Rohlf v. Great American Mut. Indem. Co.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtRICHARDS
PartiesROHLF v. GREAT AMERICAN MUT. INDEMNITY CO. et al.
Decision Date14 November 1927

27 Ohio App. 208
161 N.E. 232

ROHLF
v.
GREAT AMERICAN MUT.
INDEMNITY CO. et al.

Court of Appeals of Ohio, Sixth District, Huron County.

Nov. 14, 1927.


Action by Homer Rohlf against the Great American Mutual Indemnity Company and others. Judgment dismissing petition, and plaintiff brings error. Affirmed.-[By Editorial Staff.]

Williams, J., dissenting.


[Ohio App. 208]Young & Young, of Norwalk, for plaintiff in error.

C. H. Workman, of Mansfield, and E. G. Martin, of Norwalk, for defendants in error.


RICHARDS, J.

The plaintiff was injured on August 6, 1922, in a collision between two automobiles, while he was riding as a guest with his friend, A. C. Chapman, in Chapman's car. Chapman held indemnity insurance in the defendant company protecting[Ohio App. 209]him from such liability as was within the terms of the policy. Thereafter Rohlf brought an action against Chapman for the injuries suffered, and recovered a verdict and judgment of $1,500. The judgment not being satisfied, he brought this action against the company on the indemnity policy issued by it. A jury being waived, the case was tried to the court, a judgment was rendered for the defendant, dismissing the petition, and this proceeding in error is brought to secure a reversal of the judgment.

The main defense upon which the indemnity company relied is based on the claim made by it that the assured willfully failed to co-operate and assist it in making a defense to the original action brought by Rohlf. The provision of the policy covering this matter is section 2, par. 2, which reads as follows:

‘(2) Co-operation of the assured. Whenever requested by the company, the assured shall aid in effecting settlement, securing information and evidence, the attendance of witnesses and in prosecuting appeals, and at all times render all possible co-operation and assistance. The assured shall not voluntarily assume any liability, or interfere in any negotiation for settlement, or in any legal proceeding, or incur any extra expense, or settle any claim, except at assured's own cost, without the written consent of the company, previously given. The company reserves the right to settle any such claim or suit brought against the assured.’

The policy also contained a provision relating to defending actions brought against the assured, reading as follows:

‘In conjunction only with coverages granted [Ohio App. 210]under clauses A and/or B of this section the company does hereby agree to investigate all accidents covered by this policy and to defend in the name and on behalf of the assured any suit, brought against the assured to enforce a claim, whether groundless or not, for damages suffered or alleged to have been suffered on account of the bodily injuries and/or death and/or the damage to or the destruction of property as set forth in this section.’

[161 N.E. 233]

The plaintiff in his reply avers that the company appeared in open court and defended the action and offered evidence in defense upon the matters set forth in the answer in that case, and filed in that case the answer of A. C. Chapman, and is thereby estopped from asserting any of the claims made in its answer in this case.

The record discloses that, after the collision, Chapman notified the company thereof. No action was brought by Rohlf against Chapman on account of the collision until May 6, 1924, one year and nine months after the collision. Chapman made no defense to that action. The company had, in the meantime, made diligent search for Chapman in Willard, Cleveland, Lorain, and Toledo, finally ascertaining, on February 4, 1925, that he was in Toledo. On February 7, 1925, the company filed an answer on behalf of Chapman in that action, the answer being verified by one of the attorneys, for the reason, as stated in the verification, that the defendant was absent from Huron county. Immediately on ascertaining the whereabouts of Chapman in Toledo on February 4, 1925, the company obtained a written statement from him detailing the circumstances of the collision in which Rohlf was injured. In that [Ohio App. 211]statement, Chapman asserted that he himself was nowise at fault, and that the driver of the other car was entirely at fault for the collision, in that, while Chapman was on the right side of the road, the driver of the other car turned his car across the road and headed into the Chapman car. The company also procured from Chapman, on February 4, 1925, a signed statement to the effect that, although the indemnity company disclaimed liability, it was to investigate and defend against the claim with the understanding that it reserved the right to be liable only for the risks assumed by its policy, to which reservations Chapman agreed in the writing.

On February 16, 1925, counsel for the company sent Chapman a registered letter, directed to him at the residence he gave in Toledo, and reminding him of the pendency of the action. This letter contains the following statement:

‘The issue has been made up in the case, and is liable to come on for trial most any day, and up to the present time we have had no assistance from you. If you will take your policy and examine it, you will see that you agreed to assist the Great American in making any defense, in gathering the testimony and making preparations for the trial, and assisting us at the trial in the trial of the case.

‘I say, so far you have given us no assistance whatever, and this letter is to notify you that you must come to Mansfield at once, so we can have a conference with you, and to know what witnesses you want at the trial, and otherwise help us to get ready to make the defense.’

Chapman made no response to this letter. On [Ohio App. 212]March 30, 1925, counsel sent him another registered letter, in which the following language occurs:

‘You did not comply with my request and up to date you have not given us any assistance in the preparation of this case.

‘The case is set down for trial and will be tried on Thursday, of this week, April 2d, at 9 o'clock a. m., at the courthouse in the court of common pleas of Huron county. I shall be present and make what defense I can. I will be in Norwalk on Wednesday evening at 7:30 in the office of Edgar G. Martin, prosecuting attorney of Huron county, and you ought to meet me at the office and...

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19 practice notes
  • Houran v. Preferred Acc. Ins. Co. of New York, No. 109.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 4, 1937
    ...obtained against the insured, shall be "under the terms of this policy." Rohlf v. Great American Mutual Indemnity Co., 27 Ohio App. 208, 215, 161 N.E. 232, 234; Clements v. Preferred Accident Ins. Co. of N. Y. (C.C.A.) 41 F. (2d) 470, 76 A.L.R. 17, 21; Barclay v. London Guarantee,......
  • STATE FARM MUTUAL AUTOMOBILE INS. CO. v. Gregorie, No. 738
    • United States
    • Court of Special Appeals of Maryland
    • March 31, 2000
    ...the insurance company. See Hynding v. Home Accident Ins. Co., 214 Cal. 743, 7 P.2d 999, 1002 (1932); Rohlf v. Great Am. Mut. Indem. Co., 27 Ohio App. 208, 161 N.E. 232, 234 (1927); Cameron v. Berger, 336 Pa. 229, 7 A.2d 293, 295 (1938) (trial court should have directed verdict as a matter o......
  • Finkle v. Western Auto. Ins. Co. et al., No. 20960.
    • United States
    • Court of Appeal of Missouri (US)
    • April 8, 1930
    ...P.G. Ins. Co., 197 N.Y.S. 606; Coleman v. New Amsterdam Cas. Co., 213 N.Y.S. 522; Rohlf v. Gt. Am. Mut. Indemnity Co., 270 Ohio App. 208, 161 N.E. 232; Bassi v. Bassi, 165 Minn. 100, 205 N.W. 947; Taxicab Motor Co. v. Pac. Coast, etc. Co., 73 Wash. 631, 132 Pac. 393; Collins v. Standard Acc......
  • State Farm Mut. Auto. Ins. Co. v. Farmers Ins. Exchange
    • United States
    • Supreme Court of Oregon
    • December 18, 1963
    ...a reasonable possibility, and has happened. See, Bassi v. Bassi, 165 Minn. 100, 205 N.W. 947; Rohlf v. Great American Mut. Indem. Co., 27 Ohio App. 208, 161 N.E. 232; Tomlinson v. Goldberg, 121 Pa.Super. 125, 182 A. 765; Horton v. Employers' Liability Assur. Corp, 25 Tenn. App. 593, 164 S.W......
  • Request a trial to view additional results
19 cases
  • Houran v. Preferred Acc. Ins. Co. of New York, No. 109.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 4, 1937
    ...obtained against the insured, shall be "under the terms of this policy." Rohlf v. Great American Mutual Indemnity Co., 27 Ohio App. 208, 215, 161 N.E. 232, 234; Clements v. Preferred Accident Ins. Co. of N. Y. (C.C.A.) 41 F. (2d) 470, 76 A.L.R. 17, 21; Barclay v. London Guarantee,......
  • STATE FARM MUTUAL AUTOMOBILE INS. CO. v. Gregorie, No. 738
    • United States
    • Court of Special Appeals of Maryland
    • March 31, 2000
    ...the insurance company. See Hynding v. Home Accident Ins. Co., 214 Cal. 743, 7 P.2d 999, 1002 (1932); Rohlf v. Great Am. Mut. Indem. Co., 27 Ohio App. 208, 161 N.E. 232, 234 (1927); Cameron v. Berger, 336 Pa. 229, 7 A.2d 293, 295 (1938) (trial court should have directed verdict as a matter o......
  • Finkle v. Western Auto. Ins. Co. et al., No. 20960.
    • United States
    • Court of Appeal of Missouri (US)
    • April 8, 1930
    ...P.G. Ins. Co., 197 N.Y.S. 606; Coleman v. New Amsterdam Cas. Co., 213 N.Y.S. 522; Rohlf v. Gt. Am. Mut. Indemnity Co., 270 Ohio App. 208, 161 N.E. 232; Bassi v. Bassi, 165 Minn. 100, 205 N.W. 947; Taxicab Motor Co. v. Pac. Coast, etc. Co., 73 Wash. 631, 132 Pac. 393; Collins v. Standard Acc......
  • State Farm Mut. Auto. Ins. Co. v. Farmers Ins. Exchange
    • United States
    • Supreme Court of Oregon
    • December 18, 1963
    ...a reasonable possibility, and has happened. See, Bassi v. Bassi, 165 Minn. 100, 205 N.W. 947; Rohlf v. Great American Mut. Indem. Co., 27 Ohio App. 208, 161 N.E. 232; Tomlinson v. Goldberg, 121 Pa.Super. 125, 182 A. 765; Horton v. Employers' Liability Assur. Corp, 25 Tenn. App. 593, 164 S.W......
  • Request a trial to view additional results

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