
    Heller v. Standard Accident Insurance Co.
    (Decided May 9, 1927.)
    
      Mr. M. G. Harrison, for plaintiff in error.
    
      Messrs. Dustin, McKeehan, Merrick, Arter $ Stewart, for defendant in error.
   Lloyd, J.

Plaintiff in error was plaintiff and the defendant in error defendant in the court of common pleas, and will be so referred to here.

The defendant had issued to plaintiff a policy of insurance indemnifying him, for a period of twelve months from March 20, 1921, against loss from liability for damages on account of bodily injuries accidentally sustained by any persons by reason of the use by plaintiff c " his automobile. On June 22,

1921, a Mrs. Yudelevitz was injured by plaintiff’s automobile, which he was then driving. Immediate notice of this accident was given by plaintiff to defendant.

Nothing further happened until December 26, 1922, when Mrs. Yudelevitz commenced an action against plaintiff in the court of common pleas of Cuyahoga county to recover damages in the sum of $10,000 for injuries claimed by her to have been so sustained. Summons was served in that action upon the plaintiff herein by leaving a copy thereof at his place of residence. At that time Mr. Heller was absent from the city of Cleveland, where he lived, not returning thereto until some time in the following February. Where he was, or why he was so absent, the facts in evidence do not disclose. His daughter, being ignorant of the fact that this action was for a claim protected by the policy of insurance in question, delivered the summons to a Mr. Click, her father’s personal attorney, requesting him to file an answer to the petition within the time mentioned in the summons. Mr. Click was also unaware of the nature of the claim, except as disclosed by the petition, and, by obtaining from the court leave to plead, extended the time for answer to May 26, 1923.

Mr. Heller, upon his return to Cleveland in February, 1923, learned that “some papers” had been left at his home while he was absent, and that Mr. Click was looking after the matter. He was taken sick about that time, and was confined to his house until the latter part of April, “and for one reason or another” it was not until May 14, 1923, that he and Mr. Gliek “woke up to the realization” that the case in question was one covered by his policy of insurance with the defendant. Thereupon Mr. Heller notified the defendant of the answer day as extended by leave of court, and Mr. Glick, also on May 14, 1923, notified the defendant by letter of the pending action, requesting that it defend the same as provided in its policy of insurance issued to Mr. Heller, and on May 16, 1923, he mailed to defendant the summons and a copy of the petition in the action so brought by Mrs. Yudelevitz. On May118th the defendant, by letters to Mr. Heller and Mr. Glick, called attention to the fact that the summons had not been promptly delivered to defendant and that thereby its rights had been prejudiced, and on May 23d, by letter to plaintiff, formally disclaimed any liability under the policy in question, on the ground that plaintiff had failed to comply with the condition thereof requiring immediate notice to the defendant of' the suit or claim, and immediate submission to its representatives of the summons served upon him.

Thereafter plaintiff personally, through his attorney, defended the action brought by Mrs. Yudelevitz, upon the trial of which she recovered a verdict and a judgment for $300, which plaintiff paid. He also paid'to his attorney $400 for services in connection with that litigation. For the amount thus expended, plaintiff brought this action in the court of common pleas, and these proceedings in error are instituted to reverse the judgment .entered therein in favor of defendant.

After counsel for plaintiff had made his opening statement to the -jury, a juror was withdrawn by consent, and the cause submitted'to the court upon said statement of counsel, which, with certain exhibits, has been incorporated in the bill of exceptions as an agreed statement of facts, which, with the pleadings and transcript of the journal entries, constitute the record now before the court; no motion for a new trial having been filed in the court of common pleas.

The judgment entered by the court of common pleas recites “this cause came on to be heard and was submitted to the court on the pleadings and the evidence, and. on consideration thereof the court finds that the plaintiff is not entitled to the relief prayed for,” and, having so found, the court dismissed the petition of the plaintiff and entered judgment in favor of defendant for costs.

The policy of insurance in question contained, among others, the following conditions:

“F. The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable, to the company at its home office, Detroit, Michigan, or its duly authorized agent. He shall give like notice, with full particulars, of,any claim made on account of such accident. If thereafter any suit is brought against the assured, he shall immediately forward to the company every summons or other process served on him. The assured shall not voluntarily assume any liability, settle any claim, or incur any expense except at his own cost, or interfere in any negotiations for settlement or legal proceedings without the consent of the company previously given in writing! ’ ’

Assuming that the facts having been so agreed upon are therefore not in dispute, and that a motion for a new trial was unnecessary, and assuming also that what the- Supreme Court -says in Employers’ Liability Assur. Corporation v. Roehm, 99 Ohio St., at page 348, 124 N. E., 224, 7 A. L. R, 182, that “in a case of the character under investigation, with its attendant circumstances, where the facts are not disputed, what is a sufficient compliance with the policy requirements” is a question of fact apd not of law, is not applicable to the instant case, and that this court, therefore, is not limited to a consideration of the question of whether the finding of the trial court, a jury having been waived, is manifestly against the weight of the evidence, we will consider and determine the question here involved as one of law and-not of fact.

Unless, then, the admitted facts and circumstances excuse the delay in forwarding to defendant the summons, which admittedly had been served upon plaintiff in the manner provided by law, the condition of the insurance policy in question, just quoted, was thereby violated in' at least two respects, because the summons served a double purpose. It served the purpose of notifying the plaintiff that Mrs. Yudelevitz was making a claim for her alleged injuries and that she was commencing an action to adjudicate and compel satisfaction thereof.

Condition F of the policy provided for immediate notice to defendant of any accident, or of any claim made growing out of any accident, and also that every summons or process served on plaintiff should immediately be forwarded to defendant.

As has been decided by this court in United States Casualty Co. v. Breese, 21 Ohio App., 521, 153 N. E., 206, and by the Supreme Court in the cases of Travelers’ Ins. Co. v. Myers & Co., 62 Ohio St., 529, 57 N. E., 458, 49 L. R. A., 760; Employers’ Liability Assurance Corp. v. Roehm, 99 Ohio St., 343, 124 N. E., 223, 7 A. L. R., 182; and Stacey v. Fidelity & Casualty Co., 114 Ohio St., 633, 637, 151 N. E., 718, a stipulation such as this is of the essence of the contract in insurance of this kind. In these cases the reasons for this conclusion are given at length, and nothing would be gained by repeating them. If this were a case of an accident not previously reported or known to plaintiff, or, as in the accident insurance cases cited, a case where notice was required of the injury rather than of the accident, and no injury developed until some time after the accident, there would confront us a quite different question than that here presented. Here the accident was known to the plaintiff; notice thereof having immediately been given by him to the defendant as required by the policy. Therefore he was bound to know that a claim might be made thereafter by Mrs. Yudelevitz, and that, in all probability, an action would be commenced by her thereon. The condition in question of the policy under consideration contains no exceptions and no qualifications. The contract was voluntarily and understandingly entered into by plaintiff. No equities are here involved. It is merely a question of whether a contract so made is to be so construed by a court as to change its clearly intended purport and effect for the avowed and only purpose of relieving from the accepted obligations thereof one who admittedly has violated its clearly expressed conditions. In Farrell v. Merchant’s Mut. Auto. Liability Ins. Co., 203 App. Div., 118, 196 N. Y. S., 383, it was held that an oral notice given over the telephone was not a compliance with a provision of an automobile liability policy requiring immediate written notice of an accident. How much less, then, was the forwarding of a summons approximately five months after legal service thereof had been made upon plaintiff a compliance with a stipulation requiring the immediate forwarding of the same?

If a solution of the question under consideration depended upon determining whether or not the defendant was prejudiced by„the failure of plaintiff to comply with condition F of the policy, which obviously, as stated in the Breese case, it does not, the writer is of the opinion that the inclusion in the policy of stipulation F in and of itself presumes, that any violation thereof would be prejudicial to the defendant, and, therefore, in any event, the burden would rest upon the plaintiff to prove that no prejudice in fact resulted to the defendant from its violation by him. In this respect the record is silent, and therefore the case of Frank Parmelee Co. v. Ætna Life Ins. Co., (C. C. A.), 166 F., 741, 744, cited by plaintiff in his brief, is inapplicable. It is inapplicable, for the further reason that the conclusion in that regard there reached apparently is the personal, isolated, and not particularly well-considered conclusion of the judge writing the opinion, because the authorities cited by him in no respect support the contention so made.

This court is satisfied to decide the question in the instant case upon the well-established principle of law that a court is not privileged to make contracts for others, nor in any wise to change the conditious of contracts lawfully made, because of some personal notion of what, in a particular case, good morals and fair dealing may require.

The contract of insurance in question was advisedly and understandingly made. Its terms are explicit and unqualified, and the parties are bound in law to abide thereby. The judgment of the court of common pleas is therefore affirmed.

Judgment affirmed.

Richards, J., concurs.

Williams, J., dissents.

Judges of the Sixth Appellate District, sitting in place of Judges Sullivan, Vickery and Levine, of the Eighth Appellate District.  