Farm Bureau Mut. Auto. Ins. Co. v. Buckeye Union Cas. Co.
| Decision Date | 24 July 1946 |
| Docket Number | 30555. |
| Citation | 147 Ohio St. 79,67 N.E.2d 906 |
| Parties | FARM BUREAU MUT. AUTOMOBILE INS. FARM BUREAU MUT. AUTOMOBILE INS. CO. v. BUCKEYE UNION CASUALTY CO. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Section 6 of Article IV of the Constitution of Ohio provides that whenever the judges of a Court of Appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other Court of Appeals of the state, the judges shall certify the record of the case to the Supreme Court for review and final determination.
2. This provision confers exclusive plenary authority on the judges of a Court of Appeals to determine the existence of such a conflict.
3. An affirmative finding and certification by the judges of a Court of Appeals as to the existence of such a conflict vests the Supreme Court with jurisdiction to review the judgment in the case.
4. Such an affirmative finding and certification by the judges of a Court of Appeals is not subject to a review by the Supreme Court as to the existence of such a conflict. (Paragraph one of the syllabus in the case of State ex rel. Sylvania Home Telephone Co., v. Richards et al Judges, 94 Ohio St. 287, 114 N.E. 263, and paragraph one of the syllabus in the case of Flury v. Central Publishing House of Reformed Church in the United States, 118 Ohio St 154, 160 N.E. 679, approved and followed.)
5. The doctrine of contribution rests upon principles of equity.
6. One who, with knowledge of the facts and without legal liability makes a payment of money, thereby becomes a volunteer.
7. Equity will not aid a volunteer.
8. If the policy of each of several insurers limits its liability to such proportion of a loss as the amount insured by such insurer bears to the total applicable limit of liability of all valid and collectible insurance against such loss, the payment by one insurer of more than its proportion of a loss creates no right to contribution from the other insurers.
Certified by Court of Appeals, Geauga County.
In the Court of Common Pleas the plaintiff, the Farm Bureau Mutual Automobile Insurance Company, instituted an action against the defendant, the Buckeye Union Casualty Company, to obtain a decree for contribution by reason of a loss sustained under two liability insurance policies issued by the respective companies on an automobile owned by one Harry Linden.
Findings of fact and conclusions of law were found by the trial court as follows:
'(1). On April 25, 1941, Harry Linden requested Paul Alvord Chardon, Ohio, the agent of The Buckeye Union Casualty Company, a corporation, to place liability insurance with limits of $5,000 and $10,000 on his Plymouth coupe. Prior to this day he had advised Alvord that he had a policy that was expiring, with the Farm Bureau Mutual Automobile Insurance Company, a corporation. Also, on this day Linden paid the premium thereon.
'On April 25, 1941, Alvord wrote policy No. 504260 for Linden as requested, dated April 26, 1941, and mailed the same to Linden by letter dated April 26, 1941, inclosing therewith receipt for premium. No investigation was made by either Linden or Alvord to determine if the Farm Bureau policy had expired.
'The Farm Bureau has policy No. R-239-726A on the same automobile for Linden with limits of $10,000 to $20,000, which expired April 28, 1941.
'(2). On the night of April 26, 1941, at about 12:20 a. m., David H. Mead was driving easterly on U.S. route 322 when he discovered that he had a flat tire. He drove off the right, or south side of the pavement, clear of the paved portion of the roadway and came to a stop about half a mile west of the intersection of the state route 44 and U.S. route 322.
'He left all lights burning on his car and had a flashlight which he waved in the direction of any approaching traffic as he attempted to change his left rear tire.
'At about said time and place Harry J. Linden, approached from the west driving said Plymouth car on which said parties hereto each had outstanding policies of liability insurance, traveling at such a high rate of speed that after he saw Mead, he was unable to bring his car to a stop within the assurred clear distance ahead in violation of Section 12603, General Code, and struck Mead, throwing him onto the pavement, fracturing his skull, breaking several ribs, breaking his left knee and right ankle, and tearing a hole in his side, so that he was unable to get up, and was rendered partially unconscious; his nervous system suffered shock, and he was removed in an ambulance and taken to Corey Hospital, and then to Lake County Memorial Hospital, where he suffered pain, and required three special nurses daily for nine weeks.
'He paid about $3,000 for professional services, nursing, oxygen, X-rays, hospital bills and medicines, and is still required to have further medical treatment.
'(3). During his confinement in the hospital Mead, by written instrument, made Dr. W. C. Corey, Chardon, Ohio, his attending physician, his attorney in fact to negotiate a settlement of his claim against Linden, with the two insurance companies.
'The night of the accident Linden told Dr. Corey that he was insured with the Buckeye Union, and Alvord was the agent. Dr. Corey contacted Paul Alvord, the agent of the Buckeye, who advised him that they had a $5,000 to $10,000 liability policy covering Linden's car.
'Thereafter, Paul Alvord took an accident report from Mr. Linden for the Buckeye Union, and sent the original to the home office at Columbus. Afterwards, Joe Haverich, a claim adjuster for the Buckeye Union took a statement on the accident from Mr. Linden, and then contacted Dr. Corey, who advised him of his authority to settle for Mead, and showed his power of attorney to Haverich.
'Later Haverich stated to Dr. Corey that Farm Bureau also had a policy covering the same car, and that his company by reason of the variation in coverage amounts would pay 50 cents for every $1 paid by Farm Bureau. He had several conferences with Dr. Corey advising always that he would pay, but to work out a settlement with Farm Bureau first if he could.
'Dr. Corey negotiated a settlement of the liability of Farm Bureau, with Ward Lawrence their adjuster, finally for $4,500, and about the fore part of July obtained releases in that amount for execution by Mead for $4,400 and $100 by Mrs. Mead for loss of services, to fully protect the company.
'When Dr. Corey advised Mr. Haverich of Buckeye Union of the settlement, Haverich asked him to get re-releases for him also, similar to those of Farm Bureau, but said he would have to notify his company first, Before he made payment.
'Thereafter, on July 12, 1941, Dr. Corey had the Farm Bureau releases executed by Mead and his wife, and placed them in his safety deposit box until he got the others from Haverich executed. Shortly thereafter Haverich told Dr. Corey that his company now refused to pay anything.
'Discussions over the co-insurance were had between the two companies and finally Farm Bureau advised Buckeye they were going to settle the whole liability for $4,500 and hold Buckeye for their proportion by way of contribution toward the settlement made.
'Finally on August 6, 1941, with consent of Mr. Mead, Dr. Corey made a complete settlement with Farm Bureau of the Linden liability, for the sum of $4,500, and paid $4,400 to Mr. Mead, and $100 to Mrs. Mead taking the releases above referred to therefor.
'Farm Bureau then demanded that Buckeye Union contribute their portion of the co-insured loss in the amount of $1,500 and when they refused started this suit in equity for contribution.
'About October 31, 1941, Buckeye Union and Harry Linden, executed an agreement attempting to postpone the date of their policy until after the date of the accident, and attached an endorsement to the Linden policy extending the expiration date to April 28, 1942.
'Conclusions of Law.
'The court, after careful review of all of the cases cited by counsel for plaintiff and defendant, and numerous other cases he has been able to find upon the subject, comes to the following conclusions of law.
'(1). The plaintiff and defendant were on the 26th day of April 1941, co-insurers on separate contracts of insurance for liability and property damage, on the Plymouth coupe owned and operated by Harry Linden, in the respective amounts as follows, to wit: The Farm Bureau Mutual Automobile Insurance Company, in the amount of $10,000 and The Buckeye Union Casualty Company, in the amount of $5,000. * * * '(2). The court further finds that David H. Mead parked his car legally on said highway, and that he was in the exercise of ordinary care in the changing of said tire, in that he left all of his car lights burning and waved a lighted flashlight at approaching traffic and particularly at Harry Linden.
'The court further finds that Harry Linden was driving at such a speed that he was unable to bring his car to a stop within the assured clear distance ahead, and struck Mead, and that therefore he was negligent as a matter of law, and his said negligence was the proximate cause of the injuries to Mead at said time and place, and therefore liable for damages as a result thereof. * * *
'The court therefore finds that plaintiff is entitled to contribution from defendant, and plaintiff should recover of said defendant, as its contributing share, its proportion thereof in the sum of $1,500 and costs. * * *
'Journal entry may be...
To continue reading
Request your trial