text:
    FOUT, Plaintiff-Appellee, v. HOLLAND, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 533.
    Decided November 5, 1956.
    Robert G. Bayley, Thomas T. Taggart, Springfield, for plaintiff-appellee.
    Durfey, Martin, Browne & Hull, Springfield, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Common Pleas Court for Clark County rendered upon the verdict of a jury in favor of the plaintiff. The action was one for damages for personal injuries arising out of a collision between the automobiles of the plaintiff and of the defendant at the intersection of North Hampton Pike and Sintz Road.

Three alleged errors are assigned:

(1) That the court erred in overruling the defendant-appellant’s motion for a mistrial on the basis of plaintiff-appellee’s counsel, misconduct on voir dire examination.

(2) The court erred in refusing to give defendant’s written request for special instructions before argument.

(3) That the verdict of the jury and the judgment of the court thereon is contrary to law and manifestly against the weight of the evidence.

In looking to the first assigned error we find the record reveals that on the voir dire examination of six prospective jurors the following question was asked by counsel for the plaintiff:

“I would like to ask you if you or any member of your family is employed by or interested in any mutual automobile casualty company; and by interested in, I mean that if you carry automobile liability insurance in a mutual insurance company, then you are interested.”

The question with which we are confronted is whether or not the court erred in overruling defendant’s motion for a mistrial. We are of the opinion that the question was permissible under the rule laid down in the case of Dowd-Feder, Inc. v. Truesdell, 130 Oh St 530, which permits the jury to be interrogated concerning “any connection with or interest in a casualty insurance company.” In propounding such a question it does not appear that it would be improper to explain what would constitute “an interest,” provided the question was propounded in good faith. The character and scope of such questions cannot become standardized but must be controlled by the court in the exercise of its sound discretion. Ibid. See also Morrow v. Hume, Admx., 131 Oh St 319; Salerno v. Oppman, 52 Oh Ap 418. We are, therefore, of the opinion the court committed no prejudicial error in overruling the plaintiff’s motion.

Turning next to the second assignment of error the record reveals that the defendant requested that the court give its special charge No. 1 to the jury before argument, which request was refused. This charge provides:

“1. I charge you that it is the law that no person shall drive any motor vehicle in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.
“If you find by the preponderance of the evidence that by reason of the rise in the Springfield-North Hampton Road north of the Sintz Road, Mrs. Fout’s (Crow’s) view of the traveled portion of the highway was cut off, the assured clear distance ahead applies, Mrs. Fout (Crow) was required to operate her motor vehicle at such speed that it could be brought to a stop within the seeable distance.”

Although the first paragraph correctly states the law applicable as to the defendant’s theory of the case, the application of the rule to the rise in the road, which is approximately 200 feet from the intersection, is confusing. The only question presented here was the manner in which the plaintiff approached the intersection, she being required to be able to bring her car to a stop within the assured clear distance ahead when arriving there in case a discernible object should be stationed in her pathway. The charge as requested could have been interpreted as relating to her speed as she approached the crest of the hill which was not an issue. The accident occurred at the intersection and it was at this point the plaintiff was required to have her car under control as defined, supra. We find no prejudicial error in this assignment.

In considering the third assignment, we have carefully examined the entire record and are of the opinion that the judgment was neither against the manifest weight of the evidence nor contrary to law.

The judgment will be affirmed.

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


source: Caselaw Access Project

author: By HARTER, J.

license: Public Domain

text:
    GOODYEAR SYNTHETIC RUBBER CORP., Appellant, v. DEPT. OF INDUS. RELATIONS, and WOLDMAN, Appellees.
    Common Pleas Court, Franklin County.
    No. 186631.
    Decided October 13, 1954.

      Vorys, Sater, Seymour & Pease, Columbus, Walter DeBruin, Akron, for appellant.
    Hon. C. William O’Neill, Atty. Geni., Franklin A. Kropp, Kiehner Johnson, Asst. Attys. Geni., for appellees.
   OPINION

By HARTER, J.

ORDER OF DIRECTOR OF INDUSTRIAL RELATIONS — REVERSED AND VACATED UNDER §154-73 GC (§119.12 R. C.)

The Goodyear Synthetic Rubber Corporation of Akron, Ohio, has appealed to this Common Pleas Court from certain “orders” made by the Director of Industrial Relations of the State of Ohio. It is asserted, as to some of those “orders,” that the Director was wholly without power to issue them; as to others, that he exceeded his powers; and, finally, that as to certain other “orders,” they are not supported by “reliable, substantial and probative evidence” and are not “in accordance with law” as required under §154-73 GC. (Sec. 119.12 R. C.)

In order intelligently to approach a consideration of the legal problems presented by this appeal, there must first be a brief recital of the factual background.

The Goodyear Synthetic Rubber Corporation is wholly owned by the Goodyear Tire and Rubber Company but the plant which it operates in Akron, Ohio, is wholly owned by the Government of the United States, one of twelve such plants in the United States. Goodyear supplies the management and “technical know-how” for this particular government venture and other industrial corporations do the same for other operations in other parts of the country.

The product of this plant is synthetic rubber. This product, as well as the raw materials which go into it, are owned exclusively by the Government of the United States.

The Akron plant was designed and built to process Butadiene and Styrene through co-mirazation in a tank in the presence of a catalyst so as to form the synthetic latex, or artificial rubber. Styrene is a liquid substance with properties not unlike kerosene, or coal oil; with reasonably careful handling (as an intelligent person would handle kerosene) there is no real danger from it.

Butadiene is a heavier-than-air, liquified petroleum gas which boils at 26° Fahrenheit; as it evaporates, it cools itself by a refrigerating process; it is not an “explosive” in the true sense of that term; it will not burn unless it is mixed with oxygen in specific quantities. A match flame or electric spark in a tank of pure butadiene would not ignite this substance; however, in a mixture with- oxygen in proper proportions, it could be highly dangerous — having many of the propensities of gasoline.

When this Akron, Ohio, plant was laid out originally and built, those with the “technical know-how” in this field undertook to apply precautions for the handling of the butadiene which would minimize as greatly as possible any danger to human life and any danger of loss of extremely valuable commodities — i. e. the butadiene itself and the end-result product, synthetic rubber.

In its final analysis, we believe it may be said that the gist of this appeal is found in the basic difference of opinion between the Goodyear experts (and such advisers as they might enlist) on the one hand, and the experts who were advising the Ohio Director of Industrial Relations, on the other hand, as to what is and what is not “safe” in this operation.

A useful purpose might be served if we were to attempt here to recite the various precautions which Goodyear took in providing for ventilation in this plant and a piping system of Schedule 80 steel pipe, numerous relief valves, both manually and automatically controlled, a “tank farm” (the trenches of which were filled with water so as to cover all piping), “fog-nozzle” safety equipment to whirl gases upward and blanket any potential fire with mist, three permanent fire towers at strategic locations, the valves in the various pipe lines being connected permanently to a “burning stack” equipped with a continual pilot flame at a substantial distance from the rest of the plant structures. However, this is a technical field in which this branch of this court has no knowledge and no experience. Such an attempt at recital of these technicalities would no doubt produce errors and perhaps convey an impression not intended by the Court. In any event, we must deal with the “legal” (as contrasted with “technical”) phases of this appeal and we believe we can do so on a reasonably intelligent basis with a minimum of references to the technicalities of this process. Accordingly, we will use the foregoing as mere “background” and come directly to the legal phases of this appeal.

Our first inquiry must be directed to the question of whether the Ohio Director of Industrial Relations had the authority to make any of the orders complained of by the appellant.

The Ohio Director of Industrial Relations is a statutory officer, having only such powers as expressly conferred upon him by statute. 32 O. Jur., pages 933 and 934; Mutual Benefit Life Ins. Co. v. Younger (1931) 28 Ohio Nisi Prius Reports (new Series) 368; State v. T. and O. C. Railway Co. (1905) 3 Ohio Nisi Prius Reports (new Series) 234.

With this axiom as our springboard, we look first at the statutes dealing with the powers of the administrative agencies of the State of Ohio. We there find in §154-67 GC (§119.06 K. C.) that it is provided:

“No adjudication of an agency shall be valid unless such agency is specifically authorized by law to make such an order.”

A further examination of the Ohio Statutes leads us to the inescapable conclusion that the Director of Industrial Relations is not the state agency which has power over processes involving “liquified petroleum gas” (and butadiene is admittedly such). The Ohio State Fire Marshal has such power exclusively. See §835-4 GC (§3737.18 R. C.).

The Judge writing this opinion, while still a practicing lawyer, actively participated in the drafting of the statutes which gave these powers to the State Fire Marshal and he personally argued in support of such proposed statutes twice before a committee of the Ohio Senate and once before a committee of the House of Representatives. This Judge has not only, as a lawyer, openly advocated the placing of these responsibilities in the office of the State Fire Marshal, he has also as a judge, zealously guarded and upheld the powers of the State Fire Marshal, in action, under his enabling statutes. See, as an example, the decision in the case of Tire Industries, Inc. v. State Fire Marshal (April 9, 1954) Case No. 188,296, Common Pleas Court of Franklin County. It would be grossly inconsistent for this Judge, with such a record, to say now that the Director of Industrial Relations had always had inherent or implied powers over liquified petroleum gases, and the equipment used for storing, handling, transporting and utilizing such liquified petroleum gases, when it is remembered that this Judge was sincerely contending only a few years ago, as an advocate (on behalf of the National Board of Fire Underwriters and its program of fire-safety-engineering) that there was a “blind-spot” in the Ohio statutes in this field which needed a remedy through the enactment of amendments to the Fire Marshal Chapter of the Ohio statutes.

So, we do not wish to fail into the error of such gross inconsistency; rather we are firmly of the opinion that the Ohio Legislature has granted exclusive power to the State Fire Marshal to make rules with respect to the storing, handling, and utilization of these liquified petroleum gases. For the Director of Industrial Relations to attempt to promulgate rules in this area would, as we see it, be an illegal invasion of the Fire Marshal’s powers and a flaunting of the will of the Legislature, as expressed in §154-67 GC (§119.06 R. C.), and §835-4 GC (§3737.18 R. C.), as above mentioned. This, we feel, we cannot sanction judicially.

Our conclusion in this connection requires that we find certain parts of the order appealed from to be not “in accordance with law” (§154-73 GC; §119.12 R. C.) and that a reversal as to such parts of the order is required. Specifically, this finding applies to Items 1 and 2, Items 14, 16, 19, 20, 21 and 22 of the order from which the appeal is taken, since the storing, handling and/or utilizing of liquified petroleum gases is the essence of each and all of the activities there criticized.

We should next appraise, as we see it, Items 9, 10, 11 and 26 of the order from which the appeal is taken. Item 9 deals with the need for constructing an exhaust and Item 10 with a device for detecting gas— by audible and visible signals in the Inert Gas Building.

As we interpret the brief filed by appellees’ counsel, and as we analyze the Ohio statutes, it must be admitted that there is no specific, statutory provision which mentions “exhausts” or “gas-detection” devices. It is contended, however, that the powers of the Director of Industrial Relations with respect to “ventilation” are broad enough to support orders of the kind here challenged. Reference is specifically made in this connection to the general language of §871-15 GC (§4101.11 R. C.) in reciting that an employer “shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes * * * reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters.”

This statute must be considered in the light of applicable case law. A succinct statement of that law is to be found in 1 O. Jur. (2d), — Administrative Law and Procedure — Section 55 in the following language:

“While a large measure of discretion may be vested in administrative agencies in the exercise of their powers, this discretion must be lawfully exercised in accordance with established principles of justice. It cannot be exercised arbitrarily, that is, without some fair and substantial cause or reason. It is implied in every law conferring power, and required by due process, that it will be exercised judiciously, with an honest intent to fulfil the purpose of the law. Courts will not substitute their judgment in regard‘to a matter within the discretion of an administrative agency, but they will see that the discretion is fairly exercised.”

Let us inquire whether these “exhaust” and “signal device” orders were actually “judiciously” promulgated “with an honest intent to fulfil the purposes of the law” (quotations are from the foregoing section in O. Jur.). We do not wish to substitute our judgment for that of the administrative agency but, on the record here before us, we feel compelled to hold that these two order were, in effect, “unrestrained, arbitrary and discriminatory.” Ample safety precautions were, in fact, taken by the appellant upon the advice of the most competent experts in this field; the evidence to the contrary (i. e. as to the inadequacy of the precautions) was, as we see it, unsatisfactory, confused and, indeed, a bit emotional.

On occasions, a legal point can best be made by an analogy which “reduces to the absurd.” We believe we can do that here. Natural gas is, as we all know, quite dangerous. If there is any doubt in the minds of anyone, they might well think back to the explosion of the State Office Building here in Columbus in April of 1932 when a natural gas explosion took several lives and caused at least $750,000.00 damage to the State Office Building just as it was being completed for occupancy.

The State Office Building is, or was then located in close proximity to a very large natural gas main carrying gas at high pressures. That main was laid in “filled” ground. The pressure of the “fill” above the gas main apparently caused a separation in a welded seam, gas percolated through the ground (seeking a path of least resistance) into the sub-basement of the office building where it accumulated until it reached a mixture in the proper proportions with air and then was exploded by a spark from an electric drill being used by a workman.

We know in general terms what happened there and there is a possibility that it could happen again. The State Office Building is a “place of employment” for several hundred persons, perhaps thousands. Suppose the Director of Industrial Relations were to order an “exhaust” for each room in the structure and a device giving audible and visual warning of the presence of natural gas in each room for the State Office Building. There might be a need for such exhaust and warning devices if the experience of the past were relied upon; however, such orders would, we believe, be easily and necessarily characterized as “injudicious,” “without an honest intent to fulfill the purpose of the law,” and “arbitrary.” Such State Office Building orders, if made, would fall under the language above quoted from O. Jtir. and be invalid.

Of course, it would perhaps be possible in the Synthetic Rubber plant here involved to have additional devices incorporated into the manufacturing processes but, to do so would, as we see it, serve no truly useful purpose in the way of making safety more certain than the precautions already being taken. Accordingly, we feel we must discharge our judicial responsibility by holding on the record before us that these two orders, so appealed from, are not “in accordance with law” but are, rather, each invalid.

The 11th item in the challenged order relates to a requirement that, in the inert gas building, proper stairs, properly railed, with adequate lighting therefor, should be provided to lead to the basement of the gas reduction (or “inert gas”) building. That basement houses the brine compressor pumps. The pumps do not require daily attention but, quite obviously, they probably do require some periodic servicing and attention because anything mechanical requires such servicing.

Counsel for the appellee directs attention to §1028-1 GC (§4107.27 St. C.) as the basis for this order. That statute does require that stairways shall be provided for each “floor or basement of each section” of a building “in which a shop or factory is operated, excepting only rooms on such floors or basements used only for storage purposes * * *.”

There is very little evidence regarding this particular problem in this record — i. e. whether that basement or building was used and what for. We sincerely believe that the evidence is so meager that no intelligent decision can be made on it — i. e. as to whether or not the order that a stairway be constructed was supported by reliable, substantial, probative evidence (as required by §154-73 GC). Whichever side had the “burden of proof” on this issue should, therefore, fail on this point.

Because we sincerely entertain this view regarding this evidence, we must inquire as to who did have the burden of proof in the Administrative Agency hearing and who should fail if such burden of proof was not met. A consideration of this procedural problem brings us to a consideration of a significant and relatively novel development at the Akron hearings on this matter.

While it is a bit difficult to ascertain by examining the transcript of the Akron proceedings just what “theory” was being followed as to procedure by the Director of Industrial Relations then, it would appear that the Factory Division of the Ohio Department of Industrial Relations had theretofore promulgated and addressed a 44 item order to the Goodyear Synthetic Rubber Corporation and the latter corporation had demanded a hearing thereon. Such procedure, demanding a hearing, was expressly authorized by §§154-62 to 154-74 GC, as a statutory prerequisite to a valid “adjudication” hearing. The parties assembled to Akron with the Ohio Director of Industrial Relations personally present and presiding. He announced, then, that the purpose of the hearing was to permit the Goodyear Synthetic Rubber Corporation to “show cause why §154-45 GC should not be enforced against it” (Record page 5). The Director declined to put on witnesses in support of the order which had theretofore been issued by the Division of Factories in his department (Record pages 9 and 16) and directed, rather, that Goodyear Synthetic Rubber Corporation put on its witnesses (Record pages 24 and 26).

Counsel for the Director in this court contends that “it is not important nor material whether the hearing before the Director was ‘on appeal’ or an original proceeding” and that “Goodyear had its hearing. It knew of the charges sufficiently to put on its case. * * * Just because Goodyear was asked to go first and put on its case does not violate due process.”

This contention is only partially sound, as we see it; we believe that “due process” requires something more than was afforded by the Director at the Akron “adjudication hearing.” We admit that there seems to be no direct decision by an Ohio court as to just who has the “burden of proof” in these “adjudication hearings” but we firmly believe that it is implicit in the whole Administrative Procedure Act that a party asserting the affirmative of an issue bears the burden of proof here, as in all fields of American Jurisprudence. Our conclusion on this point is fortified by the language contained in 1 O. Jur. (2d) — Administrative Law and Procedure — Section 103.

It was clearly the Department of Industrial Relations (not Goodyear Synthetic Rubber Corporation) which was asserting the “affirmative, i. e. saying its orders requiring changes and adoption of new techniques and construction were necessary and required for “safety.” With such “affirmative” of the issue, went the right to “open and close” with evidence and argument. Anyone seeking to change the status quo should have such right. There was, as we see it, a fundamental infraction of law when this practice was not followed at the Akkron hearings.

But let us pursue this inquiry as to “burden of proof” and “opening and closing” further. The Director of Industrial Relations might well have said at the start of the Akron hearing “I have a known right to ‘open and close’ in this hearing which I voluntarily elect to waive.” (Parenthetically, it is appropriate for us to observe that in nearly all fields of the law, recognition is given to the. doctrine of “waiver” as a voluntary relinquishment of a known right.)

Had the Director made such a statement, the Goodyear Synthetic Rubber Corporation would have had a correlative right not to offer any evidence — to “rest” their case. The record then would have contained no evidence when it reached this Court on appeal. Our Court would then have been confronted with the provisions of one paragraph of §154-73 GC (§119.12 R. C.), as follows:

“The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. * * (Emphasis added.)

We direct attention to the significant requirement in this quoted language that the existence in the record of “reliable, probative and substantial evidence” is a prime requisite to any ruling by the court to which the appeal is taken. With no evidence to support the order appealed from, vacation of the order would undoubtedly be mandatory. This approach to the “order of proof” and “burden of proof” problems serves, as we see it, to point-up most graphically the denial of “due process of law” to G-oodyear Synthetic Rubber Corporation on what we regard as a most significant procedural matter.

This part of this opinion would be incomplete if we were not to comment upon the legal device which the Director attempted to invoke at the start of the Akron hearings to shift the burden of “going forward” from his Department (or the subordinate Division of Factories) to Goodyear Synthetic Rubber Corporation — namely, the order that Goodyear Synthetic Rubber Corporation “show cause” why an order should not be made against that corporation. This “show cause” device is creeping into our American jurisprudence more and more in recent years. It is a favorite device in certain fields of Federal legislation; the Securities Exchange Act, and the Pure Food and Drug Acts are, we believe, examples of this device. However, we believe that, in each instance where the “show cause” device is used, an express statutory enactment is necessary to justify it because its basic theory is inimical to the “fair play” doctrine so thoroughly imbedded in American and English law to the effect that no one shall ever be required to prove his innocence; rather, the burden of proving guilt, or wrongdoing, is always upon the party making such accusation.

This fundamental proposition has found express statutory recognition in the Federal Administrative Procedure Act, 5 U. S. C. A. 1001, Section 7 (c): “except as statutes otherwise provide, the proponent of a rule or order shall have the burden of proof. * * *”

This axiom of American Jurisprudence, to the effect that “the burden of proof lies upon him who affirms, not him who denies” was considered in only one case which we have been able to find in an “adjudication” hearing before an administrative agency. The problem was squarely presented in the case of Philadelphia Company v. Securities and Exchange Commission (1949 — C. of A. — Dist. of Col.) 175 Fed. (2d) 808. We will not here attempt to recite the relatively complicated fact pattern which was presented there; rather, we will quote certain passages from the opinion which are generally applicable to our problem: Opinion Page 818 of 175 Fed. (2d):

“The Commission permitted only the submission of data, views and comments and the making of oral argument. It failed, so far as is shown by the record certified to this court, * * * to apprize Philadelphia of the facts upon which its proposed action, amending” (its Rule) “* * * was to be taken (thereby making futile Philadelphia’s offer of proof); and it failed to introduce or receive evidence, to hear witnesses, to permit cross-examination, and to make a proper transcript of record. Accordingly, its ‘hearing’ did not satisfy the requirements, for adjudicatory action, of either the due process clause, the Holding Company Act, or the Commission’s own rule. The Commission erroneously failed to assume the burden of proof in respect of the propriety of its proposed action. * * * With some exceptions not here pertinent the burden of proof lies upon him who affirms, not him who denies. 1 Jones, Evidence in Civil Cases (4th Ed. 1938) Sec. 180; Stephen, Digest of the Law of Evidence (12th Ed. 1946) Article 100. On the contrary of assuming the burden of proof the Commission, as appears from the statement of facts at the outset of this opinion, required Philadelphia to attempt to persuade it that the exemption afforded Pittsburgh by Rule U-49 (c) should not be revoked. We hold accordingly that the Commission’s order was invalid for lack of a proper hearing. * * *”

We believe the reasoning of that federal court is extremely persuasive. It was developed without reference to Section 7 of the Federal Administrative Procedure Act, above referred to, because that Section of the Act had not yet been enacted. See footnote explanation, page 818 of 175 Fed. (2d) 808.

This is not the time, or a suitable occasion, to consider the history or reasons for the distinction between common law and “civil” law requirements of the continental European countries on this problem of burden of proof. Suffice it to say that in the European countries, which operate under the theory that the burden of proving innocence, notably France, justice seems to be expeditiously administered but it is not done our way. We conceive it to be our clear duty to preserve the American tradition of proving “guilt” or “wrongdoing” or “an affirmative” by placing the burden thereof squarely upon the accuser and allowing it to remain there through all stages of any “adjudication” hearing, either before an administrative agency, or a court, unless there is clear legislation (which is constitutionally valid) which indicates a contrary rule. There is no such exempting legislation in our present case.

Accordingly, as to this problem of the order requiring stairs into the brine-compressor basement of the inert gas building, we hold that there is no such reliable, probative and substantial evidence as supports the order made thereon, and that the order made thereon is not “in accordance with law” because “due process of law” was not afforded the Goodyear Synthetic Rubber Corporation in the adjudication hearing of the Department of Industrial Relations. Under §154-73 GC (§119.12 R. C.) a vacation of that part of the order appealed from is therefore demanded, as we see it.

Only one other item of the Department’s order is actually pressed for review by this Court on this appeal. That item bears number 26 and deals with the problem of limiting smoking — i. e. the providing of safe places for the workmen to smoke. Such order is justified and proper, according to the contention advanced by the Attorney General in support of the position of the Director of Industrial Relations, under §§871-15 and 871-16 GC (§§4101.11 and 4101.12 R. C.). It is argued that, “if the employer is required to provide a safe place to work, it isn’t very difficult to provide a safe place to smoke.”

If this item were the only item of the order challenged, and if the Director of Industrial Relations had given Goodyear Synthetic Rubber Corporation a proper, “due process of law” adjudication hearing, we believe we could have honestly affirmed this item of the order under the provisions of §154-73 GC. (Sec. 119.12 it. C.) However, the deprivation of a “due process of law” hearing at Akron (on this, as well as the several other items of the order, and as explained at substantial length heretofore in this opinion) requires that we find that this 26th item of the order is not “in accordance with law” and is not supported by “probative” (meaning thereby “legally admitted” and “legally competent”) evidence. We hold therefore that we must vacate this 26th item of the order under the mandate of §154-73 GC (§119.12 R. C.).

The appellee may of course have exceptions to the findings and rulings herein contained.


author: By THE COURT.

text:
    RAY, Appellee, v. BOARD OF LIQUOR CONTROL et, Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4771.
    Decided September 11, 1952.
    Isadore Topper, Columbus, John B. Freiden, Cincinnati, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Brown W. Pettit, Asst. Atty. Geni., Columbus, for appellants.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal for the reason that the appellants have failed to file their assignments of error and brief in accordance with Rule VII or within the extension of time granted by order of this Court. The appellants admit the facts as stated but urge in their brief they can show good cause for such noncompliance. The grounds set forth are that the failure was due to the press of business and that such failure will cause no delay in the proceedings as the case can be ready for oral argument when the Court convenes for the fall term. This Court has never recognized the excuses offered by the appellants as being good cause for noncompliance with the Rule. See Russell v. State Bridge Commission, 32 Abs 313; Brown v. Brown, 35 Abs 527; Parrett v. Parrett, 42 Abs 413; Golden v. Fogo, 53 Abs 575; Rogers v. Rogers, 55 Abs 221.

The motion will be sustained and the judgment affirmed.

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


text:
    WESTERN NATIONAL INSURANCE COMPANY, a Corporation, Plaintiff-Appellant, v. GERRISH et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4715.
    Decided February 20, 1952.
    Wiles & Doucher, Columbus, for plaintiff-appellant.
    Smith, Clark & J. E. Holzapfel, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted on motion of the defendants-appellees seeking an order dismissing the appeal for the reason that the appellant has failed to file its brief in accordance with Rule VII of this Court. The rule with reference to the time of filing briefs has application to law appeals only and since the appeal is noted as being on law and fact, the motion will be overruled. However, since the record reveals that the action is one for damages, it is appealable on questions of law only. The Court, on its own motion, will dismiss the law and fact appeal and order the same retained for determination on questions of law only. See §§12223-22 and 11564 GC. The appellant will be granted leave to perfect said appeal in accordance with Supplement to Rule VII. Since the law appeal will date from the judgment entry the bill of exceptions, assignment of errors and brief should be refiled in order to comply with the Rule.

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


author: By THE COURT:

text:
    CORBETT, Plaintiff-Appellant, v. FOWBLE, Defendant, and BEVINS, Defendant-Appellee.
    Ohio Appeals, Second District, Clark County.
    No. 532.
    Decided November 2, 1956.
    J. Harvey Crow, Urbana, for plaintiff-appellant.
    McKee, Schwer & Taggart, Springfield, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from the dismissal of defendant Bevins and the setting aside of an attachment against certain real estate following the sustaining of a motion of defendant-appellee to quash the pretended service by publication made on him.

There is but one question presented on this appeal, namely, whether the controlling statute authorizing constructive service in this action had been complied with by the plaintiff. It develops that plaintiff instituted his action against this defendant and another and issued on January 24, 1956 his precipe for summons, together with certified copy of petition for the defendant by Registered Mail.

It appears that at all times the residence address of defendant-appellee was known to the plaintiff and so stated by him in the proceedings. Pursuant to the affidavit of the plaintiff for constructive service under §2703.15 R. C„ of date December 31, 1955, publication was had, first publication of date January 3, 1956. On January 23, 1956, plaintiff filed precipe with the Clerk to “mail copy of first publication of notice by Registered Mail, return receipt requested, to defendant, C. L. Bevins, P. O. Box 46, Boston, Indiana,” and on that date a newspaper of January 3, 1956, including the publication of legal notice was sent pursuant to the precipe. The first branch of the motion to quash was “that no copy of the publication was mailed to this defendant, as required by law, although plaintiff knew of the place of residence of this defendant, immediately after the first publication.”

The pertinent parts of the controlling section, §2703.16 R. C., are:

“When in a case in which service may be made by publication under §2703.14 R. C., the residence of the defendant is known, it must be stated in the publication. (This was done) Immediately after the first publication, the party making the service shall deliver copies thereof, with the proper postage, to the clerk of the court who shall mail a copy to each defendant, directed to his place of residence named therein, and make an entry thereof on the appearance docket. * * *.” (Emphasis ours.)

It is suggested, but the record does not afford the proof, that the defendant had knowledge of the institution of the action upon which the attachment was predicated. The sole question, then, is whether or not the mailing of the copy of the publication twenty days after it had been carried met the intendment of the statute that it be sent immediately after the first publication.

We are of opinion that the second and third syllabi of the late case of The Lincoln Tavern v. Snader, et al., 165 Oh St 61, Ohio BAR of March 19, 1956, is by analogy dispositive of the question against the contention of the appellant.

The judgment will be affirmed.

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


text:
    GRIMM, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5409.
    Decided September 19, 1956.

      Charles T. Kaps, Columbus, for plaintiff-appellant.
    C. William O’Neill, Atty. Geni., James L. Young, Daniel L. Mann, Jr., Asst. Attys. Geni., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is an appeal from a judgment of the Common Pleas Court in favor of the appellee. Appellant was an applicant for benefits under the Workmen’s Compensation Fund by reason of the death of her husband which she claimed to have been caused by an injury received in the course of his employment. At the trial after the transcript of the rehearing before the Commission had been read to the jury the court, on the motion of appellee directed a verdict in its behalf. The court also made certain rulings as to the admissibility of testimony as appearing in the record on the rehearing before the Commission.

We have read this record, and upon the second assignment are satisfied that by the latest interpretation of our Supreme Court of the word “injury” as used in the Ohio Workmen’s Compensation Act, there was no probative evidence tending to prove an accidental injury as a result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events at the particular time and place where appellee’s decedent suffered his stroke. First syllabus, Dripps v. Industrial Commission of Ohio, 165 Oh St 407.

Appellant based her claim on two theories, one, that because of the extreme heat in the place where appellant’s decedent was working, his attack was brought on. Two, that plaintiff’s decedent while working fell by reason of slipping or for some other reason and struck his head causing the injury which resulted in his death.

On the first premise there is no showing whatever that the condition of temperature, the heat, on the morning when appellants decedent suffered his attack, was so different than that in which he ordinarily worked as to be considered unusual and unexpected. Upon the second premise, there is no evidence from which it may be determined whether appellee’s decedent suffered the attack from which he died before he fell or after his fall.

In view of our conclusion as to the second error assigned, the failure of the trial judge to permit answers to be made to the hypothetical questions could not have been prejudicial.

We find neither error assigned well made. The judgment will be affirmed.

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


text:
    STATE ex MASTERSON, etc., Plaintiffs-Appellants, v. OHIO STATE RACING COMMISSION, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5531.
    Decided August 17, 1956.
    George J. McMonagle, William E. Mahon, Michael T. Gavin, Cleveland, for plaintiffs-appellants.
    C. William O’Neill, Atty. Geni., Hugh A. Sherer, Chief Counsel, Columbus, for defendants-appellees.
    See, also, 66 Abs 25. OS No. 33984.
   OPINION

By THE COURT.

Submitted on motion of the Ohio State Racing Commission, appel-lee, seeking an order dismissing the appeal as to the plaintiffs-appellants, Sophie Borek, Gerald Borek and Patrick Borek, for the following reasons:

(1) The appeal was not perfected within the time required by law; or

(2) It is not prosecuted from a final order.

The record reveals that the above named persons were parties to the original action filed in the Court of Common Pleas, together with one Charles P. Masterson; that a demurrer was sustained to the petition and all of the plaintiffs were granted leave to amend. Masterson did file an amended petition which did not include the parties mentioned in this motion. A motion was then filed by the respondent to strike the amended petition from the files for the reason that the same “is not responsive to the prior order of the court in sustaining the special demurrer to the petition.” This motion was sustained on June 12, 1956, from which the plaintiff elected not to proceed further, and final judgment was entered. On June 27, 1956, notice of appeal was filed by all of plaintiffs directed to the judgment of dismissal. The order sustaining the demurrer was not a final order from which an appeal could have been prosecuted. It clearly was not final as leave was granted to amend, which was accordingly done by one of the parties.

“So long as an amendment is possible in such a case, there is no final order.” 2 O. Jur. 2d, 618, Sec. 47.

See also, Betz v. Indus. Com., 139 Oh St 624; Collins v. Yellow Cab Co., 157 Oh St 311. Counsel for the appellee urges that the sustaining of the demurrer was an appealable order, citing Schindler v. Standard Oil Co., 165 Oh St 76, but the facts in this case are not parallel with the case at bar, as the ruling on the demurrer absolutely prevented a judgment while in the case at bar an amendment was permitted by the court and the same was made by one of the parties. The rule appears to be clearly stated in the Schindler case, supra, paragraph 2 of the syllabus:

“Where, upon the sustaining of a general demurrer to a petition, the judgment sought is not prevented because of the right to amend the petition, there is no final appealable order, but, where the order sustaining the demurrer absolutely prevents the judgment, and the right to amend would be of no avail, there is a final appealable order.”

It is our conclusion that the judgment of June 12, 1956, to which notice of appeal was directed, was the only final order from which the three “Bereks” had the right of an appeal and that the same was seasonably filed.

The motion will be overruled.

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


author: By BETTMAN, J.

text:
    CINCINNATI (City), Plaintiff, v. WALTON, Defendant.
    Cincinnati Municipal Court, Hamilton County.
    Nos. 77288, 77289.
    Decided July 25, 1957.

      Lyle W. Castle, for the City of Cincinnati.
    William F. Hopkins, for the defendant.
   OPINION

By BETTMAN, J.

This is a criminal action in which the defendant is charged with a violation of See. 901-13 of the Code of Ordinances of the City of Cincinnati. This section provides:

“Whoever shall print, engrave, sell, offer for sale, give away, exhibit or publish, or exhibit as for sale or other purpose, or have in his possession or under his control, any obscene, lewd, lascivious, indecedent, or immodest book, pamphlet, paper, picture, image, cast, statuary, drawing or representation, or any other article of an indecedent or immoral nature, or book, paper, print, circular or writing made up principally of pictures or stories of immodest deeds, lust or crime, or shall exhibit upon the public street or highway, any of the articles or papers, prints, publications, as aforesaid, within the view of passersby upon said street or highway, shall be fined not more than one hundred ($100.00) dollars, or imprisoned not more than sixty (60) days, or both.”

The matter was heard by the Court sitting as both judge and jury, the defendant having waived her right to trial by jury. At the trial it was stipulated by the parties that on or about October 19, 1956 the police entered a certain store on Eighth Street in the City of Cincinnati; that defendant was in charge of said store; that the magazines, pictures, and other items in evidence were located in said store and were offered for sale to the general public.

Counsel for defendant and for the prosecution agreed in open court that the sole question before the Court was whether the material received in evidence was “obscene.”

Juveniles

At the trial the prosecution offered evidence that the store in question was located between two schools and that a number of minors were in and around the store. This evidence was admitted. The Court also permitted two psychologists and a psychiatrist, expert witnesses on behalf of the prosecution, to give their opinions as to the effect of the material in evidence on minors. The prosecution further appended to its brief a copy of the Interim Report of the Senate Judiciary Committee relative to “Obscene and Pornographic Literature and Juvenile Delinquency” and argued in its brief that the effect of material presented in evidence on minors should be taken into consideration.

To the extent that evidence was admitted pertaining to the effect of the magazines, pictures, and contraceptives, admitted in evidence, on minors, the Court must consider such evidence stricken from the record and must consider the argument offered by the prosecution in that respect not relevant to the issue.

The Supreme Court QÍ the United States in the recent case of Butler v. Michigan, 352 U. S. 380 (1957), in holding void a Michigan statute, making it a criminal offense to sell a book having a potentially deleterious influence on youth, as in violation of the due process clause of the 14th Amendment, stated at page 383:

“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.”

The Supreme Court has therefore made it clear that a decision that matter is obscene based on evidence of its effect upon minors would be in violation of the 14th Amendment. This Court is bound to construe the Ordinance in a manner which will make it constitutional, if such construction is possible, and cannot, therefore, in determining the meaning of the word “obscene” use a test which includes the effect of the material on minors.

Many valued and sincere citizens of this community have evinced a serious interest in this matter because of their real concern for youth. The above cited decision, together with the compelling logic of the proposition that they do not wish to restrict their own reading to what is suitable for children, any more than they wish to restrict their diet to baby food, must convince them that the general obscenity laws are not the answer to the problem with which they seek to deal.

This court is convinced of the tremendous importance of protecting youth from the serious effects of much that is thrust at them today. Many young people lack the parental guidance and constructive influences necessary to develop their capacity to choose good from evil. In a recent editorial in the American Journal of Psychotherapy (Volume XI No. 2 April, 1957) entitled “Psychiatry and Censorship,” Dr. Fredric Wertham made these points:

“First, * * * a sharp distinction must be made between children and adults. Secondly, the modern development of mass media has so increased the quantity of material that a new psychologic situation has arisen. * * * Thirdly, as far as the problem of harmful effects on the individual is concerned, it is not a question of sex alone, but of the endless stream of violence, crime, brutality, torture, cruelty and sadism.”

When this court served in the Ohio Legislature in 1955 he coauthored legislation which became §2903.10 R. C. placing severe penalties on sales to children under eighteen of magazines depicting seduction or incest or which were provocative of corrupt morals, crime, or juvenile delinquency. Sec. 2905.34 R. C., provides that:

“No person shall * * * sell, give away, or show to a minor, a book, pamphlet, or magazine * * * devoted to the publication of * * * accounts of criminal deeds, or pictures or stories of immoral deeds, lust, or crime * * *”

These two sections were designed to meet the problem with which we are all concerned. It may be that other legislation locally or on a state basis is necessary. But, as Justice Frankfurter said in the Butler case, the legislation must be reasonably restricted to the evil with which it is said to deal. We must not, he said, “burn the house to roast the pig.” Dr. Wertham, a national authority on juvenile psychology, says:

“If censorship must be considered at all, it should be viewed judiciously and constructively, for the protection of children, and not for the harrassment of adults whose pattern of life is set.”

A conscientious study of the principles involved and the decisions convinces the Court that only by laws dealing specifically with minors can we protect our children, without running afoul of the fundamental constitutional prohibitions against laws restricting freedom of the press.

Ohio Law on Obscenity

There is a paucity of cases and no Supreme Court or Appellate Court decision in Ohio dealing with the meaning of the word obscene. State v. Zurhorst, 75 Oh St 232 (1906), held simply that it was not necessary to attach a copy of the alleged obscene matter to the affidavit. Goode v. State, 17 O. C. C. (N. S.) 195 (1910), a decision by the Cuyahoga Circuit Court, supplies no positive test and was decided long before the great number of carefully thought out decisions of other courts including the Supreme Court of the United States.

Judge Stanley Struble of our own Court of Common Pleas in State v. Lerner, 51 Abs 321 (1948), held that the test of obscenity is

“the moral concept of the people as a whole, community concept of what is obscenity in literature * * *.”

With sincere respect for the distinguished Judge and concurring with the result he reached, this is no test at all. It merely says “the matter is obscene if you think most people would think it obscene.”

There being no Ohio Law binding on this Court, the Court must perforce find its own standard. That this is no easy task is made obvious by the comprehensive study of the problem entitled “Literature, The Law of Obscenity, and The Constitution” by Professors Lockhart & McClure of the University of Minnesota in 38 Minn. L. R. 295. They conclude that there is no perfect definition of obscenity. However, as the article points out, courts have no choice but to do the best they can with an extremely difficult and complex concept.

Constitutional Requirements of a Test of Obscenity

In fixing its standard the Court must first be guided by the words of the Supreme Court of the United States in Roth v. United States decided June 24, 1957. Justice Brennan, writing the majority opinion, said:

“The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.”

Thus any construction of a standard of obscenity must start out in the light of the fundamental principle enunciated in our Ohio and Federal Constitutions that

“no law shall be passed to restrain liberty of speech and of the press.”

That such a principle is basic to our American system, despite its unpleasant by-products, was well understood by the men who placed it in our Constitution. President Madison is quoted by Chief Justice Hughes in Near v. Minnesota, 283 U. S. 697, 718 (1931), as saying:

“It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression;”

Again quoting Justice Brennan in the Roth case.

“All ideas having even the slightest redeeming social importance— unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.”

Secondly, in order to satisfy the constitutional requirement of due process of law a proper standard for judging obscenity, said Justice Brennan, must

“give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law.”

Test of Obscenity

From the above the court has concluded that to be obscene the material must first of all be calculated to appeal to the reader’s or viewer’s prurient interest — that is to say, that it must be material which from a viewing or reading thereof one arrives clearly at the conclusion that the author or designer had one purpose, namely to sell his material by such an appeal. Only by applying this test can we protect “ideas having the slightest social importance.” Only thus can we keep our door protecting the full interchange of ideas “tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.”

That the matter must be calculated to produce the result has been used as a test by many courts. In his logically thought out and detailed opinion in Commonwealth v. Gordon, 66 PA. D. és C. Rep. 101, at page 151, Judge Bok said:

“Sexual impurity in literature (pornography, as some of the cases call it) I define as any writing whose dominant purpose and effect is erotic allurement — that is to say, a calculated and effective incitement to sexual desire.” (Emphasis mine.)

In other words, unless it is apparent that the material is “dirt for dirt’s sake” it cannot constitutionally be found obscene. It has been the failure of some courts to observe this principle that has encouraged the Anthony Comstocks of the world to shake their censor’s scissors at any book which even mentioned sex and indeed in Massachusetts even brought on the banning of Theodore Dreiser’s “An American Tragedy.”

Some courts attempt to weight the literary, educational, artistic or scientific values of the material against the amount of sex in it. Although in many cases this appears to produce a correct result it cannot but lead to a morass of vagueness which does not “mark boundaries sufficiently distinct for judges and juries fairly to administer the law.” How can one say how much literary merit will outweigh X amount of sex? If the material has a sincere not a prurient purpose it is not obscene, regardless of the subject matter with which it deals.

Requiring that to be obscene matter must be calculated to appeal to man’s prurient interest will, I believe, keep the courts out of many of the pitfalls into which they have fallen in the past. That it is a necessary element of a constitutional standard of obscenity is the entire thrust of Chief Justice Warren’s concurring opinion in the Roth case. He pointed out that:

“In his charge to the jury, the district judge stated that the matter must be ‘calculated’ to corrupt or debauch. The defendants in both these cases were engaged in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide.”

Once having determined that the material’ is calculated to appeal to a prurient interest we then come to the second test. This is that the material must have a substantial tendency to excite lustful desires or be material dealing with sexual perversion. It must, as Judge Bok says, be not only “calculated” but also “effective.” I have gone over carefully the standards used in numerous decisions cited by the prosecution and by counsel for the defense and believe that the above standard most clearly encompasses what the obscenity laws are seeking to eliminate.

That the material acts as an aphrodisiac can almost be determined physically. Although it must be tested by its effect on a person with average sex instincts, a judge or juror should be able to estimate that rather closely by the reaction he himself has to the material. Such a test is not subjective in the sense of a value judgment but analogous to a determination of whether or not one is hungry. It is I believe as unambiguous and simple of application as any test which can be evolved. As to what constitutes a sexual perversion this Court is satisfied that the word has a clearly enough defined meaning so that any jury, aided by testimony of psychologists or psychiatrists would have little difficulty in making a decision.

Factual Determinations

Having determined its double test of obscenity the Court now turns to the material which is in evidence. This material for purposes of discussion can be divided into several distinct groups:

1. Sets of snapshots of nude or semi-nude women in various more or less seductive or salacious poses, or so-called “art” magazines with the same type pictures. In all of these the pubic area is either averted or covered by shadow or some object or item of clothing.

2. Nudist magazines (“Sunshine & Health,” “Sun Magazine,” “Sunbathing” December, 1956 issues) containing pictures of nude men, women, and children individually or in groups. In most of these no attempt is made to cover the pubic area. None of the pictures is posed in any sexually suggestive manner. The script in these magazines is nonfiction and has nothing to do with sex.

3. So-called “men’s magazines” (“Caper,” “Gay Blade,” “Night & Day,” “Nugget,” “Man,” “Dude,” “Escapade,” “Mens Pictorial,” December 1956 issues) and others more or less along the lines of “Esquire” but on the whole with less restraint in dealing with sex. These contain a variety of stories, pictures and jokes, many dealing with sex and others often with outdoor life, sports and other matter.

4. Magazines with stories and “letters to the editor” about chaining, spanking, men in women’s clothes, and pictures of the same and of women in tight corsets, unusually high heels, or leather and rubber garments of various kinds.

5. A man’s contraceptive of extraordinary size in an envelope marked “For the self-made man.”

This being a criminal prosecution, in considering this evidence, the Court must, to find the defendant guilty as charged, find the material obscene beyond a reasonable doubt.

1. There is little doubt in my mind that the groups of snapshots and magazines of nudes are calculated to appeal to the viewer’s prurient interest. The so-called photographic information and statements that they are for art students are patently dishonest. However, I cannot find that they have a substantial tendency to excite lustful desires in an adult of average sex instincts. A few — specifically “Gallery” No. 1; “Brandee Kayse” No. 8; “Pal-ette” No. 1; “Hold It” Vol. 2; “Vicki Palmer” No. 7; — because of the type of pose and angle of shooting, skate very close to the line, but one is certainly left with a reasonable doubt. A good deal of it is vulgar trash, and it is most certainly not for children, but it is not obscene.

2. The nudist magazines present a different problem. Though showing men and women completely nude, none is posed in a suggestive or salacious manner. The subjects are usually in outdoor surroundings and on the whole the photographs are much like anyone’s snapshot album except for the lack of clothing.

Several cases have held that mere nudity in a picture is not obscenity. People v. Muller, 96 N. Y. 408; Parmalee v. United States, 113 F. 2d. 729; Sunshine Book Co. v. Summerfield, 128 F. Supp. 564 (1955). In the Sunshine Book case, Judge Kirkland held that pictures of nudes except pictures “taken at very close range of the pubic area” are not obscene. How close is “too close” the Judge does not explain. I do not believe these magazines were published to appeal to man’s prurient interest nor, in a day and age when bathing suits are like handkerchieves and virtual nudes stare down from every garage wall or advertisement, do I believe this group of magazines has a substantial tendency to excite lustful desires in an average person.

3. What I have loosely grouped together as “men’s magazines” are more difficult to classify in terms of what the intent of the authors or publishers may be. Being magazines designed to amuse or delight the reader, without educational intent, the line between obscenity and permissible gayety or pleasure is rather fine.

The prosecution has contended in its brief that the generally accepted requirement that in judging obscenity a book must be viewed as a whole, does not apply to magazines where stories and pictures are not related to one another. In this the Court generally concurs. The “as a whole” test was built up by the courts to escape from the absurd result that was produced when one took, out of context, isolated passages from a sincere book. But where the parts are not specifically related — where, as here, you have a succession of pictures and stories, each conveying an individual message — each can be judged individually. The entire magazine should be examined to cast light on the publishers intent but an individual picture or story in a magazine not related to the whole can be tested by the principles hereinbefore set out, and can be found obscene.

Taking first the pictures in these magazines. Some are rather beautiful; others more ordinary; but none is posed in the suggestive or salacious way they are in the first group discussed. Furthermore, virtually all are more clad than those in group one. I could find none which I felt beyond a reasonable doubt either was calculated to appeal to a prurient interest or had a substantial tendency to excite lustful desires.

As for the stories and articles, many deal with or involve sex. It is appropriate therefore to quote Justice Grennan in the Roth case:

“However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.
“The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.”

The Court has read the stories in these various magazines and applied to each the tests of obscenity and finds “Rehearsal” and “Both Ends of the Candle” both in the November, 1956 issue of “Dude” obscene. The balance of the stories and magazines the Court finds not obscene.

4. The fourth group is composed of various issues of “Exotique” and “Bizarre.” Their pictures, stories, and letters are designed to appeal to the sadist, the masochist, the homosexual, and the fetishist. The intent of the publisher is obviously to appeal to man’s prurient interest and they deal with sexual perversion. The Court finds all issues of both magazines obscene.

5. The contraceptive in evidence might possibly be designed to appeal to man’s prurient interest. It certainly would have no substantial tendency to excite lustful desires. It is vulgar and crude, but it is not obscene.

The Court wishes to thank counsel for their carefully prepared briefs and for their restraint in the court room under difficult circumstances.

The Court having determined beyond a reasonable doubt that defendant had in her possession for purposes of sale an obscene pamphlet, in violation of Section 901-13 of the Code of Ordinances of the City of Cincinnati, finds the defendant guilty as charged.


author: By HURD, J:

text:
    KELLY, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23619.
    Decided January 9, 1957.

      Sindell, Sindell & Bourne, Theodore T. Sindell & Richard M. Markus, of Counsel, for plaintiff-appellee.
    Bulkley, Butler & Rini, for defendant-appellant.
   OPINION

By HURD, J:

Plaintiff commenced this suit in Common Pleas Court by filing a petition against three defendants, namely, Johnson, Drake & Piper, Inc., Smith & Oby Company, and the Ford Motor Company, to recover damages for injuries sustained when a step ladder fell upon plaintiff from the platform of a scaffolding approximately thirty feet above the place where he was working. In the midst of trial, Johnson, Drake & Piper, Inc. and Smith & Oby Company, were dismissed as defendants to the action pursuant to a covenant not to sue, executed in their favor by the plaintiff in consideration of the sum of $30,000 paid to him by them. Plaintiff expressly reserved his right of action against the defendant, the Ford Motor Company. The trial continued as to Ford, resulting in a jury verdict for the plaintiff in the sum of $20,000, upon which judgment was rendered. Motions for a directed verdict and for judgment non obstante veredicto, and also a motion for a new trial having been overruled, the case is appealed to this court on questions of law.

The evidence shows that late in 1950 Ford began the construction of a foundry building and a boiler house on its property at 17601 Brook-park Road, Cuyahoga County, Ohio. Because the accident, which is the subject of this suit, occurred at the boiler house, the evidence in the record is generally confined to the area of its construction and environs. The record shows that Ford entered into contracts with several different contractors for the construction of the boiler house and for its overall preparation for operation. The contractors were designated as general contractors in agreements with Ford, but none of the contractors had supervisory control over the other. Part of the work of these contractors was subcontracted to other firms. Thus, Johnson, Drake & Piper, Inc., one of the original defendants, whose contract related to the building of the foundation and the erection of the walls and roof on the structural steel frame, had its own cement finishers, but engaged Smith & Oby Company, another original defendant herein, as a subcontractor to do the steamfitting. The employer of plaintiff, The Thomas J. Waldron Company, was hired to install fire brick in the boilers. As work on the boiler house progressed, a scaffold or construction platform was erected by Johnson, Drake & Piper, Inc. Its workmen, particularly cement finishers, used the overhead platform in the performance of their work. At times, that platform was also used by employees of Smith & Oby Company. The plaintiff, as an employee of a subcontractor, The Thomas J. Waldron Company, worked with a crew that operated a power saw which was used to cut fire brick to desired sizes. The saw was located at a place beneath the overhead construction platform because it was convenient to the boiler. The crew had been working there for several days prior to the accident.

On June 7, the day preceding the accident, Smith & Oby Company employees had done some work on the overhead platform for which they used a stepladder, also known as an “A” frame ladder, which was owned by their employer. At the same time, the platform was used by cement finishers employed by Johnson, Drake & Piper, Inc. At the end of the day the Smith & Oby Company employees left the stepladder lying on the platform close to the edge. The following morning the same cement finishers came back to the platform and resumed their work. The record shows that they observed the stepladder lying near the edge of the platform, but since it was not their employer’s property, did nothing about it. The work being done by the cement finishers caused the platform to vibrate, and about fifteen minutes after work commenced on the morning of June 8th, the ladder fell over the side of the platform and struck the plaintiff, who was working on the floor below, causing him serious injuries.

A careful examination of the record demonstrates that Ford was not guilty of any active or affirmative negligence in respect to the injuries sustained by the plaintiff. Johnson, Drake & Piper, Inc. built the platform and scaffolding. The ladder was furnished by Smith & Oby Company. Smith & Oby Company left the ladder in a precarious position on the platform. It was Johnson, Drake & Piper, Inc. workmen who caused the platform to vibrate and the ladder to fall. There is no evidence in the record showing that Ford was aware of these events. There were no employees of Ford involved in the accident nor was there any equipment of Ford in use at the time and place of the accident.

In the amended petition filed by the plaintiff against the three original defendants, there were nine specifications of negligence charged against defendant, Smith & Oby Company, the substance of which was that the Smith & Oby Company was negligent in failing to rope off or block off the area or otherwise guard the floor immediately below the opening in the scaffolding so that workers would not be injured by falling equipment, or by leaving a loose and unattached stepladder in a precarious position on the platform forty feet above the floor where men were working, thereby creating a nuisance and a great source of danger to all persons; in failing to warn plaintiff and in failing to move the ladder from its position on the platform so that it could not be dislodged or knocked down to the floor below.

The original defendant, Johnson, Drake & Piper, Inc. was also charged with nine specifications of negligence substantially the same as the specifications charged against Smith & Oby Company, and also that it permitted its subcontractor, Smith & Oby Company, to engage in an unsafe practice with regard to the ladder; that it constructed the overhead platform without toe boards or railing so that the ladder could fall therefrom; that it failed to warn plaintiff of his danger and failed to provide plaintiff with a safe place to work.

Ford was charged with negligence in failing to make its premises safe and in failing to exercise ordinary care because plaintiff avers that he was an invitee of Ford in the boiler house which was under control and supervision of Ford and that Ford failed to provide a safe place of employment; in failing to warn plaintiff of his danger, and that it allowed Smith & Oby Company to set the ladder on the platform without securing same.

On this appeal, defendant assigns as error:

1. That the trial court erred in refusing to grant defendant’s motion for judgment at the conclusion of plaintiff’s case;

2. In refusing to grant defendant’s motion made at the conclusion of all of the evidence;

3. In refusing to grant judgment for defendant based on plaintiff’s release of the other defendants to the original action for the sum of $30,000 on the theory that said defendants were primarily liable for plaintiff’s injuries; and

4. The trial court erred to the prejudice of the defendant by overruling Ford’s alternative motion for judgment non obstane veredicto or for a new trial.

The case was presented to the jury on the claim of the plaintiff that his “injuries were directly and proximately caused by the joint and concurring negligence of the three defendants originally in the case.” Counsel for plaintiff state in their brief that “there is no contention in this case that Ford retained such extensive and complete control over its contractors as to cause them to be considered servants of Ford or to impose respondeat superior liability upon Ford for the negligence of its contractors,” and argue that “the retention of power over the contractors creates an obligation to exercise that control with reasonable care.” Thus, it is not contended that there was a relationship of employer-employee between the contractors and Ford or between plaintiff and Ford. To so contend or admit would defeat plaintiff’s action, for the release of one primarily liable would discharge one secondarily liable, and the release of the defendantts, Johnson, Drake & Piper, Inc. and Smith & Oby Company, by a covenant not to sue would discharge Ford. Thus, plaintiff claims that Ford reserved a certain limited control over the premises and the operations of the contractors, both by contract and by the actual exercise or assumption of authority, and that it exercised this control negligently, and such negligence concurrent with the negligence of the other defendants to the action, now released, caused the injuries sustained by plaintiff.

The trial judge appears to have accepted plaintiff’s theory because in overruling defendant’s motion for a directed verdict, he declared, in part, as follows:

“Now in this case, as the Court views it, there is evidence here of certainly prima facie caliber to warrant the question of submitting to the jury the issue of whether control has been retained or not, to whatever extent the evidence indicates.
“No. 2, there is a basis laid here for a direct duty owed by each of these defendants to the plaintiff, if as the court has indicated, the Ford Motor Company is found to have retained any control.
“At least prima iacie, we have inspections being made, supervision being made; we have evidence of the fact that work might be accelerated, or work might be slowed down. We have evidence that at one time during the course of this job a deviation or change did take place from the mode of performance as originally contracted, before, and, I believe, subsequently changed. We also have evidence in this case that the Ford Motor, under the contract, I believe, exercised the right, at least had the right to order people off of the premises, employed by some of the sub-contractors, and so forth.”

Counsel for plaintiff contend that Ford reserved such a degree of control over and supervision of the boiler house project by contract as to make Ford liable for the injuries sustained by plaintiff while working on the project. With this contention, we do not agree. Examining the specifications of the contract in evidence, we find from the pertinent and essential provisions thereof that the engineer, as the representative of Ford, the owner, had authority to determine how the work of one contractor “shall be coordinated with the work of other contractors engaged simultaneously on this project,” to interpret drawings or inconsistencies occurring therein; to decide as to the quality or fitness of materials, equipment and workmanship; that the “contractor shall not assign or sublet the whole or any part of the work without the consent of the written approval of the owner and that no such approval so given,” shall release or relieve the contractor from any of the obligations and liabilities under the contract; that the owner may at any time during the progress of the work order alterations in, additions to or deductions from the work; that the contractor shall keep a competent superintendent and any necessary assistants at the site throughout the progress of the work and that all directions given to the superintendent shall be as binding as if given to the contractor; that at such times as the resident engineer may direct the contractor and/or his subcontractors shall meet with the resident engineer and other contractors to discuss the status of the work and measures to further the progress thereof; that the contractor shall prepare and submit a definite progress schedule and furnish the same to the owner for approval; that if in the judgment of the owner, it becomes necessary at any time to accelerate the work, the contractor, when ordered so to do, shall cease work at any particular point and transfer his men to such point and execute such portion of his work as may be required to enable others to hasten and properly manage and carry on their work; that the contractor shall consult with the owner’s resident engineer as to the methods of carrying on work so as not to interfere with the owner’s operations as well as the available space for storage of materials and location of plant, places of access to work, etc., and all is to be arranged to suit the owner’s requirements.

It is fundamental that the interpretation of a contract, the provisions of which are clear and unambiguous, is for the court and not for the jury. The cited provisions of the contracts are, it seems to us, recognized rights which the owner may reserve without thereby becoming subject to liability for the negligence of a general contractor, or subcontractors. This is particularly true where a number of prime or independent contractors and subcontractors are simultaneously engaged in work upon the same project. We find in these provisions nothing which per se creates liability by contract upon the owner for the torts of his independent contractor. Furthermore, we find nothing in these provisions which gives to the owner the authority to direct the details of the work or which thrusts upon him responsibility for an injury resulting from the negligent manner in which the details of the work are carried out by an independent contractor. It should be emphasized that Ford was not the general contractor as contended by the plaintiff but the employer of independent contractors. A contractor (general contractor) is one who furnishes labor and materials and directs and supervises the details and manner of doing the work. Ford did not do so in this case but employed independent or prime contractors for this purpose.

We have also examined the evidence in the record in relation to the practices of Ford in connection with the work of the independent contractors in pursuance of the terms of the contract. The record shows that the practice was to inspect the work and to supervise, schedule and coordinate the work between the several contractors and at times to direct which part of the work should be accelerated. This work of inspection, coordination, acceleration, and scheduling was performed through Ford’s architect, the resident engineer and his assistants. There is nothing in the record which shows that Ford interfered with, supervised or assumed any responsibility for the details of the work. The practice, as indicated by the record, when it became necessary to give instructions, was to give such instructions through the field representative or field superintendent of the contractor on the job. This was all in connection with the inspection, coordination, supervision, acceleration and scheduling provided for in the contract with respect to the general contractor and his subcontractors. There is one exception to this method of dealing with contractors appearing in the record. It is where the field representative of Smith & Obey Company, called by plaintiff as his witness, testified as to one or two instances where his men were told to re-route lines that were running to the basement of the boiler house by either Ford’s engineer or the architect’s representative and in at least one of these instances, Ford countermanded the order. These two isolated .instances had no connection whatsoever with the accident. Neither was there any repetition of such instances. The same witness testified that he ran his own men and told them what to do and how to do it and that such was the general practice throughout the work.

Complaint is made by plaintiff that Ford’s representative called upon the contractors to construct the boiler house in an order different from that which some of them would otherwise have followed; in a manner that would be most convenient for Ford’s plans in putting a portion of the boiler into early operation and that Ford failed to furnish a safe place to work.

This claim came about largely because one craft worked above another in the area of the boiler house. It was testified by the same witness for plaintiff that in this type of construction such a situation is unavoidable and will occur at some phase of the construction.

We conclude that the record is clear that the accident was caused by the affirmative acts of Smith & Obey Company and Johnson, Drake & Piper, Inc. It cannot be said that Ford’s premises were inherently dangerous. Neither can it be said that any control retained by Ford, under the circumstances of this case, was the direct or proximate cause of the injuries sustained by plaintiff. Neither was Ford an insurer of the safety of the employees of contractors or subcontractors engaged in work on the premises.

Since the rendition of the judgment in the instant case, another case factually quite similar, so far as the relationship of the parties and the theory of the action are concerned, was decided by the United States Court of Appeals, Sixth District. See Ford Motor Company v. Tomlinson, 229 Fed. (2d) 873, decided February 11, 1956. Application for writ of certiorari denied October 8, 1956. In a well-reasoned and authenticated opinion (74 Abs 375), the Sixth District Court, through Stewart, J., discusses decisions of the Ohio Courts applicable to the situation there presented.

Plaintiff in that case, in a diversity of citizenship action, had been awarded damages in the sum of $13,500 against Ford Motor Company by the United States District Court for the Northern District of Ohio, Eastern Division, for personal injuries which he sustained while working as a painter in a plant under construction on the defendant Ford’s property, the very property here involved, on Brookpark Road. In that case, as in this, Ford let a number of prime contracts for various phases of the work in the construction of a new engine plant. There, as in this case, Ford reserved in its prime contracts the power to coordinate, approve, accelerate and schedule progress. The plaintiff there, as here, was an employee of a subcontractor at the time of his injuries. Plaintiff was working on a scaffolding sixteen feet above the floor. He was injured when an employee of another subcontractor, while operating a dump truck, moved it forward in such a manner as to pull the scaffolding down, causing plaintiff to fall to the floor, resulting in the injuries that formed the basis of his complaint.

There, as in this case, plaintiff sued three defendants, including a contractor and his subcontractor and the Ford Motor Company, and, there as here, in the midst of trial, plaintiff entered into an agreement with the two defendants other than Ford to dismiss the case as to them in return for a substantial sum of money, covenanting to cease and desist from further suit, but reserving all rights against Ford. There, as here, it was not contended that liability could be imposed upon Ford because of the negligence of the contractor and subcontractor under the doctrine of respondeat superior. It was conceded that the latter were independent contractors. Ford liability, if any, was based upon its alleged independent negligence in directing that the painting and floor work proceed simultaneously without taking any steps to warn against dangers implicit in the dual operation. The court also considered the question of the responsibility of the defendant to provide a safe place to work under the Ohio Statutes and the question of the standard of conduct required of one in defendant’s position toward an employee of an independent contractor working on his premises.

In that case, the Court of Appeals held that defendant had violated no duty to the plaintiff under the Ohio safe place statutes since defendant was not an insurer and was under no duty to foresee that the employees of the independent contractor or subcontractors would be negligent. It also held that if Ford’s liability in the case were based upon a failure to warn, the Ohio law would clearly require a decision in Ford’s favor. It was also held that the simultaneous progress of the painting and floor laying was as obvious to plaintiff as to Ford and consequently, there was no duty to warn the plaintiff of that situation. The court further declared the affirmative action of Ford in simultaneously arranging for the dual operation of the floor laying and overhead painting would not create liability as to Ford and cited as authority the decision of the Supreme Court of Ohio in Schwarz v. General Electric Realty Corp., 163 Oh St 354, 126 N. E. (2d) 906, and concluded the Schwarz case directly points to the conclusion that Ford was entitled to judgment under the law of Ohio on that issue.

While the decision in the case is not binding upon this Court, the court, in our opinion, so clearly and accurately analyzed the decisions of the Ohio Courts as bearing upon a fact situation so closely similar to the facts here presented that the same conclusion with respect to the applicable law must be reached by us in the instant case. Among other cases cited and considered by the Court of Appeals of the Sixth Circuit in the review of Ohio cases are the following:

Pare v. Gemco Engineering & Mfg. Co., 95 Oh Ap 141, 118 N. E. (2d) 206.

Schwarz v. General Electric Realty Corp., supra.

Bosjnak v. Superior Sheet Steel Co., 145 Oh St 538, 61 N. E. (2d) 305.

Wellman v. East Ohio Gas Co., 160 Oh St 103, 113 N. E. (2d) 629.

Davis v. Charles Shutrump & Sons Co., 140 Oh St 89, 42 N. E. (2d) 663.

Hozian v. Crucible Steel Casting Co., 132 Oh St 453, 9 N. E. (2d) 143.

We feel that a review of these Ohio cases, so ably discussed in the opinion, would be merely repetitious and would serve no useful purpose. Of course, the decisions of the Ohio Supreme Court there cited are binding upon this court and take precedence over general text authorities.

In conclusion, suffice to say, we find no evidence in the record of joint and concurrent negligence on the part of Ford in its relations with its independent contractors which would impose upon the defendant liability for the injuries sustained by the plaintiff either by reason of the control Ford reserved over the premises or the control it reserved over operations of the contractors. We conclude, therefore, that the motions of defendant to arrest the testimony from the jury at the close of the evidence and enter judgment for the defendant at the close of all the evidence should have been granted, failing in which the court should have granted the motion for judgment non obstante veredicto.

Holding these views, we find it unnecessary to discuss the ground of error to the effect that the trial court erred to the prejudice of defendant by its refusal to grant judgment based on plaintiff’s acceptance of $30,000 in satisfaction of his claims in release of original defendants, Johnson, Drake & Piper, Inc., and Smith & Oby Company, although it is our view that if there was evidence here presented showing that Ford was jointly and concurrently liable, if liable at all, the covenant not to sue one or more of the joint tort feasors would not extinguish the rights of the plaintiff to recover against Ford in view of the express reservation of the plaintiff as to rights against Ford.

Proceeding now to render the judgment which the trial court should have rendered, the judgment for plaintiff is reversed and final judgment is rendered for the defendant.

Exceptions noted. Order see journal.

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


author: By HOLTSBERRY, J.

text:
    MITCHELL, Plaintiff, v. SEARS ROEBUCK AND COMPANY et. Defendants.
    Common Pleas Court, Licking County.
    No. 37753.
    Decided April 3, 1957.
    R. Brooke Alloway, Columbus, for plaintiff.
    Robert H. Flory, Newark, for defendant, A. B. Hampshire.
    William Fitzgibbon, Newark, for defendant Augustine T. Wehrle, Executor of the Estate of Cecilia Wehrle Rank, deceased.
    Brandt S. Hervey, Newark, for Sears Roebuck and Company.
   OPINION

By HOLTSBERRY, J.

Plaintiff in her petition asks damages against the several defendants for alleged injury sustained by falling plaster in the Newark store of Sears Roebuck and Company while she was present therein as a customer.

The defendant, Sears Roebuck and Company, has filed a cross-petition against the defendant Cecilia Wehrle Rank, owner of the building, alleging that a lease was in effect between said Sears and Rank, and that by reason of said lease, particularly paragraph four, a binding condition was stated therein that in the event of a judgment against Sears, said cross-petitioner is entitled to recover against Rank, a judg-ment equal in amount to any judgment so rendered against this cross-petitioner. In the prayer of the cross-petition Sears prays judgment against Rank equal in amount to any judgment so rendered against Sears.

The defendant Rank moves this Court to strike the cross-petition for the reason that it does not allege a cause of action arising out of the same transaction set forth in the petition or connected with the subject of the action. Sears relies largely on the provisions of §2309.16 R. C., formerly §11317 GC. The first two paragraphs of said Section read as follows:

“A counterclaim is a cause of action existing in favor of one or more defendants against one or more plaintiffs or one or more defendants, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim or connected with the subject of the action or arising out of contract or ascertained by the decision of a court.
“Such counterclaim shall not be limited to the amount claimed by the plaintiff or defendant against whom such counterclaim is asserted.”

This is known as the Counterclaim Statute. By a 1947 amendment and repeal of §11319 GC, the distinction between counterclaim and set-off was abolished. Counterclaim would now include what was formerly a counterclaim or set-off, or both. Apparently the counterclaim and what was formerly a set-off are in some respects broadened in scope. Formerly a set-off could be pleaded only in a contract action and was a cause of action existing in favor of a defendant against a plaintiff, only.

The petition herein is an action in tort directed against Sears, the landlord and other defendants. The cross-petition in question is an action based on a possible liability of landlord under the lease, and in order for this liability to accrue a complete determination of plaintiff’s cause of action would have to be made and judgment by plaintiff against Sears upon facts which would enable Sears to stand upon the lease in a suit against the landlord.

It is apparent from the pleadings that the cross-petition must stand or fall upon the express liability of the lease as applied to plaintiff’s judgment. The cross-petition is not an action against another defendant on a present existing claim, but alleges facts which might constitute a claim only if judgment was obtained against Sears.

Sec. 2309.16 R. C., contains the words “cause of action existing.” Since the claim of Sears is not now in existence it is therefore contingent in nature, and dependent upon the outcome of plaintiff’s claim for damages and therefore could not be within the contemplation of “counterclaim,” as used in said section. Sears cause of action would not come into being, if ever, until a judgment has been rendered against Sears.

The test would be could Sears now sue Rank in a separate cause of action based upon this contingency? It is obvious that such could not be done. If liability should be determined against Sears then such would be the subject of an original action. The motion is sustained.