Luchte v. State Auto. Mut. Ins. Co.

• Court: Ohio Court of Appeals
• Writing for the Court: HAMILTON, Presiding Judge.
• Citation: Luchte v. State Auto. Mut. Ins. Co., 50 Ohio App. 5, 197 N.E. 421 (Ohio App. 1935)
• Decision Date: 14 January 1935
• Parties: LUCHTE v. STATE AUTOMOBILE MUT. INS. CO.

197 N.E. 421

50 Ohio App. 5

LUCHTE v. STATE AUTOMOBILE MUT. INS. CO.

Court of Appeals of Ohio, First District, Hamilton.

January 14, 1935

Action by Albert J. Luchte against the State Automobile Mutual Insurance Company. Judgment for defendant, and plaintiff brings error.-[Editorial Statement.]

Affirmed.

Automobile liability policy insuring against liability for loss resulting from claims for damages caused by use, ownership maintenance, or operation of coal truck did not cover claim for wrongful death resulting from collision of motorcyclist at night with coal dumped into street from truck and negligently left without lights or warning, in violation of ordinance, and hence policy obligation to defend actions whether groundless or not, arising out of accidents covered by policy, did not require insurer to defend suit for wrongful death.

Syllabus by the Court .

1. An automobile liability insurance policy insuring against liability for loss resulting from claims for damages caused by the use, ownership, maintenance, or operation of a coal truck, does not cover a claim for wrongful death resulting from a collision, in the early morning before daylight, with a pile of coal dumped into the street from such truck and negligently left unprotected and without lights or warning contrary to a city ordinance.

2. The insurer in such case is not required, by the insurance contract obligating it to defend actions, whether groundless or not, arising out of accidents covered by the policy, to defend a suit based on such alleged negligent acts.

Wm. P. Hohmann and Harry Neal Smith, both of Cincinnati, for plaintiff in error.

August A. Rendigs, Jr., of Cincinnati, and H. F. Holscher, of Columbus, for defendant in error.

HAMILTON, Presiding Judge.

Albert J. Luchte, the plaintiff in error, brought suit in the municipal court of Cincinnati against the State Automobile Mutual Insurance Company. The action was to recover damages in the amount of $1,000 on a policy of automobile insurance issued by the State Automobile Mutual Insurance Company. The damage was predicated on failure to defend a certain lawsuit.

At the close of the plaintiff's evidence counsel for the insurance company moved for judgment for the defendant, on the ground that the subject-matter of the suit is not within the purview of the policy contract offered in evidence. The court granted the motion for judgment for defendant, and overruled a motion for a new trial. The plaintiff, Luchte, prosecuted error to the court of common pleas, which court affirmed the judgment of the municipal court. From that judgment of affirmance by the court of common pleas, error is prosecuted to this court.

It appears from the record that the defendant insurance company issued to Luchte a certain policy of automobile insurance covering a certain 2 1/2 -ton Schacht truck, which automobile truck was being used by the plaintiff in the operation of a retail coal business in the city of Cincinnati. While the policy was in force, an employee of Luchte delivered a load of coal to a customer, and in making the delivery used the automobile truck insured under the policy. Plaintiff's employee dumped the coal in the street in front of the customer's house, drove away a short distance, turned, and was returning to his place of business from the delivery. He dumped the coal in the early morning before clear daylight, and failed to leave any light or other warning on the pile of coal. A man by the name of Bell, driving a motorcycle, ran into the pile of coal and received injuries from which he died. The administrator of the estate of Bell brought an action in the court of common pleas against Luchte and other defendants, for damages for the wrongful death of Bell, claimed to have been caused by the plaintiff's agent and servant.

The policy, which is the basis of this suit, contained the following provisions:

‘ The Association does hereby insure the assured against liability for loss and all expenses resulting from claims upon the assured for damage caused while this policy is in force, by the use, ownership, maintenance, or operation of the motor vehicle described in Statement 4 of Schedule of Warranties * * *.

‘ The Association further agrees in respect to coverage extended under Section A and C as follows: to settle any respective sums for which it is liable, any claim or suit for damages against the assured arising out of accidents covered herein or defend such suit in the name and on behalf of the assured, whether groundless or not.’

The truck used in delivering the coal was one of the motor vehicles referred to. Luchte notified the insurance company of the suit, and the company, after investigation, declined to defend the suit on the ground that the subject-matter of the suit was not covered by the policy contract. Luchte thereupon employed counsel and defended the suit. The ultimate result was a settlement of the case.

The action being reviewed was to recover $1,000 for expenses in defending the suit of the administrator of Bell, under the provision of the policy as above quoted.

If the negligence and injuries alleged in the petition arose out of the use, ownership, maintenance, or operation of the motor vehicle, then the judgment of the municipal court in granting judgment for the defendant, and the affirmance of that judgment by the court of common pleas, were error.

If the allegations of the petition in the case of the administrator of Bell did not bring that case within the provisions of the policy, above quoted, then the judgment of...