
    CONTINENTAL AUTOMOBILE INS CO v SCURRY et
    Ohio Appeals, 2nd Dist, Greene Co
    No. 344.
    Decided May 21, 1931
    Miller & Finney and Frank Johnson, of Xenia, for Continental Automobile Ins. Co.
    Marshall &,Marshall, of Xenia, for Scurry et.
   BY THE COURT

In brief it appears from the record that the plaintiff in error issued a policy of insurance'" to Hannah Washington in consideration of the payment of certain premiums and the statement of certain questions of fact. This insurance policy was upon- a Ford truck used in the grocery of Hannah Washington and her husband, who were engaged in the grocery business. The truck was used for the delivery of groceries and'other uses connected with said grocery. The truck was being driven at the time in question by Frank Parker who was an employe of the Washingtons. On the 7th of March, 1930 the driver of the truck in question struck "and injured one Thomas Scurry wjio brought suit against said.Hannah and Henry Washington -for such injuries. On April 29, 1930 Scurry brought suit in the Court of Common Pleas of Greene County against the Washingtons. On'May 1, 1930 summons was served upon the Washingtons. This summons was not forwarded -to and received by the insurance company as provided by thp policy of insurance until May 29, 1930. This was several days prior to the answer day. The insurance company notified the Washingtons that it would not defend the case. Considerable corespondence was passed between the counsel of the insurance company and of the Washingtons in regard- thereto. The question as to whether this was forwarded within a reasonable time was submitted to the jury for its determination. We think it sufficient, to say that the summons was received by the insurance company before answer day: that no effort was made to secure an extension of the time for answering and that no judgment was taken on this petition until July 25, 1930, almost sixty days after the summons was forwarded to the insurance company. We think the company not only expressly refused to defend this case, but had ample time in which to have made a defense had it so desired. Among other things it is claimed that the driver of this truck was on a mission of his own at the time of the accident, by taking certain boys to Springfield for the purpose of witnessing a basket ball game. He testified and there is considerable testimony in the record to support his statement that he was going to Springfield upon a mission of his employer' to get some fruit at the Amicon Brothers in Springfield. Some suggestion is made about a bottle of liquor having been found in this truck after the return of the truck from Springfield. There is no evidence in the record which would warrant the finding that any of these boys had any liquor at the time of the accident. The accident occurred in Xenia before starting upon the trip to Springfield. In the case of Scurry against Washington, judgment was rendered in the sum of $2500.00 in favor of Scurry against the Washingtons. It is upon this proceeding that suit is brought. Complaint is made in the petition about the failure to notify the insurance company promptly of the accident. This claim is not borne out by the evidence. The accident occurred on March 7, 1930. It appears that on March 10, 1930, a representative of the company called to see Mr. Scurry and secured data in reference to the accident. Shortly after an agent of the company from the general offices called to investigate the accident.

It is urged with considerable force that there was collusion in the securing of the original judgment for $2500.00 between Scurry, the plaintiff in that case, and the Wash-, ingtons. Upon an examination of the record we would not feel warranted in finding, that such collusion existed.

Counsel for plaintiff in error complain of the refusal, of the trial court to permit certain evidence offered it. Special complaint is made as to the cross examination of L. A. Davis on page 101 and elsewhere' in the record where plaintiff in error sought to impeach Henry Washington by showing that hé had stated that the boy, Parker, at the time in question was on' a mission of his own to Springfield and not upon a mission for the partnership. The plaintiff in error, not the defendant in error, called Henry Washington, Hannah Washington and the boy, Parker. Plaintiff in error proved by some three or more witnesses that Harry Washington on the day in question gave this boy instructions to stay around the grocery and help Mrs. Washington and the girl employed therein with the work in the grocery until 3 or 4 o’clock in the afternoon and then go to Springfield to Amicon Brothers and get some fruit. Plaintiff in error having proven these facts by a number of witnesses, we do riot see how it could be considered as prejudicial if erroneous that the witness, Davis, was not permitted to answer the question as to what Henry Washington stated upon some other occasion.

We have considered all the grounds of error urged by counsel for’ plaintiff in error but from an examination of the record and a consideration of the brief! we find nothing in the record which we consider prejudicial to plaintiff in error or which would warrant this court in reversing the judgment of the, lower court. The‘judgment of the lower court will be affirmed.

ALLREAD, PJ, HORNBECIC and KUNKLE, -JJ, concur.  