Marolt v. Lisitz

• Decision Date: 24 November 1952
• Citation: 94 Ohio App. 298,115 N.E.2d 169
• Parties: , 51 O.O. 451 MAROLT v. LISITZ et al.
• Court: Ohio Court of Appeals

Page 298

94 Ohio App. 298

115 N.E.2d 169, 51 O.O. 451

MAROLT v. LISITZ et al.

Court of Appeals of Ohio, Cuyahoga County.

Nov. 24, 1952.

Rehearing Denied Dec. 15, 1952.

Syllabus by the Court.

1. Where the omnibus clause of an insurance policy covers one who uses the automobile with the permission of the named insured, the burden of proof is on a person injured to establish that the individual operating the automobile at the time of the accident comes within the protective provisions of the policy.

2. Under the omnibus clause of an insurance policy extending coverage to the named insured and also to any person while using an automobile, provided the actual use was by the named insured or with his permission, where the insured grants permission to a bailee to use the automobile, a person injured in an accident, in which someone other than the owner or permittee is driving the car, is required as an essential element in the establishment of his case to prove that the operator of the car either had the consent of the assured or that the operator was using the automobile in the furtherance of the terms of the original bailment.

Bulkley, Butler & Rini, Cleveland, for appellant.

Payne, Hermann & Pusti, Cleveland, for appellee.

THOMPSON, Judge.

This is an appeal on questions of law from a judgment entered in the Municipal Court of Cleveland on a verdict of a jury, finding the defendant insurance company, appellant herein, liable to plaintiff for injuries growing out of an automobile accident.

Plaintiff, appellee herein, originally brought an action for personal injuries and damage to his automobile against one Frances Lisitz who was driving a Buick automobile at East 9th street and Superior avenue in the city of Cleveland, and, also, against one Bennie Klein, the record owner of the automobile. An answer was filed by the defendant Bennie Klein denying liability. No answer was filed by the defendant Lisitz, although service of summons had been obtained upon her. On July 28, 1950, after plaintiff had dismissed his action against the defendant Klein the case came on for hearing against the driver of the automobile, Frances Lisitz, and default judgment for $4,400 was entered against her by the trial court.

Subsequently, on October 30, 1950, plaintiff filed a supplemental petition, under favor of Section 9510-4, General Code, naming the Indemnity Insurance Company of North America as a new party defendant on the theory that the insurance policy of the owner, Klein, under the omnibus clause, extended coverage to the driver, Frances Lisitz, thereby making the insurance company liable to plaintiff in the amount of the judgment obtained by plaintiff against her.

The omnibus clause in question reads as follows:

'The insured includes the named insured and also any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile was by the named insured, or with his permission.'

The answer of the insurance company admitted issuance of a policy of insurance to Klein, admitted that plaintiff had recovered a judgment against defendant Frances Lisitz, and denied that the latter was at the time operating a Buick automobile owned by Klein with the consent, express or implied, of the latter.

The case came on for hearing before a jury on the issues raised by the supplemental petition. To prove his case, plaintiff called three witnesses. The first was Ritchie, a member of the Cleveland police department on April 14, 1949, the date of the accident. Ritchie testified that when he arrived at the scene of the accident he saw plaintiff and Frances Lisitz. He ascertained that the license number of the car being driven by her was listed in the name of Bennie Klein. Ritchie testified also that about 20 minutes later a man appeared whom he understood was Bennie Klein. The witness was asked what, if anything, the individual referred to stated and, over the objection of defendant's counsel the court permitted Ritchie to answer the question as follows:

'He said it was all right for this lady to have the car.'

After cross-examination, the court stated that a motion to strike the testimony would be granted unless plaintiff could connect up this testimony with Bennie Klein. It does not appear, however, that this testimony was ever connected up and, on the other hand, there is no evidence in the record that the trial court subsequently instructed the jury to disregard it. As we view the evidence, it was in any event inadmissible.

The second witness, Ward, was also a police officer who was called to the scene of the accident. He saw both drivers and a third person who identified himself as Mr. Klein. Ward testified with respect to the latter:

'I asked him if he owned the car * * * and he said, 'yes,' and that he had given her permission to drive.'

Although objected to by defendant, the court permitted this evidence to stand. Ward further testified that Mr. Klein was 'kind of short and of stocky build.'

The third witness was plaintiff's attorney, who testified that Mr. Klein, whom he had seen personally in court, was a person of short, stocky build.

Plaintiff rested at this point and defendant moved for a directed verdict, which was overruled. Thereupon the insurance company, as a part of its defense, read the deposition of Bennie Klein. Mr. Klein testified that on April 14, 1949, he was the owner of a Buick automobile and that prior to that date he had discussed the sale of the automobile with a man by the name of Marty Lisitz. Klein said he was buying a new car and was going to sell his Buick and that Lisitz inquired, 'Why not sell it to me?' Klein stated that he therefore loaned Lisitz the car for a tryout. Klein testified upon that point specifically as follows:

'I turned the key over to him and I also had my man there and I says, 'There is the key, Jack. If he delivers the money that's his car. If he hasn't got the money, take the car back.''

Klein was unable from memory to give the date when he thus turned over the car to Lisitz. Klein stated also that he knew a woman by the name of Frances Lisitz and had seen her two or three times in the restaurant of Martin Lisitz. Klein was then asked the specific question: 'When you turned over the keys of the car to Martin Lisitz, did you tell him who could drive the car?' The answer was 'No.' On cross-examination Klein stated also that he was out of town when the accident happened, that he did not go to the scene of the accident, and that he did not talk to any policeman investigating the accident.

The defendant's counsel, upon redirect examination of Klein, asked him whether he had at any time authorized Frances Lisitz to drive the car. The answer was, 'never.' Klein said also that he did not talk to Marty Lisitz as to any limitation on the use of the car, the testimony in this respect being as follows:

'Q. You didn't tell him whether he could loan it to anyone or not? A. I didn't expect him to. I just wanted him to try it out.

'Q. You didn't talk to him about it? A. No.'

Defendant called one other witness, who merely gave a description of Klein. Thereupon, defendant rested and renewed its motion for a directed verdict, which was overruled by the court. The court then charged the jury, and a verdict was returned in favor of plaintiff against the insurance company. The trial judge rendered judgment against the insurance company in accordance with the verdict. A motion for a new trial on the part of defendant was overruled.

Since examination causes us to believe that the judgment of the trial court must be reversed, we shall not take up all the assignments of error urged by defendant, contenting ourselves with a discussion of two grounds of error urged which seem determinative of the case. The first of these urged errors pertains to the admission in evidence by the trial court of testimony of the two police officers over the objection of defendant. Each testified to the declaration of a late arrival at the scene of accident that it was 'all right for this lady to have the car.' This testimony was hearsay and, therefore, was not admissible in evidence regardless of whether made by Klein or by some other spectator. It was not properly an item for consideration by the jury in their determination of whether or not Frances Lisitz was driving with the consent of Klein. Whoever made the statement, it was not made by a party to the case, the action having been previously dismissed as to Klein, and, therefore, it was not admissible as an admission against interest. It was likewise not admissible as a part of the res gestae, or under any other recognized exception to the hearsay rule. Its admission constituted prejudicial error so far as defendant was concerned for, without it, there was no evidence by plaintiff showing the consent, direct or indirect, of Klein to the operation of his automobile by Frances Lisitz.

The other assigned error we deem it essential to discuss is that involving defendant's motion for a directed verdict at the conclusion of all the evidence. By accepting the ruling of the trial court on defendant's motion for a directed verdict at the close of plaintiff's case and proceeding with its defense, defendant waived its right to rely on the motion. In re Estate of Robinson, 145 Ohio St. 55, 60 N.E.2d 615; 39 Ohio Jurisprudence, 872, 'Trial,' Section 216.

We have properly before us, however, the...