Crosby v. Rath

• Decision Date: 06 March 1940
• Docket Number: 27639.
• Citation: 25 N.E.2d 934,136 Ohio St. 352
• Parties: CROSBY v. RATH et al.
• Court: Ohio Supreme Court

25 N.E.2d 934

136 Ohio St. 352

CROSBY v. RATH et al.

No. 27639.

Supreme Court of Ohio

March 6, 1940

Appeal from Court of Appeals, Cuyahoga County.

The plaintiff is the operator of a restaurant in the City of Cleveland.

The defendants are officers and members of three voluntary unincorporated associations known as labor unions.

In her second amended and supplemental petition the plaintiff asks an injunction to restrain the defendants from continuing certain acts of violence in furtherance of a conspiracy to injure her restaurant business and thereby compel her to discharge her employees unless they become members of one of the defendant unions.

With few exceptions the controlling facts in the case are not in serious dispute. The evidence in the record discloses that the plaintiff's present employees are not members of a union or represented thereby; that they do not desire such membership; that each employee is serving under a renewable written, three-month contract; that in selecting her employees the plaintiff makes no inquiry as to such membership; that in a number of instances she has employed union members; that when asked by her employees for advice on this subject she tells them to follow their own preference that she never has discharged an employee because of membership in a union; that there is no dispute between the plaintiff and her employees; that she has permitted a representative of the defendant unions to solicit her employees; that the defendants do not complain about the wages paid by the plaintiff to her employees; that the defendants do not accuse the plaintiff of underselling restaurants employing union members exclusively that on October 4, 1937, the defendants began to picket plaintiff's restaurant; that the number of persons engaged in picketing varied from 40 to 100; that these persons wore union badges and obstructed the entrance to the plaintiff's restaurant; that they called the plaintiff's employees vile and obscene names; that they threatened, assaulted, struck and injured some of the plaintiff's employees, one of whom suffered a fractured jaw; that plaintiff's restaurant was stenchbombed on two occasions; that a dynamite bomb was exploded at the place of the plaintiff's former residence; that an attempt was made to bomb the plaintiff's present residence; that the home of one of the plaintiff's employees was stenchbombed; that the homes of some of the plaintiff's customers were stenchbombed; that some of the plaintiff's customers who drove to her restaurant found the tires of their automobiles cut and punctured while there; that anyone attempting to deliver supplies to plaintiff's restaurant was insulted and threatened; that one delivery truck driven by a union driver was seized and partially burned; and that during the period of picketing the plaintiff's business was reduced to approximately one-third of its former volume. The defendants disclaim responsibility for the above-enumerated acts of violence and insist that the contracts existing between the plaintiff and her employees are invalid.

The Court of Common Pleas rendered a decree in favor of the plaintiff. The employment contracts were held valid, and the court found that no legitimate trade dispute was involved. The defendants were enjoined from picketing or boycotting the plaintiff's restaurant and from interfering with the operation of the plaintiff's business.

Upon appeal to the Court of Appeals on questions of law and fact the decree of the court was the same as that of the Court of Common Pleas except that picketing and boycotting were permitted.

The case is in this court for review upon the allowance of a motion to certify the record.

Galvin & Babin and Stanley & Smoyer, all of Cleveland, for appellant.

Martin E. Blum and Leonard J. Stern, both of Cleveland, for appellees.

PER CURIAM.

The question as to the validity of the three-month, written, renewable employment contracts here involved requires no discussion. Both the Court of Common Pleas and the Court of Appeals held them valid, and a study of the record discloses nothing tending to support the contention of the defendants to the contrary.

The controlling question in the case is whether the evidence discloses the existence of a legitimate trade dispute. However, this difficulty is simplified by the fact that both the plaintiff and the defendants rely upon the decision of this court in the case of La France Electrical Const. & Supply Co. v. International Brotherhood of Electrical Workers, 108 Ohio St. 61, 140 N.E. 899, subsequently cited with approval in the case of State ex rel. United District Heating, Inc. v. State Office Building Commission, 125 Ohio St. 301, 181 N.E. 129, 80 A.L.R. 1376. In the La France case this court gave careful consideration to the principles of law relating to the subject of trade disputes, and affirmed the decision of the lower courts permitting the picketing of the employer's plant. But in the opinion it is clearly pointed out that [108 Ohio St. 61, 140 N.E. 905]: 'Upon the record with regard to this point there can be little doubt that a legitimate trade dispute existed in this case, in which former employees of the plaintiff company were seeking to secure the right to work with the company under terms of employment different from those which their employer was at the time requiring. That being the case, the methods open to use in a legitimate trade dispute were open to the strikers here.' Of course, as already indicated in the factual statement, it is not even contended that in the instant case there is any dispute whatsoever between the plaintiff and her employees, as in the La France case, supra. On the contrary, the only dispute in the instant case is between the plaintiff and the defendants with whom the plaintiff's employees have no connection. The thing upon which the defendants are insisting is that the plaintiff discharge her employees unless they become members of one of the defendant unions. There is no reason or convincing authority sustaining the contention of the defendants that they have the right to engage in picketing or boycotting under such circumstances. That this must be the law is clearly indicated by the intolerable and unexplainable predicament in which an employer might well find himself if picketed by two or more hostile unions with each one insisting that the employer discharge his employees unless they become members of that particular union alone.

Finally it should be noted that the instant situation is concededly unaffected by statute. This clearly distinguishes the case from most of the authorities relied upon by the defendants.

Two recent decisions restating the generally accepted rule are to be found in the cases of Meadowmoor Dairies, Inc. v. Milk Wagon Drivers' Union, 371 Ill. 377, 21 N.E.2d 308, and Roth v. Local Union, Ind., 24 N.E.2d 280. In the former case one paragraph of the syllabus reads in part as follows: 'The right to contract, the right to do business and the right to labor freely and without restraint are all constitutional rights equally sacred, and the privilege of free speech cannot be used to the exclusion of other constitutional rights nor as an excuse for unlawful activities in interference with another's business * * *.'

The decree of the Court of Appeals must be reversed to the extent that it permits picketing and boycotting. Final judgment is hereby rendered in conformity with the decree of the Court of Common Pleas.

Judgment reversed in part.

WEYGANDT, C. J., and WILLIAMS, MATTHIAS, and HART, JJ., concur.

MYERS, J., concurs in the judgment only.

DAY and ZIMMERMAN, JJ., dissent.

MYERS, Judge (concurring).

Since the case is in equity, the pleas of both plaintiff and defendants are addressed to the trial court as a chancellor. All elements of the case are to be considered. The conduct of the parties will be carefully scrutinized to determine whether they are entitled to relief or protection of the court. From a consideration of the entire record, the trial court was justified in its finding that there was a proximate connection between the acts of defendants and the violence charged. In respect to the plaintiff's place of business, the defendants have therefore forfeited whatever rights they might otherwise have had peaceably to picket under the law. Rights peaceably exercised will be protected by the courts but such protection is forfeited when the attempted exercise thereof is accompanied by acts of violence as in the instant case.

For the reasons stated I concur in the judgment only.

DAY, Judge (dissenting).

I dissent from the view of the majority of this court.

The Court of Common Pleas granted an injunction restraining all picketing, bannering and boycotting of plaintiff's restaurant. On hearing de novo, the Court of Appeals permitted picketing and bannering, which judgment is here for review. The record discloses that picketing was not accompanied by violence following the judgment of that court. It is the judgment of the Court of Appeals which is here for review, and that judgment did not permit picketing accompanied by violence.

Peaceful picketing, by carrying placards, signs, distribution of literature, or by oral speech, is not, in and of itself, unlawful. It is a lawful right emanating from and protected by the constitutional provision governing the exercise of free speech.

The judgment of the Court of Appeals should be affirmed.

ZIMMERMAN Judge (dissenting).

From a reading of the majority opinion, this case would appear to be wholly onesided. However, such is not the fact and the writer believes the position of the defendants, supported by ample and respectable authority, is entitled to expression.

Having had a strict...