Aetna Cas. & Sur. Co. v. Hensgen

• Decision Date: 22 April 1970
• Docket Number: No. 69-259,69-259
• Parties: , 51 O.O.2d 106 AETNA CASUALTY & SURETY CO., Appellee, v. HENSGEN, d. b. a. George Hensgen Co., Appellant.
• Court: Ohio Supreme Court

Page 83

22 Ohio St.2d 83

258 N.E.2d 237, 51 O.O.2d 106

AETNA CASUALTY & SURETY CO., Appellee, v. HENSGEN, d. b. a. George Hensgen Co., Appellant.

No. 69-259.

Supreme Court of Ohio.

April 22, 1970.

Syllabus by the Court

1. Where a defendant fails to raise the objection that an alleged cause of action was not brought within the time limited for the commencement of such action, by a demurrer or by answer or in any other manner before filing an answer, such defendant thereby waives that ground of objection. (R.C. 2309.08 and 2309.10, construed and applied.)

2. A cause of action to recover for fire damage to property is assignable.

3. Where, for a valid consideration, a person agrees that another person is to be subrogated to certain rights, such other person is thereby substituted in the place of such person with respect to, and succeeds, to those rights and in effect thereby becomes an assignee of those rights.

4. One who makes a payment as consideration for what is in effect an assignment of a cause of action to recover for fire damage to property is not a volunteer in making that payment.

5. Where an insurer proves that it paid the full amount to the owner of property for damage thereto by fire and received from the owner at that time a writing signed by such owner stating that such owner 'subrogates' such insurer 'to all the rights, claims and interest which' such owner 'may have against any person or corporation liable for the loss,' such insurer may maintain an action to recover from one who negligently caused such loss, without establishing the existence of any policy of insurance or the payment of any premium thereon.

6. Where an owner of property damaged by fire, or his assignee or his subrogee, sues a construction contractor to recover for negligently causing that fire damage, the contractor cannot rely upon an agreement of the owner to provide fire insurance to protect the contractor unless such agreement is alleged in the petition or the contractor has affirmatively pleaded such agreement as a defense.

7. R.C. 2309.58, authorizes an appellate court, in the furtherance of justice and even after judgment, to amend a pleading by conforming the pleading to the facts proved, but only when the amendment does not substantially change the claim or defense.

8. Where an owner of property damaged by fire, or his assignee or his subrogee, sues a construction contractor to recover for negligently causing that fire damage, and where the pleadings do not set forth any agreement of the owner to provide fire insurance to protect the contractor, an amendment to defendant's answer alleging such an agreement and the breach thereof would substantially change the defense within the meaning of R.C. 2309.58.

9. Where an owner of property damaged by fire, or his assignee or his subrogee, sues a construction contractor to recover for negligently causing that fire damage, an amendment to the answer after judgment to conform it to proof of an agreement which allegedly obligated the owner to provide fire insurance to protect the contractor would not be 'in furtherance of justice,' within the meaning of R.C. 2309.58, if such agreement does not unambiguously impose such obligation on the owner.

10. Where an owner of property damaged by fire, or his assignee or his subrogee, sues a construction contractor to recover for negligently causing that fire damage, in order to support a directed verdict for the contractor on the ground that the owner's contributory negligence was a proximate cause of the fire, it is necessary that the evidence establish that ground as a matter of law.

11. Where an owner's cause of action for the negligent causing of loss by fire to his property has in effect been assigned for a valid consideration, the assignee of that cause of action may maintain an action thereon without giving notice to the contractor of its intention to do so or of its intention to make a payment as consideration for the assignment of the cause of action.

This action originated with the filing of a petition in the Common Pleas Court of Hamilton County alleging that on January 31, 1966 plaintiff was the insurer of the real and personal property of one Lovett, located at a certain place; that at that time defendant was engaged there in construction work which was being performed for defendant by two servants, Peck and Benvie; that they were using an oil-fired salamander to heat the construction area; that 'defendant, acting by and through' those 'servants, negligently knocked over the salamander, spilling burning oil over the floor which resulted in a general fire'; that 'as a * * * proximate result' of that 'negligence' Lovett sustained damages totalling $40,356.35; and that 'plaintiff, pursuant to its policy of insurance paid' that amount 'and has become subrogated to the rights of its insured thereto.'

By its answer, defendant admitted that he was engaged in construction work at that time on those premises of Lovett; that Peck and Benvie were on the premises as defendant's employee; and that there was then a fire which damaged portions of the premises and personal property thereon. Otherwise, the answer was a general denial.

At the conclusion of plaintiff's case, the trial court granted defendant's motion for a directed verdict and entered judgment for the defendant.

The judgment was reversed by the Court of Appeals.

The cause is now before this court upon appeal from the judgment of the Court of Appeals pursuant to allowance of a motion to certify the record.

Marvin N. Kolstein and William H. Ruger, Cincinnati, for appellee.

Louis A. Ginocchio, Cincinnati, for appellant.

PER CURIAM. ^*

Defendant contends first that plaintiff seeks to hold defendant liable for the negligence of defendant's employee Benvie, that Benvie is dead and any liability of his estate is barred by 'the statute of limitations' (apparently R.C. 2117.06, 2117.07 and 2117.37, sometimes referred to as the nonclaim statutes), and that therefore plaintiff cannot recover from defendant.

For the purposes of this opinion and since no party has contended otherwise, we will assume that, if legal proceedings against Benvie's estate by Lovett or his subrogee are barred by a statute of limitations, an action for the same cause by Lovett or his subrogee, the plaintiff, against defendant would be barred. Further, since no such question has been raised by either party, we express no opinion on the potential question as to whether the statutory provisions claimed to bar liability of Benvie's estate represent a 'statute of limitations.' Defendant argues that they do and plaintiff does not oppose that argument.

R.C. 2309.08 reads in part:

'The defendant may demur to the petition only when it appears on its face that:

'* * *

'(I) the action was not brought within the time limited for the commencement of such action * * *.'

The essential foundation of this contention of defendant is that this action was not brought within the time limited for its commencement.

Defendant did not demur to the petition.

R.C. 2309.10 reads:

'When, on the face of a petition, no ground of demurrer appears, the objection may be taken by answer. If the objection is not made in either way, the defendant has waived it, except only that the court has no jurisdiction of the subject of the action and that the petition does not state facts which show a cause of action.'

No objection, with respect to plaintiff's action not being brought within the time limited for its commencement, is set forth in the answer.

Defendant relies upon Wentz v. Richardson (1956), 165 Ohio St. 558, 138 N.E.2d 675, as authorizing the raising of the statute of limitations as a bar otherwise than by demurrer or answer. In that case, this court approved the granting of a motion to dismiss where it was 'apparent from the entire record * * * that the period of limitation' had 'run.' That motion was filed within the time for filing a demurrer. In effect, this court treated the motion there made before answer day as a special demurrer based on the statute of limitations. Thus, there was no basis in that case for concluding that there had been a waiver of any statute of limitations objection within the meaning of R.C. 2309.10.

Defendant suggests that his cross-petition against the executrix of Benvie's estate raised the objection of the statute of limitations. It is stated therein, so far as pertinent:

'This defendant states that if it should be determined in this cause that this defendant is liable in damages to the plaintiff, which this defendant denies, said liability will have arisen from actions of said employees and not from any actions of this defendant.

'This defendant states that defendant executrix has made claim against this defendant for an unstated amount as a result of certain business transactions entered into by and between this defendant and said decedent, which claims this defendant has denied.

'Defendant states, in the event he is found liable in damages to plaintiff herein as a result of any actions of decedent * * * Benvie, that defendant executrix is liable to this defendant for said damages to the extent that this defendant may be found liable to said executrix on her said claim against this defendant.'

This cross-petition does not indicate any intention of defendant to rely upon any statute of limitations as an objection to plaintiff's action.

We conclude therefore that, where a defendant fails to raise the objection that an alleged cause of action was not brought within the time limited for the commencement of such action, by a demurrer or by answer or in any other manner before filing an answer, such defendant thereby waives that ground of objection.

Defendant contends next that an insurance company cannot maintain a tort action against a contractor, wherein it alleges that it is subrogated to its insured's claim against the contractor for fire loss to the insured's...