
    United States Fidelity & Guaranty Company, Plaintiff-Appellee, v. Selective Insurance Company, Defendant-Appellant, Thomas, Sr., et., New Party Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 26171.
    Decided March 21, 1963.
    
      Mr. Paul P. Sogg, for plaintiff-appellee.
    
      Messrs. Hauxhurst, Sharp, Cull & Kellogg, Mr. Michael R. Gallagher and Mr. Thomas A. Dugan, for defendant-appellant.
    
      Mr. L. M. Cailor, for new party defendants-appellees.
   Per Curiam.

This is an appeal on questions of law from a judgment entered by the Court of Common Pleas in favor of the plaintiff-appellee and new party defendants-appellees against the defendant-appellant, Selective Insurance Company.

United States Fidelity & Guaranty Company filed a declaratory judgment action against Selective Insurance Company seeking to have the court declare that Selective insured Edward M. Thomas, Sr., Edward M. Thomas, Jr. and Mary Jeannette Thomas. At the time of the filing of the action, the Thomases had been named defendants in four lawsuits which were then pending in tbe Mahoning County Court of Common Pleas. Subsequent to tbe filing of tbe declaratory judgment action, United States Fidelity & Guaranty Company and tbe Thomases settled tbe four Mahoning County lawsuits.

United States Fidelity & Guaranty Company then amended its petition so as to seek reimbursement from Selective Insurance Company for tbe money it bad contributed toward tbe settlement and for its attorneys’ fees. Tbe Thomases, having obtained leave of court, were made new party defendants and cross-petitioned against Selective Insurance Company for tbe money they bad contributed toward tbe settlement and for their attorney’s fees. The case was tried to tbe court without tbe intervention of a jury.

Tbe judgment from which this appeal is prosecuted reads as follows:

“It is therefore ordered, adjudged and decreed that judgment is rendered in favor of tbe plaintiff in tbe sum of $15,900.73 together with interest from October 16, 1958, against tbe defendant, Selective Insurance Company; judgment is rendered in favor of defendants Thomas on their cross-petition in the sum of $7500.00 together with interest from October 16, 1958, against tbe defendant, Selective Insurance Company.”

The assignments of error urged by tbe defendant-appellant are five in number and are as follows:

“1. Tbe Court erred in allowing tbe Thomases to intervene.
“2. Tbe Trial Court erred in bolding that tbe title to tbe Triumph sports car was still in Selective’s insured at tbe time of tbe accident.
“3. Tbe Trial Court should have held that U. S. F. & G. acted as a volunteer.
“4. Tbe Trial Court erred in overruling tbe Appellant’s Motion for Judgment, made at tbe conclusion of all tbe evidence. Also, tbe Court’s finding that tbe reasonable value of tbe settlement was $20,000.00 is not supported by tbe evidence.
“5. Tbe Court erred in holding that U. S. F. & G. bad a right to recover for its attorneys’ fees and expenses.”

Tbe bill of exceptions with tbe included depositions of tbe new party defendants discloses that on June 25, 1956, Edward Thomas and his eighteen-year old son, Edward Thomas, Jr., went from their home in Youngstown, Ohio, to the place of business of Sports Cars of Akron, Inc. in Akron, Ohio, and there selected, purchased and accepted delivery of a Triumph sports car, for which they turned in an “M G” car, and paid the balance of the purchase price with a check signed by Edward Thomas, Sr. The record shows that the son had seen this car on former occasions, and that as a result of a discussion in the family, the car to be purchased was intended for the use of the son and title was to be taken in the name of the mother, Mary J. Thomas, because the son was a minor.

The record further shows that delivery of the car was taken by the son who drove it home with the father as a passenger; that the employees of Sports Cars of Akron, Inc. saw the son drive away with the father as the only passenger; that the father received a bill of sale but no certificate of title at the time of the delivery of the car.

Plaintiff’s Exhibit 1 in the record consists of the following documents: (1) Manufacturers Statement of Origin to a Motor Vehicle in the name of Sports Cars of Akron, Inc., bearing an assignment of said vehicle to Mary Jeannete Thomas of Youngstown, Ohio, signed by William Henry, containing a jurat by a notary public for Summit County executed on the 26th day of June, 1956; (2) an application in the name of Mary Jeannette Thomas residing in Youngstown, Ohio, for a certificate of title to the Triumph car, allegedly signed by the said Mary Jeannette Thomas and bearing a jurat of a notary public for Summit County, Akron, Ohio, certifying that it was ‘ ‘ sworn to before me and subscribed in my presence this 26th day of June, 1956”; (3) a new certificate of title in the name of Mary Jeannette Thomas for said Triumph car issued by the Clerk of Courts of Mahoning County on June 30, 1956.

On June 27, 1956, Edward M. Thomas, Jr., while driving the Triumph sports car was involved in an accident in which his passenger, Robert Renner, was killed.

The record then discloses that subsequently the administrator of the estate of the passenger, Robert Renner, filed the four lawsuits in Mahoning County against the Thomases; that two lawsuits were filed for wrongful death, one against Edward Thomas, Jr., based upon willful or wanton misconduct and one against Mr. and Mrs. Thomas alleging negligent entrnstment; that the other two suits were for conscious pam and suffering of the deceased, one suit being against Edward Thomas, Jr., based upon willful or wanton misconduct, and the other suit against Mr. and Mrs. Thomas alleging negligent entrustment; that the first of these four cases, the wrongful death case against Edward Thomas, Jr., was tried and resulted in a jury verdict of $35,000.00; that while this case was being appealed, the second case was called for trial before the same judge who had presided at the trial of the first case; that at this point a settlement of the entire claim of the administrator was effectuated, United States Fidelity & Guaranty Company paying $12,500.00 and the Thomases contributing $7,500.00 toward a total settlement of $20,000.00.

The record further discloses that United States Fidelity & Guaranty Company then brought the present action against Selective Insurance Company seeking to recover the sums expended for settlement, attorney fees and incidental expenses.

Subsequent to the filing of the action, the Thomases were added as new party defendants. They sought to recover for the $7,500.00 they paid in settlement plus the $2,500.00 they paid to their attorney.

Sports Cars of Akron, Inc. carried a policy of liability insurance with the Manufacturers and Merchants Indemnity Company with limits of $100,000 and $300,000. That company is now known as Selective Insurance Company and therefore Selective Insurance Company’s name will be used as the insurer of Sports Cars of Akron, Inc.

Mary Jeannette Thomas and Edward Thomas were named insureds under a policy of insurance issued by the United States Fidelity & Guaranty Company with limits of $100,000 and $300,000. Edward Thomas, Jr., was an additional insured under said policy.

By endorsement effective June 25, 1956, the United States Fidelity & Guaranty Company insurance was terminated on the automobile which had been traded in to Sports Cars of Akron, Inc. and the new Triumph sports ear was added to the policy as a “described automobile.”

Mr. Gilbert James, United States Fidelity & Guaranty Company’s agent, wbo serviced tbe Tbomas account, had testified that tbis endorsement was actually made on June 28, 1956, but that be made tbe endorsement effective June 25, 1956.

It seems to us that tbe crux of tbe controversy before tbe trial court was whether or not tbe ownership of tbe Triumph sports car at tbe time of tbe accident remained in Selective’s insured. Tbe trial court so found and appellant Selective in its assignment of error No. 2 claims that the court was in error in so ruling.

Selective bases its principal reliance upon tbe proposition that its insured bad done everything it could, or was obliged to do, to divest itself of tbe ownership of tbis vehicle in transferring ownership to tbe purchaser and comes within tbe framework of the case of Workman v. The Republic Mutual Ins. Co., 144 Ohio St., 37, 56 N. E. (2d), 190.

Tbe documents referred to above would tend to bear out tbis contention. However, there is no direct testimony in tbe record as to tbe execution of these documents in support of tbe statements contained in tbe jurats of the notary. On tbe other band, tbe record is clear that Mrs. Mary Jeannette Tbomas was not in Akron at tbe time of tbe purchase of tbe Triumph nor at any time prior to tbe accident so that she could not have signed tbe application for a new certificate of title before tbe accident. Moreover, she testified under oath that all documents with relation to tbe transfer of title for tbe Triumph were signed and executed by her on June 28, 1956, tbe day after tbe accident. Tbis testimony stands uncontroverted. Tbe fact, therefore, is manifest that Selective’s insured did not do everything it was legally obligated to do to divest itself of tbe ownership of tbe Triumph car and that such ownership at tbe time of tbe accident remained in it. Hence, tbe Workman case, supra, has no application to tbe facts in tbis case, and tbe trial court was correct in concluding that tbe ownership of tbe Triumph remained in Sports Cars of Akron, Inc. The trial court was also correct in bolding that the case of Brewer v. DeCant, 167 Ohio St., 411, 149 N. E. (2d), 166, was controlling.

Assignment of error No. 2, therefore, is overruled.

We further find that tbe trial court committed no error prejudicial to the substantial rights of the appellant with respect to the remaining assignments of error and overrule the same.

Accordingly, judgment affirmed.

Exceptions. Order see journal.

Kovachy, P. J., Hurd and Artl, JJ., concur.  