author: By STEWART, Circuit Judge. By MARTIN, Circuit Judge.

text:
    VOLANSKI, Appellant, v. UNITED STATES OF AMERICA, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12968.
    Decided June 7, 1957.

      Michael A. Picciano, Alan Meltzer, Cleveland, for appellant.
    James Carroll, Cleveland (Sumner Canary, Cleveland, on the brief), for appellee.
    Before MARTIN, MILLER and STEWART, Circuit Judges.
   OPINION

By STEWART, Circuit Judge.

This is an appeal from a judgment of conviction and sentence of appellant to three years’ imprisonment under an indictment charging that he knowingly took, accepted and received from an express company in Cleveland, Ohio, a shipment from Baltimore, Maryland, of three cartons containing numerous twelve-set, lewd, obscene and lascivious pictures in violation of Section 1462, Title 18 U. S. C. A. The case was tried to the district judge without intervention of a jury.

Each set of the pictures in question consists of twelve photographs of a young woman in various poses and various stages of undress. In none of the frontal views is the subject totally unclothed below her waist. In some of the posterior views she is. The photographs are without even tenuous pretensions to artistic or scientific merit. They are unaccompanied by any text. Although some of the poses are rather bizarre, no subject is shown engaged in any indecent or immoral activity.

Despite the objection of appellant’s counsel, a psychiatrist was permitted at the trial to state his opinion as to the effect that the pictures would have upon sadists, masochists, and other types of sexual deviates, and also to state his expert opinion that the pictures would have an undesirable effect upon juveniles. That the court’s decision was based in large part on this evidence is revealed by the trial judge’s oral opinion.

The admission of this evidence was prejudicial error. Obscenity is not to be measured by the reactions of any particular class or group of the population, but.by the standard of the community as a whole. Perhaps the best known American decision in this field of law is United States v. One Book Entitled “Ulysses,” 2 Cir., 1934, 72 F. (2d), 705, affirming D. C. S. D. N. Y., 1933, 5 F. Supp., 182. District Judge Woolsey’s opinion in that case admirably states the correct test of' obscenity. What must be measured is “its effect on a person with average sex instincts — what the French would call 1’homme moyen sensuel — who plays, in this branch of legal inquiry, the same role of hypothetical reagent as does the ‘reasonable man’ in the law of torts and ‘the man learned in the art’ on questions of invention in patent law.” 5 F. Supp., 184. “It is only with the normal person that the law is concerned.” 5 F. Supp., 185.

This now generally accepted test seems to have been first advanced by Learned Hand, then a district judge, when he said, “To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy.” United States v. Kennerley, D. C. S. D. N. Y., 1913, 209 F., 119, 121.

In recent years other courts have postulated this standard in a variety of verbal forms. “ ‘The test is not whether it would arouse sexual desires or sexually impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish. * * * In other words, you must determine its impact upon the average person in the community.’ ” United States v. Roth, 2 Cir., 1956, 237 F. (2d), 796, 801, footnote 1 (quoting the trial court’s instructions to the jury). “Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority.” One, Incorporated v. Olesen, 9 Cir., 1957, 241 F. (2d), 772, 777. “A picture is not to be banned as obscene because of its possible effect, not upon the average citizen but only upon the irresponsible, the immature, or the sensually minded.” Maryland State Board of Motion Picture Censors v. Times Film Corp., 1957, 212 Md., 454, 129 A. (2d), 833, 837. “It is believed that the cases establish that the ‘standard of the community’ has been substituted for the ‘standard of the weak and susceptible,’ at least where there is no evidence of sales to the latter.” Parmelee v. United States, 1940, 72 App. D. C., 203, 113 F. (2d), 729, 739, footnote 5, dissenting opinion by Vinson, J. “[T]he law is not tempered to the hardened minority of society.” Besig v. United States, 9 Cir., 1953, 208 F. (2d), 142, 145. See, also, United States v. Levine, 2 Cir., 1936, 83 F. (2d), 156; Burstein v. United States, 9 Cir., 1949, 178 F. (2d), 665.

The danger of a standard that would measure what is obscene by its effect upon abnormal people is illustrated by the testimony of the psychiatrist in the present case. He testified that some people “gain particular stimuli” by looking at the female foot, and that others, “may get aroused sexual desires” by seeing an article of women’s clothing in the window of a department store.

Without question the pictures in this case are at best vulgar trash. Without question the appellant’s motives in purveying them were ignoble. This court is aware that the availability to juveniles of publications and pictures thought to contribute to delinquent conduct is a matter of deep concern to many. If the causal effect of such material upon juvenile delinquency is demonstrable, it may be assumed that an unambiguous statute specifically prohibiting its distribution by interstate commerce to juveniles would be a valid exercise of Congressional power. But Congress has not enacted that kind of a law.

Under the existing statute with which we are here concerned, to measure what is obscene by its effect upon juveniles would encounter a formidable Constitutional barrier. In Butler v. State of Michigan, 1957, 352 U. S., 380, 77 S. Ct., 524, 526, 1 L. Ed. (2d), 412, the Supreme Court held unconstitutional a state law forbidding the general sale or distribution of publications containing obscene language or pictures that tended to incite minors to immoral acts or to corrupt them. The court said: “We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society.”

For the reasons stated the judgment of conviction must be set aside. A majority of the court, unable to hold as a matter of law that by the proper test the pictures are not obscene, believe the case should be remanded to the district court for a new trial. 28 U. S. C. A. §2106; Bryan v. United States, 1950, 338 U. S., 552, 70 S. Ct., 317, 94 L. Ed., 335.

The question in our opinion is peculiarly one best left for nisi prius determination, preferably by a jury. “* * * [T]he problem is to find a passable compromise between opposing interests, whose relative importance, like that of all social or personal values, is incommensurable. We impose such a duty upon a jury * * *, because the standard they fix is likely to be an acceptable mesne, and because in such matters a mesne most nearly satisfies the moral demands of the community. * * * ‘[Olbscenity’ is a function of many variables, and the verdict of the jury is not the conclusion of a syllogism of which they are to find only the minor premiss, but really a small bit of legislation ad hoc, like the standard of care.” United States v. Levine, 2 Cir., 1936, 83 F. (2d), 156, 157. A trial court can best determine “the present critical point in the compromise between candor and shame at which the community may have arrived here and now.” A trial court, particularly with the aid of a jury, can best determine “the average conscience of the time.” United States v. Kennerley, D. C. S. D. N. Y., 1913, 209 F. 119, 121.

We do not reach the searching Constitutional questions so exhaustively explored by the late Judge Frank, concurring in United States v. Roth, 2 Cir., 1956, 237 F. (2d), 796, 801, certiorari granted, 1957, 352 U. S., 964, 77 S. Ct., 361, 1 L. Ed. (2d), 319.

The judgment is set aside and the case is remanded for a new trial.

DISSENTING OPINION

By MARTIN, Circuit Judge.

In my view, expressed in conference and in a proposed opinion before the majority opinion was written, the judgment of conviction and sentence in this case should be reversed and the case dismissed. It is true that the trial court erred in admitting the testimony of a psychiatrist concerning the effect these pictures would have, not only on normal males but also on sexual perverts, such as sadists and masochists, and on adolescent youth; and that the correct applicable test is what effect viewing pictures like those in evidence here would have on normal-minded people. See opinion of Judge Learned Hand in United States v. Levine, 2 Cir., 83 F. (2d), 156. Applying this test, I think these pictures would have no greater effect upon normal people than would the widely distributed magazine pictures of semi-clad females and similar pictures irrelevantly displayed on book covers and even on detective and murder-mystery novels. Each of the photographs exhibited in this case depicts a partly-clothed woman. None of them shows a front view of a completely nude female figure.

In a case decided recently [Alfred E. Butler v. State of Michigan, February 25, 1957, 352 U. S., 380, 77 S. Ct., 524, 526, 1 L. Ed. (2d), 412], the Supreme Court reversed a conviction in a Michigan criminal court under a statute of that state making it an offense for any person to make available for the general reading public a book which the trial judge found would have a deleterious influence upon youth. The Supreme Coure rejected the insistence of the State of Michigan that, by thus quarantining the general public against books not too rugged for grown men and women in order to shield juvenile innocence, the state is exercising its power to promote the general welfare. Mr. Justice Frankfurter commented: “Surely, this is to burn the house to roast the pig.” The opinion concluded: “We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society. We are constrained to reverse this conviction.” The principle of the Butler case bears true analogy here.

My opinion is not to be construed as placing approval upon the distribution of lascivious literature or pictures, but is limited to the facts encountered in the instant case, which, in my judgment, are inadequate to constitute a showing that appellant should be subject to the criminal sanctions of the federal statute under which he was indicted, tried and convicted. In a case tried by me, without the intervention of a jury, while sitting in the United States District Court at Pittsburgh, I convicted and sentenced to limit punishment a distributor of lewd, obscene and lascivious pictures. [United States v. Saxton]. But in the instant case, I cannot so classify the photographs exhibited in evidence. The judges of this court are in as good position as is the able trial judge to view the pictures and classify them as within or without the ban of the statute. Having carefully inspected the photographs, my conscience would not rest easily upon sending a person to jail for handling them.

My thought is that a new trial would be a futile waste of time, money and effort. For my part, I could not, as an appellate judge, vote to affirm a second conviction should one ensue. I think the case should be dismissed.

      . For example, the district judge said: “What about the poor, weak-minded people who have the stimulus and do not have the will power to reject acting upon it? This almost gets down to a business for stimulation of the imaginations of perverts, doesn’t it? People of perverted minds and perverted tendencies who get their dollar’s worth out of this sort of dirty picture. * * * What about the poor half-witted kids who don’t have that doctor’s education and training and power of control? What about the people who are a little off?”


source: Caselaw Access Project

author: Ey MIDDLETON; PJ.

license: Public Domain

text:
    MONTGOMERY, Plaintiff-Appellant, v. WERTNER, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2409.
    Decided June 14, 1957.
    Robert W. Schroader, Dayton, for plaintiff-appellant.
    Pickrel, Schaeffer & Ebeling, Dayton, for defendant-appellee;
    (MIDDLETON, YOUNGER' and GUERNSEY of the Third District, sitting by designation in the Second District.)
   OPINION

Ey MIDDLETON; PJ.

This is an appeal on questions of law, from a judgment of the Court of Common Pleas entered for the defendant in an action for damages arising from a collision between an automobile and a motorcycle.

The plaintiff assigns as error, the giving by the court of four special charges requested by the defendant, and the court’s refusal to give a special charge requested by the plaintiff. No other error is set forth in plaintiff’s assignments of error or argued in his brief.

The special charge requested by the plaintiff which the court refused to give, is as follows:

“I charge you that wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply:
“A vehicle shall be driven as nearly as is practicable, entirely within a single line of traffic and shall not be moved from such line until the driver has first ascertained that such movement can be made with safety.
“The course of each single line of traffic is fixed by the course of the various vehicles and not by an imaginary line equidistant from the center line and the edge of the roadway or curb line in the direction of travel.”

The first two paragraph of this request to charge were included in another special charge requested by plaintiff which was given by the court. It is readily apparent that the above request to charge is not linked to the parties and does not make any application of the legal principle set out in the charge, to the evidence in the cause on trial. As submitted, the request to charge merely states an abstract legal principle, and the court’s refusal to give the charge was not error.

Kohn, Admrx. v. B. F. Goodrich Co., 139 Oh St 141; Bradley v. Mansfield Rapid Transit, Inc., 154 Oh St 154 at page 168.

In view of this holding it is unnecessary for the court to rule upon the correctness of the legal principle set forth in this charge.

Plaintiff contends the court erred in giving defendant’s special instructions 8-9-11-14 in that the language of the requested charges relating to the defense of contributory negligence does not represent a correct statement of the law. In referring to the defense of contributory negligence, that part of the special charges of which the plaintiff complains, is as follows;

Charge No. 8.

“if you further find that said negligence contributed in the slightest degree as a proximate cause of the accident and injuries complained of, then plaintiff cannot recover.”

Charge No. 9.

“if you find that such negligence existed and contributed in even the slightest degree as a proximate cause of said accident and plaintiff’s injuries then plaintiff cannot recover and your verdict must be for the defendant.”

Charge No. 11.

“If you find by preponderance of the evidence, that plaintiff was guilty of negligence, no matter how slight, which proximately caused or contributed in the slightest degree to cause said accident and plaintiff’s injuries, you must find for the defendant.”

Charge No. 14.

“If you find that such negligence existed and contributed in even the slightest degree as a proximate cause of said accident and plaintiff’s injuries he cannot recover and your verdict must be for the defendant.”

The Supreme Court has approved the use of the language “in the slightest degree,” in charging on contributory negligence.

Chesrown v. Bevier, 101 Oh St 282; Bartson v. Craig, 121 Oh St 371; Bradley v. Mansfield Rapid Transit, Inc., 154 Oh St 154.

The plaintiff complains specifically of the use of the word “even” in charge number 9, and the phrase “no matter how slight” in charge number 11.

The court is of the opinion that these words complained of do not lessen or reduce the quantity or degree of plaintiff’s negligence which, if found to exist, would defeat recovery by plaintiff. They are mere surplusage and do not add to or take away from the law covered by the charge, and while we do not approve of their use, we find no prejudicial error on the part of the court in giving special charges numbers 9 and 11.

Plaintiff’s complaint of special charges numbers 12 and 13 is that they are a repetition of the propositions of law contained in the other special requests given, and that they assume negligence as a fact. This complaint is not well taken. The court is of the opinion that these special charges set out a correct statement of the law and are not repetitious. Without further extended comment, we find the court did not err in giving these special charges to the jury.

The judgment of the Court of Common Pleas is affirmed.

YOUNGER and GUERNSEY, JJ, concur.


author: Per CURIAM:

text:
    STARK, Plaintiff-Appellant, v. TESTO, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24271.
    Decided February 20, 1958.
    McDonald, Hopkins, Hood & Hardy, for plaintiff-appellant.
    Albert B. Lefton, for defendant-appellee.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law and fact from a judgment entered by the court without the intervention of a jury in the Common Pleas Court of Cuyahoga County. The court found and entered judgment for the defendant on plaintiff’s amended petition and for the plaintiff and against the defendant on his eross-petition.

The plaintiff filed his amended petition in which he alleges that the defendant sold plaintiff a one-half interest in his machine tool business for $35,000, $16,000 in cash and the balance of $19,000 by note payable in one year with interest at four per cent. The plaintiff alleges that to induce him to purchase said one-half interest, the defendant knowingly and fraudulently made certain untrue representations as to the volume of business, the inventory, and some of the customers to whom the defendant was selling “large amounts of merchandise.” It is further alleged that defendant represented and agreed that if at any time after the transaction was consummated, the plaintiff should become “dissatisfied with the investment, defendant would repurchase” the plaintiff’s interest in the business for the same price paid therefor. (There is no mention of this allegation in the partnership agreement introduced into evidence during trial.) Plaintiff alleges that he entered into the business January 2, 1954, and during the month of January discovered defendant’s statements about the business made to induce the plaintiff to became a partner (an undivided forty per cent owner of the business) were untrue and on many occasions he offered to return his interest in the business and demanded the return of the purchase price. That on June 1, 1954, the plaintiff renewed his demands, that such demands were refused, the defendant stating that there had been a loss of from $14,000 to $16,000 during the first five months of 1954, of which plaintiff should stand his share. Plaintiff alleges that, relying on such representations, he agreed to and did sell his interest in the business to the defendant for $10,000 cash and the return of the $19,000 note. The plaintiff also alleges that the representations made upon which he relied in reselling the business to the defendant were false and untrue to defendant’s knowledge and were made for the purpose of deceiving him and pursuant to a preconceived plan to defraud and cheat him whereby he was defrauded of $6,000, for which amount he asks judgment.

The answer of the defendant admits the sale of an interest in the business for the price alleged by the plaintiff; alleges that before the plaintiff became a partner, he spent about three weeks working therein to determine for himself the amount of the inventory, the volume of business and the like and that it was only after his personal investigation that the plaintiff entered into the partnership agreement of January 2, 1954. The defendant further alleges that the said articles of partnership contain all of the terms of their agreement and the allegation that defendant would repurchase plaintiff’s interest in the partnership if plaintiff was not satisfied is not true and that plaintiff entered into such agreement “with full knowledge and disclosure of all the facts of the said business.”

It is also alleged that plaintiff, acting as a partner between January 2, 1954 and June 4, 1954, had full opportunity to examine the books, inventory, assets, liabilities, profits and losses, and was fully advised of his own knowledge of its economic value. That on June 4, 1954, the plaintiff entered into a written agreement to resell his interest in the business for $29,000, $10,000 in cash and the balance by the return of his note for $19,000, given to the defendant by the plaintiff when he purchased an interest in the business January 2, 1954.

As a part of the written agreement of dissolution of partnership of June 4, 1954, it was provided:

“Each of the parties hereto does hereby release and forever discharge the other from all claims and demands whatsoever, in any manner arising under the Articles of Co-Partnership hereinbefore referred to (Agreement of January 2, 1954), or in any manner growing out of the business of said firm.
“And the said Alfred A. Stark hereby covenants and agrees that the consideration of Ten Thousand Dollars ($10,000.00) is hereby accepted in full satisfaction of the purchase price and hereby agrees to cancel and release any and all debts and obligations between the parties hereto, including the sum of Six Thousand Dollars ($6,000.00) paid over and above Ten Thousand Dollars ($10,000.00) by said Alfred A. Stark to Edward D. Testo at the time of entering into the partnership agreement.”

The defendant then alleges that by reason of such release provision of the dissolution agreement of June 4, 1954, the plaintiff released all claims alleged in his petition.

The defendant then set forth four causes of action in his counter claim. Upon trial the court found for the plaintiff on each of these causes of action and no appeal has been taken from such judgment so that that part of the case is concluded.

The plaintiff’s reply to defendant’s answer admits that the articles of dissolution contained the release provisions as set out in the answer, the paragraph of the reply being as follows:

“Plaintiff admits that between January 2, 1954 and June 4, 1954, he was a partner with defendant; admits that on June 4, 1954 plaintiff and defendant entered into a written agreement for the dissolution of said partnership, which agreement contained among other things the two paragraphs quoted in defendant’s answer; admits that he received the sum of $10,000 cash and return of his note upon the dissolution.”

Plaintiff denies his knowledge of the condition of the business or the opportunity to examine the records, either prior to the articles of partnership of January 2, 1954 or at the time of the dissolution thereof on June 4, 1954.

It is undisputed from the allegations of the pleadings, as quoted, that a full release from all obligations under the contract of dissolution was agreed to by the parties. We are, therefore, met at the outset with the obligation of the plaintiff to seek rescission of the release before attempting to seek relief on claims coming within the terms of the release. There is no claim by the plaintiff, nor does he plead facts to support a claim, that the release as set out in the answer was void ab initio. No claim of fraud in the factum is here even suggested.

“In 35 O. Jur., paragraph 52, page 292, it is said:

“* * * While a different rule has been adopted in some jurisdictions,' it seems to be thoroughly established in Ohio that, in the case of a release which is merely voidable, the plaintiff is obliged to procure its rescission before proceeding with his action on his original claim, since it is considered that such release, until it is set aside, constitutes an effective bar to such action and that it is not permissible, when the release is brought into the case for the first time by the defendant in his answer, for the plaintiff to seek its rescission by setting up in his reply the facts which would render it voidable. It is permissible, however, to seek the rescission of such a release in the same action in which recovery is asked on the original claim by setting forth in the petition the facts which render it voidable and by alleging, in addition, such restoration or tender of the benefits received by the plaintiff thereunder as entitles him to the rescission and cancellation thereof. In that case the judge, sitting as a chancellor to administer equitable relief, will first determine the plaintiff’s right to a rescission of the release, and, in the event such equitable relief is granted, the trial may then proceed upon the original claim, unaffected by the release. * * *”

From the analysis of the plaintiff’s petition, it is evident that no attempt was made by the plaintiff to seek to set aside the provisions of the dissolution agreement which released both parties from all claims growing out of the transactions between the parties as set out in the petition. The plaintiff’s action, therefore, upon the admissions of the pleadings, cannot be maintained until the release above set out is set aside in a proceeding in chancery, either set out in the action seeking damages or otherwise under the rule set forth in Ohio Jurisprudence above quoted.

Even if such rule requiring the setting aside of a release before seeking damages on a claim covered by the release were not directly here presented, we would, upon the record, be called upon to affirm the judgment entered by the trial court. There is credible evidence clearly supporting the judgment of the trial court for the defendant and against the plaintiff on his amended petition.

It must also be observed that the principal claim of the plaintiff is for money only and, therefore, an action at law. This appeal should, therefore, have been on questions of law. Since no objection was presented to proceeding on appeal on questions of law and fact, we are authorized to enter the same decree and judgment as would be required had the appeal been on questions of law. See Drake v. Tucker, 83 Oh St 97, 93 N. E. 534. where the court in the syllabus said:

“Whether a cause in which an appeal has been taken to the circuit court from the judgment of the court of common pleas is appealable, is a question which cannot be effectively made except by a motion to dismiss the appeal interposed in the circuit court before the trial in that court.”

Decree and judgment is, therefore, entered for the defendant on plaintiff’s petition.

Exceptions noted.

SKEEL, FJ, HURD and KOVACHY, JJ, concur.


author: By BARTLETT, J.

text:
    PIONEER MUTUAL CASUALTY COMPANY, Plaintiff, v. BETTON et, Defendants.
    Common Pleas Court, Franklin County.
    No. 193859.
    Decided January 31, 1958.
    Ballard & Dresbach, Crabbe & Newlon, Columbus, for plaintiff.
    Reeves & Herron, Columbus, for defendant, Lee H. Betton.
   OPINION

By BARTLETT, J.

This case was called for trial. Counsel for defendant Betton insisted that his client was entitled to a jury trial as of right; and counsel for the plaintiff contended that since this action is a proceeding for a declaratory judgment, it does not involve any question requiring a jury trial, but confines itself to the declaration of the rights of the respective defendants under the insurance policy in question, and is an equitable proceeding in which the issues are properly triable to the Court.

The question of whether the case should be tried to a jury has been submitted to the Court on briefs by counsel for the plaintiff and the defendant, Lee II. Helton; and it; appears to this Court that neither of the positions taken by counsel for the respective parties is entirely correct.

Since “actions for declaratory judgments are a creature of comparative recent legislation, such type of action did not exist prior to the adoption of the Ohio Constitution, * * it is manifest there was no right to trial by jury in such actions prior to the adoption of the constitution. Any right to trial by jury in such actions is, therefore, not vouchsafed by the Constitution but must be founded in the statute.” Renee v. Sanders, 160 Oh St 279, p. 282, and cases there cited.

Sec. 2721.10 R. C., of the Declaratory Judgment Act itself provides:

“When a proceeding under §§2721.01 to 2721.15, inclusive, R. C., involves the determination of an issue of fact, such issue may be tried and determined in .the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.”

Sec. 2311.04 R. €., also provides:

“Issues of law must be tried by the court, unless referred as provided in §§2315.26 to 2315.36, inclusive, R. C. Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference is ordered as provided in such sections.
“All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by a jury, or referred.”

It was held in the case of Travelers Indemnity Co. v. Cochran, Jr., 155 Oh St 305:

“3. Where a declaratory judgment action involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions, and where, in a civil action by the insurer for the cancellation of an insurance policy on the ground that it has been breached by the insured, no money judgment or recovery of specific real or personal property is sought, the issue is properly triable to the court.”

It is true that “issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried to a jury, unless a jury trial is waived, * * * as provided in §2311.04 R. C., supra; and it is equally true that “Where a declaratory judgment action involves the determination of an issue of fact, * * * and where, * * * no money judgment or recovery of specific real or personal property is sought, the issue is properly triable to the Court.” Travelers Indemnity Co. v. Cochrane, Jr., supra, and in that case, the Trial Court saw fit to hear and determine the whole cause without a jury.

But it must not be overlooked that Hart, J., in delivering the opinion of the Court in the foregoing case, states that “When a proceeding in the Declaratory Judgment Act involves a determination of an issue of fact.” 01 * * “Depending upon the character of the declaratory judgment sought the action may be tried either to a jury or a Court. The question is determined as in all other civil actions.” (Emphasis ours.)

An examination of the amended petition “discloses that the declaratory judgment sought in this ease involves the same issues of fact and law as a decree of cancellation in equity involves, * *

“The case being in its nature one in chancery, * * *” p. 151 Pioneer Mutual Casualty Co. etc. v. Pennsylvania Greyhound Lines, et al, 68 Oh Ap 139, held:

“1. Where a petition, praying for a declaratory judgment and cancellation of a liability insurance policy, states a cause of the character of an action in chancery for cancellation, the action will be treated as one in chancery for cancellation, allowing an appeal on questions of law and fact.
“2. In a chancery action, an appeal from the Common Pleas Court to the Court of Appeals on questions of law and fact may be taken from the sustaining of a demurrer to a petition, and, in such case, the action stands for trial de novo in the appellate court, and pleadings may be amended and additional persons .made parties to the same extent as in the Common Pleas Court.”

The foregoing case is quite similar to the instant case, in that the plaintiff sought cancellation of a liability insurance policy because of alleged false representations of certain material facts by the insured in the application for such insurance, while in the instant case plaintiff seeks to have such policy declared null and void on the same grounds. It would seem, therefore, that the instant action should be treated as one in chancery. If so, the plaintiff has no constitutional or absolute statutory right to a trial by jury. Renee v. Sanders, Exr., et al, 160 Oh St 279.

On the other hand, the fact that the Supreme Court held in The Travelers Indemnity Co., case, supra, that in such suit for cancellation of an insurance policy, “the issue is properly triable to the court,” it does not necessarily follow that the issue in that case might not have been properly triable to a jury, if the Court had so ordered. The Court saw fit to try that case without a jury.

As heretofore noted, §2721.10 R.«C., supra, provides that issues of fact in actions for declaratory judgments, may be tried and determined in the same manner as in other civil actions.

Sec. 2311.04 R. C., after providing that “issues of law must be tried by the court” and “issues of fact arising in actions for the recovery of money only, or specific real or personal' property, shall be tried by a jury, unless a jury trial is waived;” but it is significant that such section of the code in its last paragraph provides further:

“all other issues of fact shall be tried by the Court, subject to its power to order any issue of fact to be tried by a jury, or referred. (Emphasis added.!
“Generally; Jury Trial. — In an action for the rescission and cancelation of an instrument upon the ground that it was procured by means of fraud, duress, misrepresentation, or upon any other ground which is clearly equitable in its nature, neither party is entitled to demand a jury. However, the court may impanel a jury although the cause of action is an equitable one; and while there are a great many instances in which it is the duty of the court, in trial» to a jury, to determine the question of what constitutes a reasonable time within which an act must be done, and to specifically instruct the jury thereon, the tendency of the decisions in Ohio is to leave such questions, including the question whether one having the right to rescind a contract did so within a reasonable time, to jury, under proper instructions.” 8 O. Jur. 2d, p. 464, Cancellation of Instruments, Sec. 64. '
“So where, in a civil action in which the plaintiff seeks equitable relief in respect of an alleged legal right, * * *, if the issue thus raised is a substantial issue of fact, its emergence may give rise to a question as to the mode of trial, * * * a situation of this kind might induce a chancery court, in the exercise of its discretion, * * * under the Code; * * *, depending on the nature of the case, (1) to impanel a jury and take a special advisory verdict; (2) to hear and determine the whole cause without a jury; * * *.” 20 O. Jur. 2d. p. 40, Sec. 14.

The last paragraph of §2311.04 R. C., recognizing the power of the court to order any issue to be tried by a jury, was formerly known as §11380 GC, and many Ohio courts have exercised their discretion in that respect, some of which we shall now note.

Where the Court, in an equity case, submits to a jury issues of fact that are triable by the Court, the jury verdict is not conclusive, but the Court may decree notwithstanding the verdict. Morgan and Co. v. Spangler, 20 Oh St 38; such finding of the jury in a question of fact in an equity case is not binding upon the court; but under §11380 GC (now §2311.04 R. C.), the Court may impanel a jury to try an issue of fact for the purpose of aiding the Court in the determination of the issue. It is the duty of the Court to finally determine the issue of fact tried by the jury. Acme Mortgage Co. v. Parker, et al, 17 Abs 97.

Where the Court, in an equity case, submits certain questions to a jury, it is not error to refuse instructions on points irrelevant to the questions submitted, though pertinent to other parts of the case. Carlisle v. Poster, 10 Oh St 198.

This Court has reached the conclusion that certain substantial issues of fact should be submitted to a jury for the purpose of aiding the Court in the determination of such issues as follows:

1. On March 10, 1955, did the defendant, Lee H. Betton, in writing apply to The Pioneer Mutual Casualty Company for a policy of insurance covering his 1951 Chrysler Imperial automobile, Model C 54, six passenger sedan?

2. Did said application contain this question: Item 7. Do you or any driver of the automobile have any physical impairment or deformity?

Did the defendant Betton in writing answer such question: No?

3. Did said application contain this question: Item 7a. Have you or any driver of the automobile had any automobile accidents during the last three years?

Did the defendant Betton answer such question: No?

4. Were either one or both of the above answers by defendant Betton false? If so, which answer was false?

5. If false, was such answer given by the defendant Betton with intent to deceive? Which answer was given with intent to deceive.

■ 6. Did either of such false answers by the defendant Betton materially affect the hazards assumed by said insurance company? If so, which false answers did materially affect the hazards assumed by said insurance company?

7. Was the defendant, Lee H. Betton, involved in an automobile accident on November 7, 1953, at the intersections of Cleveland Avenue and East Second Avenue in the City of Columbus, Ohio?

8. Was the defendant, Lee H. Betton, involved in an automobile accident on August 29, 1954 at the intersection of Joyce Avenue and East 5th Avenue in Columbus, Ohio?

9. Was the defendant, Lee H. Betton, involved in an automobile accident on Tenth Avenue near Michigan Avenue in Columbus, Ohio on or about October 18, 1954?

10. Did the defendant, Lee H. Betton, have a physical impairment known to him to be a nervous disorder for the treatment of which he was confined to a hospital at Wright Patterson Field for approximately six months by reason of which he was discharged from military service, and for which he was under the care of physicians at the time of the execution of his application for insurance?

11. On the reverse side of the application blank executed by the defendant, was there information forming a part of the application as follows:

“UNDERWRITING INFORMATION
Driver’s License Number No of years driving of principal Driver L 87500 Experience 9 years Traffic Convictions Date 11/54 Offense Speed
Date 9/3/54 Offence Illegal Left Turn
ACCIDENT RECORD OF PRINCIPAL DRIVER (PAST THREE YEARS)
none
Name of previous insurance company. None
Number of children boys____Ages____
girls 2 Ages 2 yrs. & 9 mo.
OTHER DRIVERS
none
PREVIOUS ADDRESS
(if at present location less than two years)
Service”

Answer yes or No:

12. Was said application for insurance completed in the presence of the defendant, Lee H. Betton?

If not, state in what particulars said application was not completed in the presence of defendant, Lee H. Betton.

If any part of said application was not completed in the presence of defendant, Lee H. Betton, was any such part at variance with his disclosures?

If so, state what was the variance.

The' Court has prepared an entry, ordering that a regular jury be impaneled and sworn according to law for the purpose of deciding the foregoing issues of facts, as an aid to the Court in its determination of said issues of facts. Such entry will be submitted to counsel for the respective parties before it is journalized.


author: By THE COURT.

text:
    OLIVER, Jr., Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILWAY COMPANY, a Corporation, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5540.
    Decided October 11, 1956.
    Schwenker, Teaford, Brothers & Solsberry, Bernard P. Bernard, of Counsel, Columbus, for plaintiff-appellee.
    Wilson & Rector, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County entered on a verdict of a jury returned in favor of the plaintiff for the sum of $50,000.00 in an action under the Federal Employers’ Liability Act, for damages arising out of a personal injury.

Plaintiff alleges that he was an employee of the defendant company and assigned the task of moving ashes from the boiler room used in connection with the operation of their roundhouse, to a dump car standing on a track in defendant’s railroad yards; that at five-thirty A. M. on December 16,1953 it was cold, dark and snowing; that the walks, wooden ramp and platform between the boiler room and the ash car were covered with snow and ice, and in a slippery condition; that plaintiff was required to use a rubber-tired wheelbarrow to transport the ashes; that after he had dumped a load of ashes in the ash car, he was pushing the wheelbarrow back down the ramp toward the boiler room when the wheelbarrow suddenly skidded and plaintiff’s feet slipped out from under him; plaintiff fell on his back with great force, was knocked unconscious, and by reason of the injury became permanently and totally disabled. Plaintiff further alleges that the proximate cause of his injury was defendant’s negligence in this, to wit: Defendant failed to provide a safe place to work; defendant failed to provide plaintiff with safe working equipment; and defendant failed to promulgate and enforce a rule providing that an employee must first clean and, if necessary, apply salt, cinders, ashes or sawdust to platforms, walks, ramps, etc., over which such employee is required to transport equipment or material, when such surface has been made slippery by weather or other conditions. Defendant’s first defense was in the nature of a general denial; in the second defense, defendant pleaded contributory negligence. Plaintiff’s reply was a general denial.

Defendant assigns as error: Overruling of defendant’s motion to withdraw from the jury the evidence with respect to a defective wheelbarrow; in giving before argument three special instructions; the verdict was contrary to the weight of the evidence; overruling defendant’s motions for directed verdict at the close of all the evidence.

The plaintiff charged in his petition that “defendant failed to provide the plaintiff' with a safe place to work in that it required him to push the wheelbarrow up and down the ramp under the circumstances then and there existing” and, also, that “defendant failed to provide plaintiff with safe working equipment, etc.” Under the specifications of negligence evidence with respect to defect in the wheelbarrow was admissible.

Special Instruction No. 1 reads as follows:

“I charge you that contributory negligence is not a bar to recovery by the plaintiff in this case.”

This is a correct statement of the law. The court is not required to further charge on comparative negligence to make the charge complete and state that under the Federal Employers? Liability Act the doctrine of comparative negligence applied.

Special Instruction No. 2 reads as follows:

“I charge you that if the work which plaintiff was doing was dangerous unless rules were made for its conduct, it was the duty of the defendant to exercise reasonable care in promulgating and enforcing rules to protect plaintiff against dangers incident to such work.”

Under the Federal Employers’ Liability Act the employer is required to safeguard the employees by the adoption of methods and the promulgation of rules and regulations where the work is dangerous. Whether plaintiff’s work was dangerous, requiring rules for its conduct, was a jury question. We can not find that the work was not dangerous as a matter of law. The defendant offered evidence to the effect that plaintiff had been cautioned by fellow employes that the work was dangerous. This instruction is based upon plaintiff’s fourth specification of negligence.

Special Instruction No. 3 reads as follows:

“I charge you that if you find that the plaintiff was injured, and that the injuries of plaintiff were proximately caused by negligence of the defendant in any one or more of the respects charged, then your verdict must be for the plaintiff. If you further find that plaintiff himself was guilty of some negligence which proximately contributed to cause such injuries, you must consider such negligence of the plaintiff in fixing the amount of your verdict.
“If you find that the plaintiff was not injured, or that the plaintiff was injured, but that the injuries of plaintiff were caused solely and entirely by his own negligence, the defendant not being guilty of any negligence whatsoever in any one of the respects charged, then your verdict must be for the defendant.”

Appellant contends that this instruction was not complete. We do not agree. In our opinion the special instructions were sufficiently complete and applicable to the issues raised by the pleadings and the evidence.

We do not find the verdict to be excessive. The special damages alone amounted to almost $10,000.00. The refusal of plaintiff to undergo corrective surgery and the uncertainty of the outcome, which may be beneficial or prove fatal, was presented to the jury. The effort made by plaintiff to find suitable employment, all of which was relevant, was presented to the jury to assist it in determining whether plaintiff made a reasonable effort to minimize the damages.

We find no prejudicial error in overruling defendant’s motion for a directed verdict at the close of all the evidence; neither do we find the verdict to be contrary to the weight of the evidence. We find no assignment of error well made.

Judgment affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: Per CURIAM.

text:
    VAN COBB, a Minor, Plaintiff-Appellant, v. SUDZINA, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3823.
    Decided March 15, 1956.
    Leo Waldman, Paul H. Smith, Youngstown, for plaintiff-appellant.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendantappellee.
   OPINION

Per CURIAM.

In this action brought by plaintiff against defendant to recover damages for personal injuries arising out of an automobile collision the plaintiff attached to his petition thirty-four interrogatories and requested that the defendant be required to answer the same under oath pursuant to §2317.07 R. C.

Defendant demurred to the interrogatories, and upon hearing such demurrer the court sustained the same on the thirteenth day of August, 1955, and made the following entry upon its journal:—

“This day this cause comes on for hearing on demurrer of defendant to interrogatories attached to petition, on consideration thereof, the court in the exercise of its discretion sustains the same as to the interrogatories — thirty-four in. number. While §2317.07 R. C. liberalizes and broadens the scope of the interrogatories, this court is of the opinion that it does not eliminate the use of depositions, nor does it preclude the jury from hearing the testimony of witnesses orally. The use of interrogatories is intended to enable a party to prepare his pleadings and to prepare his case so that he may know the issues involved. Interrogatories were never intended to be a substitute for a full trial to either a jury or a court. Exceptions allowed.” See Journal 235-B, Page 341.

From such entry the plaintiff has appealed to this court upon questions of law.

If the court incorrectly stated the reasons for sustaining the demurrer to the interrogatories the reasons themselves are not grounds for reversal.

If the judgment on the sustaining of the demurrer was lawful the matters embraced in the court’s opinion are not binding on this reviewing court and constitute no ground of error. It is the decision of the court pronounced and not the reasons that is all important.

In the absence of an abuse of discretion the sustaining of such demurrer is not a final appealable order. See Collins v. Cab Co., 157 Oh St 311.

There is nothing before us to indicate that the trial judge was motivated by any unreasonable, improper or arbitrary consideration. Our conclusion is that there was no final order by the court of common pleas properly reviewable by this court, and for that reason the appeal is dismissed.

PHILLIPS, PJ, NICHOLS and GRIFFITH, JJ, concur.