Opinion
No. 30578
Decided July 24, 1946.
Liability insurance — Insured operating as private carrier under permit issued by Public Utilities Commission — Section 614-115, General Code — Policy liberally construed to protect general Public from lose, when — Insured indemnified against loss occasioned by vehicle going for repairs — Res judicata inapplicable — Actions relate to same subject matter, but parties and causes different.
1. A liability insurance policy, executed, filed and approved pursuant to the provisions of Section 614-115, General Code, will be liberally construed so as to attain the legislative intent to protect the general public from loss or damage caused by the negligence of the insured, his agent, his servant or his independent contractor.
2. Such a policy which, by its terms, indemnifies the insured against loss sustained by reason of, the death of or injury to any member of the public caused by the negligence of the insured, his agent, his servant or his independent contractor, while operating as a private carrier under a permit issued by the Public Utilities Commission, covers the insured, his agent, his servant or his independent contractor in the movement of a vehicle going to a place for repairs; such movement is in the transportation service within the meaning of the policy, although such vehicle was not then being operated for the transportation of freight. ( Mitchell, Admx., v. Great Eastern Stages, Inc., 140 Ohio St. 137, approved and followed.)
3. A judgment or decree in a former action does not bar a subsequent action where the parties and the causes of action are not the same, even though both actions relate to the same subject matter. (Paragraph two of the syllabus in Norwood v. McDonald et al., Admrs., 142 Ohio St. 299, approved and followed.)
APPEAL from the Court of Appeals for Mahoning county.
On March 10, 1943, Elizabeth Leonard (plaintiff) filed her petition in the Court of Common Pleas of Mahoning county, Ohio, against James A. Murdock (defendant) and, on July 28, 1943, she filed an amended petition in which it was alleged that she had sustained certain personal injuries as the result of a collision which occurred on October 17, 1941, on state route No. 18 between a truck which defendant was operating negligently and an automobile in which plaintiff was riding. Defendant answered and the cause was tried to the court upon the issues made by the pleadings resulting in a judgment in favor of the plaintiff in the sum of $10,000.
On June 30, 1944, plaintiff filed a supplemental petition in which it was alleged in substance that The Ocean Accident Guarantee Corporation, Ltd. (hereinafter called Ocean), prior to October 17, 1941, had issued to Glenn Cartage Company (hereinafter called Glenn Cartage), a corporation engaged in the business of a common [sic] carrier, a contract of insurance covering certain trucks and vehicles used in the business of Glenn Cartage; that by the terms of the contract it inured to and for the benefit of James A. Murdock and did cover, insure, protect and indemnify him at the time and place of the collision set out in the original petition; that more than 30 days had elapsed since the judgment, which had become final, was entered against Murdock; that neither he nor Ocean had paid or satisfied such judgment; and that the supplemental petition was filed under and by virtue of the provisions of Section 9510-4, General Code.
The defendant Ocean filed its answer admitting that it issued a policy of insurance to Glenn Cartage and denied each, every and all other allegations contained in the supplemental petition. By way of a second defense, it was alleged that plaintiff commenced and prosecuted an action for the same injuries against Glenn Cartage, which resulted in a verdict and judgment in favor Of Glenn Cartage; and that those facts constitute a bar and an estoppel by judgment against the plaintiff.
There is little or no dispute as to the facts.
Glenn Cartage, since the year 1934, has been engaged in the transportation of freight by motor truck under a permit issued by the Public Utilities Commission of Ohio. Glenn Cartage entered into verbal agreements with divers persons including James Murdock for the haulage of freight under the Public Utilities Commission permit. Murdock was an owner-operator, i. e., he owned his own tractor and trailer, secured license plates therefor at his own expense, kept his equipment in repair and furnished the gasoline and oil. He received 75 per cent of the gross freight earnings on all loads hauled by him. Glenn Cartage had no stake in the tractor and trailer, although the name "Glenn Cartage" and the number of the permit granted to Glenn Cartage by the Public Utilities Commission were painted upon the tractor. Murdock had hauled for Glenn Cartage for over a year under the above outlined arrangement. On October 16, 1941, the day before the accident, Murdock arrived from New York state with a load, unloaded and drove to the Glenn Cartage place of business where he remained at the company's bunkhouse all night.
As to events on October 17, 1941, the day of the accident, three persons testified. Murdock testified that he sat around waiting for a load, and that he went up town and ate, came back and waited until about five p. m. when he was told he could not get a load. John S. Heintz, general manager of Glenn Cartage, testified that he saw Murdock about three p. m. on that day; that Murdock asked for a load and he (Heintz) told Murdock he was not going any place because he had been drinking; and that thereupon Murdock left and returned about five p. m., at which time he again asked Heintz about a load and was told by Heintz that he was too drunk to go out with a load. Heintz saw him no more until the day after the accident. John W. Smythe, president of Glenn Cartage, testified that he saw Murdock at about five p. m. on the day of the accident; that Murdock asked why he was not getting a load; and that he (Smythe) told Murdock "one look at you ought to tell you why you aren't going out."
Murdock testified further that after being refused a load he and Delmar Hartley left the place of business of Glenn Cartage and started in Murdock's tractor for his home in Atwater, Ohio, and that he was going home to stay over night and in the morning he was going to put a new distributor and spark plugs in the motor of his tractor. On the way to his home the accident, which is the basis of this controversy, occurred.
As to the second defense, the record discloses that Elizabeth Leonard filed an action in the Court of Common. Pleas of Mahoning county, numbered 115440 on the docket of that court, against Glenn Cartage Company and The Steel Trucking Company, defendants, growing out of the collision on October 17, 1941, on state highway No. 18, between a truck operated by James Murdock and a motor vehicle in which she was riding. It was averred in the amended petition in substance that the defendants entered into an agreement with Murdock for the operation of a certain motor truck in the business of defendants; that the truck was operated and owned by Murdock and carried a Public Utilities Commission permit previously issued to Glenn Cartage Company; that the defendants by and through Murdock were guilty of negligence which caused such collision; and that she was injured as a result thereof.
Defendants filed a joint answer admitting corporate existence and that prior to October 17, 1941, Murdock had hauled for defendants with a tractor and trailer outfit which he had furnished under an arrangement whereby he was paid for each trip. Each, every and all other allegations were denied. Upon trial, The Steel Trucking Company was dismissed and the jury returned a verdict for defendant Glenn Cartage. Judgment thereafter was entered in favor of defendant.
The jury in the instant case returned a verdict in favor of plaintiff and against Ocean in the sum of $10,000 with interest. The trial court, after overruling a motion for judgment notwithstanding the verdict and for a new trial, entered judgment on the verdict.
On appeal on questions of law the judgment of the trial court was modified and affirmed by the Court of Appeals. The modification consisted in reducing the judgment from $10,000 to $6,000, the maximum amount of the coverage for injury to one person in one accident.
The case is in this court for review following the allowance of a motion to certify the record.
Messrs. Williams, Stanley Andrews, for appellee.
Messrs. McKeehan, Merrick, Arter Stewart, Mr. C.M. Horn and Mr. Comus M. Beard, for appellant.
The trial court in the instant case decided two propositions: (1) That whether the operation of the tractor by Murdock at the time of the collision on October 17, 1941, was within the coverage of the insurance policy issued by The Ocean Accident Guarantee Corporation, Ltd., was a question of fact, and (2) that the judgment in the case of Leonard v. Glenn Cartage Co. was not a bar to the prosecution of the instant case.
The Court of Appeals modified (as hereinbefore stated) and affirmed the judgment of the trial court. The only factual difference between the instant case and the case of Wood v. Vona, ante, 91 this day decided, is that here at the time of the collision the tractor was being operated to the home of Murdock for repairs, while in the Wood case the tractor was being operated from the repair shop to the home of Vona after repairs had been completed. No useful purpose would be served by repeating here what has been already said in the Wood case upon the subject of coverage. For the reasons stated in the Wood case the contention of Ocean that the operation of the tractor at the time and place of collision, as a matter of law, was not within the coverage of the policy cannot be sustained.
Upon the second question Ocean contends:
"The judgment for defendant in Elizabeth Leonard v. Glenn Cartage Company established that Murdock was not using his truck on that company's business at the time of the accident. This is essentially the issue presented in the case at bar and the judgment in said cause is an adjudication of that issue adverse to Elizabeth Leonard, the plaintiff in both cases. It is an estoppel by judgment and a bar to the present action."
It is claimed that the doctrine of res judicata should be applied in the instant case. Without entering into a lengthy discussion of that subject suffice it to say that the case of Leonard v. Glenn Cartage sounded in tort, the present action sounds in contract, the parties in the two cases are not the same, the issues are not the same, different proofs were required to sustain the two actions, and the controversy sought to be precluded, to wit, the liability of Ocean Accident Guarantee Corporation, Ltd., upon its policy, was not tried or determined in the Glenn Cartage case.
In 23 Ohio Jurisprudence, 962, Section 730, we find this definition of the rule:
"The judgment of a court of concurrent jurisdiction directly upon the point is, as a plea in bar or as evidence, conclusive between the same parties, on the same matter, directly in question in another court. But neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." (Emphasis supplied.) See Lessee of Lore v. Truman, 10 Ohio St. 45; Rempe Son v. Ravens, 68 Ohio St. 113, 67 N.E. 282; Norwood v. McDonald et al., Admrs., 142 Ohio St. 299, 52 N.E.2d 67.
We are persuaded that the doctrine of res judicata has no application here. In our opinion the Court of Appeals did not err in affirming the judgment of the Court of Common Pleas, therefore the judgment of the Court of Appeals should be and hereby is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS and TURNER, JJ., concur.
MATTHIAS and HART, JJ., dissent.
In my view, the decision in this case should not be controlled by the holding of this court in the case of Mitchell, Admx., v. Great Eastern Stages, Inc., 140 Ohio St. 137, 42 N.E.2d 771, 141 A. L. R., 624, because of difference in operative facts.
As required by the statute, Section 614-115, General Code, the policy of insurance here in question indemnified the Glenn Cartage Company as a private motor carrier "against loss sustained by reason of * * * injury to * * * persons * * * resulting from the negligence of the insured, while operating any vehicle * * * in * * * private motor carrier service," and by special endorsement, extended such coverage "to all automobiles and trailers * * * hired by the named insured * * * only when such * * * hired equipment is being operated exclusively in the interest of the named insured." Here the truck was hired by the Glenn Cartage Company but it was owned by James A. Murdock whose obligation under the contract of hiring was to maintain the truck and keep it in repair at his own expense.
When the accident occurred, the truck was not being operated in transporting property or in furnishing such transportation service, but was being operated by Murdock, the owner, after he had been refused employment in transportation service of the cartage company, for his own sole purpose of going to his home with a mere possibility that he might, in the future, make repairs on his truck which again was his obligation and responsibility.
In fact, he had been refused employment, and to all intents and purposes had been discharged for cause for that day so far as his service for the cartage company was concerned. How could he after the refusal to give him a load and after he had moved away from the zone of such service be said to be in transportation service for the cartage company at the time of the accident?
The ordinary automobile indemnity insurance policy provides coverage for a specific car wherever operated by the insured or one operating it with the permission or consent of the insured, but the type of policy required to be given by the Public Utilities Commission and here given is a limited policy giving coverage only for the negligence of the operator while or when any car is being operated in motor-transportation-company service or private-motor-carrier service; and when the operator is an agent, employee or independent contractor he must be engaged in transporting persons or property or providing or furnishing such transportation service for the insured.
The term or condition in the policy which provides that liability in such cases may be based only upon a finding that the negligence of the operator caused the injury while he was "operating any vehicle * * * in * * * private motor carrier service" is a most important limitation in such policy and, to warrant a recovery thereunder, compliance with the condition must be established by the evidence. No such evidence appears in the record, and for that reason the judgment should be reversed.
MATTHIAS, J., concurs in the foregoing dissenting opinion.