
    Stacey v. The Fidelity & Casualty Co. et al.
    
      Insurance — Automobile casualty — Judgment creditor of insured cannot recover from insurer, when — Notice of accident not given insurance company by insured — Sections 9510-3 and 9510-4, General Code, inapplicable, when.
    
    1. One injured by automobile cannot recover amount of judgment awarded him in action against owner, from owner’s insurer, where insured failed to notify insurer of accident as required by policy; Sections 9510-3 and 9510-4, General Code, authorizing judgment creditor to apply “insurance money” of defendant to judgment, meaning such money as was recoverable on policy by insured against insurer.
    2. Insurance company is liable under terms and provisions of policy and not otherwise.
    (Decided September 29, 1925.)
    Error: Court of Appeals for Huron county.
    
      Messrs. Young & Young, for plaintiff in error.
    
      Messrs. Howell, Roberts & Duncan, for defendants in error.
   Richards, J.

This is an action against an indemnity insurance company and the owner of an automobile, who was insured in the company, to recover the amount of a judgment awarded the plaintiff, Charles L. Stacey, in a personal injury ease.

The plaintiff, in his amended petition, averred that he received personal injuries on July 5, 1920, by the negligence of the defendant James F. Troy-an, and- that in an action based thereon he recovered a judgment for $500, which is still in full force and effect. He averred further that said defendant was insured in the Fidelity & Casualty Company of New York, a copy of the policy being attached to the pleading. The Fidelity & Casualty Company filed an answer, in the second defense of which it alleged, in substance, that the policy of insurance provided that upon the occurrence of an accident the insured should give immediate written notice thereof, with the fullest information obtainable at the time, to the company at its home office, or to the agent who had countersigned the policy, and that, if any suit should be brought against the insured, notice of such claim of assured should be immediately forwarded to the company, together with every summons or other process, as soon as served on him, and that the company reserved the right to settle any claim or suit. The answer further averred that the assured, James F. Troyan, wholly failed and neglected to give this defendant any notice that any claim had been made on account of such accident, and failed and neglected to notify this defendant that any suit had been brought against the insured to enforce such claim, and failed and neglected to forward to the company’s home office, or elsewhere, any summons or other process, or any papers whatever, in connection with such suit, and that the company had no information or knowledge of any claim that any such lawsuit had been brought until long after the rendition of the judgment.

A demurrer was filed to this defense on the ground that it did not state facts sufficient to constitute a defense to the amended petition, and the demurrer was, on consideration, overruled. The plaintiff not desiring to plead further, a final judgment was rendered dismissing the petition and assessing costs against plaintiff.

The conditions of the policy require that the assured shall give to the insurance company immediate written notice of the accident, with the fullest information obtainable, and these provisions are clearly of the essence of the policy, and unless they have been complied with no action would lie on the policy, by its very terms. The liability assumed by the insurance company is assumed under the terms and provisions of the policy, and not otherwise. It is true that the policy must be construed in connection with the sections of the statute (Sections 9510-3 and 9510-4, General Code), and counsel for plaintiff insist that by the provisions of the former section the liability of the insurance company became absolute. That section, however, cannot be construed to debar the insurance company from setting up any defense which it may have and from seeking the judgment of the court thereon. Under that section the liability of the insurance company became absolute as to the issues adjudged in the action brought to recover damages resulting from the negligence of Troyan. The defenses set up in the answer of the insurance company were not adjudicated, and could not have been adjudicated in the former action. To construe the statute so as to inhibit the insurance company from making those defenses would result in depriving the company of its day in court.

It will be noticed that Section 9510-4, General Code, in providing a remedy for a judgment creditor, enacts that he may proceed “against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment.” The “insurance money” can only mean such money as was recoverable on the policy by the insured against the company issuing the policy.

In view of the fact that this cqurt carefully considered the rights of parties under a policy of this character in the ease of United States Casualty Co. v. Breese, decided in Lucas county on January 19, 1925, we deem it unnecessary to further discuss the principles involved, but content ourselves with citing the authorities contained in that opinion. These authorities are 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; Jefferson Realty Co. v. Employers’ Liability Assurance Corp., 149 Ky., 741, 747, 149 S. W., 1011; Phoenix Cotton Oil Co. v. Royal Indemnity Co., 140 Tenn., 438, 205 S. W., 128; Lorando v. Gethro, 228 Mass., 181, 117 N. E., 185, 1 A. L. R., 1374; Cogliano v. Ferguson, 245 Mass., 364, 139 N. E., 527.

In all essential particulars, the case at bar is on all fours with the case formerly decided by this court. If any distinction is to be drawn between the two cases, the one at bar is a stronger case in favor of the insurance company, for in the case now under consideration no notice whatever was given to the insurance company at any time-before judgment.

For the reasons given, the judgment will be affirmed.

Judgment affirmed.

“Williams and Young, JJ., concur.  