Opinion
No. 22079
Decided May 14, 1930.
Judgments — Evidence — Parol testimony admissible to identify questions litigated in former action — Automobile indemnity insurance — Judgment creditor's action against insurer — Section 9510-4, General Code — Failure to give notice of suit and forward summons — Waiver of notice a jury question and directed verdict error.
1. Where a judgment is offered in evidence and it is uncertain from the record what was adjudged, parol testimony not inconsistent with the record and not impairing its verity is admissible to show what testimony was given and what questions were submitted for determination at the time of the rendition of such judgment, for the purpose of identifying the questions litigated and decided at the former action.
2. In an action to recover from an insurer under Section 9510-4, General Code, by one who has obtained judgment against the assured, a motion for a directed verdict by the insurer, upon the ground that the assured had failed to give proper notice of the commencement of the original suit and failed to send summons or process to the insurer, should not be granted if the evidence tends to show facts from which an inference of waiver of such requirements might be drawn. Such facts should be submitted to a jury, under proper instructions. ( Hickman v. Insurance Co., 92 Ohio St. 87, 110 N.E. 542, Employers' Liability Assurance Corp. v. Roehm, 99 Ohio St. 343, 124 N.E. 223, 7 A. L. R., 182, and Heller v. Standard Accident Insurance Co., 118 Ohio St. 237, 160 N.E. 707, approved and followed.)
ERROR to the Court of Appeals of Mahoning county.
This is a proceding in error to reverse the Court of Appeals of Mahoning county. The facts incident to the controversy are, in substance, that one Le Roy Mersich, also known as Larry Marsich, carried a policy of indemnity against loss for injury to person or property due to an accident involving the automobile insured in such policy. One William Lind, the defendant in error, suffered damage to his person and property by reason of a collision with Mersich's automobile on March 15, 1925, while said policy of insurance was in full force and effect. Lind sued Mersich for damages in the court of common pleas of Mahoning county, claiming $10,000 for personal injury and $190 for damages to his automobile.
The matter came on for trial, and Lind secured a general verdict against Mersich for $830. After thirty days, Lind sued Mersich and the State Automobile Mutual Insurance Association, as authorized by Section 9510-4, General Code. The insurance company answered, setting forth, among other things, that the policy of insurance between Mersich and itself provided that written notice of an accident should be given the company, and, in case of suit, that summons or other process should be forwarded at once to the association. It claimed that Mersich failed and neglected to comply with this provision of the policy.
It also developed at the trial that in the original suit of Lind v. Mersich a general lump sum verdict of $830 was recovered, and that injury to both person and property was claimed by Lind; that no recovery for injury to property could be had against the insurance company, and, the verdict not showing how much was allowed for the injury to the personal property, it was claimed that no right of action lay against the insurance company.
The plaintiff attempted to prove the amount of the judgment that was recovered for injury to his automobile by offering himself as a witness, and by setting forth that there was no testimony as to the amount of damage to the automobile except the testimony which he gave, although there was testimony by a repairman of his account for repairs, amounting to $85.
At the close of the plaintiff's case, a motion for a directed verdict for the insurance company was made. Lind wanted to withdraw a juror and continue the case, but his motion was overruled. The trial court was of opinion "that the statute under which this action is prosecuted provides only for an action upon judgments for bodily injuries and wrongful death. Now, it appears that in the judgment upon which they are trying to predicate and bottom their action, there is an issue of property damage. To my judgment that makes the former judgment defective as it now stands and I am of the opinion that the motion of the defendant insurance company is well taken."
Judgment was entered in favor of the insurance company. Error was prosecuted to the Court of Appeals which court reversed the court of common pleas for error in directing a verdict for the defendant insurance company, and, second, in excluding competent evidence offered by the plaintiff in error in said cause. The judgment of the common pleas court was reversed and the cause remanded for further proceedings according to law. Error is now prosecuted to this court to reverse such judgment.
Messrs. Barnum, Hammond, Stephens Hoyt,
Messrs. Knepper Wilcox, and Mr. B.B. Bridge, for plaintiff in error.
Messrs. Nicholson Warnock, for defendant in error.
Was the Court of Appeals right in reversing the common pleas court for refusing Lind the opportunity to explain the judgment recovered in the original action against Mersich as to the amount claimed and attempted to be proved for injury to the automobile?
We think the Court of Appeals did not err in that respect; that Lind's attempt was not to collaterally attack such judgment, nor to impeach it, but that he had a right to explain such judgment, and that it was competent to offer extrinsic evidence not inconsistent with the record, and not impugning its verity, for the purpose of identifying the points or questions litigated and decided in the former action, and to show that certain questions were passed upon. 34 Corpus Juris, 1073; Corkran, Hill Co., Inc., v. Fruman, 144 Md. 257, 124 A. 878; Boston Maine Rd. v. T. Stuart Son Co., 236 Mass. 98, 127 N.E. 532; 2 Freeman on Judgments (5th Ed.), Section 765.
Further, the Court of Appeals was of opinion that Lind should have been permitted to recover in any event, provided he had proved other essentials, the amount of $830, less the $190 claimed in his original petition for damages to personal property, even though he was not able to show any lesser amount of damage allowed for personal property in the original trial. The $190 was the limit of his recovery as to property damage. So that, in so far as the views of the common pleas court upon the nature of the judgment in the original action being a bar to recovery in the action against the insurance company, under the statute, we think the conclusion of the Court of Appeals was entirely right.
As to the question of waiver, the trial court and the Court of Appeals seem to have given no consideration to that feature of the case, as the verdict was directed upon other grounds. However, the question was briefed and argued in this court. It is claimed on behalf of Lind that "C.R. Taylor was not a mere soliciting agent. He wrote the policy and delivered it. He also was required to collect the yearly premium in three installments for the company. He received and forwarded notice of the accident to the home office of the company. He investigated the accident for the company and made his reports as to his findings. It is admitted that the home office received notice of the accident and acted on this notice. The company afterwards had their representative make a further investigation, including an interview with Mersich." This presentation of the facts as disclosed by the record does not seem to be controverted by the plaintiff in error.
Among other things, the policy provided (1) as to notice of the accident, and (2) as to the notice of the suit against the assured.
The question arises upon a motion for a directed verdict at the close of the plaintiff's case. Did the evidence tend to show any waiver of these provisions by the insurance company?
As to the first provision, it is admitted by counsel that notice of the accident was received by the company through Taylor, the agent, who had been notified by Mersich, the assured. We think it clearly appears that the company acted upon the notice given by Taylor, the soliciting agent, as to the happening of the accident, and thereby waived that provision of the policy with reference to the assured giving "the association written notice immediately following the accident causing such injury or damage to property." But as to the further condition that the assured "shall thereafter give like notice of any claim or suit for damages, forwarding immediately to the association every notice, summons or process as soon as the same shall have been served," the insurance company denies any waiver in that regard, and denies the sufficiency of the notice as given.
It is to be noted that the assured shall thereafter give like notice." This he undoubtedly did, for he took the same steps with reference to notice of suit that he had taken with reference to notice of the accident. When he took the summons given him by the sheriff in the Lind suit to Taylor, the agent, and "showed him the paper," Taylor said "that I didn't have to worry about it, the insurance will take care of it," and "he will write to the company and notify them," — upon all of which Mersich claims to have relied. Afterwards Mersich gave the summons to his personal lawyer, Clark; Taylor the agent not having instructed him otherwise.
Now the assured had given to the company notice of the accident by giving said notice to Taylor, the agent, which the company acted upon and investigated the accident, and the record shows, as above stated, that at the trial counsel for the insurance company admitted receiving such notice, thus waiving the provisions of the policy in that regard.
Was the assured justified in relying upon the same procedure by again going to Taylor when he received the summons in the suit against him by Lind; and by so doing did he believe he would secure action from the company, as he had done as to the provision as to notice of the accident, and thereby effect a compliance with the provisions of the policy in that regard?
In other words, the evidence showing that the company had waived the provision as to the notice of the accident, by accepting the notice to Taylor, the agent, as a compliance with the policy, was Mersich led to believe that, if he gave " like notice * * * of suit for damages," by again notifying Taylor, and showing him the summons, he was meeting the company's requirements? Was there evidence from all the attending circumstances tending to show a waiver by the company of the provision with reference to summons? If so, it was a question for the jury, under proper instructions.
In Hickman v. Ohio State Life Ins. Co., 92 Ohio St. 87, 110 N.E. 542, in a suit upon a policy exempting the insurer from liability for injury resulting from exposure to obvious risk of injury or danger, where there was no substantial conflict of the testimony of the witnesses on the trial, but the unconflicting testimony disclosing a variety of circumstances from which different minds might reasonably arrive at different conclusions, it was held to be the duty of the court to submit the determination of that issue to the jury. In Employers' Liability Assurance Corp. v. Roehm, 99 Ohio St. 343, 124 N.E. 223, 7 A. L. R., 182, which was an action upon an indemnity policy, presenting the question whether the assured had complied with a requirement as to giving notice to the company within thirty days from the date of sustaining an injury, "unless such notice may be shown not to have been reasonably possible," where the thirty days had expired before the insured realized the serious consequences of the accident, and thereafter he gave notice to the company, this court held that the question whether such notice was given within a reasonable time was not a matter of law but a question for determination by a jury.
The same principle was recognized in Heller v. Standard Accident Ins. Co., 118 Ohio St. 237, 160 N.E. 707, where the issue was whether the assured had exercised due diligence in complying with the policy condition as to "forward to the company every summons or other process served on him." It is said in the opinion in that case, at page 243 of 118 Ohio State, 160 N.E. 707, 709: "When it is developed, as in this case, that the assured seeks to exonerate himself by a justifiable excuse for failing to give such notice, a case is developed where the determination of such a claim becomes a question of fact, rather than of law, and is triable to a jury" — citing Employers' Liability Assurance Corp. v. Roehm, supra.
In the Heller case a jury had been waived and the matter was tried to the court; but it is apparent that the matter was passed upon, by the court sitting in the place of a jury, as a question of fact rather than one of law as to whether or not the assured had used due diligence under all the attendant circumstances. At the close of the opinion in the Heller case it is said: "A jury having been waived, the issue of due diligence must have been found by the court in favor of the defendant below, and we cannot say there was error on the part of the trial court in so finding."
That waiver of conditions in a policy is generally a question for the jury is recognized in many other states. Lee v. Casualty Co. of America, 90 Conn. 202, 96 A. 952; Meyer v. Iowa Mutual Liability Ins. Co., 240 Ill. App. 431; Ramat v. California Ins. Co., 95 Wn. 571, 164 P. 219; Marcus v. Manufacturers' Liability Ins. Co., 96 N.J. Law, 531, 115 A. 373; Smith v. Farm Property Mutual Ins. Assn. of Iowa, 199 Iowa 693, 202 N.W. 508; Columbia Casualty Co. v. Ingram, 154 Md. 360, 140 A. 601; Pringle v. Ætna Life Ins. Co., 123 Mo. App., 710, 101 S.W. 130.
We think in the present instance, where the evidence shows the insurer treated the acts of the assured as a performance of the condition of the policy as to notice at the time of the happening of the accident, by accepting and acting under the notice served on its agent, Taylor, that permitting such action by the agent Taylor as to notice of accident was inviting such action as to summons and process; that a reasonable inference might arise that the condition as to notice of suit, summons, and process was also waived. Whether such course of conduct by the company tends to show a waiver of the condition as to sending summons or other process when the assured pursued the same course as to notice of suit, process, etc., as he did as to the notice of accident, presents a question to be submitted to the jury, under proper instructions, in the light of Hickman v. Insurance Co., Employers' Liability Assurance Corp v. Roehm, and Heller v. Standard Accident Ins. Co., supra. As is said in Marcus v. Manufacturers' Liability Ins. Co., supra: "It was the function of the court to determine whether there was any evidence in the case from which a waiver may be found. It was the function of the jury to determine, from all the evidence and legitimate inferences to be drawn therefrom, whether there had been a waiver." See, also, Reilly v. Linden, 151 Minn. 1, 186 N.W. 121.
Entertaining these views, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, MATTHIAS and ALLEN, JJ., concur.