Ermakora v. Daillakis

• Court: Ohio Court of Appeals
• Writing for the Court: THOMPSON; SKEEL, P. J., and DOYLE; DOYLE
• Citation: Ermakora v. Daillakis, 90 Ohio App. 453, 107 N.E.2d 392 (Ohio App. 1951)
• Decision Date: 22 October 1951
• Parties: , 62 Ohio Law Abs. 307, 48 O.O. 124 ERMAKORA v. DAILLAKIS et al.

Page 453

90 Ohio App. 453

107 N.E.2d 392, 62 Ohio Law Abs. 307, 48 O.O. 124

ERMAKORA v. DAILLAKIS et al.

Court of Appeals of Ohio, Cuyahoga County.

Oct. 22, 1951.

J. R. Kistner, Cleveland, for defendant appellant.

Malvern E. Schultz, Cleveland, for plaintiff appellee.

THOMPSON, Judge.

This case has been appealed to this Court on a question of law from a decision of the Common Pleas Court.

Plaintiff originally commenced an action against one Daillakis for injuries allegedly sustained when hit by an automobile operated by Daillakis. Plaintiff recovered a judgment against Daillakis in the sum of $2,000 in the Common Pleas Court. This judgment not having been satisfied within thirty days after the date when it was rendered, and Daillakis being covered by liability insurance, plaintiff, proceeding under Sections 9510-3 and 9510-4, General Code of Ohio, thereupon filed a supplemental petition in the Common Pleas Court in the same action in which said judgment was rendered, making the Insurance Company a new party defendant. It may be observed that Sections 9510-3 and 9510-4 provide in part as follows:

'Sec. 9510-3. Liability of insurance company for bodily injury or death.

'In respect to every contract of insurance made between an insurance company and any person, firm or corporation by which such person, firm or corporation is insured against loss or damage on account of the bodily injury or death by accident of any person for which loss or damage such person, firm or corporation is responsible, whenever a loss or damage occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, or damage or death occasioned by such casualty. * * *'

'Sec. 9510-4. Insurance money applied to judgment, when; insurer as party defendant.

'Upon the recovery of a final judgment against any firm, person or corporation by any person, including administrators and executors, for loss or damage on account of bodily injury or death, * * * if the defendant in such action was insured against loss or damage at the time when the rights of action arose, the judgment creditor or his successor in interest shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor or his successor in interest, to reach and apply the insurance money to the satisfaction of the judgment, may file in the action in which said judgment was rendered, a supplemental petition wherein the insurer is made new party defendant in said action, and whereon service of summons upon the insurer shall be made and returned as in the commencement of an action at law. Thereafter the action shall proceed as to the insurer as in an original action at law.'

For convenience, the plaintiff in the trial court, appellee in this court, will be referred to as plaintiff; while the Insurance Company, defendant in the supplemental petition, appellant in this court, will be referred to as the Insurance Company. Trial was had in the Common Pleas Court and judgment was rendered in favor of plaintiff and against the Insurance Company.

Counsel agree that the sole question before this Court is whether there has been such breach of the condition of the insurance policy, requiring cooperation of the insured, as to release the Company. Briefs of counsel cite the language of the Insurance Policy of Daillakis as controlling the question before us. The language is as follows:

'12. Assistance and Cooperation of the Insured: Coverages A, B, C, D, E, F, G, H, I, and J. The insured shall cooperate with the Company and, upon the Company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits, the insured shall not, except at his own cost, voluntarily make any payment, assume any obligation, or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.'

The insurance policy was introduced in evidence in the trial court and is attached to the Bill of Exceptions as Plaintiff's Exhibit A. We direct attention to Coverage A, whereby the Company agrees.

'to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon the insured by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons other than the insured, caused by accident and arising out of the ownership, maintenance or use of the automobile.'

Before discussing the language of the insurance policy, facts recited in the pleadings (the supplemental petition of plaintiff in the trial court, the separate amended answer of the insurance company and the reply of plaintiff) and the evidence in the trial court become important.

Plaintiff's supplemental petition under Sec. 9510-4, G.C., recited his personal injuries and his recovery of judgment for $2,000, and further alleged that, prior to and on the date of the accident, there was in full force and effect an automobile insurance policy covering the operation of the automobile owned and operated by Daillakis, issued by defendant insurance company. Plaintiff further recited that said judgment against Daillakis and become final and unsatisfied and that, more than thirty days having elapsed since the rendition of the judgment, plaintiff made demands on the insurance company to pay the judgment and that the demand was refused. Plaintiff further alleged that he was entitled to have the insurance money under the policy applied to the satisfaction of his judgment against Daillakis.

The insurance company filed an answer and subsequently a separate amended answer, admitting that on September 3, 1948, there was in full force and effect a policy of liability insurance of the company issued to Daillakis with respect to any liability imposed by law upon the insured for damages because of bodily injury arisng out of the ownership and use of the automobile of Daillakis. Further answering, the insurance company denied all of the allegations of the supplemental petition.

Although other defenses in addition to a general denial were pleaded, the only one asserted in this Court is violation by the assured of the condition of the insurance policy with respect to cooperation.

The Bill of Exceptions sets forth the evidence before the trial court on this subject. The only witness called at the trial on the supplemental petition was plaintiff's attorney, Mr. Schultz.

The testimony discloses that at the time of the accident, the assured in a policy report, gave his address as '6304 Lexington Avenue, Cleveland, Ohio.' Six days later, on Sept. 9, 1948, plaintiff's attorney addressed a letter to the assured at 6304 Lexington Avenue, concerning the injuries and claims of his client. No answer having been received, Mr. Schultz, the attorney for plaintiff, checked the City Directory and noted that the individual living in the house at the address in question was shown to be one Kariotakis. He therefore wrote to the said Kariotakis, under date of Oct. 7, 1948, the letter sent being identical with the letter previously addressed to Daillakis except as to salutation. Plaintiff's attorney testified that, a few days later, he received a telephone call from a man who said he was Daillakis and who stated over the telephone, 'You sent the letter to the wrong place * * *. I live at 9014 Lexington Avenue but not at 6304.' Plaintiff's attorney said that the main thing he wanted was to discuss the accident and the man talking over the telephone agreed to come to his office a few days later. No one ever came to see Mr. Schultz, so the latter, on Jan. 21, 1949, filed a petition issuing summons to Daillakis at 9014 Lexington Avenue, this being the address mentioned in the telephone conversation. Mr. Schultz further testified that after waiting a reasonable length of time for service by the Sheriff, he checked with the Sheriff's office and learned that no service had been obtained upon Daillakis and the office reported there was no such address as 9014 Lexington Avenue. Mr. Schultz then testified that he made further investigation to locate the address of Daillakis, inquiring through friends in the Greek colony in Cleveland. He learned that Daillakis had been keeping company with a woman, had planned to marry her, and that then, shortly prior to the accident, the two had quarreled. Testifying as to his investigation, Mr. Schultz stated:

'The theory was that he had left town, that this Daillakis had left town as a result of this quarrel, or whether the automobile accident had anything to do with his leaving town or not, I am not so sure. I am not even sure that this was Daillakis that called me up. It may have been some other Greek covering up for him.'

Plaintiff's attorney, further testifying in the hearing on the supplemental petition, said that shortly after the accident, having learned that Daillakis had insurance, he had telephoned Mr. Andrew Strok, agent admittedly representing the defendant insurance company with offices in the Williamson Building. The latter asked Mr. Schultz to telephone Mr. R. S. Lewis, declaring: 'He is the attorney that represents these matters for us.' Mr. Schultz testified that he then telephoned Mr. Lewis, and, under date of Oct. 12, 1948, confirmed by letter the fact that he represented plaintiff. On Oct. 20, 1948, Mr. Schultz received a letter signed by Lewis on the letterhead of the Automobile Inspection ...