Ohio Farmers Insurance Company v. Lantz

Decision Date06 August 1957
Docket NumberNo. 11984.,11984.
Citation246 F.2d 182
PartiesOHIO FARMERS INSURANCE COMPANY, and Ohio Farmers Indemnity Company, Ohio corporations, Plaintiffs-Appellees, v. Ezra LANTZ, Robert L. Lantz, Marie Yoder, Carol M. Yoder, Robert D. Myers, Imogene L. Myers, Elmer R. Miller, Betty Jane Miller, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Charles W. Ainlay, Carl L. Chattin, Harry E. Vernon, Goshen, Ind., for appellants.

Roland Obenchain, Jr., South Bend, Ind., for appellee.

Before MAJOR, LINDLEY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

This is an appeal from a judgment in favor of plaintiffs in an action for declaratory judgment. The judgment declared, in effect, that a 1947 Chevrolet automobile described in an insurance policy issued by plaintiffs was not covered by said policy on March 11, 1952, when the automobile was involved in a collision with another vehicle, and that plaintiffs, or either of them, are not liable under said policy to any of the defendants to make any payments, defend any actions, or pay any judgments by reason of said collision. It was also adjudged that Carol M. Yoder, a defendant, take nothing by reason of her cross-complaint, in which she sought judgment against plaintiffs for $25,000 to apply on a judgment for $31,310 which she obtained against defendant Robert L. Lantz, in the Elkhart Circuit Court, Elkhart County, Indiana, for injuries sustained by her in said collision.

On the complaint and the cross-complaint, and answers thereto, the district court tried the case without a jury. Certain relevant facts were stipulated, and are, so far as relevant here, now stated.

On May 7, 1951, plaintiffs issued said policy insuring said automobile for one year against loss by collision and bodily injury and property damage liability. The named insured was stated as Ezra Lantz, described as the sole owner. On February 16, 1952, Ezra Lantz transferred and conveyed to defendant, Robert L. Lantz, all his right, title and interest in said automobile.

On March 11, 1952, while Robert was operating said automobile, the collision above referred to occurred in Elkhart County, Indiana, resulting in damage to the automobile. Defendants Yoder, Myers and Miller all sustained damages by reason of personal injuries and property damage, and filed suits thereon against the defendants Lantz; and defendant Carol M. Yoder recovered judgment against Robert as aforesaid.

Plaintiffs have refused to defend any actions or to pay any judgments rendered by reason of the above facts and have refused to pay collision loss or any bodily injury or property damage claims which have not been sued upon.

Relevant parts of the policy are now set forth below.

In the declarations on page 1, inter alia, there appear:

                  "Item 1. Name of Insured Ezra Lantz
                  "Item 5. The purposes for which the
                           automobile is to be used are
                           Pleasure and Business
                  "Item 6. Except with respect to bailment
                           lease, conditional sale
                           mortgage or other encumbrance
                           the Named Insured is
                           the sole owner of the automobile
                           except as herein stated
                           Sole Owner"
                

In the insuring agreements on page 2, the following, inter alia, appear:

"I. Coverage E-1 — Collision or Upset:
"To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the Declarations as applicable thereto."
"Coverage H — Bodily Injury Liability:
"To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, * * sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile."
"Coverage J — Property Damage Liability:
"To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile." (Italics supplied for emphasis.)
III. DEFINITION OF INSURED:
With respect to the insurance for bodily injury liability and for property damage liability the unqualified word "Insured" includes the Named Insured and also includes any person while using the automobile * * * provided the actual use of the automobile is by the Named Insured or with his permission. * * *

On page 4 appear the following conditions:

"20. Changes: Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this Policy or estop the Company from asserting any right under the terms of this Policy; nor shall the terms of this Policy be waived or changed except by endorsement issued to form a part of this Policy, signed by the President, a Vice President, Secretary, Assistant Secretary or Treasurer of the Company and countersigned by a duly authorized agent of the Company.1

Upon the trial in the district court it was established that Robert L. Lantz became 18 years of age on May 24, 1951, and Ezra Lantz testified, without contradiction, that, when the car was being purchased, he talked to Grace Blosser, plaintiff's agent, about the circumstances of Robert's age and the desire of having a policy. She thereupon issued the policy in Ezra's name and charged an additional premium. She was also told that the purchase of the car was financed at a local bank, where both Ezra and Robert signed a note. Thereafter Robert paid to Mrs. Blosser the premiums on this policy in monthly payments.

At the time of the accident, and prior thereto, Robert was living with his father and was under his supervision and control.

Finding No. 12 by the district court is as follows:

"On February 16, 1952, after the defendant, Ezra Lantz, transferred and conveyed all his right, title and interest in and to the 1947 Chevrolet automobile described in the insurance policy set out in Finding No. 2, he, Ezra Lantz, had no insurable interest in said automobile and on March 11, 1952, at the time of the collision, said policy did not apply thereto and said automobile was not insured thereunder."

The district court's conclusion of law No. 4 reads:

"The plaintiffs are entitled to a judgment on their complaint that the 1947 Chevrolet automobile described in the insurance policy set out in Finding No. 2 was not covered by said policy on March 11, 1952, and did not apply to the collision on March 11, 1952, and that the plaintiffs, or either of them, are not liable under said insurance policy to any of the defendants to make any payments, defend any actions or pay any judgments by reason of the collision of March 11, 1952."

It appears from the opinion filed by the district judge that he based his decision on the ground that the transfer by Ezra to Robert of the ownership of the car prevented the policy from covering the accident of March 11, 1952. It is apparent that he was led to that conclusion by finding of fact No. 12 that Ezra had no insurable interest in said automobile at the time of the collision.

1. It is true that to support an action on a policy which insures a property right, i.e.,...

To continue reading

Request your trial
23 cases
  • SPIRIT OF EXCELLENCE v. Intercargo Ins. Co.
    • United States
    • United States Appellate Court of Illinois
    • September 26, 2002
    ...between contracts to indemnify against liability incurred, and those to indemnify against loss. See Ohio Farmers Insurance Co. v. Lantz, 246 F.2d 182, 185 (7th Cir.1957); Daugherty v. Alliance Casualty Co., 271 Ill.App. 71, 80, 1933 WL 2572 (1933) (Daugherty). Policies insuring against loss......
  • Farmers Butter and Dairy Co-op. v. Farm Bureau Mut. Ins. Co.
    • United States
    • Iowa Supreme Court
    • April 13, 1972
    ...§ 515.48(5)(e)(f); Zieman v. United States Fidelity & Guaranty Co., 214 Iowa 468, 472--473, 238 N.W. 100; Ohio Farmers Insurance Company v. Lantz, 246 F.2d 182, 185 (7th Cir.); Ohio Casualty Ins. Co. v. Beckwith, 74 F.2d 75, 77 (5th Cir.); Western Casualty and Surety Company v. Herman, 209 ......
  • Western Casualty and Surety Company v. Herman
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 13, 1963
    ...supra, 245 S.W.2d 69, 71, citing Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 6, Part I, § 3873; Ohio Farmers Insurance Co. v. Lantz, 7 Cir., 246 F.2d 182 (1957), cert. denied, 355 U.S. 883, 78 S.Ct. 151, 2 L.Ed.2d 113 (1957); Osborne v. Security Insurance Co., 155 Cal.App.2d......
  • Haynes v. Linder
    • United States
    • Missouri Court of Appeals
    • April 6, 1959
    ...additional assured under the omnibus clause and to be indemnified therein against liability for injury to others. Ohio Farmers Ins. Co. v. Lantz, 7 Cir., 246 F.2d 182, 185; 45 C.J.S. Insurance Sec. 829c(2)(a), p. 895; Allstate Insurance Co. v. Hartford Accident & Indemnity Co., Appellant al......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT