instance it is contended that the notice of layoff issued to the claimant several weeks after the period of her leave of absence commenced altered the character of her unemployment. Such notices are issued in conformity with the contract between the employer and the union to which the claimant belongs and are designed to assist the personnel department in the protection of the worker’s seniority. They merely serve to fix the order in which the claimant may be entitled to recall to her former job. The claimant was on leave of absence which would not expire until six weeks after her baby was born, when under normal conditions and a continuing demand for her services she could expect to reclaim her job. The notice of layoff informed her that her ability to do so would depend upon industrial conditions. It in no way affected her leave of absence or her entitlement to maternity benefits in conformity with a company policy.
“The claimant became unemployed because of her pregnancy at that time. There is no evidence of earnings sufficient to remove the disqualification imposed because of leaving her job for that reason. Benefits may not properly be allowed.
“Decision:
“The decision of the referee, dated September 19, 1952, is hereby modified and the initial determination of claim, dated January 25, 1952, is hereby reversed. Benefit rights are suspended from January 6, 1952, and until she becomes reemployed and earns wages equivalent to her weekly benefit amount, because she quit work on account of pregnancy. Claim for the week ending January 12, 1952, is disallowed.”

Sec. 1345-6-c (10) GC §4141.29-c-9 R. C., provides as follows:

“c. Notwithstanding the provisions of subsection (a) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual:
“(10) quit work to marry or because of marital, parental, filial or other domestic obligations; or became unemployed because of pregnancy”; (emphasis ours indicates amendment effective January 1, 1952).

Sec. 1345-1-w GC (§4141.03 [Y] R. C.) first effective January 1, 1952, provides as follows:

“w. ‘Duration of any period of unemployment’ as used in this act, shall mean the full period of unemployment next ensuing after a separation from employment and until an individual has become reemployed in employment subject to the unemployment compensation act, or the unemployment compensation act of another state, Alaska, Hawaii, or of the United States, and until such individual has earned wages equal to his weekly benefit amount.”

The pregnancy of a married woman is clearly a condition arising out of the “marital, parental, filial or other domestic obligations.” To hold otherwise would disregard established laws and customs involving the family. Insofar as a married woman is concerned, the amendment effective January 1, 1952 which added the words “or became unemployed because of pregnancy” did not change existing laws. Therefore, question of a retroactive amendment does not arise where a married woman is involved.

Assuming that claimant left her job and completely terminated her relationship as an employee, it is clear that the pregnancy operated as a disqualification prohibiting payment of benefits. While pregnancy constitutes a good and worthy cause for leaving work, it is clearly not attributable to the employer or to the condition of the labor market. This unambiguous subsection illustrates the effect of special disqualification provisions of the act, expressly restricting good cause for leaving.

Where an employee is compelled to quit or suspend work because of sickness, separation is not without just cause and such employee is not disqualified from benefits in event of a subsequent layoff. In such cases, it is necessary to decide whether the condition causing the claimant to leave constituted a good cause. In the absence of a statutory expression, pregnancy constitutes a difficult problem because it includes not only sickness, but also a voluntary act and personal obligations independent of the employment. The pregnancy and family obligation clause of the Ohio act illustrates the effect of special disqualifications which restrict what might otherwise be construed as good cause. These disqualifications are exceptions to good cause.

It may be observed that this subsection has a general application. If a husband remained at home because he was sick, it would usually constitute good cause, however, if he did so to care for a sick member of the family, the marital disqualification would apply. The test under the act is personal ability and availability of the employee to work and not domestic responsibilities which are not within the purview of the unemployment act.

We have assumed that claimant left her job and completely terminated her relationship as an employee under the act when she ceased work at the commencement of her pregnancy leave. Generally the statutory expression “quit work,” imports a complete severance of the employer-employee relationship. Elsewhere in this section, the statute uses the term “left his employment” by reason of a labor dispute. The statute of Pennsylvania makes a distinction between the act of “voluntary suspension of work” and “voluntary leaving work without just cause.” Yale & Town Manufacturing Company v. Unemployment Compensation Board, 163 Pa. Super 427, 62 A. 2d 99.

Claimant argues with some logic that this employee did not “quit work” in the sense that there was a severance of the relationship of employer and employee. In requesting and obtaining a pregnancy leave, appellant claims that she continued the relationship of an employee with contractual rights under the union contract without performing services which would entitle her to compensation. The contract was suspended in operation, not terminated. Employees are known to ask for additional vacation time without pay. Or the employer may declare a limited holiday or vacation period because of inventory, weather, emergency or production factors. The relationship continues during such period though services and compensation are suspended. In event of a layoff while such employee is temporarily absent he is not denied unemployment benefits if upon his return or resumption of production work is not available. Claimant argues that benefits should not be denied where an employee receives a layoff notice while on a recognized pregnancy leave and work is not available upon her return. The situation is similar to instances where the employee requests leave and is the cause of the initial failure of work. Why should benefits be allowed in one instance and denied in another. The answer must be found in the statutes which create benefits and not in private agreements. Neither the employer nor the employee may enlarge upon the benefits or the conditions for eligibility under the statutes. A labor contract cannot remove a disqualification expressed in the unemployment act.

The unemployment act protects the opportunity for uninterrupted work. Unemployment alone does not qualify an individual for compensation. There must be sufficient basic earnings in specified employment, ability and availability for work and the absence of causes which disqualify completely from benefits irrespective of the accumulated credits.

The act does not furnish a definition of the expression “quit work,” however, it does define employment as “service performed for wages under any contract of hire * * Sec. 4141.01 (B) R. C. formerly §1345-l-c GC. A discontinuance of performance of service for wages is an interruption of employment under the act. When claimant ceased to render services she, in effect, “quit work” and abandoned employment. This abandonment or cessation of work or employment was directly caused by the condition of pregnancy which we have heretofore found disqualified claimant from benefits.

The fact that subsequently another cause arose which would not have deprived her of benefits does not re-establish eligibility. Once disqualified, eligibility must be determined by the statute and not the equities of the situation nor the private agreement of the parties.

It should be noted that the 1952 amendment, “or became unemployed because of pregnancy” does not require a quitting to constitute a suspension. An employee discharged because of pregnancy is equally disqualified.

The court questions the decision of the referee in rejecting the application on the weight of the testimony offered in support of availability and activity in seeking employment; however, the decision of the Board of Review that claimant was disqualified is sustained.

Appeal dismissed.


author: By McLAIN, J.

text:
    STATE v. MANGO.
    Common Pleas Court, Trumbull County.
    No. 9523.
    Decided July 8, 1953.

      Charles H. Anderson, Pros. Atty., Warren, for plaintiff.
    George Buchwalter and W. Leo Keating, Warren, for defendant.
   OPINION

By McLAIN, J.

The defendant filed a motion herein requesting that the Grand Jury for the April Term 1953, be recalled or a special Grand Jury be impaneled for the purpose of considering the first degree murder charge under which the defendant has been bound over from the Municipal Court of Niles. The reason stated is that if the case comes up in the usual way and is considered by the September Grand Jury, he would be thereby denied his constitutional right to a speedy trial.

In opposition thereto, the Prosecuting Attorney of Trumbull County has filed a memorandum stating that the defendant was apprehended after the April Grand Jury had completed its work; that the office of the Prosecuting Attorney is at present engaged in investigating and preparing for presentation to the next Grand Jury to wit: The September Grand Jury, a great number of criminal cases; that the defendant is being afforded the same consideration as all others charged with felonies and, that if indicted, the Prosecuting Attorney will do everything within his power to expedite an early trial.

The Prosecutor further calls attention to the fact that since the fatal shooting, fourteen years have elapsed during which time the defendant has been in flight and in hiding, and that a delay of a few weeks now would not prejudice his rights.

The right to a “Speedy Trial” guaranteed by our constitution does not entitle the accused to an immediate trial. A “Speedy Trial” to which a defendant in a criminal case is entitled is one conducted according to fixed rules, regulations and proceedings of law free from vexatious, capricious and oppressive delay created by the ministers of justice. See 39A Words and Phrases, Speedy Trial, page 488.

The Ohio rule is in accordance with the general rule and is to the effect that the design of the constitution of the State of Ohio and the statutory enactments was to prevent wrongful restraint of liberty growing out of the malice and procrastination of the prosecutor and not to shield a prisoner in any case from consequences of any delay made necessary by the law itself. See O. Jur., Volume 12, page 269.

In Trumbull County, Ohio, upwards of two hundred criminal cases are ordinarily presented to the Grand Juries in the course of a year. This has always been done by the investigation and presentation to a Grand Jury regularly called at the beginning of each term of Court, to wit: January, April and September. It has resulted in an orderly disposition of criminal cases in this County.

If a defendant, upon being apprehended or bound over to the Grand Jury could, upon his motion, cause a Grand Jury to be specially called to consider his particular case, it is at once apparent that the orderly administration of justice would be disrupted. The prosecutor being subject at all times to the necessity of changing his regular routine, it would result in a chaotic situation in respect to both the investigation and trial of criminal cases and would interfere with the orderly and fair administration of justice.

It is, therefore, Ordered, Adjudged and Decreed that the motion of the defendant that the April Grand Jury be recalled or a special Grand Jury called for the purpose of considering the charge pending against him be and the same is hereby overruled.


author: By PINE, District Judge.

text:
    HUGHES et v. HUGHES.
    United States District Court District of Columbia.
    C. A. No. 4433-51.
    Decided May 28, 1953.

      F. H. Ridgway, George H. Beuchert, Jr., Washington, D. C., for plaintiffs.
    John T. Reges, Washington, D. C., for defendant.
   OPINION

By PINE, District Judge.

Eli H. Hughes died on January 20, 1946. Surviving him as heirs at law and next of kin were one daughter and three sons. One of his sons is now deceased. He left a will making special bequests to three grandsons and directing that his “executors and trustees” sell all the remainder of his estate, both real and personal, wherever situate, and make certain disposition of the proceeds. He named his two sons John C. Hughes and William T. Hughes executors and trustees. His estate consisted of personal property in Ohio and real property located in Washington, D. C., and New Jersey.

On January 21, 1946, a petition was filed in the Probate Court of Cuyahoga County, Ohio, by William T. Hughes, for probate of this will. On March 7, 1946, after having been proved by the witnesses thereto, it was admitted to probate. On the same date the Probate Court directed appointment of William T. Hughes as sole executor, having found that John C. Hughes had refused to apply for appointment.

On April 23, 1946, John C. Hughes filed a caveat to the will in the Court of Common Pleas of Cuyahoga County, Ohio, and on January 29, 1947, the jury found the paper writing to be the last will and testament of Eli H. Hughes.

On February 13, 1947, William T. Hughes applied to the Probate Court of Cuyahoga County for appointment as trustee, and on the same date that court found that John C. Hughes had refused to make application for appointment as trustee, and ordered that William T. Hughes be appointed sole trustee. On February 17, 1947, he gave bond and received his letters of appointment from the Probate Court.

The amended complaint asks that William T. Hughes be “confirmed” by this court as sole trustee and be authorized to execute the trust, and prays for further relief.

Plaintiffs are son, daughter, and grandchildren of testator. Defendant, John C. Hughes, is the other son. All parties are beneficiaries, present or contingent, under the trust.

Section 14-402, D. C. Code 1951, provides that “* * * the copy of any will which such laws [laws of a state] require to be admitted to probate and record, by judicial decree, and of the decree of the court admitting the same to probate and record, under the hand of the clerk * * s and the seal of the court * * 4 shall be good and sufficient prima facie evidence to prove the existence and contents of such * * * will * * * and that it was executed as it purports to have been.”

Section 14-404, D. C. Code 1951, provides that “The record in the office of the register of wills for the District of Columbia of a duly certified copy, or transcript of the record of proceedings, admitting any will or codicil to probate outside of the District of Columbia * * * shall be deemed and held, at law and in equity, as of the same and like force and effect as if such will or codicil had been duly proved and admitted to probate and record under and in accordance with the provisions of sections 19-301 to 19-303” [providing notice, etc., preliminary to admission of wills to probate in the District of Columbia].

A copy of the will in question and the record of proceedings in the Ohio court duly certified as required by the aforementioned statutes, have been filed in the office of Register of Wills for the District of Columbia, and the same would be sufficient, by force of said statutes, to vest title in the two trustees and authorize them to proceed as provided by the will. However, there have also been filed certified copies of the proceedings appointing plaintiff William T. Hughes as sole trustee, which in effect divests title in the two trustees named in the will and vests it in one of them, and that is the cause of this controversy.

As stated, plaintiffs seek “confirmation” in this court of the appointment of William T. Hughes as sole trustee by the Ohio court. Defendant resists the granting of such relief, contending that the judgment of the Ohio court is invalid and not entitled to full faith and credit. At the hearing, he relied principally on two claims, first, that the testator was not domiciled in the state of Ohio, and second, that defendant was not a party to the proceedings resulting in the appointment of plaintiff William T. Hughes as sole trustee; and he offered testimony in support of such claims. In opposition, plaintiffs contend as to the first claim that, inasmuch as at least a portion of the trust res, namely, the personalty, was in Ohio, that gave the Ohio court jurisdiction and the domicile of the testator would not be controlling; and they point out, as to the second claim, that Ohio law, unlike local law, requires that every fiduciary, before entering upon the execution of his trust, shall receive letters of appointment from the Probate Court, 7 Page’s Ohio Code, §10506-2; that therefore the duty was placed upon defendant to apply for appointment if he desired it; that not having applied, he did not possess a trusteeship, and not possessing one, he was not deprived of it by the appointment of William T. Hughes, and no notice was required. On this basis, plaintiffs argue that the judgment of the Ohio court is valid and entitled to full faith and credit under the Constitution. Of course, full faith and credit is required if the court awarding the judgment had jurisdiction. However, it is open to challenge if jurisdiction is lacking; and irrespective of the contentions of the parties as above set forth and as adverted to in defendant’s brief, the judgment sought to be “confirmed” in this court in effect purports to change title to real property in the District of Columbia by vesting it in one trustee instead of two as provided by the will. In this respect, the Ohio court was without jurisdiction over the subject matter, as it had no power to change title to real estate in this District and full faith and credit is not required to be given its judgment as prayed. True it is, the Ohio court had power to compel the execution of a deed by parties personally before it, and thereby indirectly affect real estate beyond its territorial jurisdiction, but the Ohio court did not in this case have before it one of the trustees nominated in the will, namely John, who, under the above-mentioned statutes, was vested with title to the District real estate as cotrustee.

Under these circumstances, the specific prayer of the complaint to “confirm” the Ohio court’s appointment of William as sole trustee cannot be granted, and the only question remaining is whether, under local law and the facts in this case, other relief can and should be granted pursuant to the prayer for other relief.

In this connection, Section 18-611, D. C. Code 1951, provides that “If any person shall die having devised real estate to be sold for the payment of debts or other purposes without having appointed a trustee to sell or convey the property, or if the person so appointed shall neglect or refuse to execute the trust * * * the equity court shall have authority, on the application of any person interested, to appoint a trustee to sell and convey said property and apply the proceeds of sale to .the purposes intended.” (Emphasis added.)

It appears from the evidence adduced at the hearing that plaintiff William T. Hughes and defendant John C. Hughes are incompatible; that John C. Hughes has received the benefits provided by the trust, during the last six years, from William as sole trustee; that he has never made an application for appointment as cotrustee in Ohio or objected in the Ohio court to the appointment of his brother as sole trustee; that he has taken no steps whatever to execute the trust, but has allowed William to execute it exclusively during the past six years; that he has hindered its execution by filing an unsuccessful caveat to the will and by other obstructionist tactics; and that, although certified copies of the will and the Ohio proceedings were filed in this court in 1947, he has not attempted to act thereunder but instead has resisted the efforts of his brother in this connection. I therefore conclude that defendant has neglected to execute the trust, and reaching such conclusion, I am authorized under Section 18-611, D. C. Code 1951, supra, to appoint a trustee for such purpose. Furthermore, by virtue of general equity powers, I am authorized under the foregoing circumstances to remove a trustee and substitute another in his place. Accordingly, I have concluded to appoint William T. Hughes as sole trustee in place and stead of John C. Hughes and William T. Hughes, co-trustees nominated by the testator. This will result in the execution of the trust without further delay and will be in the interest of efficiency and single responsibility in its execution.

Counsel will prepare judgment accordingly. Further findings of fact and conclusions of law are unnecessary.

      . Millikin v. Meyer, 311 U. S. 457, 61 S. Ct. 339, 85 L. Ed. 278; Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577.

      . Contee v. Lyons, 8 Mackey 207, 215; Corbett v. Nutt, 10 Wall. 464, 19 L. Ed. 976; Watts v. Waddle, 6 Pet. 389, 8 L. Ed. 437; 15 A. L. R. 2d 625.

      . Watkins v. Holman’s Lessee, 16 Pet. 25, 10 L. Ed. 873; Carpenter v. Strange, 141 U. S. 87, 35 L. Ed. 640.

      . McDonald v. O’Donnell, 56 App. D. C. 31, 8 F. 2d 792, 45 A. L. R. 328; May v. May, 167 U. S. 310, 17 S. Ct. 824, 42 L. Ed. 179.


author:
Per CURIAM.
      Mr. JUSTICE DOUGLAS,

text:
    SUPERIOR FILMS, INC., Appellant, v. DEPARTMENT OF EDUCATION OF STATE OF OHIO, DIVISION OF FILM CENSORSHIP, Appellees. COMMERCIAL PICTURES CORPORATION, Appellant, v. REGENTS OF UNIVERSITY OF NEW YORK, Appellees.
    U. S. Supreme Court.
    Nos. 217, 274.
    Decided January 18, 1954.
   OPINION

Per CURIAM.

The judgments are reversed. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 777, 96 L. Ed. 1098.

Mr. JUSTICE DOUGLAS,

with whom Mr. JUSTICE BLACK agrees, concurring.

The arugment of Ohio and New York that the government may establish censorship over moving pictures is one I cannot accept. In 1925 Minnesota passed a law aimed at suppressing before publication any “malicious, scandalous and defamatory newspaper.” The court, speaking through Chief Justice Hughes, struck down that law as violating the Fourteenth Amendment, which has made the First Amendment applicable to the states. Near v. State of Minnesota, 283 U. S. 697, 51 S. Ct. 625, 626, 75 L. Ed. 1357. The “chief purpose of the constitutional guaranty of liberty of the press, said the court, was “to prevent previous restraints upon publication.” 283 U. S. at page 713, 51 S. Ct. at page 630.

The history of censorship is so well known it need not be summarized here. Certainly a system, still in force in some nations, which required a newspaper to submit to a board its news items, editorials, and cartoons before it published them could not be sustained. Nor could book publishers be required to submit their novels, poems, and tracts to censors for clearance before publication. Any such scheme of censorship would be in irreconcilable conflict with the language and purpose of the First Amendment.

Nor is it conceivable to me that producers of plays for the legitimate theatre or for television could be required to submit their manuscripts to censors on pain of penalty for producing them without approval. Certainly the spoken word is as freely protected against prior restrains as that which is written. Such indeed is the force of our decision in Thomas V. Collins, 323 U. S. 516, 540, 65 S. Ct. 315, 327, 89 L. Ed. 430. The freedom of the platform which it espouses carries with it freedom of the stage.

The same result in the case of motion pictures necessarily follows as a consequence of our holding in Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 502, 72 S. Ct. 777, 780, 781, 96 L. Ed. 1098, that motion pictures are “within the free speech and free press guaranty of the First and Fourteenth Amendments.”

Motion pictures are of course a different medium of expression than the public speech, the radio, the stage, the novei, or the magazine. But the First Amendment draws no distinction between the various methods of communicating ideas. On occasion one may be more powerful or effective than another. The movie, like the public speech, radio, or television is transitory — here now and gone in an instant. The novel, the short story, the poem in printed form are permanently at hand to reenact the drama or to retell the story over and again. Which medium will give the most exictement and have the most enduring effect will vary with the theme and the actors. It is not for the censor to determine in any case. The First and the Fourteenth Amendments say that Congress and the states shall make “no law’ which abridges freedom of speech or of the press. In order to sanction a system of censorship I would have to say that “no law” does not mean what it says, that “no law” is qualified to mean “some” laws. I cannot take that step.

In this nation every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor.

      . Laws 1925 Minn. c. 285, § 1 (b).