Weiand v. City of Akron

• Citation: 233 N.E.2d 880,13 Ohio App.2d 73
• Parties: , 42 O.O.2d 178 WEIAND, Appellee, v. CITY OF AKRON et al., Appellants.
• Decision Date: 07 February 1968
• Court: United States Court of Appeals (Ohio)

Page 73

13 Ohio App.2d 73

233 N.E.2d 880, 42 O.O.2d 178

WEIAND, Appellee, v. CITY OF AKRON et al., Appellants.

Court of Appeals of Ohio, Ninth District, Summit County.

Feb. 7, 1968.

Syllabus by the Court

A minor was injured in an automobile collision while operating her father's automobile, and, thereafter, the minor and her parents entered into a settlement agreement with the insurer of the party responsible for the property damage and personal injury. Certain money was paid to the parents for the doctors' bills incurred by the minor. A few days after attaining full age, the minor sent additional doctors' bills to the insurer, who, in accord with their agreement, remitted a check covering such bills to the minor, who returned the check to the insurer, disaffirmed her agreement, and brought suit against the insurer. Held: The acts of the minor, after attaining full age, did not amount to a ratification of the settlement agreement.

Hershey, Browne, Wilson, Steel, Cook & Wolfe, Akron, for appellee.

William R. Baird, Akron, Director of Law, Alvin C. Vinopal, Knowlton, Sanderson, Ragan & Cady and Edward H. Corbett, Akron, for appellants.

HUNSICKER, Judge.

An appeal on questions of law has been lodged in this court from a judgment in favor of the plaintiff, Marilyn J. Weiand (appellee here), entered by the Court of Common Pleas of Summit County.

An operator of a motor truck for the city of Akron, while on duty with the city, struck the rear of a stationary automobile then being operated by Miss Weiand, a minor under 21 years of age, causing her physical injury. The automobile was owned by the father of Miss Weiand. Thereafter, the insurance carrier for the city of Akron, 'Nationwide,' had Miss Weiand, and her parents, sign a covenant and indemnity agreement providing for payment of the automobile repairs, and the hospital and doctors' charges for Miss Weiand. Approximately one hundred dollars was paid to Miss Weiand for the medical expenses, before she became 21 years of age.

Shortly after attaining her 21st birthday, she notified the insurance carrier, Nationwide, of additional bills in the amount of approximately forty dollars. A check was sent to Miss Weiand for this amount, which she returned. Just before the return of the check and, perhaps, a day or two before it came into the possession of Miss Weiand, her lawyer notified the city of Akron, and the insurance carrier, that Miss Weiand disaffirmed her previously signed 'covenant and indemnity agreement.'

This action was then filed in the Court of Common Pleas, where a trial was first had to the court to determine the status of the 'covenant and indemnity agreement.' The trial court set this agreement aside and determined that Miss Weiand had not, by her acts after arriving at full age, ratified the settlement agreement. A trial on the issue of physical injury was then had, and a judgment in favor of Miss Weiand was returned by the jury. This appeal then ensued, with two claims of error. The appellants say the trial court committed prejudicial error (1) 'in setting aside the covenant and indemnity agreement executed by the plaintiff-appellee and permitting the plaintiff to proceed with her alleged cause of action'; and 'in the submission of verdict forms to the jury and in its charge relating thereto.'

The first assignment of error is the one to which we direct our attention.

The release agreement signed by Miss Weiand, and her parents, was dated December 2, 1963, the date of the accident, at which time she was known to be only 20 years of age. She became 21 years of age on May 26, 1964. On August 17, 1964, she, through her counsel, notified the city of Akron that the release was void. On September 8, 1964 Miss Weiand, through her counsel, returned a check for $40.59 to Nationwide Insurance Companies. This check represented, in large part, the amount of medical expense Miss Weiand said she incurred some time after her 21st birthday. The request for this payment was made by Miss Weiand to Nationwide some time in August 1964, and before the notification to the city of Akron that she considered the release void.

It is the contention of the city of Akron, through its insurer, that the conduct of Miss Weiand, after she arrived at the age of 21, constituted an affirmance of her release agreement, or, in the alternative, that the attempt to disaffirm the release agreement was, under the circumstances, made an unreasonable length of time after Miss Weiand had arrived at the age of 21.

It is of interest to see the endorsements on checks given by Nationwide in settlement of various of the claims herein. All checks were made out to 'Cletus Weiand, parent and legal guardian of Marilyn Weiand.' While Mr. Weiand is the natural and legal guardian of the person of his daughter, that does not make him, also, the legal guardian of her property. While he may recover for the loss of the services of his child, and for her medical expenses, yet, damages for injury to her person belong to her personally. We think these rules of law are elementary and require no extended...