Carpenter v. Gasper

• Decision Date: 18 January 1962
• Citation: 186 N.E.2d 481,116 Ohio App. 45
• Parties: , 21 O.O.2d 264 CARPENTER, Appellant, v. GASPER et al., Appellees.
• Court: Ohio Court of Appeals

Page 45

116 Ohio App. 45

186 N.E.2d 481, 21 O.O.2d 264

CARPENTER, Appellant, v. GASPER et al., Appellees.

Court of Appeals of Ohio, Second District, Montgomery County.

Jan. 18, 1962.

Curtner, Brenton & Selva, Dayton, for appellant.

Altick & McDaniel, Dayton, for appellees.

CRAWFORD, Presiding Judge.

Plaintiff, appellant herein, recovered a default judgment in the Common Pleas Court against the defendant-appellee Gasper, in the sum of $3,500 for personal injuries suffered in a collision between an automobile diven by plaintiff and a 1950 two-ton Chevrolet truck being operated by Gasper's agent.

Thereafter, plaintiff filed a supplemental petition against the defendant-appellee Nationwide Mutual Insurance Company, alleging that the judgment was unpaid, that at the time of the injury on April 22, 1954, Gasper was insured by Nationwide against loss due to liability for bodily injury, and prayed for judgment against Nationwide in the amount of the original judgment.

Nationwide answered, admitting that it had in force and effect an insurance policy issued to Gasper on a 1948 Packard sedan automobile, denying that the policy covered the 1950 two-ton Chevrolet truck, and alleging that Gasper had not acquired ownership of the truck on the date of the injury, April 22, 1954.

The case was submitted to the court upon the following agreed statement of facts:

'1. Charles M. Gasper took possession of a 1950 Chevrolet 2-ton truck from Smith Used Car Sales on April 22, 1954, under an agreement to purchase same, prior to the time of the accident herein referred to.

'2. Said truck was involved in an accident which occurred April 22, 1954, as a result of which accident, plaintiff recovered a default judgment against Charles M. Gasper for $3,500 and $13.25 costs on account of bodily injuries sustained by her.

'3. Nationwide Mutual Insurance Company had issued its policy of insurance on a certain 1948 Packard automobile owned by Charles M. Gasper, with liability coverages thereon, a specimen copy of such policy being attached hereto and made a part of this agreed statement of fact.

'4. The only automobile or motor vehicle owned by or for which Charles M. Gasper held a certificate of title on April 22, 1954, was the 1948 Packard automobile described in the aforesaid policy of insurance.

'5. Charles M. Gasper was not the owner of the 1950 Chevrolet truck on April 22, 1954, the date said truck was involved in the accident with this plaintiff.

'6. The assignment on the back of the truck title from Smith Used Cars to Charles M. Gasper was executed on April 23, 1954.

'7. A power of attorney executed by Charles M. Gasper to Marcella D. Hamilton for the purpose of making application for a certificate of title for said truck on his behalf was executed on April 23, 1954.

'8. The certificate of title in Charles M. Gasper's name for the 1950 Chevrolet truck was issued on April 26, 1954.

'9. At the time of the accident, the 1950 Chevrolet truck was being operated in the business of Charles M. Gasper by his employee, who was acting within the scope of his employment.

'10. Charles M. Gasper notified the Nationwide Mutual Insurance Company agent of the accident occurring April 22, 1954, and that he had acquired possession of said 1950 Chevrolet truck, within thirty days from the time he so acquired possession of the truck from Smith Used Cars and that said truck was involved in the accident.

'11. Smith Used Car Sales had a garage liability policy with the Connecticut Indemnity Company covering automobiles owned by it and used in its business.'

Pertinent provisions of the policy will be set forth in the appropriate portions of this opinion.

The Court of Common Pleas rendered judgment for the defendant-insurer, Nationwide. Plaintiff now appeals from that judgment on questions of law. The assignments of error are set forth in the form of 'issues.'

In construing the language of an insurance policy we must consider what a reasonable person in the position of the insured would have understood it to mean. When an insurance contract prepared by the insurer contains provisions subject to different constructions, one favorable to it and the other favorable to the insured, the latter construction will be adopted. See 6 Ohio Jurisprudence (2d), 247, Automobiles, Section 73. However, the contract made between the parties will be enforced, and a new contract will not be interpolated by construction. See 30 Ohio Jurisprudence (2d), 215 and 217, Insurance, Sections 205 and 206.

The first issue presented is the applicability of so-called 'automatic insurance' provided by insuring agreement IV contained in the policy. So far as pertinent that agreement reads as follows:

'IV. Automobile defined, trailers, two or more automobiles, including automatic insurance

'(a) Automobile. Except where stated to the contrary, the word 'automobile' means:

'(4) Newly acquired automobile--an automobile, ownership of which is acquired by the named insured who is the owner of the described automobile, if the named insured notifies the company within thirty days following the date of its delivery to him, and if either it replaces an automobile described in this policy or the company insures all automobiles owned by the named insured at such delivery date; but the insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured has other valid and collectible insurance. The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile * * *.'

It is not claimed that the 1950 two-ton Chevrolet truck replaced the 1948 Packard sedan automobile; but plaintiff argues that Nationwide insured 'all automobiles owned by the named insured at such delivery date' of the Chevrolet truck on April 22, 1954.

It is well settled in Ohio that certificate of title determines ownership to motor vehicles. Section 4505.04, Revised Code; Mielke v. Leeberson, 150 Ohio St. 528, 83 N.E.2d 209, 7 A.L.R.2d 1342; Kelley Kar Co. v. Finkler, 155 Ohio St. 541, 99 N.E.2d 665; Garlick, Admr. v. McFarland, 159 Ohio St. 539, 113 N.E.2d 92; In re Estate of Case, 161 Ohio St. 288, 118 N.E.2d 836; Brewer v. DeCant, 167 Ohio St. 411, 149 N.E.2d 166.

The 1948 Packard sedan being the only automobile owned by Gasper on April 22, 1954, it follows that 'the company insures all automobiles owned by the named insured at such delivery date' and that the automatic insurance is in that respect applicable to a newly acquired automobile. See Horace Mann Mutual Casualty Co. v. Bell, D.C., 134 F.Supp. 307, and other cases cited therein.

The question then arises whether Gasper gave adequate and proper notice to Nationwide. The generally accepted theory of the nature and purpose of automatic insurance is that it becomes effective immediately upon delivery of the newly acquired automobile and continues in effect for the specified time (thirty days here), at the end of which it expires unless the required notice is given and the insured has acquired ownership; that the notice is therefore a condition subsequent to coverage; that such automatic insurance is provided for the purposes of enabling the insured to have continuous coverage, to encourage him to continue with the same insurer, and to insure all his automobiles with it; and that the premium paid for the original insurance is the consideration for the automatic insurance until the end of the specified period. See annotations, 34 A.L.R.2d 936, 939 to 951.

Of what must the insured notify the company--of ownership or of delivery? The time provided for giving notice, like the effectiveness of the insurance, dates from delivery, not from the acquisition of ownership. If the insured gives notice...