
    Luchte v. State Automobile Mutual Ins. Co.
    (Decided January 14, 1935.)
    
      Mr. Wm. P. Hohman and Mr. Harry Neal Smith, for plaintiff in error..
    
      Mr. August A. Bendigs, Jr., and Mr. H. F. Holscher, for defendant in error.
   Hamilton, P. J.

Albert J. Luchte, the plaintiff in error, brought suit in the Municipal Court of Cincinnati against the State Automobile Mutual Insurance Company. The action was to recover damages in the amount of $1,000 on a policy of automobile insurance issued by the State Automobile Mutual Insurance Company. The damage was predicated on failure to defend a certain law suit.

At the close of the plaintiff’s evidence counsel for the insurance company moved for judgment for the defendant, on the ground that the subject-matter of the suit is not within the purview of the policy contract offered in evidence. The court granted the motion for judgment for defendant, and overruled a motion for a new trial. The plaintiff, Luchte, prosecuted error to the Court of Common Pleas, which court affirmed the judgment of the Municipal Court. From that judgment of affirmance by the Court of Common Pleas, error is prosecuted to this court.

It appears from the record that the defendant insurance company issued to Luchte a certain policy of automobile insurance covering a certain two and a half ton Schacht truck, which automobile truck was being used by the plaintiff in the operation of a retail coal business in the city of Cincinnati. While the policy was in force an employee of Luchte delivered a load of coal to a customer, and in making the delivery used the automobile truck insured under the policy. Plaintiff’s employee dumped the coal in the street in front of the customer’s house, drove away a short distance, turned, and was returning to his place of business from the delivery. He dumped the coal in the early morning before clear daylight, and failed to leave any light or other warning on the pile of coal. A man by the name of Bell, driving a motorcycle, ran into the pile of coal and received injuries from which he died. The administrator of the estate of Bell brought an action in the Court of Common Pleas against Luchte and other defendants, for damages for the wrongful death of Bell, claimed to have been caused by the plaintiff’s agent and servant.

The policy, which is the basis of this suit, contained the following provisions:

“The Association does hereby insure the assured against liability for loss and' all expenses resulting from claims upon the assured for damage caused while this policy is in force, by the use, ownership, maintenance, or operation of the motor vehicle described in Statement 4 of Schedule of Warranties * * *.

“The Association further agrees in respect to coverage extended under Section A and C as follows: to settle any respective sums for which it is liable, any claim or suit for damages against the assured arising out of accidents covered herein or defend such suit in the name and on behalf of the assured, whether groundless or not. ’ ’

The truck used in delivering the coal was one of the motor vehicles referred to. Luehte notified the insurance company of the suit, and the company, after investigation, declined to defend the suit on the ground that the subject-matter of the suit was not covered by the policy contract. Luehte thereupon employed counsel and defended the suit. The ultimate result was a settlement of the case.

The action being reviewed was to recover $1,000 for expenses in defending the suit of the administrator of Bell, under the provision of the policy as above quoted.

If the negligence and injuries alleged in the petition arose out of the use, ownership, maintenance, or operation of the motor vehicle, then the judgment of the Municipal Court in granting judgment for the defendant, and the affirmance of that judgment by the Court of Common Pleas, were error.

If the allegations of the petition in the case of the administrator of Bell did not bring that case within the provisions of the policy, above quoted, then the judgment of the Municipal Court and the affirmance of that judgment by the Court of Common Pleas were correct.

This requires an examination of the petition in the case of the Administrator of Estate of Bell v. Luchte, which is made a part of the record in this case.

It must be borne in mind that the law is that even though the trial of the case might have developed no liability on the part of the insurance company it would not relieve the insurance company from defending the suit, if, as above stated, the petition alleged a case covered by the policy.

In the case of Bloom-Rosenblum-Kline Co. v. Union Indemnity Co., 121 Ohio St., 220, at page 226, 167 N. E., 884, the court in the opinion states:

‘ ‘ The contract of the company does not contemplate that its duty arises subsequent to the trial of such ease and a final determination of the question of the liability of the assured. This agreement to make' the defense on behalf of the assured whenever a suit is brought against it to enforce such claim for damages is a valuable provision of the policy, but it would have little value, and would be rendered almost meaningless, if the duty of the company with respect thereto did not arise when an action was brought against the assured based upon a claim of injury by an automobile covered by such policy.”

However, the liability to defend must be brought within the coverage of the policy and involve the subject-matter thereof, which in this case was the truck belonging to the plaintiff. It certainly would not be claimed that if Luchte had been sued by the administrator of Bell for an assault resulting in the death of the decedent, on such a case and such a petition the insurance company by reason of their policy concerning coverage in the use of the automobile truck would have to defend the suit. This of course is an extreme case, but indicates the application of the liability sought to be imposed on the insurance company under the policy. In- other words, the insurance company would not be bound to defend a suit unless such law suit was predicated upon the wrongful acts brought about by the use, ownership, maintenance, and operation of the motor vehicle.

The petition in the case of Administrator of Estate of Bell v. Luchte alleges as an act of negligence on the part of the defendant;

“That on or about the twenty-second day of January, 1931, at or about 7:00 o’clock, A. M., it then being dark and before sunrise, the defendants, through their agent, servant and employe, Edward J. Luchte, unloaded certain coal in Sherman Avenue, on the southerly side thereof, in front of the premises known and numbered as 1707 Sherman Avenue, in the City of Norwood, State of Ohio, and unlawfully, wrongfully and negligently caused said public highway to be obstructed with said coal, without warning or signal to others rightfully upon said highway, and without placing any lights as a means of warning, especially to the decedent, and then and there, unlawfully, wrongfully and negligently failed, neglected and refused to place, or cause to be placed, two lights in or near the space in Sherman Avenue so occupied and obstructed.”

The petition further alleges that the decedent Bell riding a motorcycle on Sherman avenue came in contact with the pile of coal, was thrown to the pavement and died from the injuries received.

The petition further alleges a certain ordinance of the city of Norwood with reference to the obstruction of streets and the placing of lights on building material, etc., and alleges that the defendants violated that ordinance.

There is no allegation in the petition that the negligent act was due to the use, ownership, maintenance, or operation of the motor truck. The only allegation with reference to the truck, contained in the petition, is that the defendants were the owners of a certain motor truck and were engaged in the coal business. It is claimed that by reason of the fact that the coal was delivered by one of the trucks covered by the policy the case is brought within the coverage of the insurance. The negligent act, in substance, was dump-' ing a pile of coal in front of the premises and leaving the same without warning lights,

We are unable to see any connection between the alleged negligent acts and the coverage under the policy, and the insurance company was not bound under that contract to defend the suit.

We have examined the cases submitted, but do not find the cases present the same state of facts as presented here. For instance, in the case of Panhandle Steel Products Co. v. Fidelity Union Casualty Co. (Tex. Civ. App.), 23 S. W. (2d), 799, a similar policy was issued on a truck, and the court held in that case that it was not necessary that the injuries be the proximate result of the use of the truck, that even if the cause was remote it would still be covered under the policy requiring the defendant to defend the suit.

Undoubtedly that is the law, and it was so pronounced in the ease of Bloom-Rosenblum-Kline Co. v. Union Indemnity Co., supra.

In the case under consideration if we were to proceed on the theory that in the damage case it was alleged that the coal was dumped by one of the trucks covered by the policy, we would still, have the situation that the petition does not ground negligence in the use of the truck. The negligent act alleged is leaving' the pile of coal unprotected and without lights or warning, contrary to the ordinance of the city. The truck had left the pile of coal and had turned in the street to return to its place of business.

In the Panhandle Steel Products Co. v. Fidelity Union Casualty Co. case, supra, it is stated:

It therefore would appear in that case that the injury resulted from the negligent manner in which the truck was unloaded. If, after the truck had been unloaded, and the steel beams left on a public way, without guard, and Miss Grodley had been injured by failing over the steel beams left in the public street, we would have the same situation as is presented in this case. Had the cause of action in the Panhandle Steel Products Co. case been grounded on the failure to light the steel beams so unloaded and left lying in the street, the court might have reached an entirely different conclusion.

Our conclusion is that the subject-matter of the suit by the administrator of the estate of Bell, as alleged in the petition, was not within the purview of the policy contract, requiring the insurance company to defend that suit.

The Municipal Court of Cincinnati was correct in instructing a verdict for the defendant insurance company, and the Common Pleas Court did not err in affirming that judgment.

The judgment of the Court of Common Pleas affirming the judgment of the Municipal Court is affirmed.

Judgment affirmed.

Ross, J., concurs.  