Fidelity & Casualty Co. of New York v. Genova

• Decision Date: 04 June 1937
• Docket Number: No. 7200.,7200.
• Citation: Fidelity & Casualty Co. of New York v. Genova, 90 F.2d 874 (6th Cir. 1937)
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. GENOVA.
• Court: U.S. Court of Appeals — Sixth Circuit

90 F.2d 874 (1937)

FIDELITY & CASUALTY CO. OF NEW YORK v. GENOVA.

No. 7200.

Circuit Court of Appeals, Sixth Circuit.

June 4, 1937.

William Howell, of Cleveland, Ohio (Howell, Roberts & Duncan, of Cleveland, Ohio, on the brief), for appellant.

M. C. Harrison, of Cleveland, Ohio (Alfred Lawrence, of Cleveland, Ohio, on the brief), for appellee.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The statute of Ohio (G.C. § 9510-3 and section 9510-4) provides that if judgment in an action for personal injuries is not paid within thirty days after rendition, the judgment creditor may commence an action against the insurance company which had a policy with the defendant, and may pursue that company directly to the extent of its coverage.

Under this statute the appellant and Sam Mendise were sued in the state court by Genova, the appellee, who on December 12, 1928, had recovered a judgment against Mendise in the court of common pleas for Cuyahoga county for injuries received through the negligent operation of his automobile, the judgment not being satisfied. The declaration alleged that at the time of the accident Mendise was insured against liability by a policy issued by the appellant, which, though in the name of his brother, Joe Mendise, had been reformed by a decree of the Court of Appeals of Cuyahoga county¹ so as to show that it was a contract with Sam Mendise, effective as of its date of issue. The cause was removed to the United States District Court, where upon verdict of the jury, judgment was had by Genova. The insurer after notice and severance alone appeals.

The appellant defended on the ground that at the time of the state court judgment it had no policy with Sam Mendise; that if it had it had not been notified of the accident and given an opportunity to defend as required by the policy; that the reformation decree is a nullity because, though Joe Mendise and Genova were indispensable parties to the proceeding, they had not been joined, and that both the judgment and the decree for reformation were ineffective to impose liability upon it because procured by fraud. Of the errors assigned, we think but two have been saved for review, there being no occasion to again demonstrate, either by reasoning or citation, the rule so often announced that general exceptions to rulings will not be considered.

The reformation proceeding was begun by Sam Mendise. The petition therein counted on a mistake in the issuance of a policy by the appellant upon a car belonging to Sam's brother, Joe Mendise, although the policy had been ordered and paid for by Sam. The mistake was due to the fact that both brothers had upon the same day purchased Jewett cars of identical model, and had ordered insurance from Durkin, a broker who represented not only the appellant but also another insurer. Both policies, one in each company, were issued for Joe's car, and none for Sam's. The mistake was not discovered until after the accident and the judgment. The appellant contends that without both Genova and Joe Mendise as parties to the suit, the reformation decree is...