Rothman v. Metropolitan Cas. Ins. Co.

• Decision Date: 27 July 1938
• Docket Number: 26499.
• Citation: 134 Ohio St. 241,16 N.E.2d 417
• Parties: ROTHMAN et al. v. METROPOLITAN CASUALTY INS. CO.
• Court: Ohio Supreme Court

16 N.E.2d 417

134 Ohio St. 241

ROTHMAN et al. v. METROPOLITAN CASUALTY INS. CO.

No. 26499.

Supreme Court of Ohio

July 27, 1938

Syllabus by the Court.

1. Accident, as the term is ordinarily used, is a more comprehensive term than negligence.

2. The state of the will of the person by whose agency an injury is caused, rather than that of the injured person, determines whether an injury is accidental within the provisions of a policy indemnifying the insured against loss resulting from claims for accidental injuries caused by the operation of insured's automobile.

3. Upon supplemental petition filed pursuant to the provisions of Section 9510-4, General Code, a judgment creditor is not precluded from recovering from an insurance company although the original action and judgment were based upon the claim of wanton misconduct, no intent or purpose to cause injury having been shown, where the terms of the indemnity insurance policy covered loss resulting from claims upon the assured for damages in consequence of an accident caused by reason of the ownership, maintenance or use of the automobile specified therein.

4. Under an insurance policy indemnifying the insured against loss resulting from claims for damages in consequence of an accident caused by the ownership, maintenance or use of the automobile described, the purpose for which it was to be used being specified as 'pleasure and business,' a provision that the automobile should not be 'used to carry passengers for a consideration, actual or implied,' does not exempt the insurer from liability for injuries accidentally caused while the insured, shown in the policy to be a furniture company, was transporting a prospective customer to a mercantile establishment to inspect merchandise.

This action originated in the Court of Common Pleas of Mahoning county. Esther Rothman there brought suit to recover damages for injuries claimed to have been sustained by her while riding as a guest of the Malkin Furniture Company in an automobile of the company then being operated by its president. It was charged that the automobile left the road and turned over, causing her injuries by reason of the wanton misconduct of the driver. Upon trial, a verdict for the plaintiff in the sum of $500 was returned by the jury, upon which judgment was rendered. Thereupon a supplemental petition was filed against the Metropolitan Casualty Insurance Company pursuant to the provisions of Section 9510-4, General Code.

Issue was made by answer, wherein non-liability of the insurance company was asserted upon the grounds of failure, neglect and refusal of the insured to co-operate in the defense made against the claim of the plaintiff, and of the non-coverage of its insurance policy by reason of the injury, for which damage was claimed, having resulted from the wanton misconduct of the insured, and the plaintiff, at the time of the occurrence, having been carried as a passenger for a consideration, actual or implied.

Upon the trial of the case a verdict was returned for the plaintiff and judgment rendered thereon, which, upon appeal was reversed by the Court of Appeals. The case came into this court upon the allowance of a motion for certification.

Hahn, Williams & Shermer and Edwin L Stanley, all of Youngstown, for appellant.

Harrington, Huxley & Smith, of Youngstown, for appellee.

MATTHIAS Judge.

The original action was tried and submitted to the jury upon the theory that the plaintiff, Rothman, was a guest in the automobile specified in the insurance policy in controversy, and the verdict and judgment were awarded upon the ground that the plaintiff's injury resulted from wanton misconduct of the driver.

The primary question presented in this case is whether there is a liability of the insurance company under the terms of its policy for damages in consequence of an accident resulting from wanton misconduct. The pertinent provisions of the policy are as follows: 'the Metropolitan Casualty Insurance Company * * * does * * * insure the assured named * * *

'Against loss and/or expense arising or resulting from claims upon the assured for damages in consequence of an accident occurring during the term of this policy, within the limits of the United States and Canada, caused by reason of the ownership, maintenance, or use of the automobile or automobiles described in the Schedule of Statements, including the loading and unloading when commercially used, resulting in:

'A. Bodily injuries and/or death accidentally suffered or alleged to have been suffered by any person or persons not hereinafter excepted; provided that the company's liability therefor is limited to the amount specified in Clause (a) Statement 6 of the Schedule of Statements.'

It is to be observed that loss in consequence of an accident caused by reason of the ownership, maintenance or use of the automobile is what is covered by the terms of the policy, and specifically 'bodily injuries * * * accidentally suffered.' Nowhere in the policy do we find the word 'negligence' although we think it must be conceded that protection against liability on the ground of negligence is the principal purpose of such policy. Does the conclusion necessarily follow, since the driver of the automobile was so negligent that his manner of driving may properly be characterized as wanton misconduct, that no accident occurred and the plaintiff's injury was not accidentally suffered?

Let us first understand that we are not dealing with wilful act--and there is a distinction between wilful act and wanton misconduct. No one would claim that such policy covers an injury resulting from a wilful act of the insured, for the term 'wilful act' implies an intention to cause the injury. Payne, Dir. Gen. of Railroads, v. Vance, 103 Ohio St. 59, 133 N.E. 85. In the case of Messersmith v. American Fidelity Co., 232 N.Y. 161, 133 N.E. 432, 19 A.L.R. 876, the Court of Appeals of New York had under consideration a question of liability where the insured had permitted the operation of his automobile by one under the age prescribed by the statute. In the opinion of Judge Cardozo, attention was directed to the fact that the statute has so covered the field that liability of an owner of an automobile can seldom if ever be incurred without fault that is also a crime, and various statutory regulations are enumerated indicating the impossibility of any liability arising under an insurance policy that would not involve the violation of some statutory provision regulating the operation of automobiles. The court concluded that the act of entrusting an automobile to one under the prescribed age was a wilful act, but not the ensuing conduct from which the injury resulted. The very pertinent statement is there made there 'Injuries are accidental or the opposite for the purpose of indemnity according to the quality of the results rather than the quality of the causes.'

This subject was under consideration in the case of Commonwealth Casualty Co. v. Headers, d. b. a. Cadillac Auto Livery, 118 Ohio St. 429, 161 N.E. 278, much relied upon by counsel for the casualty company. That case involved the question of recovery upon a policy of indemnity against loss by reason of judgments recovered against the insured by parties accidentally injured by reason of the negligent operation of the motor vehicle specified. It was there held that the casualty company was not required to respond where the recovery of damages was based not on negligence connected with the operation of the motor vehicle, but arising out of a wilful and intentional assault and battery inflicted upon the party injured. The substance of the holding was that 'an injury or death does not occur by accident when it results from willful, intentional, personal violence inflicted by another.' (Page 249.) It is there well said that 'Surely no one would claim that a party holding an ordinary accident insurance policy covering all forms of external accidental injuries could recover under such a policy damages sustained by reason of a willful and intentional injury inflicted by another.'

It is to be observed that the damages in that case were the result of wilful and intentional injury inflicted by the insured. Wanton misconduct alone was not involved. Wantonness does not include intent to injure. As has been well said, it 'implies the failure to exercise any care for the safety of those to whom a duty of care is owing when the wrongdoer has knowledge of the great probability of harm to such persons which the exercise of care might avert and exhibits a reckless disregard of consequences.' Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519, 191 N.E. 745. Even when as broadly defined as in Universal Concrete Pipe Co v. Bassett, 130 Ohio St. 567, 200 N.E. 843, the term 'wanton misconduct' does not embrace...