Ohio Farmers Ins. Co. v. Heisel

• Decision Date: 12 July 1944
• Docket Number: 29742.
• Parties: OHIO FARMERS INS. CO. et al. v. HEISEL et al.
• Court: Ohio Supreme Court

56 N.E.2d 151

143 Ohio St. 519

OHIO FARMERS INS. CO. et al. v. HEISEL et al.

No. 29742.

Supreme Court of Ohio

July 12, 1944

Syllabus by the Court.

1. The Declaratory Judgments Act is a salutary, remedial measure and should be liberally construed and applied.

2. Under the provisions of Section 12102-2, General Code, any person interested under a contract may have determined any question of construction or validity arising under the contract and obtain a declaration of rights, status or other legal relations thereunder.

3. An insurer may not obtain a declaratory judgment with reference to its insurance policy when no question of construction or validity thereof is raised.

Appeal from Court of Appeals, Hamilton County.

The plaintiffs, the Ohio Farmers Insurance Company and the Ohio Farmers Indemnity Company, issued to the defendant, John Heisel, Sr., a policy insuring him against loss by reason of liability imposed upon him by law for damages accidentally resulting from the ownership, maintenance or use of a certain automobile.

In their petition the plaintiffs allege that on November 2 1941, while the automobile was being operated by the insured's son, Howard, it collided with a motor vehicle driven by Joseph Lowenstein; that as a result of the collision both of these individuals were killed; that the defendant, Goldie W. Lowenstein, has been appointed executrix of the estate of Joseph Lowenstein and has presented a claim against the plaintiffs; that a claim likewise may be asserted against them by the defendant Russell Fehrenbach, who at the time of the collision was riding with the insured's son; that under the terms of the policy the plaintiffs agreed to insure 'any person while using the automobile and any person or organization legally responsible for the use thereof * * * provided further the actual use is with the permission of the named insured'; that at the time of the collision the automobile was operated without the permission or knowledge of the insured and in violation of instructions previously given by the insured to his son; that the plaintiffs have notified the insured that the coverage afforded under the policy does not include this operation of the automobile since the insured had not given his permission therefor; and that the plaintiffs are entitled to have an adjudication of the question whether coverage included this operation of the automobile so that they may be advised before hand whether it will be necessary for them to enter into and defend actions brought against John Heisel, Sr., as administrator of the estate of his son, Howard L. Heisel. The prayer of the petition is as follows: 'Wherefore, plaintiffs pray the court for an order declaring and determining the rights duties and obligations of these plaintiffs and these defendants and further pray for an order declaring, determining and adjuicating that plaintiffs should not be and are not required to defend any actions brought by said Goldie W. Lowenstein, executrix of the estate of Joseph Lowenstein, or by said Russell Fehrenbach through his next friend; and that said policy described in this petition did not afford insurance protection to John Heisel, Sr., as administrator of the estate of Howard L. Heisel, deceased, and did not cover the operation of the 1940 Pontiac sedan at the time of the collision described herein and for such other and further relief in the premises to which plaintiffs may be entitled.'

To the petition the defendant, Goldie W. Lowenstein, executrix, filed a demurrer which was sustained and the petition disinissed as to her by the Court of Common Pleas.

Upon an appeal to the Court of Appeals, 53 N.E.2d 662, on questions of law the judgment of the Court of Common Pleas was reversed and the cause was remanded for further proceedings.

The case is in this court for review by reason of the allowance of a motion to certify the record.

Walsh & Walsh and Andrews & Weiss, all of...