Nelson v. Haley

• Decision Date: 28 April 1953
• Docket Number: No. 28984,28984
• Citation: 232 Ind. 314,111 N.E.2d 812
• Parties: NELSON et al. v. HALEY.
• Court: Indiana Supreme Court

Page 812

111 N.E.2d 812

232 Ind. 314

NELSON et al. v. HALEY.

No. 28984.

Supreme Court of Indiana.

April 28, 1953.

Rehearing Denied May 28, 1953.

Ralph B. Gregg and Edward J. Fillenwarth, Indianapolis, Gregg, Fillion, Fillenwarth & Hughes, Indianapolis, for appellant.

Ruckelshaus, Reilly, Rhetts & O'Connor and John K. Ruckelshaus, Indianapolis, Edward Grimes, Indianapolis, Robert Harding, Crawfordsville, for appellee.

FLANAGAN, Judge.

This action was brought by appellee, John W. Haley, for personal injuries alleged to have resulted from an assault and battery upon him by appellant, Alphonso Nelson (also referred to as Alfonso), while said Nelson was serving as agent and organizer for the Laundry Workers International Union. Trial to the court resulted in finding and judgment for said appellee in the sum of $5,000.

Appellant Nelson claims that he was not properly served with summons, and therefore his plea in abatement alleging such fact should have been sustained. The return to the summons shows that it was served on October 25, 1945, by leaving a true copy of the same as his 'last and usual place of residence,' 4129 Cornelius Avenue, Indianapolis, Indiana. Nelson claims he did not live at such address on the day of service.

There is evidence that said appellant maintained a home in Chicago, and stayed at the Indianapolis address only from January to July, 1945. But there is also evidence that on October 23, 1945, only two days before the service, Nelson, himself, testified in Marion Criminal Court that his residence at that time was 4129 Cornelius Avenue, Indianapolis, Indiana, and that he had stayed there the night before. We think this evidence sufficiently supported the finding of the court that on the date of service 4129 Cornelius Avenue, Indianapolis, Indiana, was Nelson's last and usual place of residence.

Appellant, Harold R. Mitten, claims error in overruling his plea in abatement. His plea in abatement merely alleges that he was not a representative of the involved Unions. Inasmuch as the complaint specifically alleges that he was such representative, his remedy was by answer on the merits traversing that allegation, and not by plea in abatement. Michigan Cent. R. R. Co. v. Spindler, Adm'r, 1937, 211 Ind. 94, 5 N.E.2d 632, 108 A.L.R. 1307.

Appellant Nelson also contends that the action is strictly against defendant as a class and not against him individually. He presents this contention in several different ways. When the complaint is read in its entirety, it clearly charges Nelson as an individual with the alleged assault and battery, and seeks also to recover from the Union members upon the theory that he was acting on their behalf.

There is ample evidence to sustain the finding that Nelson did commit the assault and battery.

Appellants say there is no evidence of any actual participation in, or authorization of, his acts, or ratification of his acts, after actual knowledge thereof, by any officer or member of the Union, and therefore § 40-506, Burns' 1952 Replacement, Acts 1933, ch. 12, § 6, p. 28, is applicable. This statute reads as follows:

'No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the state of Indiana for the unlawful acts of individual officers, members or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.'

However, appellee asserts that this provision is unconstitutional because its subject matter is not embraced in the title of the act of which it is a part. Section 19 of Article 4 of the Constitution of Indiana provides that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.

The title to the involved act reads as follows:

'An Act defining and limiting the jurisdiction of the courts of this state in the issuance of restraining orders and injunctions in cases involving or growing out of labor disputes and declaring the public policy of the state in relation thereto, providing that certain promises, agreements and contracts shall afford no basis for the granting of legal or equitable relief by the courts of this state and prescribing the procedure in cases of contempt of court.'

The subject embraced in this title is clearly that of restraining orders and injunctions growing out of labor disputes, and the title is limited to that subject. Damages for assault and battery is not properly connected with that subject and is not directly or indirectly referred to in this title. Where...