Mitchell v. Great Eastern Stages

• Citation: 140 Ohio St. 137,42 N.E.2d 771
• Decision Date: 24 June 1942
• Docket Number: 28693.
• Parties: MITCHELL v. GREAT EASTERN STAGES, Inc., et al.
• Court: United States State Supreme Court of Ohio

42 N.E.2d 771

140 Ohio St. 137

MITCHELL v. GREAT EASTERN STAGES, Inc., et al.

No. 28693.

Supreme Court of Ohio

June 24, 1942

Syllabus by the Court.

1. A liability insurance policy filed and approved pursuant to Section 614-99, General Code, must be interpreted in the light of that section so as to give effect to the legislative intent.

2. Such a policy, which by its terms indemnifies the insured against loss by injury or death from the negligence of the insured while operating as a common carrier by bus under a certificate of public convenience and necessity issued by the Public Utilities Commission, covers the movement of such bus over whatever route is reasonably necessary in going to a garage or shop for repair, although not then being operated for the carriage of passengers.

Appeal from Court of Appeals, Delaware County.

On April 10, 1935, Alice I. Mitchell, administratrix of the estate of Verne T. Mitchell, deceased, brought an action in the Court of Common Pleas of Delaware county, Ohio, against Great Eastern Stages, Inc., to recover for wrongful death resulting from negligence in the operation of a bus on January 7, 1934. The trial resulted in a verdict and judgment in favor of the plaintiff against Great Eastern Stages, Inc., in the sum of $10,000.

Pursuant to Section 9510-4, General Code, the plaintiff on May 19 1938, filed a supplemental petition against American Fidelity & Casualty Company, Inc., grounding the action upon a liability insurance policy which was issued to Great Eastern Stages, Inc., and which the plaintiff claims, covers the loss and damage arising from the decedent's death to the amount of $6,000. Thereafter the plaintiff filed an amended supplemental petition and to this the defendant, American Fidelity & Casualty Co., Inc., filed an amended answer in which were set up two separate defenses. A general demurrer was filed by the plaintiff raising the question of the sufficiency of each defense. The demurrer was sustained in toto and, such defendant not desiring to plead further, the trial court rendered judgment in favor of plaintiff against the defendant, American Fidelity & Casualty Company, Inc., in the full amount of $6,000, plus interest in the sum of $1189, making a total of $7,189.

The Court of Appeals affirmed the latter judgment and this court allowed a motion to certify the record.

Knepper, White & Dempsey, of Columbus, for appellant.

Humes & McAllister, of Delaware, for appellee.

WILLIAMS Judge.

Did the trial court commit prejudicial error in sustaining the general demurrer as to each of the two defenses set out in the amended answer of the defendant, American Fidelity & Casualty Company, Inc.? The demurrer raises one question common to both defenses, namely, whether the liability insurance policy covered the operation of the bus of Great Eastern Stages, Inc., in taking it from Columbus to Cleveland to be repaired. If this question is answered in the affirmative, it will be unnecessary to consider the two defenses separately.

Though the answer is lengthy the essential facts pleaded therein may be stated with brevity.

On January 7, 1934, Great Eastern Stages, Inc., was operating one of its busses over U.S. route No. 40 and by virtue of a certificate issued by the Public Utilities Commission of Ohio. The bus became partially disabled and another was substituted for it. Thereupon the transportation company placed the disabled bus in charge of one of its mechanics, La Mar D. Quick, who started to drive it from the city of Columbus over U.S. route No. 23 bound for the company's garage in the city of Cleveland where the bus was to be repaired. At a point on such route about one-half mile south of the city of Delaware, Ohio, the bus stopped because of motor failure due to a broken timing chain and an automobile in which plaintiff's decedent was riding collided with the rear end of the bus, resulting in the fatal injury of the decedent. At that time the bus was not being operated for the carriage of passengers and was not going over a route upon which it had been authorized to transport persons or property for hire by the Public Utilities Commission, the route being merely a direct and convenient one by which to reach the garage.

The liability insurance policy in force at that time was executed and delivered pursuant to Section 614-99, General Code, 114 Ohio Laws, 216, which so far as applicable reads thus 'No certificate of convenience and necessity shall be issued by the commission to any motor transportation company until such motor transportation company shall have filed with the commission a liability insurance policyor bond satisfactory to the commission in such sum and with such other terms and provisions as the commission may deem necessary adequately to protect the interests...