374 N.E.2d 176 | Ohio Ct. App. | 1977
This cause came on to be heard upon the appeal; the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County; and the transcript of the proceedings, the briefs and the arguments of counsel.
Herman Erfman and Carlos Campbell appealed findings and conclusions holding them separately and individually in contempt of court for violating court orders issued in a strike situation at the initiative of plaintiff Inmont Corporation. Appellants were sentenced to ten days in *18
the Hamilton County jail and fined $500, these being the maximum penalties under R. C.
While the alleged acts of contempt took place in the course of the same strike, the two appellants did not act in concert, and their cases must be individually and separately reviewed. Each claims two errors: (1) in finding him guilty of contempt, and (2) in the imposition of a grossly excessive sentence. (Erfman's two claims are set forth in the first assignment of error, and Campbell's two claims in the second assignment of error. The third assignment of error is applicable to both contemnors and will be considered first, as a matter of convenience.)
The third assignment of error is not well taken.
"It is further ordered that there shall be no threats or acts of violence or damage to or with respect to any employee or other person doing business with or seeking to do business with the plaintiff or traveling in public streets or highways, or to any property of such employees or other persons, or of the company."
Erfman's principal claim is that he had neither notice nor knowledge of the preliminary injunction. The claim is not substantiated by the evidence. While there is no direct evidence of his knowledge and notice, the circumstantial evidence is substantial that Erfman was fully aware of the injunction. Erfman had participated in the strike as a picket and had in fact served as a "picket captain" on four separate occasions, all during the period of one month and twelve days prior to the bottle-throwing incident. On *21 cross-examination, he admitted an awareness of the court order and stated that he would probably "do it again" (referring to his throwing the bottle).
We conclude that the penalties imposed ($500 fine, costs, and 10 days confinement) were not excessive, considering the flagrancy of the violation and the aggravated nature of Erfman's conduct. We note that Erfman was confined for three days before his release by this court and that the remainder of seven days has yet to be served.
The first assignment of error is not well taken and the judgment with respect to Herman Erfman is affirmed.
In the instant contempt proceedings, the court found that Campbell's conduct in each of three separate incidents was in violation of the condition of the stay of confinement and, further, that the third incident was a fresh violation of the preliminary injunction. Specifically, the court found as follows:
(1) That on July 27, 1976, Campbell visited and loitered intermittently at the union's strike headquarters located some fifty yards north of the Inmont plant and that this constituted participation in strike and picketing activities;
(2) that on July 28, 1976, Campbell joined the picket line in front of Inmont's plant for a period of approximately 20 minutes, refusing to leave when warned by Inmont's *22 employees, and that his conduct constituted willful participation in strike and picketing activities; and
(3) that on August 11, 1976, Campbell followed a truck as it left Inmont's premises, passed a police cruiser which was moving up to escort the truck, and placed his car between the truck and the cruiser, intending to follow the truck to its destination, and that this constituted both a threat of violence or damage in violation of the preliminary injunction and a violation of the stay order.
We conclude that three of the four findings of violation are not supported by the evidence, and that the only violation so supported was in the third incident. More specifically, our conclusion is that in undertaking to follow the truck, Campbell participated in strike activity in violation of the conditions of his stay order, but that this conduct did not constitute a fresh violation of the preliminary injunction against threats of violence or damage against persons or property.3 *23
The court imposed penalties of a $500 fine and costs and 10 days confinement for the "fresh" violation of the preliminary injunction in the third incident and ordered the suspended 10-day sentence to be served for the three violations of the stay order, concurrently. The record discloses that Campbell was confined for 3 days prior to being released by this court on appeal.
The penalties imposed for the "fresh" violation of the preliminary injunction must fall with our conclusion that the underlying finding of contempt was not proved. The remaining punishment is the sentence of 10 days for the violation of the stay order. In our judgment, that punishment is now excessively severe, and the imposition of 10 days confinement was an abuse of discretion. *24
Contempt proceedings, including the question of reasonable discretion in imposing punishment, may be reviewed by the Ohio appellate courts. Myers v. State (1889),
The second assignment of error is well taken in part and overruled in part.
Judgment affirmed in part and reversed in part.
KEEFE, P. J., BETTMAN and BLACK, JJ., concur.
"Mr. Swigert: Now, the bottle had smashed and hit the dickey-window, threw glass into the truck driver's eye, and it's very fortunate that he isn't testifying here today blind in one eye. I recall a case that I was involved in a few years ago which was painfully similar in that at the General Electric plant in Blue Ash a strike was on and an object was thrown at a truck driver who was pulling out just as this gentleman was, and this man was blinded in his eye.
"Mr. Doggett: Your Honor, I hate to interrupt, but I object to this inflammatory closing statement, bringing in that Blue Ash strike that had been before in the Common Pleas Court. It's inflammatory, and I move for a mistrial, your Honor. I move for a mistrial.
"The Court: I'll sustain your objection, and deny your request for a mistrial. * * *
"Mr. Swigert: So it seems evident that there is only action that will convince a man like Herman Erfman who incidentally on this witness stand, when asked, well, now, if you were faced with the same situation would you do it again, and he smirked and said, I probably would, that's the kind of man we're dealing with here in this case.
"Mr. Doggett: I move for mistrial on smirk, and him saying the way he characterized the witness, I move for a mistrial. Highly inflammatory.
"The Court: Be Overruled. * * *
"Mr. Swigert: I might say, incidentially, that we've tried to get the guard here and the guard, I'm told, is in Indiana, which is the explanation why we hadn't produced him. We had no idea that kind of excuse was going to be made.
"Mr. Doggett: Your Honor, I don't think that is a proper explanation to be brought on in closing statements, and move for a mistrial.
"The Court: I will sustain your objection and deny the motion for a mistrial. * * *
"Mr. Swigert: Now, here's a man who was spoken to rather sharply at the time he was sentenced. Here's a man who, as Mr. Brooks said, always seemed to be around about the time some trouble occurs on the picket line. Here's a man that it happens from his demeanor, sort of considers himself as a, as the enforcer, or something, in this strike.
"Mr. Doggett: Move for a mistrial, your Honor.
"The Court: Be overruled. * * *
"Mr. Swigert: In any event, I submit that Carlos Campbell and Mr. Erfman have both violated the order of this Court, and that in addition Carlos Campbell has violated the condition of his leniency, and both of them should be found in contempt, and Carlos Campbell's conditions should be withdrawn and he should be sent to the Workhouse.
"Mr. Doggett: For the record, I move for a mistrial on the basis of the inflammatory statement of company's counsel in closing statement.
"The Court: Be overruled."
As to incident (2), the evidence was that between 4 p. m. and 4:30 p. m. on July 28, 1976, Campbell was on the sidewalk at one edge of an entrance to Inmont's plant for a period of about 20 minutes and that he did not leave when ordered to do so by the company security officer. However, the evidence fails to establish that he affirmatively engaged in picketing activities. Campbell's corroborated testimony is that he approached the company's premises to withdraw money from his account with the credit union, administered by a non-striking lab technician in the plant, that this administrator insisted on delivering the check personally to Campbell, that as Campbell approached the entrance there was a contact between a picketer and a departing vehicle (who ran or walked into whom is unclear), that the picketer was on the ground needing assistance, that Campbell had witnessed the incident and waited for the police to arrive, that one guard told Campbell not to come onto the company's premises while the security chief called out a contrary order, that Campbell remained on the public sidewalk, his back to the plant without engaging in any other activity, and that when he received his check from the administrator, he left the vicinity. This evidence, as a matter of law, fails to prove a violation of the stay order.
In incident (3), the evidence discloses that Campbell positioned his car in the driveway entrance of the lot adjoining Inmont's plant, right at the curb, facing out. He was ready to depart on a moment's notice, and he watched the company's entrance for a substantial period of time. As the truck left the Inmont driveway, Campbell pulled out into the street in the same direction immediately behind the truck. In doing this, he passed a police cruiser that had been stopped in the curb lane but then moved out to escort the truck. The sequence of vehicles was the truck, Campbell and then the police cruiser. However, Campbell's uncontroverted testimony is that having been persuaded by two strikers in his car to follow the truck to determine its destination, he changed his mind when he observed the police cruiser following him and turned left into a parking lot within a few hundred feet and before reaching the next intersection. The evidence does not establish any communication, verbal or non-verbal, between the occupants of Campbell's car and either the truck or the police cruiser, other than whatever may be communicated by following the truck for a few hundred feet. Under these circumstances, the evidence fails to establish any threat or act of violence or damage in violation of the preliminary injunction, as a matter of law, but it furnishes sufficient proof of participation in strike activities to sustain the court's finding that Campbell violated the stay order. *25