Opinion
No. 40072
Decided June 29, 1966.
Procedendo — Nature of remedy — Not available, when — To compel court to hear declaratory judgment action to determine facts — Tort action pending, involving duty of insurer to defend.
APPEAL as of right from a judgment in an action originating in the Court of Appeals for Butler County.
On August 23, 1962, the automobile in which Roger Lawson and its owner were riding was involved in a collision in which Dorothy Wells was injured. On July 15, 1963, Mrs. Wells and her husband sued Lawson, alleging that Lawson was driving the automobile and was, by reason thereof, liable for her injuries.
Appellant, who is the insurer of Lawson but not of the owner, claims that it has "good and sufficient reason to believe that Lawson was not the driver of the automobile," and therefore it "has no duty or obligation to defend" that suit.
On March 20, 1964, nineteen months after the accident and eight months after the filing of the tort action, appellant filed an action for declaratory judgment in which it joined all the parties involved and prayed for a determination that Lawson was not the driver of the automobile in which he was riding. Appellant has not yet filed an answer on behalf of its insured in the tort action.
The foregoing facts are alleged in the petition in this action for a writ of procedendo which was commenced in the Court of Appeals for Butler County against appellees, judges of the Court of Common Pleas of Butler County, praying that they be directed to proceed to hear the declaratory judgment action prior to the trial of the tort action.
The lower court sustained appellees' demurrer to the petition and denied the writ.
Messrs. Fitton, Pierce, Baden Wynn and Mr. Thomas W. Baden, for appellant.
Mr. Maxwell Finkleman, for appellees.
Appellant insists that by reason of the judgment of this court in Conold v. Stern, 138 Ohio St. 352, it is on the horns of a dilemma. If it steps to its insured's defense in the tort action, it will not be permitted to impeach his probable testimony that he was the driver. And, if that fact is found in that action, as privy with Lawson by reason of its policy of insurance, it will not be permitted to reopen that issue as against the Wellses in any subsequent proceeding, including the declaratory judgment action, if that action is not first heard.
The record does not disclose the basis of appellant's claim or Lawson's reaction to the claim. In oral argument, it was suggested that Lawson had informed the police officer investigating the accident that he was the driver of the automobile. We are singularly uninformed as to whether Lawson has made any statement under oath or whether he has been invited so to do.
However, appellant has shown no clear statutory right to the relief sought or any mandatory duty on the part of appellees which is being disregarded. Nothing in the Declaratory Judgments Act, Section 2721.01 et seq., Revised Code, assists appellant, nor does Section 2311.05 et seq., Revised Code, indicate that the order of trial of causes should be removed from appellees' province.
The writ of procedendo is an extraordinary remedy. It will not issue to compel a Court of Common Pleas to hear a declaratory judgment action (in which an insurer seeks to have determined the issue of whether its insured was the driver of an automobile involved in a collision) prior to hearing an action for personal injuries (in which the insured is defendant and is alleged to have been driving the automobile at the time of the collision), where the former action was instituted after the latter.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.