Moyer v. Aron
| Decision Date | 19 February 1964 |
| Docket Number | No. 37983,37983 |
| Citation | 196 N.E.2d 454,175 Ohio St. 490 |
| Parties | , 26 O.O.2d 130 MOYER, Adm'x, Appellee, v. ARON; Universal Underwriters Ins. Co., Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. There is no provision in the Financial Responsibility Act requiring a person to purchase an automobile 'owner's policy' of insurance except under circumstances set forth in Section 4509.31, Revised Code.
2. A person is not an insured under an automobile insurance policy unless such person is defined as an insured by the terms of the policy, except where such policy has been 'certified' under the provisions of Section 4509.46, Revised Code, and thereby the definition of who is an 'insured' under the policy has been modified to conform to the provisions of the statute. (Section 4509.51, Revised Code.)
The plaintiff, appellee herein, filed a supplemental petition in the Common Pleas Court of Erie County naming Universal Underwriters Insurance Company, appellant herein, as a new party defendant and setting up in the petition the fact that the plaintiff held a judgment against defendant Aron for the wrongful death of her son, Dwight Moyer. The plaintiff alleges that there is due and owing on said judgment the sum of $5,000, which she claims is now due her from the appellant.
The cause based on the supplemental petition was heard by the court without a jury, and a finding was returned for the plaintiff against the appellant in the amount of $5,000.
Upon appeal, the Court of Appeals affirmed the judgment of the Common Pleas Court.
The cause is before this court upon the allowance of a motion to certify the record.
Smith & Lehrer, Sandusky, for appellee.
Thomas B. Hayes, Sandusky, Reams, Bretherton & Neipp and Robert Dorrell, Toledo, for appellant.
Aron was given permission to test drive a 1958 Mercury automobile by an employee of the owner, Harold T. Hunter, doing business as Hunter Motor Company, an automobile dealer in Sandusky, Ohio. While operating this automobile, Aron collided with a bicycle, which was operated by Dwight Moyer, age 8, son of the plaintiff. Dwight Moyer died as a result of the collision.
Plaintiff brought action against Aron for the wrongful death of her son and received a judgment in the amount of $15,000.
Aron had a policy of automobile insurance issued to him by the Travelers Insurance Company. The 1958 Mercury, which he was operating at the time of the collision was covered under a policy of insurance issued to Hunter by the appellant.
Travelers Insurance Company provided the defense for Aron in the wrongful death action, and subsequently the sum of $10,000 was credited on the plaintiff's $15,000 judgment, $10,000 being the limit of Aron's policy.
Plaintiff's action on the supplemental petition is grounded upon the contention that Aron was an insured under appellant's policy issued to Hunter.
A second contention is made by the plaintiff that Aron was an insured under the appellant's policy according to the requirements of Section 4509.51, Revised Code. The Court of Appeals found in favor of the plaintiff on both these contentions.
Appellant asserts error by the Court of Appeals in both findings.
An examination of the provisions of Section 4509.51, Revised Code, causes the majority of this court to conclude that it has no application to the facts in this case and does not require a finding that Aron was an 'insured' under the appellant's policy.
Section 4509.01, Revised Code, defines a motor-vehicle liability policy as an "owner's policy' or an 'operator's policy' of liability insurance, certified as provided in section 4509.46 * * * as proof of financial responsibility * * * to or for the benefit of the person named therein as insured.'
Section 4509.46, Revised Code, provides that proof of the financial responsibility of the insured may be established by the certification of his insurance policy.
Section 4509.51, Revised Code, states:
'Every owner's policy of liability insurance:
'* * *
'(B) Shall insure the person named therein and any other person, as insured, using any such motor vehicles with the express or implied permission of the insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such vehicles * * *.' (Emphasis added.)
An insurance policy such as the one issued by the appellant can be modified to make it comply with the Financial Responsibility Act only where the policy has been 'certified' as proof of future financial responsibility.
This is so because clause eight in the appellant's insurance contract reads as follows:
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