Bennett v. Swift & Co.

• Decision Date: 16 December 1959
• Docket Number: No. 35931,35931
• Citation: 170 Ohio St. 168,163 N.E.2d 362
• Parties: , 10 O.O.2d 109 BENNETT, Appellee, v. SWIFT & CO. et al.; Nationwide Mutual Ins. Co., Appellant.
• Court: Ohio Supreme Court

Page 168

170 Ohio St. 168

163 N.E.2d 362, 10 O.O.2d 109

BENNETT, Appellee, v. SWIFT & CO. et al.; Nationwide Mutual Ins. Co., Appellant.

No. 35931.

Supreme Court of Ohio.

Dec. 16, 1959.

Syllabus by the Court

1. The rights of a plaintiff against an insurer named a defendant in a supplemental petition filed under the provisions of Section 3929.06, Revised Code, cannot rise above those of the insured, and any defenses which would have been available to the insurer in an action by the insured are available to the insurer in the proceeding on such supplemental petition. Luntz v. Stern, 135 Ohio St. 225, 20 N.E.2d 241; Stacey v. Fidelity & Casualty Co. of New York, 114 Ohio St. 633, 151 N.E. 718.

2. Where the terms of an insurance policy require the insured to give notice to the insurer of an accident 'as soon as practicable,' a question of fact exists if reasonable minds might differ as to whether the event giving rise to the controversy constituted an accident within the meaning of the language of the policy or was merely a trivial occurrence not required to be reported under its provisions.

3. The question of the reasonableness of an insured's determination of the question of whether a controverted event constitutes a trivial occurrence or an accident within the meaning of the terms of an insurance policy must be resolved on the basis of the facts as they existed at the time of the controverted event, and compliance or noncompliance with provisions of the policy requiring the giving of notice to the insurer cannot be established by subsequent events.

This cause is presently before this court on issues arising out of a supplemental petition filed by the plaintiff, appellee herein, naming the defendant insurance company, appellant herein, as the insurer of the judgment-debtor defendant, Matthews Delivery Service, Inc. The supplemental petition alleges the obtaining of a judgment against Mathews, Inc., in excess of the amount of the limit of the insurance policy, states that the judgment has remained unsatisfied for a period in excess of 30 days, and prays for judgment in the amount of the policy.

The injury to the plaintiff was occasioned when a driver-employee of Mathews, Inc., was making a delivery of meat to the plaintiff's place of employment and plaintiff was accidentally struck with a quarter of beef, at which time, the plaintiff stated, he had 'the breath knocked out of him.' That evening the driver reported the occurrence to Leon E. Mathews, president of Mathews, Inc., and upon inquiry stated that the plaintiff did not act as though he had been hurt. Mathews thereupon told the driver to report to him the next morning so that an accident report could be made, but he did not so report and no notice was given to the insurer until 18 months later. This notification, however, was made by Mathews immediately upon learning that the plaintiff was claiming that he had suffered injury in the accident. When suit was subsequently brought, the insurer defended the suit under a 'reservation-of-rights' provision in its policy.

The contract of insurance entered into between the parties contains the following provision:

'When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.'

This provision further requires that certain particulars be included in the notice, such as the time and place of the accident and the names of injured parties and witnesses. As a 'condition' of the policy, there then appears the following:

'No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all of the terms of this policy * * *.'

The trial court held that under the facts the failure of the insured to give the insurer notice of the accident was a bar to recovery as a matter of law and directed a verdict in favor of the insurer.

The Court of Appeals, Bennett v. Matthews Delivery Service, 157 N.E.2d 907, held that a question of fact was presented as to whether under the attendant circumstances notice had been given 'as soon as practicable,' reversed the judgment of the trial court and granted a new trial to the plaintiff. In its opinion, the Court of Appeals recognized that its holding is in conflict with that of the Court of Appeals for Cuyahoga County in the case of Blanc v. Farm Bureau Mutual Automobile Ins. Co., 102 Ohio App. 150, 129 N.E.2d 474, and, accordingly, certified the record of this case to this court.

Wiles, Doucher, Tressler & Koons, Columbus, for appellee.

Dresbach, Crabbe, Newlon, Collopy & Bilger, Columbus, for appellant.

PECK, Judge.

Section 3929.06, Revised Code, provides that a plaintiff who has recovered a final judgment for loss or damage on account of bodily injury may proceed directly against the defendant's insurer if the judgment remains unsatisfied for a period of 30 days, and that this remedy may be sought in the action in which the judgment was obtained. Under that authority the plaintiff filed his supplemental petition against the insurer of the defaulting defendant, Mathews, Inc. It is well established that the rights of such a plaintiff against the insurer cannot rise above those of the insured, and that any defenses which would have been available to the insurer in an action by the insured are equally available to the insurer when named a defendant in a supplemental petition filed under the provisions of Section 3929.06, Revised Code. Luntz v. Stern, 135 Ohio St. 225, 20 N.E.2d 241; Stacey v. Fidelity & Casualty Co. of New York, 114 Ohio St. 633, 151 N.E. 718. It is the position of the insurer here that its insured failed to comply with a condition precedent in that it did not give notice to the insurer of the accident as soon as practicable, and that therefore no liability exists in favor of the plaintiff.

The question thus presented is not a complex one and may be simply stated: Where an insured does not give notice of an accident to his insurer for a period of 18 months, had he as a matter of law failed to comply with a provision of the policy that such notice shall be given as soon as practicable? Under such circumstances does a question of fact exist for the determination of a jury?

At the outset, it must be recognized that every amplification of this oversimplified question by the addition of factual detail from the record tends to militate against the insured by suggesting reasons why it could and should have given earlier notice. Such factual addenda include the insured's expressed intention on the evening of the accident to give notice and the intervention of an independent aggravation of the plaintiff's injuries between the date of the accident and the date of the notice ultimately given. We will later return to a brief consideration of these factors.

Perhaps a sound point of departure may be found in a contention of the insurer. It argues in its brief: 'What the Court of Appeals in effect said was: An insured is not required to give notice of an accident to the company until it knows the nature and extent of the injuries.'

It seems perfectly apparent that in using the word, 'accident,' in its policy instead of the word, 'injury,' the insurer sought to avoid exactly the type of situation it is now accusing the Court of Appeals of creating. Obviously, the use of the word, 'accident,' makes the duty of the insured more explicit by removing from it the burden of determining the fact of injury as a prerequisite to notice to the insurer. However, in removing this duty the terms of the policy substituted for it another, namely, that of determining whether an accident has occurred. In making it unnecessary for the insured to determine whether an 'injury' is of sufficient magnitude to require notice to be given, the terms of the policy...