
    No. 28
    MICHIGAN AUTO. INS. EXCHANGE v. VAUGHAN
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4576.
    Decided Oct. 29, 1923
    8(6. APPEARANCE — Insurance company, by answer to merits and appearance, is bound by judgment notwithstanding service be questionable.
    647. INSURANCE — Arrangements between license commissioner and insurance company as to dating of policies on trucks do not defeat right to recover commissions earned by agent.
    Attorneys — Paul Howland and J. F. Smith, for Insurance Co.; Bayly, Lawrence & Beach, for Vaughan.
   CUSHING, J.

Epitomized Opinion

Vaughan brought an 'action against an insurance company to recover commissions which he claimed to have earned while acting as agent for this company. He recovered a judgment for $2771.96. As he consented to a remittitur of $900, the judgment was rendered in his behalf. The insurance company claimed that the action was improperly brought in that under 9556-1 GC. et seq. the action should have been brought against the attorney in fact for the insurance company. Service was had upon the general manager.

The company filed an answer to the merits without making objection thereof to the correctness of the service. After a jury had been impanelled, it excepted to the manner in which the suit had been brought.

Under the contract with Patrick, the manager, Vaughan was to receive 15 per cent on all insurance written and 15 per cent on renewals. On Nov. 5, 1920, Vaughan secured a renewal of a policy for one year with the Waite Taxicab Co. After the renewal had been' secured, the license commissioner of Cleveland insisted that the policies be dated and made to expire at the time of the date of their city license. In order to work this arrangement the 1919 policies were' extended from Nov. 5 to Dec. 31, 1920. The renewals were written dated Jan. 1, 1921. Between the time of the renewal and Jan. 1, 1921, the insurance exchange quit business. As the judgment was rendered for Vaughan, error was prosecuted to the Court of Appeals. In sustaining judgment of the lower court, this court held:

1. Under 9556-1 to 4 GC.,. an additional remedy is provided for bringing an action against an insurance company; and if the company answers to the merits and enters its appearance it will be’ bound by the judgment.

2. As the record disclosed that Vaughan earned his commissions on or before Nov. 5, 1920, no arrangement between the company and the city could in any way defeat his right to recover his commissions.  