Opinion
No 22102
Decided 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.
ERROR to the Court of Appeals of Cuyahoga county.
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 Shevorshy 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 verdict was returned in favor of Mary Friedman for the sum of $1,045 and costs of suit. A motion for a new trial was overruled and judgment rendered against the State Automobile Mutual Insurance Association. Error was prosecuted to the Court of Appeals, in which court this judgment was affirmed, and error is now prosecuted in this court, seeking to reverse such judgment.
Messrs. Merrick Walsh, Mr. B.B. Bridge and Messrs. Knepper Wilcox, for plaintiff in error.
Mr. Sidney B. Fink and Mr. Elmer I. Schwartz, for defendant in error.
The questions presented by counsel in this case are: (1) Whether the insured notified the defendant company of the pendency of the action and the rendition of the judgment in the case of Mary Friedman against Harry Shevorsky; (2) whether the notice was given to one qualified to receive it; and (3) whether the policy covered the automobile causing the injury.
As to the first and second grounds, we think there is evidence tending to support the claim of Mary Friedman that the defendant company received notification of the pendency of the action against Shevorsky, the pleadings themselves admitting that Shevorsky was insured by the defendant company on April 2, 1928, the day of the injury. The record discloses that an executive officer in charge of the company's office in Cleveland, the person who usually received notifications in such matters, actually received the papers relative to the suit, the second day after the filing of such suit, from the hands of one Silber, a neighbor of Shevorsky and a former agent of plaintiff in error. Silber's relation to the company at such time would be immaterial, provided actual notice was given to an executive officer of the defendant company.
An executive is one vested with power to carry out such obligations as are intrusted to him, and charged with administrative duties relative to executing, performing, and carrying into effect the purposes of his employment. There is nothing in the record to contradict the testimony that such executive was the one who customarily received notice of accidents, to whom premiums were paid for the company, and who paid commissions. We think notice to such a person would be notice to the company. Plaintiff in error did not introduce any evidence to the contrary, nor even the policy of insurance to show any contrary provisions or conditions. The record containing evidence to support this conclusion, we think the Court of Appeals was right in not disturbing the verdict upon that ground.
As to the third ground of alleged error, relative to the lack of proof as to the identity of the machine that caused the accident, the statement of claim filed in the municipal court recites as follows:
"Further complaining, this plaintiff says that Harry Shevorsky and the automobile which he owned on the day of said accident, to wit: a Dodge sedan, were then and there insured by the defendant company, State Automobile Mutual Insurance Association of Columbus, Ohio, against liability on account of any suit or judgment for personal injuries occasioned while said Harry Shevorsky was driving the automobile in question.
"Plaintiff further says that the policy of insurance of said State Automobile Mutual Insurance Association of Columbus, Ohio, was in full force and effect on April 2, 1928, being the time plaintiff sustained said injuries."
In the statement of defense by plaintiff in error, in the municipal court, the following appears:
"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.
"Defendant admits that said policy of insurance was in full force and effect on the second day of April, 1928, the time plaintiff received the alleged injuries.
The record discloses no conflicting evidence on this point, and the trial court was required to assume, upon motion for directed verdict, as fully proved all that the evidence tended to prove. We think a reasonable inference might be drawn from these admissions, and the admissions of Shevorsky himself, when on the witness stand, that the car that caused Mrs. Friedman's injury was the one covered by the policy in question.
On the entire record, we cannot find that any prejudicial error has intervened justifying a reversal of this judgment, it not appearing that there has been any failure to conform with the provisions of Section 9510-4, General Code, under which the action was brought, or with the interpretation thereof by this court as found in Stacey v. Fidelity Casualty Company of New York, 114 Ohio St. 633, 151 N.E. 718. The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS and ALLEN, JJ., concur.