Couk v. Ocean Accident & Guarantee Corp., No. 28312.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtBETTMAN
Citation138 Ohio St. 110,33 N.E.2d 9
Docket NumberNo. 28312.
Decision Date26 March 1941
PartiesCOUK et al. v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited.

138 Ohio St. 110
33 N.E.2d 9

COUK et al.
v.
OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited.

No. 28312.

Supreme Court of Ohio.

March 26, 1941.


Certified by Court of Appeals, Cuyahoga County.

Action by one Couk and another against the Ocean Accident & Guarantee Corporation, Limited, on a public liability policy, wherein the defendant filed a counterclaim. From a judgment against plaintiffs on their claim, and against defendant on its counterclaim, both parties appealed to the Court of Appeals, which reversed in part the judgment and entered judgment for plaintiff and affirmed the judgment against defendant on its counterclaim, and certified the cause to the Supreme Court because of conflict of decision.-[Editorial Statement.]

Judgment of Court of Appeals affirmed.

[33 N.E.2d 10]


Syllabus by the Court.

1. Certification of the record of a case to the Supreme Court because of conflict between judgments of Courts of Appeals upon any question, brings the entire case before the Supreme Court for review. Pettibone v. McKinnon, 125 Ohio St. 605, 183 N.E. 786, followed.

2. Where a notice of appeal to the Court of Appeals designates the judgment appealed from as a ‘judgment of the Municipal Court of Cleveland upon the opening statement of said appellants on the 13th day of November 1939,’ but the judgment appealed from was actually rendered on the 14th of November 1939, the Court of Appeals has power under Section 12223-5, General Code, to permit amendment of the notice of appeal to correct such error.

3. Where a policy of public liability insurance covers, in addition to the named assured, persons ‘legally responsible’ for the operation of any vehicle described in the policy, and where, by the terms of an endorsement thereto, a description is waived as to vehicles, including substituted or emergency vehicles, operated by the assured under a certificate of public convenience and necessity issued by the Public Utilities Commission of Ohio, the insurance covers owners of a truck not described in the policy but found to be operated as substituted or emergency equipment within the meaning of the contract, although the accident involved occurred outside the state of Ohio. Such coverage outside Ohio arises from the terms of the insurance contract, entered into voluntarily and intended to be effective throughout the United States and Canada, and not as a result of any power in the Public Utilities Commission to require coverage outside Ohio.


The plaintiffs in this action, Couk and Spires, owned a truck as partners and were hired by All States Freight, Inc., of Akron, Ohio, to make a trip with freight to New York city. On that trip and while in New York city, the truck struck and injured a minor child. The minor brought suit in New York against Couk and Spires. As is permitted under New York law, the minor's father joined in the suit as a plaintiff to recover for his loss of the child's services and for his expenses. During the progress of the action, All States Freight, Inc., was also made a party defendant, on the ground that Couk and Spires operated the truck as the agents of All States Freight, Inc.-the New York law permitting the joinder of master and servant in one action. All States Freight, Inc., however, was not brought into the action until

[33 N.E.2d 11]

after the pertinent statute of limitations had run against the father's claim.

The New York suit resulted in: (1) Judgment for the minor in the sum of $14,691.74 against All States Freight, Inc., and Couk and Spires ‘jointly and severally’; and (2) judgment for the minor's father against Couk and Spires alone in the sum of $1,250.

The defendant here, The Ocean Accident & Guarantee Corporation, Ltd., having issued to All States Freight, Inc., the policy of insurance hereinafter described, thereupon paid the judgment entered on the minor's cause of action. The judgment in favor of the minor's father against Couk and Spires remains unpaid.

In the present action Couk and Spires, asserting that the insurance policy issued to All States Freight, Inc., insured Couk and Spires also, seek recovery from the defendant insurer for the amount of the New York judgment outstanding against them ($1250) and for their expenses and attorneys' fees in the New York litigation-a stipulated total of $3,000-and for attorneys' fees in this action in an amount of $500. The defendant insurer denies that Couk and Spires were insured, and asserts, by way of counterclaim, that it has been subrogated to certain claims of All States Freight, Inc., against Couk and Spires. In asserting these counterclaims, the defendant in substance alleges: (1) That Couk and Spires, having been found by the New York court to have been negligent servants of All States Freight, Inc., must reimburse All States Freight, Inc., (and by subrogation, the defendant insurer) for its loss arising out of such negligence; and, alternatively, (2) that, by virtue of a New York statute providing for contribution between persons against whom a joint judgment for personal injuries has been rendered, All States Freight, Inc., (and, by subrogation, the defendant insurer) having paid the minor's claim of $14,691.74 in full, is entitled to recover one-half that amount from Couk and Spires.

Upon the opening statements of counsel and upon certain stipulations of fact which included the terms of the insurance contract in question, judgment was rendered by the Municipal Court of Cleveland against plaintiffs on their claim, and against defendant on its counterclaims. Both parties appealed upon questions of law to the Court of Appeals for the Eighth Appellate District.

In the Court of Appeals, defendant moved to dismiss the plaintiffs' appeal on the ground that the notice of appeal was fatally defective in specifying as the subject of review a judgment of November 13, 1939, there being no judgment of that date. The aforementioned judgment of the Municipal Court was actually entered on November 14, 1939. The Court of Appeals overruled the motion to dismiss the plaintiffs' appeal, and granted a motion of the plaintiffs for leave to amend their notice of appeal. The Court of Appeals then, without opinion, reversed in part the judgment of the Municipal Court and entered judgment for the plaintiffs, Couk and Spires, in the sum of $3,727.50 (being the amount of the unpaid New York judgment and the attorneys' fees and expenses in the New York suit, as stipulated, plus interest, the claim for attorneys' fees in this action having been abandoned) and costs. One judge dissented ‘solely for the reason that appeal is taken from a judgment of November 13, 1939, which judgment is not shown on the record.’ The judgment against the defendant insurer on its counterclaims was affirmed.

Thereupon, the Court of Appeals certified the cause to this court of review, pursuant to Section 6, Article IV of the Constitution of Ohio, because the judgment was in conflict with a judgment of the Court of Appeals Clark county ‘on questions of procedure pertaining to notice of appeals.’

McKeehan, Merrick, Arter & Stewart, C. M. Horn, and Thomas V. Koykka, all of Cleveland, for appellant.

D. R. Wilkin and John N. Wilkin, both of Cleveland, and Fred W. Post, of Cleveland, for appellees.


BETTMAN, Judge.

The record in this case was certified to this court because of conflict with the judgment of another Court of Appeals upon ‘questions of procedure pertaining to notice of appeals.’ Such certification brings the entire case before this court. Pettibone v. McKinnon, 125 Ohio St. 605, 183 N.E. 786;Chicago Ornamental Iron Co. v. Rook, Adm'r, 93 Ohio St. 152, 112 N.E. 589.

Considering first the procedural question here involved-the sufficiency of Couk and Spires' notice of appeal-the applicable statute, Section 12223-5, General Code,

[33 N.E.2d 12]

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63 practice notes
  • Van Fossen v. Babcock & Wilcox Co., No. 87-624
    • United States
    • United States State Supreme Court of Ohio
    • 13 Abril 1988
    ...Ford, Inc. (1977), 50 Ohio St.2d 38, 39, 4 O.O.3d 89, 90, 361 N.E.2d 1063, 1064; Couk v. Ocean Accident & Guar. Corp., Ltd. (1941), 138 Ohio St. 110, 20 O.O. 65, 33 N.E.2d Given this mandate and right of complete review and also the broad language of the certification order of the court......
  • Trotwood Trailers, Inc. v. Evatt, No. 29506.
    • United States
    • Ohio Supreme Court
    • 17 Noviembre 1943
    ...of Capital Loan & Savings Co. v. Biery, 134 Ohio St. 333, 16 N.E.2d 450, and Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St. 110, 33 N.E.2d 9, apply. The right of a taxpayer to challenge, by appeal, the validity of a tax levied against him should not be limited or defea......
  • State v. Young, Nos. 86-1532
    • United States
    • United States State Supreme Court of Ohio
    • 6 Julio 1988
    ...any question, brings the Page 251 entire case before the Supreme Court for review." Couk v. Ocean Acc. & Guar. Corp. (1941), 138 Ohio St. 110, 20 O.O. 65, 33 N.E.2d 9, paragraph one of the syllabus. On this basis, we turn now to a consideration of the remaining issues presented by ......
  • Brecount v. Proctor & Gamble Co., No. 35056
    • United States
    • United States State Supreme Court of Ohio
    • 3 Julio 1957
    ...cause up for review. Pettibone v. McKinnon, 125 Ohio St. 605, 183 N.E. 786, and Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St. 110, 33 N.E.2d The other issues presented for review are encompassed by defendant's contentions that there is no competent probative evidence to s......
  • Request a trial to view additional results
63 cases
  • Van Fossen v. Babcock & Wilcox Co., No. 87-624
    • United States
    • United States State Supreme Court of Ohio
    • 13 Abril 1988
    ...Ford, Inc. (1977), 50 Ohio St.2d 38, 39, 4 O.O.3d 89, 90, 361 N.E.2d 1063, 1064; Couk v. Ocean Accident & Guar. Corp., Ltd. (1941), 138 Ohio St. 110, 20 O.O. 65, 33 N.E.2d Given this mandate and right of complete review and also the broad language of the certification order of the court......
  • Trotwood Trailers, Inc. v. Evatt, No. 29506.
    • United States
    • Ohio Supreme Court
    • 17 Noviembre 1943
    ...of Capital Loan & Savings Co. v. Biery, 134 Ohio St. 333, 16 N.E.2d 450, and Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St. 110, 33 N.E.2d 9, apply. The right of a taxpayer to challenge, by appeal, the validity of a tax levied against him should not be limited or defea......
  • State v. Young, Nos. 86-1532
    • United States
    • United States State Supreme Court of Ohio
    • 6 Julio 1988
    ...any question, brings the Page 251 entire case before the Supreme Court for review." Couk v. Ocean Acc. & Guar. Corp. (1941), 138 Ohio St. 110, 20 O.O. 65, 33 N.E.2d 9, paragraph one of the syllabus. On this basis, we turn now to a consideration of the remaining issues presented by ......
  • Brecount v. Proctor & Gamble Co., No. 35056
    • United States
    • United States State Supreme Court of Ohio
    • 3 Julio 1957
    ...cause up for review. Pettibone v. McKinnon, 125 Ohio St. 605, 183 N.E. 786, and Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St. 110, 33 N.E.2d The other issues presented for review are encompassed by defendant's contentions that there is no competent probative evidence to s......
  • Request a trial to view additional results

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