Fawick Airflex Co. v. United Electrical, Radio & MacHine Workers, Local 735

The indicates these defendants purge attempt made no offer themselves tempts charged. testify They with which were did not behalf, seek, per- nor manner their own either counsel, clarify sonally or intentions. their developed trials out of which actions of. defendants, concluded, only part these had been heard, judge. tried others remained persons readily Thus, to fair-minded all can seen a clear present impartial orderly threat to the administration justice. errors, examined all other claimed We have none find rights prejudicial appellants. judgment is, Krause, Joseph as to McCurdy, Foster L. Barnett, Dolph Kreitner, M. L. Frieda and Robert Evans af- Berman, judgment As to N. firmed. 'Norman is affirmed letter, picketing, as to the first but reversed letter, as to the second and final for him rendered thereon. journal entry prepared attorneys A will be in accord opinion. PJ, CONN, DOYLE,J, concur. INC., FAWICK AIRFLEX COMPANY Plaintiff-Appellee, v. ELECTRICAL,

UNITED RADIO AND MACHINE WORKERS AMERICAN, et, KRES, Defendant-Appellant. LOCAL735 OF Appeals, Eighth District, Cuyahoga Ohio County.

No. 21497. Decided March Marshman, Hollington Steadman, Cleveland, plaintiff- & appellee. Handelman, Cleveland, Davis, defendants-ap- & Davis pellants.

OPINION By SKEEL, PJ. appeal questions This comes this on of law from guilty of defendant, of court of

Joseph Kres, temporary for the violation of a restraining 12, 1949, in this action entered March restricting peaceably picketing “other than and not more than two designated pickets places not more at than three in and premises” of relator. about the 12, enjoined The decree of March also defendant and others, including Radio, The United Electrical Machine America, 735, encouraging Local or allowing Workers the massing pickets any of more than two at time any plant premises place or except of the about relator representative supervisor Union encourage, act ás a of in picketing “shall not participate allow or massing, congregating, assembling with two or more 6, 8, Paragraphs provided pickets.” 10 of the decree follows: with, interfering hindering, Prom “6. threatening or in- timidating any plaintiffs, officers, manner whatsoever employees, representatives, agents, having others business plaintiffs or the any or with families relatives of foregoing; hindering interfering 7. Prom with or plant access to said premises reasonably prevent a manner calculated to ingress egress plant from the premises; said driveway leading blocking obstructing plaintiff’s 8. From premises plant plaintiff’s Road to from Clinton manner whatsoever; assisting anyone aiding, protecting, abetting or 9. From acts; said commission ingress egress hindering interfering to or with premises, 10. From trucks, plant automobiles said vehicles from other any manner whatsoever.” 24, 1949, plaintiff motion filed a to show March On punished with should not be why others this defendant cause for alleged court, inasmuch decree, others, the aforesaid defendant, had violated in that: occasions, congregated They had, massed and several “1. prevent calculated access in a manner Road Clinton across others; employees by its massed 23 and defendants March 2. The plaintiff’s plant congregated greater entrance of numbers violence, fighting, permitted decree and than injured stones, intimidated and

hurling threatened and they plant. employees entered on March hurled stones at defendants 3. That the employees plaintiff’s entering of were automobiles plaintiff’s 4, 6, plant 10 the in 7 and in violation of court’s order. 23, 1949, on in March the defendants about 4. That the Linnet Avenue hurled stones and West Street of area employees, threatening plaintiff’s of at automobiles and bottles attempted employees purpose intimidating the said and work, going para- in of preventing them from violation of order. graph 6 court’s of the March, day 1949, on the 24th of That defendants the 5. along leading driveway Road placed Clinton into themselves by intimidating employees hurling plaintiff’s plant, plaintiff’s plaintiff’s employees of automobiles at rocks and bolts they 6,4, plant in the violation of and of entered order.” the court’s appeal defendant, Upon as this of this insofar specific concerned, guilty of acts court found him five the injunction temporary and of of the violation summary contempt presence the the one act testifying “telling by falsehood while under deliberate proceeding.” oath in this specific instances The five which it held injunction, the follows:

defendant violated supervision general groups “1. He had and direction of composing mob, gathered persons West Street at morning Linnet Avenue on of March and attempted prevent plaintiff’s group employees work; going to participated 2. He on attack an automobile of one vicinity Mayo, in Dominic Avenue West 105 Street Linnet morning 1949; of March He attack on the 3. led automobile' of an one Dominic Mayo plaintiff’s plant premises entrance morning 1949; of March 4. He attack on John led the automobile of one Sine plaintiff’s plant premises entrance at the ing on the morn- 24, 1949; of March persons group 5. He led rushed and attacked the employees plain- automobile at' the entrance morning tiff’s of March 1949.” by appeal presents defendant following alleged judgments by errors he seeks to reverse against tempt him: entered prejudice “1. The court erred below of defendants- appellants discretion refusing grant abused its particulars, the motions bill or to make definite and certain. denying 2. The court erred below the motion of de- fendant-appellant charge against him dismissal plaintiff’s testimony close made and renewed at testimony. close all the severe, 3. The sentences of the court below harsh and law; authority excessive and without admitting The court below erred evidence offered plaintiff excluding defendant; offered prejudice 5. The court erred below defendant, Kres, grave discretion, and committed requiring abuse deposit security bond, being same not by law; authorized prejudice 6-7. The court erred to the defendant, below Kres, ticipating allowing and committed par- abuse discretion in questioning regarding line of a of defendant his activities, political religious affiliations and beliefs. proceedings irregular The of the lower court and un- 436 of discretion constituted abuse law authorized and defendants-appellants fair were denied a trial. findings court its sentences and of the lower and The 8. contrary by sufficient evidence are not sustained orders are by law. and unauthorized to law prejudice erred, to defend- 9. The below Kres, ant, finding he told in court and falsehood a finding guilty of court. him appearing on For errors the face 10. other defendant, rights prejudicial Kres.” assignment overruled for the of error will The first through open counsel court the defendant his that in that reason during he the course of the trial was able to stated him he all the evidence there was available

offer to overruling prejudiced by his therefore not re- was quest allegations to cause motion show make definite certain. more error relates of whether The fifth claim of requiring the defendant or not error was give court, security to abide under decree bond a prosecution provisions §11888 GC: inclusive, being §12142, proceeding tempt §12137 under GC. provisions right §12137 remedial invoke the The GC, temporary §12142,inclusive, re- for the violation Castings Company straining the case decided order was 1):— (syllabus Works, St 148 Oh v. Steel held— GC, punishment providing for the “1. Secs. 12137and 12142 person as for a found ‘disobedience of a to, writ, order, rule, judg- process, of, lawful or resistance an officer’ authorize as- ment command.of person fine and the commitment sessment restraining temporary jail wilfully violates is- controversy complaint written a labor sued after hearing.” Searles, Also, 115 of Pilliod Oh St provisions considering §§11887 whether the court 11888 GC §§12137 enforced with could be conjunction GC, page 697: said at prescribing penalty and 11888 GC dis- “Secs. exclusive, injunction, obeying an order of are §§12137, GC, relating cumulative contempt punishment therefor.” us the case now before not assess a trial court in did against §11887 penalty GC. jail imposed authority The fine sentences were under the security §§12137 of 12142GC. The bond ordered under the GC, solely provisions of §11888 related to the defendant’s respect temporary restraining conduct future with to the order punishment past pro- for not violations. The was authorizing §§11887 visions of to 11888 GC trial peace require keep a support bond not without provisions in other provides: the statutes Ohio. of of Sec. 13451-11GC person required may “A of misdemeanor convicted a magistrate judge recognizance, to enter into with surety, judge magistrate sufficient in such as the sum proper peace, good keep of deems and be for behavior time, exceeding years, such two directs.. may person The court order such to stand committed until complied discharged by law, or he such order the court but. is. person discharge on such time his own recognizance recognizance.” or cancel such provisions upon only can The section be enforced misdemeanor, example, conviction of as for the violation remedies, Battery. GC, defining §12423 Assault The provided jail fine here imposed are cumulative. The is. sentence punishment §12423 under GC as for the violation bond, required, GC, §13451-11 section if and the under preserve peace seeking to in the future. acted, us, The court in before therefore now statutory power. requiring no within his We find error give security provisions. the defendant bond GC, imposing §11888 after a fine and sentence under §12142GC. defendant’s, sustained, claim of error No. cannot imposed entirely sentences such as were because the the within provisions upon the statutes relied as the basis prosecution. Assignments Coming of Error Nos. now 2 and 8. There no is personal was, defendant had injunction. knowledge temporary of the court’s He testimony, representative his own local Local Machine United Electrical Radio Workers America party, personally, defendant, I. He named C. O. in the case. as a discloses that a strike been The evidence of' called employed Local 735 at Fawick Airflex members Cor its Inc., stoppage' poration caused March which a work westerly boundary near its Road Clinton 1949, petition City seeking Cleveland. On March injunction equitable upon hearing relief was filed injunction temporary seeking to limit motion granted pickets the same number of injunction granting temporary was set such journal entry forth is set in a March forth part above. morning March shows that group shortly seven em- o’clock a work, desiring met ployees on West Street return to and Linnet Avenues. While were thus Fortune between strikers, probably twenty than assembling, a number of more unquestioned pur- number, for the came the scene in pose going preventing the workers assembled plaintiff. plant and other missiles Beer bottles of the considerable ensued. at the workers violence A thrown and short scene occurred a time or even more violent similar later attempted enter the on Clinton these to as the workers points the where The distance between Avenue. flicts took morning place approximately Again, one on was mile. the place in scene took front of the of March like the relator. plant of City police Cleveland, the of of of these the officers In conflicts all Cuyahoga County Brooklyn of and the from the sheriff protect peace quiet Village restore to and be called to and had desiring people to safety to return work. of the the of of these disturbances the defendant occasion each On the place near When the first attack took at hand. Kres was on West just he, according testimony, Street his own had parked in his automobile across or then the was been subjected to At the workers were the the time street. danger on rocks, other missiles March at of and bolts parked plant, within the was entrance defendant gate. He was at of the also lean-to feet place. morning took 24 when the disturbance of March unorganized place not an sudden took and All was returning preventing controversy. effort of workers safety plaintiff’s plant getting on all these pre-planned organization. appearance occasions, every evidence, developed by all, was the circumstances Kres, clearly Local head officer sufficient to show encourage- give only at directions and was hand his fellow mem- in fact direct activities but did ment the court. decree of in violation bers part took defendant The trial conclusion court’s vicinity of Street West 105 disturbance 23rd, Avenue, morning found March Linnet

439' journal entry paragraphs of the court’s one two supported April sufficient evidence. acts de- however, paragraphs, scribed these two involve the same' injunction,, one is in violation court’s continuous and and act only subject fine of Five Hundred Dollars imprisonment, days sentence of ten that extent the- modified, judgment is and as modified will be affirmed. Likewise, conclusion court’s .disturbance- plaintiff’s plant on at forth entrance March 24th as set paragraphs Kres, 4 and as to defendant is. evidence. The sustained sufficient acts described in these paragraphs act,, constitute three in however but one continuous injunction the court’s violation is therefore sub- ject Hundred days, but one fine Five Dollars ten imprisonment, judgment modified,, that extent affirmed. as modified will be court, Coming assignment now the ninth of error. The against entered fine and sentence defendant as and. telling of court “for for falsehood” in the- a deliberate- presence court, testifying while committed, under oath. The of a presence the court the authority of GC, provides: §12136 judge chambers, summarily may or punish “A a,, person guilty presence of misbehavior so near judge the court obstruct the administration of. justice.” examination, testifying direct On while on his own behalf asked present whether the any or not he was stones missiles plain- time when were thrown at the their they workers automobiles tiff’s to anything.” as attempting- were plant. plaintiff’s enter His answer “Iwas did not see answer, The discloses that after such the following place: took your “The : question. Court minute. Let him Wait a answer says any, he didn’t see say but he He doesn’t whether he question. present. Answer that was back, Mr. Davis: it Mr. Read Pendell. question, The Court: Answer that sir. Well, any. The Witness: I didn’t—I didn’t see I don’t know. question is, you present Court: The The they when —were you say to thrown? What were do that? that, Well, I whether see don’t know if I didn’t The Witness: not, they Honor. Your thrown or were too, get argue sir? will not You Court: You wish The argument of me. out again answer question if is that best Put back question go Read you give, that. let we will can again. reporter) (Question read thrown. any stones I see The Witness: did not right. I the best answer.” consider that Court: All will The holding contempt for the court’s basis assignment is the defendant’s answer of error that not to his know- seeing any thrown missiles to not things place ledge present “deliberate took such when in some detail set forth above have falsehood.” We supporting plaintiff’s claims as the evidence substance of throwing on West 105 on March 23 both of missiles to Street and again plant, on March front tending show that entrance and 24 at the the defendant was seems to thrown nor There occasions. hand these near dispute were missiles no in the record but that presented any here there pertinent question in throwing missiles was of such the this proceeding. whether It remains therefore determine quoted untruth- of defendant above answers “judicial knowledge” given fully had given perjury or were will- answers as constituted that such fully false, knowingly the effect and that judicial process. obstructing the right a trial to hold witness for page testifying falsely Jur. is considered in O. for paragraph as follows: “* * * acts, antagonistic possible so few are judicial objects swearing as the false administration intentional truth, for seeks to baffle the search without flagrant justice swearing impossible. is a Such which insult ings proceed- dignity disbarment court. perjury it was a federal court declared direct and criminal stand the witness statutes, which, the offender federal under justify finding punished. summarily of con- To §12136 conduct tempt contumacious of court GC untruthful, witness, giving prevaricating testifying while (1) necessary: elements That three and evasive (2) effect; alleged had an obstructive answer false (3) judicial question ledge pertinent issues; must be know- testimony, e., patent falsity falsehood, of the i. oí the a opinion; merely as to there can one be but be- preference one cause the court chooses to side in believe other, ground greater probability, of on the does not holding supported justify the witness who

losing guilty contempt justify court. side To such falsity testimony given the court the of the witness’s action open judicial knowledge.” a matter of court must be By greater judicial weight authority hold contempt testifying a falsely, witness judicial knowledge the court must have the witness’s testimony sworn in fact A false. well founded belief Perjury is of its not is untruthfulness sufficient. a crime. punishment provided by guar- Its statute. Constitutional among things, provide, antees grand jury other for indictment a public jury county alleged perjury Likewise, which the because witness from act of committed. of the uncertainties ability which surround the of a accurately passed, relate events that have either memory, inaccuracy faulty perception otherwise, charged perjury except upon one the cannot be convicted testimony of two witnesses witness and other corroborating circumstances. Sec. 13444-32GC. Sandusky Bank of Second National v. Becker al, 289, paragraph syllabus et 62 Oh St of2 reads follows: provisions “2. Section 5556 of the Revised Statutes and the relating proceedings therein referred must operation be so construed restrained their as to and, conflict avoid with the inhibitions the constitution derogation personal liberty, insofar as receive are in should strict construction.” protection It must further be considered that for the public penalty perjury conviction crime of being felony penitentiary can result in confinement in the rights citizenship rights loss until such provided say restored as law. This is not, “judicial knowledge” should falsity where there testimony, right judicial sworn witness’s exercise the impose judicial penalty obstructing process, purpose when the and the material justice. the witness was to obstruct following Riley the case of in-the annotation The author (1920) Judge, Ky. Wallace, etc., 222 S. W. 1085 al v. et says: reported page 352 L. in 11 A. R. 337 testimony denied, falsity the the “In where cases opinion, court, merely the it of inference of a matter is seems weight conflicting a the evidence in con- should not alleged tempt proceeding, should leave contemner the perjury. guilty criminally, In other punished if to be jury a the words, to is entitled facts contemner if the judicial disputed, substantially take the court cannot allegation knowledge testimony the is false. This that or authorities, appears to the doctrine sustained the al- be though bankruptcy the the seems to some cases court way contempt proceedings long weighing gone a have conflicting evidence. herewith) (reported Hudgings Parte “In Ex ante said: court “ per- treat is true decided which ‘It there was cases element, adequate to jury, sustain other a without is, think, contempt. But punishment the mistake we for it misconceives essential since either overlooks or evident underlying tendency obstructive characteristics contempt power, mistakenly necessarily attributes a in- or swearing. conception false If the effect obstructive to herent that, true, court entertained it would when a follow were opinion testifying untruthfully, power witness was that a impose punishment for with the to result would object exacting purpose a character witness truthful; testimony to be would deem which court oppression pass potentialty of come that a thus it to would wrong citizen when result and freedom would imperilled.' gravely called witness would as a ordinarily, dispute when the facts are “Courts will (1917) Eq. Edwards, J. N. it said in Edwards v. contempt, perjury 608, punish not because 100 Atl. requires public policy power, sound lack of but because of that law. the offenders criminal should left arise, may in Edwards it was v. “But said circumstances (N. J.) duty Edwards, supra, it make which would though punish perjury contempt, it even the court is evidence, weigh perjury obliged grant petitioner has a decree induced present this class.” a case divorce said case in which involved a divorce The case annotated granted testimony on false a divorce was was claimed Upon Riley another witness. motion vacate the decree, light judge facts came the trial that led to conclude third, falsely. had testified witness fourth paragraphs of the headnotes it is fifth held: proceed against “3. A chancellor cannot witnesses for testimony giving tempt in false information and rule un- testimony less knows that such false. he judicial knowledge. 4. The 5. notice of take common knowledge cognizance Judicial of certain facts legal judge, procedure otherwise, under rules of which a may properly proof already take or act without because knowledge judge known him that has or is have, officii.” assumed virtue Stone, People Rep. 475, In the Ill. case Stone was having of court falsely cited testified while . in the oath case Greenfield v Stone. The court reviewing page said at 477: alleged of Stone “The substance to be paid trial was he false a Greenfield money place. sum of a certain time and certain Pre- sumably position the not there court was nor to know things fact. All could know the actual it nature of gave one that Greenfield another. version Stone the matter under oath might It form a correct conclusion telling as from the entire evidence to truth, which was the judicially it would not know had falsified. If false presence swearing in the of the court constitutes direct con- judicial knowledge falsity tempt, is, opinion, then of its in our right indispensable to authority the of the court to exercise therefor, nothing is to there commit in the record to the or testimony disclose that court knew could that know the will, therefore, was false. The be reversed for want showing justify entry sufficient referred to.” the orders Dangel Contempt, page parag. 304, author, In the citing contempt authority may that after presence through the the court wilful and intentional obstructing perjury which has effect court duty performance (citing Blachenbury of its v. Comm. spent court in trying 272 Mass. where weeks two daughter being claim contemnor’s false of a decedent administration), says: process whose estate was perjury contempt, “For a direct to constitute judge of such a that the must be character it whom given Citing: People judicially can it is is false. know People Hille, App. Stone, supra; 139; Riley 192 Ill. v. v. v. Wallace, Hegelaw supra; State, ApOh 103.” v. p. Corpus Secundum, paragraph 24 in the Juris Vol. 17 part: Contempt, says the author article perjury contempt determining constitutes “In whether surrounding must all the facts of the circum- consider court charged stances, including relation court one swearing Generally, perjury false contemnor. provided contempt, is sufficient constitute it ob- to the witness judicial performance duty of a structs court discussed in Sec. the fact it constitutes hereinafter also punish power it not court’s affect the crime does a tempt, against perjury the court as well since is offense authority However, contrary, state. there is as the swearing perjury, false it has been held finding contempt justify is insufficient direct witness judicially his knows false unless pertinent issues such evidence and unless ordinarily in its effects. While the court will not obstructive dispute perjury the facts punish when are as a demonstrated, has facts where admitted duty to circumstances arise make which clear act act, though obliged duty it of the court even weigh the evidence.” 609; Tomlinson, App. Citing: People 296 Ill. Bowles v. v. (N. Edwards, 115; 2d, 100 A. 108 Edwards J. 44 Fed. S. v. U. (Col. 1922); People, Sup. Eykelborn 1917); 206P. 388 Ct. v. Chan. State v. Meese, 200 Wis. State, supra, Hegelaw held in In the case syllabus: paragraph second preference side in one “2. court chooses to believe That greater probability another, ground fact on as to issue of supporting losing holding justify side witness not would of requires patent falsehood of court opinion merely based on court.” Roebling, P. v. N. Protective Assoc. And S.) (N. referring page to a circuit court the court at says: pronouncement (unreported) contempt held for be “It is the that cannot law a witness says question T don’t remember’ to a witness answer where a I ‘that’s all know’ case. Our Court Circuit here Judge quoting so Frank M. Gorman our has held Snodgrass the case of Morrison and court in Co. circuit Hazen et (n. s.) P. said: 10 N. al “ circuit has that ‘It true the answer held Hazen’s questions “I “I it don’t recollect” or remember” don’t did not he could answered constitute con- was obvious have ” tempt.’ (b). L. also: R. See 73 A. note light foregoing In the authorities we are constrained that necessary conclusion elements to the two hold presence by “telling missing, deliberate the court falsehood” are judicial knowledge falsity testimony that — justice. obstructing is, that effect There however, sufficient evidence from which the court could witness was untruthful or conclude that the at least evasive. assignment of error under The claim error No. must sustained. sixth defendant’s and seventh of error are .claims part most concerned ination. The claims seem be unjust permitted defendant’s with the cross-exam- such that examination was beyond permissible limits. Cross-examination is accuracy test first to of a witness’s given credibility. to test his and second chief of the record demonstrates An examination the court examination held defendant’s well within known what is accepted objections practice. particularly as defendant are of whether The defendant that followed are rights. stressed question he to answer the ordered Party. he or not member of the was a Communist refused to answer the events prejudicial to be defendant’s claimed question upon The defendant refused to answer grounds. claimed constitutional refusal in was a guilty The court found that such question, its violation order to answer direct finding entry of court and made an him contempt. subject finding This separate appeal and therefore need considered rights prejudiced thereby here. But the claim his is here asserted. Gradually principles fundamental of the Communist knowledge. Party public Their have becomes matters social political vastly different than under- theories are those loyal democracy. supported stood and citizens of our naught held at no Our beliefs fundamental and have binding directing effect in relations. has their social It 446 years in times number recent

been demonstrated without public hearings trials committees and before constituted Party is fact of the Communist bodies not bound that a member They by his feel no oath under circumstances. Judges binding sanctity force oath. courts not shut their minds truths all others can see will clearly therefore It is and understand. demonstrated membership Party Communist competent background where there to test some' for it credibility We find no merit the de- witness. fendant’s No. No. claim error 6 7. finds no merit other errors. to all claimed findings judgment For reasons herein stated the findings court are modified trial as and also as modified, stated, 4 and and as thus as hereinbefore judgments affirmed. said As finding No. defendant’s claim of error is sustained and discharged journal. he is therefrom. Exc. see Order McNAMEE, HURD, J, J, concur. McNAMEE,J: judgment in effect I concur sustains the con- appellant separate charges contempt. on two viction prejudiced appellant

While in ings court’s action judgment by modifying considering court’s trial find- single considering findings so and in act opinion I 4 and 5. am of the court’s should be: Judgment findings as to court’s affirmed No. findings 2, 3, 1 and and reversed and 6 because of sustain lack same.

WATERS, Plaintiff-Appellee, WATERS, Defendant-Appellant. District, County. Appeals, Second Clarke Ohio No. 472. November Decided

Case Details

Case Name: Fawick Airflex Co. v. United Electrical, Radio & MacHine Workers, Local 735

Court Name: Ohio Court of Appeals

Date Published: Mar 6, 1950

Citation: 92 N.E.2d 436

Docket Number: 21497

Court Abbreviation: Ohio Ct. App.