Storer v. Ocean Accident & Guarantee Corporation

• Decision Date: 06 December 1935
• Docket Number: No. 6798.,6798.
• Citation: 80 F.2d 470
• Parties: STORER v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, et al.
• Court: U.S. Court of Appeals — Sixth Circuit

80 F.2d 470 (1935)

STORER v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, et al.

No. 6798.

Circuit Court of Appeals, Sixth Circuit.

December 6, 1935.

Tom Stahl, of Fremont, Ohio (Stahl, Stahl & Stahl, of Fremont, Ohio, on the brief), for appellant.

R. O. Holloway, of Toledo, Ohio (Holloway, Peppers & Romanoff, of Toledo, Ohio, on the brief), for appellees.

Before MOORMAN, HICKS, and ALLEN, Circuit Judges.

HICKS, Circuit Judge.

Amelda Baechle (now Storer) recovered a judgment in a common pleas court of Ohio against Norman Strohl and Isadore Lepley for damages for injuries received by her in an automobile collision. The judgment became final as to Strohl and remained unsatisfied, whereupon appellant brought this action under the provisions of sections 9510 — 3 and 9510 — 4 of the General Code of Ohio against Strohl and the Ocean Accident & Guarantee Corporation, Limited (hereinafter called appellee), on an insurance policy issued by it. The case was transferred to the equity side of the docket.

On June 9, 1929, appellant and Norman Strohl went on a pleasure ride in a car owned by Elmer J. Strohl, Norman's father. The car was driven by Norman with the permission and consent of his father. While young Strohl was parked at a gasoline station he observed another car, driven by Lepley, traveling west. In a short time he followed it, overtaking it 3.7 miles from the filling station. The collision occurred as Strohl attempted to pass upon the left side of Lepley's car.

In the policy appellee agreed, subject to conditions therein contained, to pay all sums for which the assured should become liable as damages for personal bodily injuries caused as the result of the use of the automobile. Under a provision of the policy, Norman Strohl was an "additional assured," and it further provided that the assured should co-operate with the insurance company in all matters which the company deemed necessary in the defense of any suit. Appellee defended upon the ground that Norman Strohl breached this condition of the policy not only in failing to cooperate in the defense of the suit, but in fraudulently colluding with appellant in its commencement and prosecution.

Some time after the accident, appellant, at the instance of Elmer J. Strohl, and accompanied by her father and mother, Norman Strohl and Scott Wolf, an agent of appellee, called at the office of Stahl, Stahl & Stahl, attorneys, and discussed with them the matter of making a claim against Lepley. As a result of the conference, the attorneys advised that suit should be brought not only against Lepley, but against Norman Strohl also. Suit was instituted and the basis of the claim was the combined and concurring negligence of Strohl in driving at an excessive rate of speed and of Lepley in turning to the left at the point of collision without extending his left hand or displaying his stop light.

Before the commencement of the suit Norman Strohl gave a written statement to appellee that at the time of the accident he was going at a rate of speed of 30 to 35 miles per hour. Appellee under its contract assumed the defense of Strohl, and while the first trial was in progress Strohl again represented to the attorneys furnished him that he was going at the above rate of speed. The significance of these statements is apparent when it is stated that under the statutes of Ohio, in effect at the time of the accident, a speed in excess of 35 miles per hour was prima facie evidence of negligence upon the part of Strohl. If he was not violating the statute, he had a substantial defense. After suit was brought, but before it was tried, Norman Strohl, who had previously been employed for a short time by Stahl, Stahl & Stahl, visited their office and discussed the case with one of the firm. About a week before the case was tried he went again to the office at the request of a member of the firm and answered questions then asked him concerning the accident. He never apprised appellee of these visits.

On the first day of the trial and before the afternoon recess appellant's attorneys, following statutory procedure in Ohio, called Norman Strohl for cross-examination and examined him, but not concerning the matter of speed. His testimony was not concluded before the recess. During the recess John Stahl, of counsel for appellant, went into a room near the courtroom and while he was there Norman Strohl also entered the room, either voluntarily or by request of Stahl. The evidence is conflicting as to what occurred in this room. Strohl testified that Stahl motioned him to come in and suggested that he should testify that he was going from 40 to 45 miles an hour at the time of the accident and that any one would know that he was going faster than 35 miles an hour. This conversation between Stahl and Strohl was private and out of the presence of Strohl's attorneys, who were in the courtroom at the time. After the recess Strohl resumed the witness stand, his cross-examination was continued, and in reply to questions of appellant's counsel he testified that at the time of the accident he was going at a speed of between 35 and 40 miles per hour. He repeated this statement twice.

This testimony so directly contradicted his previous signed statement that his counsel naturally questioned him concerning it; whereupon he made an affidavit to the effect that John Stahl had insisted that he "change his story as to speed"; that, "He said for me to say I was going faster than thirty-five (35) miles per hour. When he called for me to testify on...