Colbert v. Coney Island , 97 Ohio App. 311 ( 1954 )

It is my view that the action involved on this appeal was properly brought as a class suit and I, therefore, do not concur in the decision of the majority of the court on that issue.

The suit was for an injunction, seeking to enjoin the defendant amusement company from denying to the plaintiffs and the negro citizens similarly situated, on the sole ground that they are negroes, the exercise of their right as such citizens to visit the public amusement park operated by the defendant as provided by Section 2901.35, Revised Code (formerly Section 12940, General Code).

An analysis of the allegations of the amended petition discloses that the plaintiffs, and the class represented by them, charge the deprivation of a right common alike to all of them as negro citizens and all seek the same equitable remedy in a single proceeding, for the reason that the persons aggrieved by the illegal action of the defendant are very numerous and it would be impracticable to bring them all before the court.

It seems clear to me that the plaintiffs and those they undertake to represent in the case come within the requirements of the law governing the right to maintain class actions, as interpreted and announced by the Supreme Court in Wheatley,Trustee, v. A. I. Root Co., 147 Ohio St. 127,69 N.E.2d 187, the law applicable being stated in the fifth paragraph of the syllabus as follows:

"Where a number of persons have separate and individual claims and rights of action against the same party, but all such claims arise from a common source and represent a like interest, the whole matter may be litigated in a single action brought by all of the claimants as coplaintiffs, or, in case the parties are numerous making it impracticable to bring them all before the court, by one or more of them suing for himself or themselves and on behalf of the other claimants. (Paragraph two of the syllabus in Haggerty v. Squire, Supt. of Banks, 137 Ohio St. 207, approved and followed.)"

The question of the right to maintain a class or representative action under the provisions of Section 2307.21, Revised Code (formerly Section 11257, General Code), was again considered by the Supreme Court in Davies v. Columbia Gas Elec. Corp., 151 Ohio St. 417, 86 N.E.2d 603. In the opinion of the court by Judge Zimmerman, a clear, comprehensive statement concerning the conditions requisite for the right to maintain class actions is made, which, it seems to me, when applied to the facts alleged in the amended petition in the case being considered, requires a determination sanctioning the maintenance of the proceeding as a representative action.

The statement of Judge Zimmerman in the Davies case, supra, pages 420 and 421, containing an analysis of the Code provision pertinent here, together with the citation of prior decisions of the court involving the question, is as follows:

"There are three General Code sections relating to class suits, which should be considered together in disposing of the question whether the amended petition presents a cognizable class suit.

"Section 11254 provides:

"`All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided.'

"Section 11256 reads, in part:

"`Parties who are united in interest must be joined, as plaintiffs or defendants.'

"Section 11257, recites:

"`When the question is one of a common or general interest of many persons, or the parties are very numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.'

"Under the statutes quoted, for one to properly institute an action for the benefit of himself and others, there must be a community of interest plus a right of recovery based upon the same essential facts, and all those on whose behalf the suit is filed must have an interest common or identical with that of the person in whose name the action is brought. Trustees of JacksonTwp. v. Thoman, 51 Ohio St. 285, 37 N.E. 523; Duncan v.Willis, 51 Ohio St. 433, 38 N.E. 13; Stevens v. CincinnatiTimes-Star Co., 72 Ohio St. 112, 73 N.E. 1058, 106 Am. St. Rep., 586; 30 Ohio Jurisprudence, 741, Section 28.

"In the later cases of Haggerty v. Squire, Supt. of Banks,137 Ohio St. 207, 28 N.E.2d 554, and Wheatley, Trustee, v. A. I. Root Co., 147 Ohio St. 127,69 N.E.2d 187, wherein the propriety of class suits was recognized and wherein the relief sought was primarily of an equitable nature, this court adhered to the rule that in order to prosecute a class suit, the claims asserted must `arise from a common source and represent a like interest.'

"It will be noticed that in both the Haggerty and Wheatleycases the respective plaintiffs and those they undertook to represent were affected in a similar manner and under like conditions and that the character of the relief which each member of the class represented might obtain was confined to what was asked for in the petitions."

In the case before us, the plaintiffs are not undertaking to represent all the negroes residing in Hamilton County but are seeking equitable relief in the form of an injunction for only those negro citizens who desire to visit the public amusement park operated by the defendant and who would otherwise be refused admittance by the defendant on the sole ground that they are negroes.

Therefore, it appears that all of the negro citizens for whom the equitable relief is sought have an interest which is unquestionably a common interest and that they are very numerous, which makes it impracticable to bring them all before the court; that the same remedy, if and when granted, would afford a redress of their grievances individually and as a class in the single action.

Therefore, considering as I do that according to the allegations of the amended petition the plaintiffs and the class they represent are without an adequate remedy at law and that those necessary conditions for class actions are present in this case, I am of the opinion that the judgment of the Court of Common Pleas in sustaining the demurrer to and dismissing the amended petition was contrary to law, and that such judgment should therefore be reversed and the cause remanded to that court for further proceedings.

FESS, CONN and DEEDS, JJ., of the Sixth Appellate District, sitting by designation in the First Appellate District.