Security Insurance v. Michael

The ease went to trial in the court below on the answer and cross petition of Michael, the insurance company having dismissed its petition. This petition was by consent of parties then filed as an answer to the answer and cross petition of Michael, which petition was for money only. The answer of the insurance company was nothing more than a defense to Michael’s petition for money and could not in any way change Michael’s action, which was one in law, to an action in equity. The case was therefore on,e to be tried by a jury unless a jury was waived. Gen. Code 11379.

Gen. Code 11466, by its terms applies to Hamilton and Cuyahoga counties only. Its subject is of a general nature and it should apply to all the counties of the state and have a uniform operation. For lack of uniformity of operation we think the law is invalid.

*478The Security Insurance Company demanded a trial by jury, which the court refused to grant. We are unable to see how this right of trial by jury can be held to have been waived by the consent of the parties in this case. After the trial was commenced the jury trial was demanded. The real purpose of the company may have been for delay, but in demanding trial by jury the company insisted only on having the trial in accordance with the terms of the statutes, and the purpose with which it was made can not affect the right. The insurance company went further than the requirements of the statute. The language of the statute is that it shall be tried by a jury unless a jury is waived.

No doubt a waiver of trial by jury may be done without an express waiver, but here a jury trial was insisted on.

In denying to the insurance company a jury trial we think the court committed error, for which the judgment should be reversed.