Hunsicker v. Buckeye Union Cas. Co.

• Decision Date: 02 March 1953
• Parties: , 53 O.O. 185 HUNSICKER v. BUCKEYE UNION CAS. CO.
• Court: Ohio Court of Appeals

Page 241

95 Ohio App. 241

118 N.E.2d 922, 53 O.O. 185

HUNSICKER v. BUCKEYE UNION CAS. CO.

Court of Appeals of Ohio, Hamilton County.

March 2, 1953.

Syllabus by the Court

An automobile bodily injury and property damage insurance policy provided, inter alia, that the insurer should 'defend any suit against the insured * * * even if such suit is groundless * * *,' and that 'if a * * * suit is brought * * * the insured shall immediately forward to the company every demand, notice, summons or other process received by him * * *.' In an action by the insured against the insurer, predicated on alleged negligence of the latter in not defending a suit, the record disclosed that the insured had been sued for damage resulting from a collision involving his automobile; that an attempted service of summons on the insured was void; that the insured never received the summons, knew nothing of the suit, and did not notify the insurer that the suit was pending; that an office associate of the insured's attorney, by telephone, notified the insurer of the pendency of the suit; that a default judgment was taken against the insured; that, thereafter, the insured was directed to surrender his driver's license by verbal notification over the telephone by the office of the Registrar of Motor Vehicles; that, as a consequence of such verbal notification, the insured surrendered such license; that the Registrar of Motor Vehicles never complied with the statutory requirement of notice by registered mail in effecting such surrender of license; that the insured notified the insurer of the surrender of such license; and that upon receipt of such notification the insurer paid the judgment. Held:

1. Ordinarily a breach of contract is not a tort; however, a common-law duty to perform with care, skill, reasonable expedience and faithfulness is incidental to every contract, and the negligent failure to observe these conditions may constitute a tort.

2. Notice to the insurer by a third party, a stranger to the contract, that the undefended suit was pending did not discharge the insured's duty to give notice to the insurer in accordance with the terms of the contract.

3. There was no negligence on the part of the insurance company respecting its failure to defend the suit.

Percy V. Morris, Cincinnati, for appellee.

McIntosh, Moore & Katz, Cincinnati, for appellant.

HILDEBRANT, Judge.

In this appeal the following factual statement is taken from appellant's brief:

'Appellee, Raymond E. Hunsicker, held an automobile bodily injury and property damage insurance policy in the appellant, Buckeye Union Casualty Company. On July 2, 1949, while said policy was in effect, he parked * * * [his automobile] on a hill and during his absence, the brakes lossened, causing the automobile to coast down a hill, striking and damaging three parked cars. Notice of the accident was given to the company. Two of the claims were settled, but a disagreement over value caused the company to refuse to settle.

'On June 30, 1950, this third claimant, Harold Gray, filed an action in the Municipal Court of Cincinnati, Ohio, and the sheriff made return of the summons as follows: 'Left at the last address, 703 Mt. Hope road.' The case was called in Municipal Court on July 19, 1950, and continued to July 27, 1950, when a default judgment for $110 was taken. Hunsicker, the assured, having moved from 703 Mt. Hope road prior to June 30, 1950, never received the summons or knew about the action. Because of this, he never notified the insurance company of the suit. Gray's attorney, the office associate of Hunsicker's attorney, testified below that he called the insurance company and told them of the suit's pendency.

'In November, 1950, assured Hunsicker, under the driver's license law, was directed to surrender his driver's license because the judgment had not been paid. He immediately contacted the appellant insurance company, and the company immediately paid the judgment in full, the entry of satisfaction being placed of record November 22, 1950.

'Thereafter, Hunsicker, the insured, brought the present action against the insurance company for damages, alleging the insurance company was negligent in not defending and taking steps to protect his interests. The court below, without intervention of a jury, found for the insured and gave judgment for $100 and costs. To reverse this judgment, this appeal is taken.'

From this record it is obvious that plaintiff never was served with process in the Municipal Court case, and hence, cannot be prejudiced by failure to forward same or give other notice of suit to defendant c...