State Auto. Ins. Assn. v. Friedman

• Decision Date: 30 April 1930
• Docket Number: No 22102,22102
• Parties: The State Automobile Mutual Ins. Assn. Of Columbus, Ohio v. Friedman.
• Court: Ohio Supreme Court

171 N.E. 591

122 Ohio St. 334

The State Automobile Mutual Ins. Assn. Of Columbus, Ohio v. Friedman.

No 22102

Supreme Court of Ohio

April 30, 1930

Insurance - Automobile indemnity - Action to apply insurance towards personal injury judgment against insured - Section 9510-4 General Code - Knowledge by insurer of pendency of suit - Papers relating thereto given to executive in charge of office.

In an action under Section 9510-4, General Code, seeking to subject the proceeds of an insurance policy to the payment of a judgment theretofore recovered against the assured by one sustaining personal injury as a result of an automobile accident caused by the assured, while such policy was in force, proof of giving notice of suit against him by the assured to the insurance company, by giving, within two days of the filing of suit, the "papers" relating thereto, to the executive officer in charge of the office of the insurance company, being one who usually received notice of accidents and who received premiums and paid commissions is sufficient proof of knowledge of the pendency of such suit by the insurance company, in the absence of proof of any contrary provision in the contract of insurance, or denial of such facts.

This is a proceeding in error to reverse the Court of Appeals of Cuyahoga county. The record discloses that the original action was brought by Mary Friedman against Harry Shevorsky in the court of common pleas of Cuyahoga county, for damages due to injury sustained on April 2, 1928, by being struck by an automobile driven by said Shevorsky, as she was riding in an automobile driven by her son-in- law. On October 11, 1928, she recovered a judgment against said Shevorsky for the sum of $1,000.

After more than thirty days from the recovery of said judgment Mary Friedman brought this action in the municipal court of the city of Cleveland, pursuant to Section 9510-4, General Code, against the State Automobile Mutual Insurance Association, claiming that at the time of said injury sustained by reason of the negligence of said Harry Shevorsky, he was insured by said association against liability on account of any suit or judgment for personal injuries occasioned by said Shevorsky while driving the automobile in question. She says that the policy of insurance was in full force and effect on April 2, 1928, when she sustained such injuries; that, while the exact terms of the policy are not known to Mary Friedman, the same were fully known by Shevorsky and the State Automobile Mutual Insurance Association; that she had issued an execution upon her judgment against Shevorsky, and that it was returned by the sheriff of Cuyahoga county, wholly unsatisfied. She thereupon asked for a judgment of $1,000, with interest from October 11, 1928, with her costs.

The defendant company, in its answer or statement of defense admitted the policy of insurance, in the following language: "Defendant admits that Harry Shevorsky was on the day of said accident insured by the State Automobile Mutual Insurance Association of Columbus, Ohio, against liability of suit or judgment for personal injuries occasioned while said Harry Shevorsky was driving the automobile so insured." And further the defendant averred: "That the judgment referred to in the plaintiff's petition was obtained upon default of the said Harry Shevorsky, of which default, the pendency of said action, and the rendition of said judgment, this defendant had no notice nor knowledge whatsoever. Defendant denies that said policy insures against or covers the judgment above mentioned."

A reply was filed which averred that the defendant association was duly notified of the pendency of the action by this plaintiff against the defendant, Harry Shevorsky; that said defendant association knew, or should have known, of the default of said Harry Shevorsky and of the rendition of said judgment. This put the case at issue.

In the municipal court motion was made at the close of plaintiff's case for a directed verdict, which, upon being overruled, was renewed as if at the end of defendant's case, although the record discloses that the defendant introduced no testimony. A...