Hoosier Cas. Co. v. Davis

• Citation: 15 O.O.2d 45,172 Ohio St. 5,173 N.E.2d 349
• Decision Date: 08 March 1961
• Docket Number: No. 36430,36430
• Parties: , 15 O.O.2d 45 HOOSIER CASUALTY CO., Appellee, v. DAVIS, Appellant.
• Court: United States State Supreme Court of Ohio

Page 5

172 Ohio St. 5

173 N.E.2d 349, 15 O.O.2d 45

HOOSIER CASUALTY CO., Appellee, v. DAVIS, Appellant.

No. 36430.

Supreme Court of Ohio.

March 8, 1961.

Syllabus by the Court

1. Where one person suffers both personal injury and property damage as a result of the same wrongful act, only a single cause of action arises in favor of such person. Rush v. City of Maple Heights, 167 Ohio St. 221, 147 N.E.2d 599, approved and followed.

2. Where, by virtue of a prior contract of indemnity and subrogation, an insurer pays its insured for property damage sustained and becomes thereby subrogated to the rights of its insured to the amount of such payment, such insurer may prosecute a separate action against the party causing such injury to the extent of the amount paid under such contract. Paragraphs six, seven and eight of the syllabus of Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855, approved and followed.

3. Where only a part of a property damage claim is paid by the insurer and it becomes subrogated to only a part of the claim against the tort-feasor, such tort-feasor may require either the assignor or the subrogee to be made a party to an action brought against him by the other.

The facts are succinctly and accurately stated in the brief of plaintiff, appellee herein, as follows:

'Plaintiff-appellee, The Hoosier Casualty Company filed suit against Carl Davis, defendant-appellant on March 25, 1958, in the Municipal Court of Marion, Ohio, and alleged that it was subrogated to the rights of Gertrude Peterson against Carl Davis for damage to an automobile owned by Gertrude Peterson, and insured by The Hoosier Casualty Company with a $50 deductible collision policy and that the damage to her automobile arose out of an accident occurring August 6, 1956, in Marion, Ohio, in which an automobile operated by Carl Davis struck the automobile of Gertrude Peterson, from the rear.

'Carl Davis filed an answer to this action and by way of second defense alleged that Gertrude Peterson, on February 26, 1957, filed a suit against Carl Davis in the Court of Common Pleas, Marion County, Ohio, to recover damage for personal injuries received in the accident with Carl Davis on August 6, 1956, and alleged that this action for personal injuries was terminated by a settlement, and that Gertrude Peterson's action for personal injuries was dismissed with prejudice to the bringing of a new action and that Gertrude Peterson executed a release of all claims in favor of Carl Davis.

'The Hoosier Casualty Company filed a reply to the second defense of Carl Davis and admitted the allegations of the answer pertaining to the dismissal of the personal injury action filed by Gertrude Peterson and denied for want of knowledge, the existence and terms of any release executed by her in favor of Carl Davis, and further alleged that on August 16, 1956, prior to the filing of the injury suit by Gertrude Peterson, Carl Davis was notified of the interest and extent of payment made to Gertrude Peterson by The Hoosier Casualty Company under the terms of its collision policy, and alleged that receipt of said notice was acknowledged by the agents of Carl Davis on October 8, 1956, and again on November 26, 1956.

'Thereafter Carl Davis filed a motion for judgment on the pleadings and the Municipal Court of Marion, Ohio, entered judgment in favor of defendant, Carl Davis.

'Plaintiff-appellee then appealed to the Court of Appeals of Marion County, Ohio, and the Court of Appeals reversed the judgment of the Municipal Court of Marion, Ohio, and remanded this action to that court.

'Carl Davis filed his notice of appeal timely, and his motion to certify was allowed by this court.'

Sebastian, Fais & Durst, Columbus, for appellant.

E. G. Belhorn, Columbus, for appellee.

BELL, Judge.

The question to be decided may be stated as follows: May the subrogee of a part of a property damage claim under a $50 deductible automobile collision policy maintain an action against the tort-feasor, where the insured under such deductible policy brought a separate action for personal injuries which was settled and dismissed before the bringing of the action for part of the property damage by the subrogated insurance company?

Or stated more broadly, the question presented is the effect of the decision in Rush v. City of Maple Heights, 167 Ohio St. 221, 147 N.E.2d 599, on the rights of an insurance company subrogated to part of its insured's property damage claim after its insured has settled his claim.

In Rush v. City of Maple Heights, supra, this court held that when a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises and, in so holding, overruled paragraph four of the syllabus in Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855.

The fourth paragraph of the syllabus of the Vasu case had held that injuries to both person and property suffered by the same person are infringements of different rights and give rise to distinct causes of action, and that recovery on one was, in the absence of estoppel, no bar to recovery on the other.

As was pointed out by Judge Herbert in the majority opinion in the Rush case, 'the decision of the question actually in issue in the Vasu case is found in paragraphs six, seven and eight of the syllabus.' [167 Ohio St. 233, 147 N.E.2d 606.] Or, as it was more pointedly noted by Judge Stewart in his concurring opinion, 'neither the discussion in the Vasu case as to whether a single or double cause of action arises from one tort nor the language of the fourth paragraph of the syllabus was necessary to decide the issue presented in the case, and obviously both such language and such paragraph are obiter dicta and, therefore, are not as persuasive an authority as if they had been appropriate to the question presented.'

The Vasu case was an action started by an insured after judgment had been rendered against his insurer in an action initiated by it after having paid the insured for damages to his automobile. The defense of res judicata was raised against the insured based on the judgment against his insurer. A unanimous court held, as follows, in the sixth, seventh and eighth paragraphs of the syllabus [145 Ohio St. 321, 61 N.E.2d 709]:

'6. Where an injury to person and to property through a single wrongful act causes a prior contract of indemnity and subrogation as to the injury to property, to come into operation for the benefit of the person injured, the indemnitor may prosecute a separate action against the party causing such injury for reimbursement for indemnity monies paid under such contract.

'7. Parties in privy, in the sense that they are bound by a judgment, are those who acquired an interest in the subject matter after the beginning of the action or the rendition of the judgment; and if their title or interest attached before that fact, they are not bound unless made parties.

'8. A grantor or assignor is not bound, as to third persons, by any judgment which such third persons may obtain against his grantee or assignee, adjudicating the title to or claim for the interest transferred, unless he participated in the action in such manner as to become, in effect, a party.'

None of those paragraphs of the syllabus in the Vasu case was disturbed by the holding of this court in Rush v. City of Maple Heights, supra. Nor did the court intend to disturb any of them.

The factual pattern which gave rise to the litigation in Rush v. City of Maple Heights, when viewed in the light of the practice which prevailed in some of the larger counties which have several Municipal Courts, makes the decision in that case more logical, perhaps essential. As happened in that case, after an accident, the person injured (and it must be remembered that in that case there was only one party plaintiff involved, the injured party) instituted an action for property damage in one of the Municipal Courts of Cuyahoga County. At or about the same time, the same party brought an action for personal injuries in the Common Pleas Court of Cuyahoga County. The property damage action in the Municipal Court was pressed for trial which resulted in a judgment for the plaintiff for $100 and a specific finding, requested by the plaintiff, that the defendant was guilty of negligence, which negligence was the proximate cause of the plaintiff's injury.

When the case came on for trial later on the crowded docket of the Common Pleas Court, the plaintiff filed a motion for an order setting the cause for trial on the issue of damages alone for the reason that the liability of the defendant had been previously determined in the Municipal Court, and that the Municipal Court judgment was therefore res judicata as to the defendant's negligence. Ultimately this court adopted what it considered to be the majority and better rule in this country that where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises in favor of that person.

But had the original action for property damages been brought by the insurance company, as in the Vasu case, a judgment either for or against it could not be res judicata as to the insured in his action against the tort-feasor because there would not be an exact identity of parties. State ex rel. Ohio Water Service Co. v. Mahoning Valley Sanitary District, 169 Ohio St. 31, 157 N.E.2d 116.

It is perhaps desirable, to the end of minimizing litigation, that insured and insurer join in bringing one action to recover both the deductible and nondeductible portions of property damage. But it is not necessary to do so, although such joinder may be required upon motion of the tort-feasor. Cleveland Paint & Color Co. v. Bauer Mfg. Co., 155 Ohio St. 17, 97 N.E.2d 545; National Retailers Mutual Ins. Co. v. Gross, 142 Ohio St. 132, 50 N.E.2d 258. See, also, ...