*1 making and discretion in such modification of the official’s order attach such conditions and restric- granting tions to the opinion variance made, be spirit should so that the of the ordinance shall justice be observed substantial done. Appellee might also have had relief from its unnecessary hardship seeking an amendment to the zoning provided ordinance the manner Art. XIV might thereof. Either of these remedies have furnished appellee, courts, without resort to the the relief which seeking. it is foregoing
For reasons the of the trial court appel reversed instructions to sustain motion for lant’s for the defendant at the plaintiff’s evidence, proceedings close of and for further opinion.4 not inconsistent with this Judgment reversed. Reported
Note. — Haley. et al. v.
Nelson 28,984. April 28, Rehearing Filed [No. 1953. May 28, 1953.] Rules 4. 2-6 as amended Nov. 1949.
Ralph Gregg Fillenwarth, B. and Edward J. both Indianapolis Gregg, Fillion, Fillenwarth and Hughes, Indianapolis, appellant. Grimes, Indianapolis, Harding,
Edward Robert Crawfordsville, Ruckelshaus, John K. Ruckelshaus Reilly, O’Connor, Indianapolis, Rhetts & all of appellee. brought by appellee, J. This action was
Flanagan, *3 Haley, personal John W. injuries alleged to have resulted from an battery upon by assault and him appellant, Alphonso (also Nelson referred Al- to as fonso), while serving agent said Nelson was organizer
Union. Trial to finding judg- the court resulted in appellee ment for said $5,000. in the sum of Appellant Nelson claims that he was not summons, served with plea and therefore his in abate- alleging ment such fact should have been sustained. The return to the summons shows that it was served 25, 1945, by on leaving October copy a true same at his place “last and usual residence,” 4129 Avenue, Indianapolis, Cornelius Indiana. Nelson claims he did not live at day such address on the of service.
There is appellant evidence that said maintained a Chicago, stayed home in Indianapolis at the address only January from July, 1945. But there is also days 1945, only 23, before that two evidence on October service, Nelson, himself, Marion Crimi- testified that time was nal his residence at Court that he Indianapolis, Indiana, Avenue, and that Cornelius night evi- stayed before. We think this had there the court sufficiently supported dence Avenue, 4129 Cornelius that on date of service place Indianapolis, Indiana, last and usual was Nelson’s of residence. over Mitten, error
Appellant, claims Harold R. plea ruling plea in abatement in abatement. His his alleges merely he not a that was com Inasmuch as the the involved Unions. alleges repre specifically he such plaint was sentative, remedy the merits answer on his allegation, plea traversing in abate Spindler, Admr. Michigan R.R. Co. v. ment. Cent. (1937), 211 Ind. is the action
Appellant Nelson also contends against against and not strictly as a class individually. presents He this contention several him read in ways. When the different charges entirety, clearly an individual it Nelson as battery, to recover and seeks also upon theory that he was from the Union members acting their on behalf. finding that ample evidence sustain
There battery. commit did the assault Nelson (cid:127) ány say no actual Appellants there is evidence of acts, of, or ratifi- in, participation or authorization *4 knowledge thereof, acts, actual after of cation Union, and therefore any member officer or 1933, 12, Replacement, Acts ch. §40-506, 1952 Burns’ 28, reads as follows: §6, applicable. This p. statute any “No officer or member of or or- association organization ganization, par- and no association or
ticipating dispute, or interested in shall labor be responsible any held liable in or court of the State of Indiana for the unlawful acts of individual offi- cers, agents, except upon proof members or clear participation in, of actual or actual authorization of, acts, such or of ratification such of acts after knowledge actual thereof.” However, appellee provision asserts that this un- subject constitutional because matter is not em- braced the title of of the act which it is part. Section of Article 4 of the Constitution provides every of Indiana act shall embrace subject properly but one and matters connected there- with, subject expressed which shall be in the title.
The title to the involved act reads as follows: defining limiting jurisdiction “An Act courts of this state in the issuance of re- straining or injunctions involving orders and in cases growing disputes declaring out of labor public policy thereto, pro- state relation viding agreements promises, that certain and con- legal tracts shall granting afford no basis equitable or prescribing relief the courts this state and procedure contempt cases court.” subject clearly embraced in this title is restraining injunctions growing orders and out of labor
disputes, subject. title is limited Damages is not subject directly connected with that and is not indirectly referred to in this title. are Where titles limited, provisions of the act not within the limitation Milligan are void. rel. State ex v. Ritter's Estate (1943), 221 Ind. E.N. 2d 993. *5 individually Alphonso made a Nelson was Laundry Inter representative Workers and “as of also members, agents em and national Union and name,” in the ployees, both numerous to too complaint. body Two caption the the of representative capacity. persons in like other were sued requirements Appellants say meet the order ncessary that the named it to state of class action was representatives We know the Union. were members of statute, §2-220, requirement. The Burns’ of no such provides question Replacement, the “when many general persons, or interest is one of a common of imprac parties it the are numerous and or where bring court, the more them all before one or ticable to may of In the benefit the whole.” or defend for sue words, representative rest. the shall be other one allega nothing wrong wording in the of this We find capacity appellants know the tion. If desired remedy representation, was motion to make the the appellants representation, the specific. If more allegation. the remedy was to traverse by appellants that the named asserted It further representatives as representatives were sued members, agents, employees In this Laundry International Union. Workers paragraph five of they Rhetorical are in error. follows: reads as Mitten, defendants, R. Harold That “5. Nelson, Eugene James, E. Byers, Alfonso J. Samuel and each of them, all mem- are agents bers, employees Unions Local International with the affiliated Workers defendant, Union, representative of the and are Union; members, agents, employees Local of said out here- are numerous to name set Unions too in, and that the Local affiliated with Laun- Unions dry Workers International Union are too numerous herein; plaintiff brings name and set out that the this action as a class action names said Harold Mitten, Byers, R. Samuel J. Alfonso Nelson and Eugene James, them, representa- E. and each tives of the members of all defendant Unions named herein.”
Appellants say that it is nevertheless a fact that in caption the summons the and of the thé above, al., individuals referred Nelson et were named representative each “as Laundry Inter- Workers Union,” “representative national and not as of the members, agents employees Laundry and Workers complaint alleges, International ap- Union.” The and pellants concede, that the Union an above-named is unincorporated voluntary association of individuals. It necessarily naming Union, that follows the of the agree fact, appellants means its members. We with agents employees that the and of the were Union never suit, parties made to this and the will be set aside as to them.
Appellants next contend that there no evidence any that of the individuals in a named capacity, Nelson, Byers, Mitten, were members of Laundry the Workers International It Union. is not necessary membership that we decide whether was a requisite. say membership It is sufficient to that if was requisite, ample proof membership. a there is For example, Byers presi- the evidence shows to have been Laundry Union, of the dent Workers International Local, day the a member of Cleveland on the the and alleged place. took The evidence further shows that Workers International “super group up was a autonomous made Union which on sufficient alone is This evidence locals.” by represented was the class that base member. evidence there is no
Next, appellants contend individually charge any one but Nelson we battery. contention With this assault testimony agree. voluminous cannot good pur long. No numerous the exhibits attempting to set forth pose would be served it care However, examined we have here. evidence Nelson, ample to show there is fully find that acting charged, within committing act agent authority scope Byers and Mitten. Union and per- say erred in the court
Finally, appellants given mitting evidence the introduction Appellants plea in abatement. Byers on the introduction from point harm which resulted to no own, fail to we of their of one evidence of former any. find *7 “agents employees of judgment as to the aside; Union” set is affirmed.
otherwise Rehearing. for Petition On petition Appellants have filed Flanagan, J. rehearing. in- our called an error statement
Attention is original opinion, We stated we make correction. involved the assault that at the time of Byers Work- President of J. Samuel was not cor- This statement International Union. ers Secretary-Treasurer. He was he was At that time rect. months later. until several elected President change nothing This in the factual has situation do conclusion reached. urged rehearing fully
Other errors were consid- original opinion, ered in our and we find no reason differently. decide them rehearing
Petition for is denied. Reported in 111 E.N. 2d 812. Note. —
Rehearing State ex rel. Martin v. Court, Hancock Circuit Judge.
Offutt, 29,039. [No. Filed June 1953.]