Summary
finding that "[c]learly, there was no compliance on the part of the plaintiff with the liberal provisions of the policy as to notice. This was a condition of the contract, the nonperformance of which precludes recovery."
Summary of this case from First Bank of Marietta v. Hartford UnderwritersOpinion
No. 29674
Decided May 3, 1944.
Appeal — Bill of exceptions — Limitation of 40 days for filing — Section 11564, General Code — Notation by judge on trial docket not a "decision" — Limitation runs from date entry filed with clerk for journalization — Accident insurance — Failure to notify insurer within 20 days after injury precludes recovery.
1. A judge's trial docket is not a part of the record of the court and a notation thereon by the trial court as to its decision or judgment does not constitute a "decision" within the purview of Section 11564, General Code.
2. A bill of exceptions, filed more than 40 days after the date of a notation of the decision or judgment of a trial court on its trial docket or calendar, but within 40 days after an entry embodying such decision or judgment is filed with the clerk for journalization, is filed within 40 days after the "decision" of the court, as required by Section 11564, General Code.
3. One who suffered a definite accidental injury, was thereafter attended and treated by physicians and surgeons regularly for a period of more than three months, and neglected during such period to give notice of such accidental injury to his insurer, there being no evidence that his condition was such that it was not reasonably possible to give such notice, has failed to comply with his insurance contract which required him to give written notice of such injury within 20 days after the date of the accident causing such injury, or if not possible to give such notice, to give same as soon as was reasonably possible, and is, by reason of such failure, precluded from recovery on such insurance contract.
APPEAL from the Court of Appeals of Cuyahoga county.
On February 20, 1935, the defendant issued to plaintiff its standard accident policy which provided benefits for total disability of $25 per week for a maximum period of 52 weeks, and benefits for partial disability of $12.50 per week for a maximum period of 26 weeks.
The policy provided that "written notice of injury on which claim may be based must be given to the company within 20 days after the date of the accident causing such injury. * * * Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible."
Plaintiff's petition did not plead any waiver of notice but alleged that he had "performed all things on his part to be performed as required by the provisions of said policy of insurance."
Plaintiff claims that he sustained a fall while going up the stairs at his place of employment, on December 26, 1940, resulting in injury which consisted of a tearing of the ligamentous attachments which tie the muscles to the bones at the lower end of the spine, producing a condition known as traumatic myofascitis.
The undisputed facts regarding the character and extent of plaintiff's injury and disability are that his back hurt him when he got up. Shortly thereafter a doctor taped his back before he went home. He stayed home four days after which he returned to his place of employment where he worked part time, four or five hours a day, performed a part of his assigned duties and received his salary in full up to some time in the spring of 1941.
At that time, plaintiff's back became worse and he terminated his employment. He saw his physician several times a week from the date of his accident until June 1941, when he went to an orthopedic surgeon who placed him in a cast in which he remained for a period of several weeks. He continued to consult his former physician about once a week up to October or November 1941. In the latter part of 1941, plaintiff did some salvage work and in the forepart of 1942, he learned to operate a machine shop. Since June 1942, he has been operating his own machine shop, working ten to twelve hours a day.
In April 1941, more than three months after the accident, plaintiff gave notice to the defendant of his injury as the basis for the claim herein involved. He claims that the delay in giving notice was because he did not realize until April 1941 the seriousness of his injury.
Plaintiff filed his petition to recover in a first cause of action the sum of $1,300, being total disability benefits of $25 per week for 52 weeks, and in a second cause of action the sum of $325, being partial disability benefits of $12.50 per week for 26 weeks, as provided for in the policy issued by defendant. The parties waived a jury and tried the case to the court which resulted in a finding and judgment in favor of the plaintiff in the amount of $325 upon the second cause of action for partial disability benefits.
On January 4, 1943, the court made an entry upon its trial docket as follows: "January 4, 1943. Judgment for plaintiff as prayed for in his second cause of action in the sum of $325 with interest at 6% from date each payment became due. O. S. J. Trial docket No. 91 1434."
This entry was not placed upon the appearance docket or journal until sometime between February 24, 1943, and March 9, 1943. A journal entry, finding in plaintiff's favor on his second cause of action and entering judgment thereon, was signed by the court and placed upon the docket and journal of the court under date of January 19, 1943.
On February 8, a notice of appeal to the Court of Appeals, as to the second cause of action was filed by the defendant, and on February 23, 1943, a bill of exceptions was filed and notice issued.
On April 24, 1943, the plaintiff filed a motion in the Court of Appeals to strike the bill of exceptions from the files and to dismiss the appeal on the ground that the bill of exceptions had not been filed in the Court of Common Pleas within 40 days after the decision of the trial court. This motion was overruled. The Court of Appeals, upon the merits, reversed the trial court and entered final judgment in favor of the defendant on the second cause of action because of plaintiff's failure to comply with the provisions of the policy of insurance with respect to notice.
The plaintiff has taken this appeal, a motion to certify the record having been allowed by this court.
Messrs. Miller, Daus Schwenger and Mr. David A. Kaufman, for appellant.
Messrs. Burgess, Fulton Fullmer and Mr. Robert M. Weh, for appellee.
The first question to be determined is whether the bill of exceptions in this case was filed in the Common Pleas Court by the defendant within the time required by law. The Court of Appeals found it was so filed, and overruled a motion to strike.
The pertinent part of Section 11564, General Code, reads as follows:
"When * * * the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, * * * the party excepting must reduce his objections to writing, and file them in the cause, not later than forty (40) days after the overruling of the motion for new trial, or the decision of the court, when a motion for new trial is not filed." (Italics ours.)
The terms "decision" and "judgment" have been used interchangeably in opinions by this court ( Industrial Commission v. Musselli, 102 Ohio St. 10, 130 N.E. 32), and the terms "finding" and "decision," appearing in our procedural statutes, have likewise been used as synonymous or interchangeable. This is illustrated by the construction which this court has placed upon Section 11578, General Code, relating to the time from which the three-day period allowed for filing a motion for new trial must be computed. In re Estate of Lowry, 140 Ohio St. 223, 42 N.E.2d 987; State, ex rel. Curran, v. Brookes, Jr., et al., Bd. of Trustees, 142 Ohio St. 107; Steinle v. City of Cincinnati, 142 Ohio St. 550.
But regardless as to which of these terms is used in the statute or as to what significance is to be given to each of them, before the action of the court described by any of such terms becomes effective, it must be reduced to writing and officially filed or recorded. The specific question in this case is whether the bill of exceptions was filed not later than 40 days after the "decision" of the trial court, which, in turn, depends upon the answer to the question as to when the "decision" of the court was made. It seems almost axiomatic that if time is to be computed from the decision of the court, such decision must be made a matter of record as the basis of such computation. In this case the notation of the court was entered upon the judge's desk calendar or trial docket January 4, 1943, but it was not entered on the appearance docket or filed for journalization prior to January 19, 1943.
The clerk of the Court of Common Pleas is required by law to keep: (1) An appearance docket; (2) a trial docket and printed duplicates thereof for the use of the court and its officers; (3) a journal; (4) a record; and (5) an execution docket. Section 2878, General Code.
Section 11381, General Code, provides that "the clerk shall make a trial docket at least twelve days before the first day of each term, and the cases shall be set for particular days, in the order in which they stand on the appearance docket." The trial docket, often called the court calendar, is a book containing a list of the titles of all pending actions in numerical order for the convenience of the court, its officers and counsel interested in the litigations. It is often used as a memorandum or desk calendar by each individual judge. But it is not a part of the court record. See Harvey v. Brown, 1 Ohio, 268; Moore v. Brown, 10 Ohio, 197, 200; Markward Niman v. Doriat, 21 Ohio St. 637. On the other hand, Section 11604, General Code, provides that "all judgments and orders must be entered upon the journal of the court, and specify clearly the relief granted or order made in the action. * * *" The litigant is not required to take notice of or be bound by what may appear on the court trial docket or desk calendar. He is bound by the entries which are made upon the appearance docket or journal. A court speaks only through its journal and no finding, decision or judgment is rendered until an entry is duly prepared and filed with the clerk for journalization. State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, 26 N.E.2d 1014; In re Estate of Lowry, supra.
Ofttimes, as in this case, the court makes a finding coupled with a judgment and the entry is a combination of finding and judgment. Whether, in such case the action of the court be regarded as a "decision" or "judgment," it is not rendered until it is reduced to writing and filed with the clerk for journalization.
The case of Wright, Judge, v. State, ex rel. Eastman, 104 Ohio St. 606, 136 N.E. 927, is decisive of the issue here made. In that case a verdict of a jury for defendant was rendered on January 19, 1921. The plaintiff duly filed a motion for new trial. On February 1, 1921, the trial judge made the following entry on the trial or bench docket. "Motion for new trial overruled. Exceptions. Judgment on verdict." No journal entry overruling the motion for new trial and for judgment upon the verdict was filed until March 24, 1921. The bill of exceptions was filed April 25, 1921, more than 40 days after February 1, 1921, but within 40 days after March 24, 1921. The trial court refused to sign a bill of exceptions on the ground that it was not filed within the time required by statute. The plaintiff brought a mandamus action in the Court of Appeals to require the trial court to allow the bill of exceptions. The writ was allowed and the judgment of the Court of Appeals was affirmed by the Supreme Court.
The bill of exceptions in the instant case was therefore filed within 40 days after the "decision" of the court as required by law.
The next subject of inquiry is whether the plaintiff gave notice to the defendant of his injury, as required by the insurance policy. The Court of Appeals, without opinion, one judge dissenting, reversed the judgment of the Common Pleas Court and rendered final judgment for the defendant, appellee herein, "for error of law in that plaintiff failed to comply with provisions of policy with respect to notice."
The provision requiring written notice of claim within 20 days is a valid and binding requirement and is of the essence of the contract. Travelers' Ins. Co. v. Myers Co., 62 Ohio St. 529, 57 N.E. 458, 49 L.R.A., 760; Heller v. Standard Accident Ins. Co., 118 Ohio St. 237, 160 N.E. 707.
The petition makes no claim of waiver or estoppel as to notice, with the result that plaintiff was required, in the absence of proof that such notice was reasonably impossible or was given as soon as reasonably possible, to prove that notice was given within 20 days of his injury as a prerequisite to his right to recover. Home Ins. Co. v. Lindsey, 26 Ohio St. 348; Eureka Fire Marine Ins. Co. v. Baldwin, 62 Ohio St. 368, 57 N.E. 57. He failed to make this proof.
Even if he had claimed a waiver of notice the undisputed facts would not support such a claim. He clearly suffered a definite injury and was attended and treated by physicians and surgeons regularly after his accident, yet he did not give any notice of claim until more than three months had expired. The plaintiff, under such circumstances, could not claim under the saving provision of the policy to the effect "that notice was given as soon as was reasonably possible." Wilcox v. Metropolitan Life Ins. Co., 304 Mass. 441, 23 N.E.2d 1002. Clearly, there was no compliance on the part of the plaintiff with the liberal provisions of the policy as to notice. This was a condition of his contract, the nonperformance of which precludes recovery. Kornhauser, Receiver, v. National Surety Co., 114 Ohio St. 24, 150 N.E. 921.
The Court of Appeals did not err in its reversal of the judgment of the Common Pleas Court and in rendering final judgment. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS and TURNER, JJ., concur.
BELL, J., dissents.