text:
    Green, Appellee, v. Acacia Mutual Life Ins. Co., Appellant. (Two cases.)
    (Nos. 7857 and 7858
    Decided May 24, 1954.)

      Mr. Walter K. Sibbald, for appellee.

      Messrs. Marble & Vordenberg, for appellant.
   Matthews, P. J.

These two appeals are from judgments rendered in favor of the same beneficiary in two insurance policies, identical in terms, upon the life of George C. Green. Each judgment is for $2,500 and interest, the full amount for which the plaintiff prayed. The defendant has appealed from each judgment, and the plaintiff has filed a notice of cross-appeal in each appeal. These judgments were entered on verdicts returned at a second trial. At the first trial the jury returned verdicts, which, upon defendant’s motions, were set aside, and new trials granted on the grounds of newly discovered evidence and that the verdicts were manifestly against the weight of the evidence. The plaintiff attempted to appeal from the granting of new trials, and the defendant cross-appealed from the orders overruling its motions for instructed verdicts and for judgments notwithstanding the verdicts. This court found that the trial court did not abuse its discretion in granting the new trials and, therefore, dismissed the appeals because the orders appealed from were not reviewable by the court, and finding that the record contained no prejudicial error as to the defendant, therefore, dismissed the cross-appeal. Green v. Acacia Mutual Life Ins. Co., 88 Ohio App., 67, 94 N. E. (2d), 649. Finding our judgment in conflict with that rendered in Haffner v. Schmeidl, 87 Ohio App., 143, 90 N. E. (2d), 700, we certified the cause to the Supreme Court for final determination. That court affirmed the judgment of this court in holding that the granting of a motion for a new trial was not reviewable in the absence of an abuse of discretion. Of course the cross-appeal was not and could not have been certified, and no appeal was taken from that judgment. Therefore, the Supreme Court did not pass on any issues raised by the cross-appeal. See Green v. Acacia Mutual Life Ins. Co., 156 Ohio St., 1, 100 N. E. (2d), 211.

The present appeals are from the judgments rendered in favor of the plaintiff. The plaintiff, by her cross-appeals, does not seek to set aside the judgments in her favor, but does seek to have the court determine whether the court should have sustained her motions for a directed verdict. In view of the fact that judgments were rendered in her favor for the full amount of her claims, it would seem that a sufficient answer to this cross-appeal would be that even if the court erred, no possible prejudice resulted to the plaintiff by reason thereof.

Furthermore, this cross-appeal could serve no greater purpose than an assignment of errors by an appellee under favor of Section 12223-21o, General Code (Section 2505.22, Revised Code), which would be considered only after the. court had concluded to reverse the judgment, and if the court should have done just what in fact it did do, there would be no possibility of the court reaching any such conclusion. See Greenberg v. L. I. Snodgrass Co., 95 Ohio App., 307, 119 N. E. (2d), 114; affirmed 161 Ohio St., 351, 119 N. E. (2d), 292.

The basis of the plaintiff’s claim that judgment should have been rendered in her favor is that for the reason, hereinafter considered, there was no competent evidence of fraud introduced at the second trial and that defendant was precluded from relying on the defense of lack of sound health because of the dismissal of its prior cross-appeal. The record shows that at the first trial, the court refused to submit the issue of sound health to the jury, and such refusal was one of the assignments of error in the defendant’s cross-appeal. It is claimed that this court, by finding that there was no error prejudicial to the insurer, and dismissing its cross-appeal, established the law of this ease in view of the fact that the evidence was substantially the same at the second trial as at the first. Assuming, but not deciding, that such is the state of the record, we do not think the authorities justify the plaintiff’s conclusion. They seem to require the conclusion that in the absolute sense, there is no “law of the case” in Ohio.

We think the result of the Ohio cases is fairly stated in 4 Ohio Jurisprudence (2d), 527, Section 1173, as follows:

“In stating and marking out the boundaries of the law of the case doctrine, the courts have not held that a prior determination is absolutely binding upon a court under all circumstances, as it has been stated that the doctrine is not approved ‘ as a rule of binding force, but as a salutary rule of practice, which should be applied in all cases where it may be employed as a shield against endless litigation, and to compel obedience of trial courts to the mandates of reviewing courts, and not as a sword which may be employed as an instrument of oppression and injustice.’ ”

We conclude, therefore, that the review on this appeal is not restricted by any predetermination of any issue or any pronouncement of the applicable law on the prior appeal in this case.

As already mentioned, one of the grounds for granting a new trial was that the first verdict was manifestly against the weight of the evidence. That was not assigned as a ground in the motions to set aside the second verdict and for a new trial. It is one of the defendant’s assignments of error on this appeal. This situation presents the question of whether we can consider this assignment of error in view of the fact that the trial court had already granted one new trial on that ground and was prohibited by Section 11577, General Code (Section 2321.18, Revised Code), from granting a second new trial on that ground.

In Snow v. Cincinnati Street Ry. Co., 80 Ohio App., 369, 75 N. E. (2d), 220, we held that where the trial court had granted one new trial on the weight of the evidence and had overruled a second motion for a new trial on that ground made by the same party in the same case, we had no power to weigh the evidence introduced at the second trial.

But, it is urged that a motion for a new trial is no longer necessary to raise the question of the weight of the evidence on an appeal, and that this changes the rule announced before that change was made. We do not think so. The fact that prevents this court from weighing the evidence and reversing the judgment, if we concluded that judgment is manifestly against the weight of the evidence, is that no error on that subject appears in the record of the second trial. In failing or refusing to weigh the evidence at the second trial, the court followed the mandate of the statute. To hold that such action was error could only result from a confusion of opposites.

We now turn to a consideration of the record of the second trial. This record shows that in October 1947, George C. Green applied for a policy upon his life. He was examined by the defendant’s physician and signed the questionnaire prepared by the physician. As a result of the physician’s examination, it was discovered that Green had a systolic blood pressure of 170 and a diastolic of 85, which was an abnormal condition, resulting from the presence of one or more specific diseases not identified by that symptom alone. It was also disclosed in the application that he had been the subject of a cholecystectomy and an appendectomy.

As a result of these disclosures, particularly of the blood pressure, the defendant refused to insure the applicant as a standard risk, but agreed to and did issue these policies to him as a substandard risk. The. difference between a standard risk and a substandard risk is that, because of the increased risk involved in the substandard risk, a higher premium rate is charged, which was done in this case.

In the application for this insurance, it was stipulated that there should be no contract of insurance until the policy was delivered — “all during the proposed insured’s life and continuance in good health.” It is urged that as there is evidence (which defendant asserts is conclusive) the insured was not in good health, the condition on which the insurance was to become operative did not exist, and, therefore, there was never any insurance and the extent of the defendant’s liability was to return the premium, which it had done by tendering it and paying it to the clerk of the court.

On the other hand, attention is called by plaintiff to the undisputed fact that the defendant knew of symptoms indicating lack of good health and declined to issue a policy except upon .the payment of a larger premium than would be required from an insured in good health. Attention is also called to the terms of the receipt for the premium indicating that the “good health” provision applied only when the insured was accepted as a “standard risk,” which was not done in this case.

The phrase, “sound health,” has a relative meaning. It cannot be construed to mean freedom from every conceivable ailment, no matter how trivial. To construe it to mean perfect health, were we to so construe it, would, we venture to say, invalidate most insurance policies. It must be given a reasonable construction under the circumstances. It certainly cannot be construed to include those ailments of which the insurer had actual knowledge, or those ailments, symptoms of which are known and appreciated, and because of the presence of which the insured is classified as a substandard risk and a higher premium is paid.

In this situation, it could not be said as a matter of law that the condition requiring that the insured should be in good health at the time of delivery of the policy had not been fulfilled. Whether this results from an interpretation of “good health” to exclude known ailments and symptoms, or by the application of the principle of waiver or estoppel is immaterial. The result is that the circumstances presented an issue of fact.

The defendant contends also that the insured made many false answers to questions contained in the application for insurance and that, as it is undisputed that many of these answers were false, no issue of fact on that subject was presented. It is not claimed that the insured wrote these answers himself. They were written by the medical examiner and there is evidence that the insured signed the application without reading it. There is evidence that the medical examiner did not inquire of the insured before writing in the answers to the questions. By signing the application, the insured became bound by the answers, but mere falsity of the answers is not sufficient to invalidate the policy. A similar situation was presented in Willig v. Prudential Ins. Co., 71 Ohio App., 255, 49 N. E. (2d), 421, and we held, as stated in the fourth paragraph of the syllabus:

“Although bound by such answers, the beneficiary is not precluded from recovering on the policy unless ‘it be clearly proved that such answer is wilfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, also that the agent or company had no knowledge of the falsity or fraud of such answer’ as provided in Section 9391, General Code.”

We are of the opinion that the foregoing is a correct construction of Section 9391, General Code (Section 3911.06, Revised Code), and as the evidence is conflicting as to whether insured wilfully and fraudulently made false statements that also presented an issue of fact.

We, therefore, conclude that the court did not err in overruling the motions of the parties for instructed verdicts.

We come now to a consideration of the record to'determine whether any error was committed in the manner of the submission of the issues to the jury.

The court gave nine special charges in writing and refused to give six. It is urged that the court erred to the defendant’s prejudice in giving some and in refusing others, and also in its general charge.

As to the one special charge given at the plaintiff’s request, it seems to the court that it is no more than an application of the terms of Section 9391, General Code, to the evidence in the casé. We find no prej.udicial error in it. By its terms, it applied only to the issue of fraud. It had no relation to the provision requiring “good health” at the time of the delivery of the policy.

. Counsel relies on Sambles v. Metropolitan Life Ins. Co., 158 Ohio St., 233, 108 N. E. (2d), 321, in support of his contention that the court should have instructed a verdict for defendant and should have refused to give the special charge requested by plaintiff. We think the case is entirely dissimilar. It did not involve a substandard risk and no agent of the insurer had anything to do with the false answers to the questions in the application.

Next, it is urged that the court erred in refusing to give this special charge:

“The court instructs the jury that the pleadings permitted by the laws of Ohio are a petition, an answer and a reply; that the allegations of the pleadings are not evidence, and that as defendant is not permitted to file a pleading admitting or denying new matter set up in plaintiff’s reply, such new matter is deemed in law to be denied.”

It will be observed that this special charge did not relate to any issue to be submitted to the jury. Rather, it was a statement as to the manner in which those issues were joined. We are of the opinion that it falls within the class of general instructions resting in the sound discretion of the court to give or refuse. See Estridge, Admx., v. Cincinnati Street Ry. Co., 76 Ohio App., 220, 226, 63 N. E. (2d), 823, where will be found a quotation from Ruling Case Law on the subject. Furthermore, most, if not all of the affirmative allegations of the reply were admitted at the trial and the other special charges, given at defendant’s request, clearly indicated to the jury that in issuing the policy it relied on both a violation of the “good health” provision and false and fraudulent answers in the application. No possible prejudice could have resulted to the defendant by the refusal of the court to give this special charge.

It should be noted also that the charge states broadly that the allegations of pleadings are not evidence, whereas, allegations of pleadings are always available to the adverse party as admissions.

Next, it is claimed error intervened in refusing to give this charge:

‘ ‘ The court instructs the jury that a specific question in the application for a policy of life insurance as to any matter indicates that the insurance company deems it material to the risk and is entitled to a true answer. ’ ’

This charge is an abstract statement and error cannot be predicated upon the refusal of the court to give it. Hutchins v. Cleveland Mutual Ins. Co., 11 Ohio St., 477, did not involve the refusal to give a special charge.

Next, the court refused to give this charge:

“The court instructs the jury that an answer to a question in the application for a policy of life insurance which is material and but for which the defendant insurance company would not have issued the policy and which answer was falsely made and known to be false, shall be presumed to have been made wilfully and with intent to deceive. ’ ’

This charge entirely disregards the circumstances under which the application was prepared.

Counsel rely on Sambles v. Metropolitan Life Ins. Co., supra, and Willig v. Prudential Ins. Co., supra, as authorities supporting the validity of this charge. The applications in those cases were prepared under entirely different circumstances. In the former case, there was no dispute that the insured had answered the questions concerning his health as they were written in the application, and that the answers were his free and voluntary act. And “there was no evidence that any representative of defendant knew that the insured had had any trouble with his health or had consulted any doctor.” The authorship of the answers was the subject of conflicting testimony in the case at bar. An abstract statement that any false answer in an application made by any person knowing it to be false would be presumed to have been made with intent to deceive certainly would have been of no help to a jury in deciding the issue in this case and in fact would have been misleading.

In the Willig case the verdict was for the defendant. The insured complained because the court gave the charge. The giving or refusal to give an abstract statement of law is not regarded as prejudicial error, even when it is a correct statement. This rule was mentioned in the Willig case in connection with another special charge and it was not deemed necessary to.repeat it.

The refusal to give other special charges is assigned as- error. Without extending this opinion further, we think it sufficient to say that we find no prejudicial error in the action of the court.

It is urged that the court failed to state clearly the issues in the case. We have examined the general charge in the light of this claim. It seems to us that the court properly set forth the two issues with reasonable clarity and correctly defined the burden and degree of proof. It seems that the court did not in express terms state that the verdict turned on the finding upon these issues, but this could be regarded only as an omission, and no request was made for a further charge on the subject.

We find no prejudicial error in the record.

For these reasons, the judgments are affirmed.

Judgments affirmed.

Ross and Hildebrant, JJ., concur.


source: Caselaw Access Project

author: Griffith, J.

license: Public Domain

text:
    The State, ex rel. Bowers, Pros. Atty., Appellee, v. Maumee Watershed Conservancy District et al., Appellants; et al., Appellees.

      (No. 179
    Decided July 30, 1954.)

      Mr. Anthony J. Bowers, prosecuting attorney, Mr. J. Thomas Guernsey and Mr. Albert T. Stroup, for appellee.

      Mr. Karl H. Weaner, Jr., Mr. John W. Winn and Mr. Robert C. Ragan, for appellants.
   Griffith, J.

This is an action brought by the state of Ohio on the relation of the Prosecuting Attorney of Allen County praying for a declaratory judgment determining the right of recovery of Allen County and other counties of certain funds which resulted from two levies made by the Maumee Watershed Conservancy District, one levy made in 1951, and the other levy made in 1952.

The type of the case is chancery in character and properly appealed on questions of law and fact. The action was brought by the relator in the Court of Common Pleas of Defiance County, the seat of the district.

The petition was filed on September 14, 1953. The tax levies were placed for collection on the 1951 and 1952 tax duplicates respectively, and the county treasurers, except for some minor delinquencies, collected all the taxes so certified.

Three primary questions present themselves in this appeal.

1. Were the levies illegal?

2. Could the district retain the funds it already had -received from the county treasurers?

3. Could the district require the payment over to it of any collections now remaining in the custody of the county treasurers?

The first question is answered by the Supreme Court in the case of the State, ex rel. Lewis, Pros. Atty., v. Scioto-Sandusky Conservancy District, 160 Ohio St., 155, 113 N. E. (2d), 633, wherein it says beginning-on page 159:

“* * * the ‘preliminary tax’ referred to in Section 6828-43, General Code, is in fact a tax subject to the ten-mill limitation imposed by the constitutional provision, as concerns conservancy districts organized after the effective date of such provision.
“We, therefore, conclude that the ‘preliminary tax’ provided for in Section 6828-43, General Code, is a tax as contemplated by Section 2, Article XII, of the Constitution and comes within the scope of Section 5625-2, General Code, a part of the Uniform Tax Levy Act which requires that ‘the aggregate amount of taxes that may be levied on any taxable property in any subdivision or other taxing unit of the state shall not in any one year exceed ten mills of each dollar of tax valuation,’ * * *.
“Admittedly, the ‘preliminary tax’ levied by the conservancy district under Section 6828-43, General Code, was not submitted to the budget commissions of the counties as a levy within the ten-mill limitation, nor was it submitted to a vote of the people for approval or disapproval as a tax beyond the ten-mill limitation.”

The tax authorized by Section 6828-43, General Code (Section 6101.45, Revised Code), in the instant case was illegally assessed because it was not submitted to the respective county budget commissions as a levy within the ten-mill limitation, nor was it submitted to a vote of the people as a tax levy beyond the ten-mill limitation.

This tax having been illegally levied and collected and having been paid over to the county treasurers of the district could be recovered, if at all, only by the remedies set forth in Chapter 2723, Revised Code, entitled, “Enjoining and Recovering Illegal Taxes and Assessments.”

No other method of recovery is provided and, because the requirements of this section of the code have not been met, the funds already turned over to the district may not be retrieved since the statute of limitations (Section 2723.01, Revised Code) bars recovery ; and our holding is that the district may retain such funds.

Could the district require the payment over to it of any funds now collected and remaining in the hands of the county treasurers is the third question presented.

These taxes were collected by the respective county treasurers acting as representatives of the district; before these county treasurers were appointed by the district, they were required to meet certain qualifications of the district and, in collecting these taxes,' they were performing services for the district which is a distinct political subdivision of the state operating as a distinct entity independently of any county, city, or other political subdivision. (State, ex rel. Cromwell, v. Myers, 80 Ohio App., 357, 73 N. E. [2d], 218.)

Title to the monies which were paid by the taxpayers to the county treasurers, upon the payment of the same, immediately and completely passed to the district. The funds were never the property of the county; true, they were public funds collected by the county treasurer for and on behalf of the district, and they were in his custody as agent of the district but never in the custody of the county treasurer as such county official.

The district would have no redress against the Treasurer of Allen County or his bondsmen to the county; its rights would be relegated to recovery against the county treasurer as the district representative and to Ms bondsmen to the district for the faithful performance of his duty to the district.

These funds are public monies. They are in the hands of the county treasurer, he holding them as agent for the district, the county having no title or interest in them whatsoever.

These taxes were not paid under any mistake of fact or any misapprehension. They were levied and voluntarily paid under a mistake of law of which the district as well as the prosecuting attorneys of the various counties comprising it were innocent. All believed them to be legal taxes until July 15, 1953.

The board of directors of the district had authority to make levies for this preliminary tax. The tax levy was made under color of right and authority. The Constitution set the limitation. The district, by an erroneous exercise of the power conferred upon it, proceeded to make the levy, and the taxes were collected. The violation by the district of the mechanics provided by the statute rendered the levy illegal.

The auditor of any county could have refused to place either of the assessments levied by the district upon the tax duplicate, and the treasurer of any county could have refused to collect the same. Any taxpayer could have enjoined the collection of the levy, or he could have paid it and made protest as provided by Section 2723.03, Revised Code, and could have, within one year, recovered the amount paid.

Why did not the relator who commenced this litigation, in the filing of his petition, precede rather than follow the payment of these taxes? The constitutional limitation (Section 2, Article XII) was in full force and effect at the time of the establishment of this district in 1949. Section 12075, General Code, now Section 2723.01, Revised Code, was likewise in full force and effect. The Supreme Court interpreted the meaning of “preliminary tax” on July 15, 1953, holding it to be a tax subject to the constitutional limitation adopted by the voters of Ohio in 1953.

This is not a taxpayer’s action for the recovery of monies which the county treasurer had wrongfully collected. The relator is the Prosecuting Attorney of Allen County and, in his official capacity, he seeks to recover the funds paid over to the district as well as retain the monies in the hands of the treasurer. If the relator has a right to maintain this action, it must come through Section 309.12, Revised Code.

A prosecuting attorney cannot, in his official capacity, maintain an action to vindicate the taxpayers from an illegal tax that has been paid. He is not the real party in interest. Allen County is not the real party in interest. The county has no pecuniary interest in these monies paid pursuant to these two tax levies.

The public funds were never the property of the county, nor were they ever in the hands of the county treasurer as such county official. The relator does not come within any of the provisions of said section of the Revised Code and has no right to maintain this action.

niegal as these tax collections were, we hold that illegal taxes paid voluntarily under mistake of law cannot be recovered by the taxpayer in the absence of statutory authority for such recovery. The taxpayer had the burden of showing the illegality of the taxes exacted, within one year from the payment thereof.

In the instant case, the only statutory authority is Section 2723.03, Revised Code, and the taxpayer not having availed himself of or complied with the provisions of this section is barred recovery. If the taxpayer has no right of recovery, a fortiori, neither the state of Ohio, on relation of Anthony J. Bowers, Prosecuting Attorney of Allen County, nor anyone else has any right of recovery.

We hold that the levies were illegal and in violation of the Constitution and the statutes; that the funds raised by the levies now in the hands of the conservancy district should not be returned to the county treasurers; and that the county treasurers should turn over the balance of all funds collected by them to the district.

Since we have reached the above conclusions, the other questions presented are of no moment.

Judgment accordingly.

Nichols and Phillips, JJ., concur.

(Griffith, P. J., Nichols and Phillips, JJ., of the Seventh Appellate District, sitting by designation in the Third Appellate District.)


author: Deeds, J.

text:
    Truchess et al., Appellants, v. Brand, Exrx., Appellee.
    (No. 4744
    Decided December 21, 1953.)

      Mr. W. E. Orthwein, for appellants.

      Mr. John W. Bebout and Mr. Joseph A. McCarthy, for appellees.
   Deeds, J.

This appeal on questions of law is from a judgment of the Court of Common Pleas entered upon the verdict of a jury, directed by the court at the close of the evidence adduced by the plaintiffs-appellants.

The defendant-appellee, Goldie J. Brand, is the executrix of the estate and widow of Fred W. Brand; deceased. Ocie M. Truchess, Ruth C. Thorpe and Floyd F. Brand, plaintiffs-appellants, are the adult daughter and adult sons, respectively, of the decedent, who commenced the proceedings for the purpose of contesting the alleged will of the decedent.

The plaintiffs-appellants and defendant-appellee will be referred to herein as plaintiffs and defendant, respectively, as the parties appeared in the trial court.

On the trial of the case in the Court of Common Pleas, the defendant, pursuant to Section 12083, General Code (Section 2741.05, Revised Code) introduced as evidence the will of the decedent and a certified copy of the order of probate of same, following which the evidence on behalf of the plaintiffs was received.

In view of the conclusion which this court has reached, that the Court of Common Pleas erred in directing the jury to return a verdict for the defendant, we deem it appropriate to consider here the evidence contained in the record most favorable to the plaintiff, as we are required to do and which has led us to the conclusion that the trial court should have declined to direct a verdict in favor of the defendant.

The evidence discloses that the principal asset in the estate involved in the contest is a residence property located at 3135 Glenwood Avenue, Toledo, Ohio, valued at $8,500, which was the property of the decedent at the time of his marriage to the defendant on July 11, 1939, although some payments were made to clear an encumbrance against same following the marriage; that the decedent and his children, the plaintiffs, were on natural congenial terms and that they visited their father frequently, except when they were requested to remain away from his home by the defendant on account of the physical and nervous condition of the decedent, on occasions during about the last three years of his life.

. Concerning the mental and physical condition of the decedent, as shown by the evidence, for some time prior to, at the time of and following the execution of his will on January 22, 1951, at which time he was 79 years of age, it is disclosed that, in March 1945, he suffered a paralytic stroke which left his right hand and arm paralyzed, crooked and drawn, and fingers stiffened; that his speech was affected; that his throat was so affected that he could not eat solid food; that he never fully recovered from the stroke, although he returned to work at the Willys-Overland plant for a few months or about a year; that he suffered a more severe stroke in the fall of the year 1947, after which he never returned to work; that the second stroke also affected his right arm and hand, and his face and legs; that his throat and tongue were so affected that it was difficult for him to talk at all; and that he was rendered practically bed-fast for the remainder of his life, unable to get about except with the help of someone.

It appears further from the evidence introduced by the plaintiffs that, following the second stroke in 1947 until the time of his death, the decedent, on many occasions, suffered from hallucinations; that the defendant stated to witnesses on many occasions during this same period of time that they should pay no attention to the decedent, that he did not know what he was talking about; that the decedent said the defendant was abusive to him and that he was afraid of her and that on one occasion the defendant struck and knocked the decedent to the floor and it was necessary for the defendant to call the plaintiffs who came to assist in getting the decedent onto his bed; and that decedent told witnesses that he was not getting enough food to eat and was hungry.

It appears further from the evidence in the record that On March 16, 1949, the decedent, while confined to bed, executed a deed by affixing an x-mark to same, due to his inability to write his signature, transferring the real estate mentioned to the defendant and that thereafter, sometime during the year 1950, the decedent learned from a tax bill which came to the residence that the property was no longer in his name, whereupon he demanded that the property be re-transferred to him, which was done by deed executed by the defendant on October 7, 1950; that decedent stated that he did not know or remember that he had transferred the property to the defendant; and that he frequently talked and mumbled unintelligibly to himself.

While the foregoing statement is not intended to comprehend all the evidence appearing in the record concerning the mental and physical condition of the decedent relative to his capacity to make a will, it is sufficient in our view to indicate that the motion of the defendant for a directed verdict at the close of the evidence offered by the plaintiffs, under the rules of law established by the Supreme Court, should have been overruled.

Section 2741.05, Revised Code, provides as follows:

“On the trial of the issue made up as provided in Section 2741.04 of the Revised Code, the order of probate is prima facie evidence of the attestation, execution, and validity of the will or codicil.”

The burden rested upon the plaintiffs to produce credible evidence of a substantial character which tended to overcome the “prima facie evidence of the due attestation, execution, and validity of the will” made by the order of probate.

The rule of law applicable at the close of the evidence offered by the plaintiffs, where a motion for a directed verdict is made by the defendant, is stated by the Supreme Court in Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, paragraphs 3 and 4 of the syllabus being as follows:

“3. Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party, the judge should direct a verdict against him.

“4. Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

From the opinion of the court, a statement considered pertinent to the record before us appears at pages 481 and 482:

“To permit the court to direct a verdict in every case where he would set aside a contrary verdict would, in our opinion, be an unwarranted invasion? of the jury’s province. That the weight of the evidence is at least primarily a question for the jury has long been recognized in Ohio both by the courts and by the Legislature.
“But to say that the court must send the case to the jury whenever there is any evidence, no matter how slight, which tends to support a party’s claim, is, in extreme cases, to permit the jury to play with shadowy and elusive inferences which the logical mind rejects. Before the judge is required to send the case to the jury, there should be in evidence something substantial from which a reasonable mind can draw a logical deduction. If reasonable minds may draw different inferences, or reach different conclusions, a jury question is presented. But, if reasonable minds can reach only one conclusion, the jury should not be allowed to speculate upon the matter. To do so is to allow them the opportunity of returning a wholly unreasonable verdict.
‘ ‘ There is a distinct and definite place in onr Anglo-American scheme of trial procedure for the exercise of the jury’s function. The * common touch’ implicit in the layman’s nontechnical approach to the decision of cases has been jealously guarded throughout our judicial history. But definite boundaries of the jury’s province have always been recognized. The judge is to see that they are not transgressed.
“Our present holding is but the corollary of a doctrine long accepted. "We permit the judge to say that there is no evidence to support a verdict. May he not equally be trusted to say whether there is any substantial evidence from which a rational conclusion may be drawn?
“In our opinion, therefore, the question whether the case must be submitted to the jury should not be tested by asking whether there is any evidence, however slight, tending to support each material issue; it should be tested by asking whether upon the evidence adduced reasonable persons might reasonably reach different conclusions. Before a verdict may be directed against a party, the evidence must be given the most favorable interpretation in his favor. If, after such interpretation, the court finds that upon any material issue only an adverse conclusion can reasonably be drawn, it should direct a verdict against him.”

In the much more recent case of Graulty v. Industrial Commission, 137 Ohio St., 341, 30 N. E. (2d), 337, the Supreme Court of the state has stated clearly the rule controlling the decision of this court on this review, at pages 342 and 343:

“The law is well established in Ohio that a motion for. a directed verdict presents to the trial court the question whether the evidence adduced, together with all inferences reasonably deducible therefrom, and construed most strongly in favor of the party against whom the motion is made, is sufficient in law to present a jury question on the issue involved.
“ ‘In ruling upon this question, the court cannot make a finding of fact, but must proceed on the assumption that the facts which the evidence tends to prove, and all reasonable inferences deductible therefrom, are, for the purpose of the motion, admitted to be true. * * * The sufficiency of the evidence for submission to the jury is, in Ohio, no longer tested by the presence of “any evidence, however slight.” The decision in the case of Hamden Lodge v. Ohio Fuel Gas Co., [127 Ohio St., 469, 189 N. E., 246], abrogated the “scintilla rule” of evidence, and in its place formulated a new rule or test, namely, that if, after giving the evidence a construction most strongly in favor of the party against whom the motion is made, reasonable minds can come to but one conclusion, and that conclusion is adverse to such party, the evidence gives rise to a question of law. When, however, the evidence is such that different minds may reasonably draw different conclusions therefrom, the question which the evidence presents is one of fact and should be submitted to the jury for determination.’ Durbin v. Humphrey Co., 133 Ohio St., 367, at 369, 14 N. E. (2d), 5.”

On the trial of the case in the Court of Common Pleas, objections were made by the defendant to certain testimony concerning statements made by the decedent, upon which rulings were made by the court and upon which rulings we do not consider it necessary to pass, in view of our conclusion on this review. Nevertheless, on a retrial, we believe the rules applicable to the questions referred to are found stated in 41 Ohio Jurisprudence, 493 et seq., Wills, Sections 352 and 353, as follows:

Section 352. “As to Testamentary Capacity. The authorities agree that the declarations of a decedent, oral or written, whether made at, before, or after the execution of his alleged will, are admissible for the purpose of showing his mental condition, enabling the court or jury to determine his testamentary capacity. Any .declarations of a testator which tend to show the condition of his mind at the time he made his will are admissible to determine his mental capacity at that date. So, statements made by a testator relative to his intentions of disposing of his property are admissible, not for the purpose of contradicting the contents of his written will, but to show his state of mind at the time that he executed such will. Oral declarations of a testatrix as to her testamentary intentions, made during her last sickness, and shortly after the execution of her will, are competent as tending to show the condition of her mind at the time the will was executed.”

Section 353. “As to Undue Influence. The general rule established by the overwhelming weight of authority, and followed by the Ohio courts, is that declarations of the testator not made contemporaneously with the execution of the will or so near thereto as to constitute a part of the res gestae are not admissible as substantive proof of the fact of undue influence. But where in a will contest, in answer to interrogatories, the jury finds that undue influence has not been exercised upon the testator, but that he lacked testamentary capacity, a charge by the court that might have been interpreted by the jury to mean that declarations of the testator at a time shortly after the execution of the will were competent to prove an intention other than that expressed in the will has been held not prejudicial error, requiring a disturbance of the verdict.

“It is equally well established in Ohio, and generally, that declarations of a testator made before and after the making of a will, if made near such time, are admissible to prove the state of mind of the testator. If the declarations tend to prove both the fact of undue influence and the state of mind of the testator, the court may admit the testimony and instruct the jury that it can consider the declarations so far as they tend to prove the state of mind of the testator. But where ño request is made of the court to limit the purpose for which such evidence is admitted, its admission is not prejudicial error. Testimony of witnesses as to statements made by the testator is admissible over general objection in the absence of a request for the limitation of the jury’s consideration thereof to the purpose of showing the testator’s state of mind.”

It is the conclusion of this court that there was credible evidence of a substantial character requiring the trial court to overrule the motion of the defendant for a directed verdict at the close of the evidence offered by plaintiffs. It therefore follows that the judgment of the Court of Common Pleas is reversed and the cause is remanded to that court for a new trial.

Judgment reversed.

Fess and Conn, JJ., concur.


author: Wiseman, P. J.

text:
    Howell, Appellee, v. Frost et al., Appellants.

      (No. 5041
    Decided October 6, 1954.)

      Messrs. Herbert, Tuttle, Applegate & Britt, for appellee.

      Messrs. Bricker, Marburger, Evatt & Barton and Mr. John A. Eckler, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law by The Buckeye Union Casualty Company from a judgment of the Common Pleas Court of Franklin County entered upon the verdict of the jury in the amount of $25,000, which was the amount awarded to the plaintiff as damages against Patricia R. Frost for injuries suffered when struck by an automobile operated by Patricia R. Frost.

A statement with reference to the background of this case is necessary to a full appreciation of the questions raised.

The plaintiff, John S. Howell, on September 8, 1950, instituted an action for damages against Patricia R. Frost, the driver of an automobile which struck him, and the Alexander Rent-A-Car, Inc., which had rented the automobile to Patricia R. Frost. The whereabouts of Patricia R. Frost was unknown, and service of summons was made on the Secretary of State as provided in Section 6308-1, General Code (Section 2703.20, Revised Code). Patricia R. Frost did not answer, did not appear at the trial, was not represented, and' made no defense. The Alexander Rent-A-Car, Inc., filed an answer, and at the trial was represented by counsel for The Buckeye Union Casualty Company, which had. issued a policy of insurance to the Alexander Rent-A-Car, Inc., on the automobile involved in the accident, and which policy covered the operation of the automobile by Patricia R. Frost.

During the presentation of the plaintiff’s case, it appeared that the plaintiff had no right of action against the Alexander Rent-A-Car, Inc., and upon the application of the plaintiff, it was dismissed as a defendant in the cause.

Judgment by default was then taken against Patricia R. Frost, and upon consideration of the evidence the jury returned a verdict for the plaintiff, John S. Howell, and against the defendant, Patricia R. Frost, in the amount of $25,000, after which the court entered a judgment on the verdict for that amount on February 11, 1952.

On May 13, 1952, the plaintiff filed his supplemental petition against the defendant, appellant herein, The Buckeye Union Casualty Company, as provided in Section 9510-4, General Code (Section 3929.06, Revised Code), alleging that it had obtained the judgment, and that it had remained unpaid for more than 30 days. The issues were made upon the supplemental petition, and the second amended answer filed by The Buckeye Union Casualty Company. In its first defense, the defendant-appellant admitted the judgment in favor of the plaintiff, that the judgment had remained unpaid for more than 30 days, and the issuance of the policy of insurance to the Alexander Rent-A-Car, Inc., which admissions were followed by a general denial. For its second, third and fourth defenses, it alleged that the policy of insurance contained a condition requiring the insured, as soon as practicable, to give written notice to the company when an accident occurred; that if claim is made against the insured, the insured shall immediately forward to the insurance company every demand or notice so received; and that the insured shall cooperate with the insurance company and, upon request of the company, the insured shall attend hearings and trials and shall assist in securing and giving evidence, in obtaining the attendance of witnesses, and in the conducting of suits. The defendant alleged further that Patricia R. Frost failed to comply with the above terms of the policy of insurance, and that, therefore, it is not obligated to pay the judgment. The reply was a general denial.

The issues were tried to a jury. The evidence in support of the essential allegations in the supplemental petition was stipulated. The plaintiff called one witness, the police officer who was dispatched to the scene of the accident and who testified that he arrested Patricia R. Frost and notified the Alexander Rent-A-Car, Inc., of the accident.

The evidence in support of the several defenses interposed showed that the insurance company at no time received notice of any kind or character of the accident from Patricia R. Frost, or the Alexander Rent-A-Car, Inc.; that the first information received by the insurance company came in July 1950 approximately 20 months after the accident, when the claim investigator for the insurance company called at the office of the Alexander Rent-A-Car, Inc., and found a message instructing him to call one of the counsel for plaintiff by telephone. Upon making the call, counsel for plaintiff informed the investigator of the accident. This testimony was not contradicted. The investigator testified that he searched the records of the Alexander Rent-A-Car, Inc., and the insurance company and found no report of the accident. The investigator testified further that he immediately attempted to locate Patricia R. Frost and made numerous calls at her former places of residence. This search continued over a considerable period of time, but the insurance company was never able to locate her. The only contact made with Patricia R. Frost by any of the parties to this controversy was made by one of the counsel for plaintiff in March 1949, approximately six months after the accident, when she came to the office of counsel for plaintiff in response to a letter sent to one of the addresses furnished. Thereafter, counsel for plaintiff were unable to locate her, and service of summons was made on her by serving the Secretary of State.

The uncontradicted evidence presented by the insurance company was to the effect that Patricia R. Frost never complied with the conditions of the policy with respect to notice of accident, notice of demand for damages, or co-operated in defense of the action; also, it was shown that the Alexander Rent-A-Car, Inc., failed to notify the insurance company of the accident. Apparently the Alexander Rent-A-Car, Inc., did extend some co-operation in the defense of the original action, which ended in its dismissal as a party defendant.

At the close of all the evidence, the insurance company moved for a directed verdict, which motion was overruled. The jury returned a verdict for $25,000, the amount of the original judgment.

The defendant-appellant, The Buckeye Union Casualty Company, claims as error the overruling of its motion for a directed verdict; error in the general charge to the jury; and that the judgment is against the manifest weight of the evidence, and is contrary to law.

The defendant-appellant contends that there were no disputed issues of fact to be submitted to the jury; that the pleadings and the evidence presented only questions of law for the court; and that judgment should be entered for the defendant.

The defendant-appellant contends further that the evidence is undisputed that Patricia R. Frost did not comply with the conditions of the policy, and cites the well-established principle of law that when the facts are undisputed a question of law is presented for the court, Luntz et al., Exrs., v. Stern, 135 Ohio St., 225, 20 N. E. (2d), 241; Travelers Indemnity Co. v. Cochrane, Jr., 155 Ohio St., 305, 315, 98 N. E. (2d), 840.

The plaintiff counters by claiming that the general counsel for the insurance company testified as follows :

“Q. All right, you knew as counsel for the Buckeye Union Casualty Company that Patricia Frost had been sued, didn’t you? A. Yes, sir.
“Q. Did you defend the suit? A. We did not.
“Q. You did not, after having notice of the suit, you didn’t defend it, did you? A. No, we didn’t.
“Q. But you did defend the Rent-A-Car, didn’t you, the Alexander-Rent-A-Car? A. Yes, sir.
“Q. That is in appearing and defending your insured, the Alexander-Rent-A-Car, Inc., you came to the conclusion that the Rent-A-Car concern had cooperated, isn’t that right? A. From my examination of the file, yes, sir.
“Q. Yes, and that they were entitled to defense? A. That is right, under the conditions of the policy.”

Plaintiff contends that by this line of testimony, it may reasonably be inferred that the Alexander Rent-A-Car, Inc., had complied with all conditions of the policy as to notice of the accident as soon as practicable, and extended full co-operation as required by the policy; and that this evidence, together with other evidence, made an issue of fact for the jury. We do not place this interpretation upon this testimony. Apparently the Alexander Rent-A-Car, Inc., did cooperate in filing an answer and making defense. But the evidence is very clear that it did not comply with other conditions of the policy. Granted that the contention of the plaintiff is correct, there is left for determination the question as to whether compliance with the terms of the policy on the pr t of Alexander Rent-A-Car, Inc., operates to relieve Patricia R. Frost from her obligation to comply with the terms of the policy. Partial compliance by Alexander Rent-A-Car, Inc., is one thing; total noncompliance by Patricia R. Frost is quite another thing. Only from Patricia R. Frost could information come which could be used by the insurance company in making a proper and effective defense.- Moreover, the Alexander Rent-A-Car, Inc., is not involved in this judgment, and is not a party to the case.

The provisions of Section 9510-4, General Code (Section 3929.06, Revised Code), may be made available to a judgment creditor only after the judgment debtor has fully complied with the terms of the policy. In other words, the right of the plaintiff to proceed against the insurance company rises no higher than the right of the judgment debtor, Patricia R. Frost. If she could not enforce payment against the insurance company, by reason of her failure to comply with the conditions of the policy, the plaintiff likewise cannot enforce payment. The action of the plaintiff against the insurance company is derivative in character. The plaintiff derives his right to recover, not through Alexander Rent-A-Car, Inc., but through Patricia R. Frost, his judgment debtor. This principle of law is well established in Ohio.

In Stacey v. Fidelity & Casualty Co. of New York, 114 Ohio St., 633, 151 N. E., 718, the third paragraph of the syllabus is as follows:

“By the provisions of Section 9510-4, General Code, a judgment creditor is entitled to a direct action against the insurance company after obtaining a judgment against the assured and after the lapse of 30 days after judgment is rendered, provided that any valid conditions in the contract of insurance pertaining to notice of the accident, or of a claim being made on account of such accident, or of suit being brought against the assured on account of casualties coming within the terms of said policy, which would be binding upon the assured are likewise binding upon such judgment creditor.”

On page 640, the court, in its opinion, said:

“It does not appear in the instant case that there was any fraud or collusion between Stacey and Troy-an, but to permit a recovery in favor of the injured claimant, under circumstances where the assured would have no right to indemnity under his contract, would open the door to the unlimited exercise of fraud and collusion. # * * There are so many conceivable reasons why the same defenses should be made against the injured party as against the assured that it requires no elaborate course of reasoning to reach the conclusion that any effort to place the injured person in a favored position, contrary to the terms of the policy contract, would be in contravention of the due process clauses of the state and federal Constitutions.”

In Luntz v. Stern, supra, the third paragraph of the syllabus is as follows:

“The purpose of the provisions of Sections 9510-3 and 9510-4, General Code, is to afford an injured person direct and prompt benefit of the provisions of the indemnity policy of the assured. He succeeds to only the rights of the assured and cannot recover in an action on the policy against the indemnity company if there has been such a breach of the contract by the assured as would prevent recovery by him.”

In Conold v. Stern, 138 Ohio St., 352, 35 N. E. (2d), 133, 137 A. L. R., 1003, the first paragraph of the syllabus is as follows:

“An insured’s failure to comply with a co-operation clause in an indemnity insurance policy constitutes a good defense to his insurer as against a person seeKing to recover from the insurer under and by virtue of Sections 9510-3 and 9510-4, General Code, the amount of a judgment against the insured for personal injuries. (Luntz et al., Exrs., v. Stern, 135 Ohio St., 225, approved and followed.)” '

On page 359, the court, in its opinion, said:

“The authorities are in practical unanimity on this subject. A clause in an insurance policy requiring the insured’s co-operation, aid and assistance in a defense of an action against him is a material condition of the policy, the violation of which by the insured forfeits his rights to claim indemnity under the policy. It is a condition precedent, failure to perform which, in the absence of waiver or estoppel, constitutes a defense to liability on the policy. Stacey v. Fidelity & Casualty Co. of New York, supra; Royal Indemnity Co. v. Morris, 37 F. (2d), 90, certiorari denied, Morris v. Royal Indemnity Co., 281 U. S., 748, 74 L. Ed., 1160, 50 S. Ct., 353; Bachhuber v. Boosalis, 200 Wis., 574, 229 N. W., 117; Metropolitan Casualty Ins. Co. v. Blue, 219 Ala., 37, 121 So., 25; Guerin v. Indemnity Ins. Co. of North America, 107 Conn., 649, 142 A., 268; Coleman v. New Amsterdam Casualty Co., 247 N. Y., 271, 160 N. E., 367, 72 A. L. R., 1443.
“And the insured’s failure to comply with the cooperation clause in his indemnity insurance policy constitutes a good defense to his insurer as against a person injured by the fault of the insured, seeking, under and by virtue of the statutes in question, to recover against the insurer for his injury. Stacey v. Fidelity & Casualty Co. of New York, supra; Luntz et al., Exrs., v. Stern, 135 Ohio St., 225, 20 N. E. (2d), 241; Bachhuber v. Boosalis, supra; Metropolitan Casualty Ins. Co. v. Blue, supra; Coleman v. New Amster dam Casualty Co., supra; Lorando v. Gethro, 228 Mass., 181, 117 N. E., 185, 1 A. L. R., 1374; Seltzer v. Indemnity Ins. Co. of North America, 252 N. Y., 330, 169 N. E., 403.”

Again, on page 365, the court said :

“Third parties may not alter its terms or make it more beneficial to them than it is to the insured for whose protection it was issued. The rights of injured persons under and by reason of any such policy are limited by and dependent upon the terms and conditions of the contract, and the right of the plaintiff in this case must be dependent upon the right of Stern to enforce his contract. The right of a judgment creditor of the insured against the insurer, if any, is a derivative right implied in law by way of subrogation to the rights of the insured against the insurer. Hence, the right of a judgment creditor against the insurer can. rise no higher than the rights of the insured judgment debtor against such insurer.” (Emphasis ours.)

See, also, Zitnik, Admx., v. Burik, 395 Ill., 182, 69 N. E. (2d), 888, where the facts, bear some similarity to the facts in the instant case, and where the right of the injured party to recover against the insurance company was denied. For annotations on the subject see 139 A. L. R., 771; 98 A. L. R., 1465; and 72 A. L. R., 1446.

The plaintiff contends that if some person other than Patricia R. Frost furnished the information to the insurance company, as required by the policy, plaintiff’s right to enforce payment under Section 9510-4, General Code, cannot be challenged, and cites Hartford Accident & Indemnity Co. v. Randall, 125 Ohio St., 581, 183 N. E., 433. That case has no application here, where there is no evidence that compliance with the conditions of the policy had been made by any person on behalf of Patricia R. Frost.

The plaintiff very properly contends that the failure to comply with the conditions of the policy constitutes an affirmative defense and the burden is on the insurance company to prove such failure. Ermakora v. Daillakis, 90 Ohio App., 453, 107 N. E. (2d), 392. In our opinion the insurance company sustained the burden of proof by uncontradicted evidence to the effect that Patricia R. Frost bailed to comply with any of the conditions of the policy. The case of Scott v. InterInsurance Exchange of Chicago Motor Club, 352 Ill., 572, 186 N. E., 176, is not in point.

On the question as to whether Patricia R. Frost cooperated with the insurance company as required by the terms of the policy, plaintiff cites the case of Ermakora v. Daillakis, supra, where the court, on page 467, said:

“If mere failure to appear constituted proof of non-co-operation, it would be within the power of the insurance company and the assured, by acting in concert, to defeat any litigant. Here it should be stressed that there was no evidence that the assured had actual notice of the suit.”

This statement must be considered in light of the record in that case. In that case the only witness for plaintiff was his attorney. Upon the termination of the cross-examination of this witness, plaintiff rested. The insurance company having thereupon moved for judgment in its favor, the court overruled the motion, and defendant rested without calling any witnesses in its own behalf. The court, on page 463, said that the only question for decision was whether the defense of lack of co-operation by the assured set out in the insurance company’s answer is an affirmative defense to be established by defendant, or whether, under the pleadings, this defense becomes an essential element of plaintiff’s case to be proved by the plaintiff. The court held that the defense of non-co-operation was an affirmative defense and the burden of proof was on the insurance company. The insurance company having introduced no evidence, the court concluded that it failed in its defense. In the case at bar the insurance company submitted evidence that it used due diligence in an effort to locate Patricia R. Frost, and that she failed to comply with any of the conditions of the policy. This evidence was uncontradicted. In our opinion the principle of law stated in the cited case has no application to the issues and evidence presented in this case.

On the question as to whether knowledge or lack of knowledge on the part of Patricia R. Frost of the indemnity benefits accruing to her under the insurance policy affected her obligation to comply with the conditions of the policy, counsel discuss the case of Zitnik v. Burik, supra. In that case, Muthart was driving a car owned by Burik, on which he carried insurance. Muthart had an accident, and a criminal charge was filed against him. In view of the criminal prosecution, he refused to make a statement to the insurance adjuster. In the action for damages, Muthart had his own attorney and the insurance company defended the named insured, Burik. Judgment was obtained against the driver, Muthart, and later proceedings were instituted against the insurance company. The insurance company claimed that the failure of Muthart to cooperate was a complete defense. The trial court found for the plaintiff. On appeal the judgment was reversed by the Court of Appeals on the ground that Muthart had failed to co-operate.

The Supreme Court of Illinois affirmed the judgment of the Court of Appeals, and in the opinion, on page 187, said:

“Plaintiff’s contention .that Muthart was under no obligation to co-operate until defendant disclosed the fact to him that he was an insured under' the policy cannot be sustained. Even though the requirement for Muthart’s co-operation was dependent on his knowledge of the benefits afforded him by the policy, plaintiff’s contention could not be adopted for the reason that there is no evidence that Muthart did not have knowledge of such fact. It is true the evidence shows defendant did not apprise him of the benefits he might derive under the insurance policy but -there is no evidence that he did not acquire the information from' another source. Burik testified to a conversation he had with Muthart two or three weeks after the accident in which he told Muthart to go to the insurance company and give a statement and that Muthart said he would. Plaintiff says that it may be assumed that Muthart did not know of the beneficial provisions of the policy but there is nothing upon which such an assumption may be' based. Whether defendant was required to give Muthart notice of the protection afforded him by the policy before there was any duty resting upon him to co-operate is beside the question, for the requirement of co-operation from an insured was not conditioned on such action.” (Emphasis-ours.) ■ ■ -

So in this case, we cannot assume that Patricia R. Frost had no knowledge of the benefits afforded her by the policy. There is no evidence that she did not have knowledge of such fact.- She might, have acquired the information from several sources. There is undisputed evidence that in response to a letter sent her by counsel for plaintiff, she called at his office and conferred with him in regard to the claim and the impending litigation. There is undisputed evidence that a registered letter was sent to her by the insurance company at one of the addresses, given and, according to the return receipt, was received by another, person for her. This letter was dated September 21, 1950, and, among other things, stated that suit had been instituted against her and others; that the company carried insurance on the car which she was driving at the time of the accident; that she was insured under the policy; and that in the event she failed to get in touch with the company, it would disclaim any liability to her under the policy.

Returning to the legal proposition involved, as was stated by the court in the case of Zitnik v. Burik, the requirement of co-operation, and the requirement as to compliance with other conditions of the policy on the part of Patricia R. Frost were not conditioned on notice given to her of the protection afforded her by the policy. In Campbell v. Continental Casualty Co. of Chicago (C. C. A., 8, 1948), 170 F. (2d), 669, 6 A. L. R. (2d), 655, the court, on page 673, said:

“The insured has argued also that his failure to forward the summons and copy of petition should be excused because of his ignorance of the policy requirements. * * * And in any event, ignorance is not ordinarily an excuse for an insured’s failure to comply with a fundamental requirement of a policy of liability insurance, at least where the insurer has been materially prejudiced by the failure.”

In our opinion, there was no controlling issue of fact to be submitted to the jury. The defendant’s motion for directed verdict should have been sustained.

Defendant-appellant claims prejudicial error appears in the charge to the jury. We discuss only that part of the charge which we consider erroneous. On page 62 of the record, there appears this instruction:

“The insurer, which is the casualty company in this case, may waive its right or estop itself to set up the assured’s breach of co-operation clause, as a ground of defense, when sued upon the policy. Such waiver or estoppel may be accomplished by the assumption of, or continuation in, the defense of an action brought against the insured, and the injured person in an action against the insured, in this case, Mr. Howell, the plaintiff being the injured person, and the insured being the Alexander company, the injured person is entitled to the benefit of a waiver of the right, or an estoppel, on the part of the insurer to set up as against the insured the latter’s alleged breach of cooperation clause; in other words, that which operates as a waiver or estoppel in favor of the insured, supposing an action upon the policy had been brought by him, also operates as a waiver or estoppel in favor of the injured person.”

This instruction must be considered in conjunction with a further instruction which begins on page 64, as follows:

“It is said that no compliance was made, that they received no notice, but the evidence in the case is that the casualty company’s counsel represented the Alexander Rent-A-Car Company in this action, and I instruct you as a matter of law that if the casualty company comes into a lawsuit and takes charge of the lawsuit that constitutes a waiver of the conditions that they might otherwise have regarding notice and cooperation in the case.”

The court identified the “insured” as the Alexander Rent-A-Car, Inc., and stated that a waiver by the insurance company of compliance with the conditions in the policy by the Alexander Rent-A-Car, Inc., would operate as a waiver in favor of the injured person, the plaintiff in this case. The court instructed the jury that a waiver would operate by showing that the insurance company defended the action brought against the insured, which was identified as the Alexander Rent-A-Car, Inc. The effect of this charge was to give the benefit of any waiver which operated between the insurance company and the Alexander Rent-A-Car, Inc., to Patricia R. Frost and her judgment creditor, the plaintiff in this case.

As heretofore stated, the plaintiff’s action against the insurance company is derivative in character, and he derives his right of action against the insurance company by virtue of the rights accruing to Patricia R. Fiost under the policy, and not by virtue of any rights accruing to the' Alexander Rent-A-Car, Inc. The first instruction quoted might be applicable only where the plaintiff derived his right of action against the insurance company by virtue of the rights of the Alexander Rent-A-Car, Inc. This instruction has no application to the facts in this case, is misleading, and taken in conjunction with the second quoted instruction is prejudicial and constitutes reversible error. The defense of Alexander Rent-A-Car, Inc., did not, as a matter of law, constitute a waiver of compliance with the conditions of the policy by Patricia R. Frost.

A similar factual situation developed in the case of Zitnik v. Burik, supra, where the issue was resolved in favor of the insurance company. In that case, the insurance company defended the named insured, Burik. When Burik was dismissed from the case, the insurance company withdrew from the case. The insurance company did not defend Muthart, the driver, and judgment was rendered against him. The defense of the insured did not operate as a waiver of compliance with the conditions of the policy by the driver. In Rohlf v. Great American Mutual Indemnity Co., 27 Ohio App., 208, 161 N. E., 232, the insured gave the insurance company notice of the accident and a statement from which the company prepared a defense. At the time of trial, the insured failed to appear and counsel for the insurance company proceeded with the trial. Plaintiff secured judgment and, subsequently, in an action against the insurance company, the failure of the insured to co-operate was pleaded as a defense. In the opinion, the .court, on page 210, said:

“The plaintiff in his reply avers that the company appeared in open court and defended the action and offered evidence in defense upon the matters set forth in the answer in that case, and filed in that case the answer of A. C. Chapman, and is thereby estopped from asserting any of the claims made in its answer in this case.”

The court then reviewed the efforts on the part of the company to locate the insured, and on page 215 the court concluded:

“We find nothing in the case showing a waiver or estoppel to make this defense.
“Certainly the liability assumed by the company is limited by the terms of its policy, and Rohlf can have no greater right than Chapman himself had. The case must be determined against the plaintiff, because the assured is clearly shown to have violated the provisions of the policy requiring him to co-operate and assist in the defense.”

In that case, there was a partial failure to comply, and the insurance company defended the insured; in the instant case, there is a total failure to comply by Frost, and the insurance company did not defend her in the original action.

In Hutt v. Travelers’ Ins. Co. (N. J. Law), 164 A., 12, the court held:

“That liability insurer’s attorneys, defending action against insured, proceeded with trial after receiving-insured’s telegram stating inability to get to city that day, did not bar insurer from invoking co-operation clause when sued by injured persons.”

To hold that the fact that the insurance company defended the named insured, Alexander Rent-A-Car, Inc., operated as a waiver of compliance by the driver of the car, Patricia R. Frost, does violence to the principle of the right of separate representation and a separate defense. The liability of the driver is separate from that of the named insured, and the plaintiff’s action, being derivative in character, and being based on the right which Patricia R. Frost could assert against the insurance company, such insurance company has a right to assert any defense against the plaintiff which it could assert against Patricia R. Frost.

' Counsel for the defendant point out other instructions in the charge which they claim to be erroneous. We do not deem it necessary to discuss other parts of the charge.

We find the judgment to be against the manifest weight of the evidence, and contrary to law.

Finding error in the record prejudicial to the rights of the defendant-appellant, the judgment is reversed, and this court, rendering the judgment which the trial, court should have rendered, enters judgment for defendant.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


author: Middleton, J.

text:
    In re Estate of Uhl.
    (No. 1040
    Decided February 5, 1954.)

      Messrs. Wiedeman & Wiedeman, for exceptor.

      Messrs. Moloney & Kelly, for administratrix.
   Middleton, J.

This is an appeal from a judgment entered by the Probate Court of Marion County, Ohio, on an application filed by the administratrix to determine the nature of a claim allegedly due the estate of Louis G. Uhl, finding the amount due on such claim, and whether such amount found due, with interest-, should be included as an asset of said estate upon the filing of an amended inventory and appraisement.

The application filed by the administratrix is as follows:

“In re Estate of Lonis G. Uhl:
“Now comes Agnes Uhl as administratrix of the estate of Louis G. Uhl and represents to the court that at the time of the filing of the inventory herein she was advised that decedent during his lifetime had made certain payments for Don E. Uhl, his son, and turned over certain moneys to him during the years 1946, 1947, 1948, 1949, 1950 and 1951, all in the approximate sum of seven .thousand one hundred eighty-eight dollars and obligated himself for the payment of an additional sum of two thousand six hundred dollars to The Marion County Bank, Marion, Ohio, the proceeds of this obligation passing to the said Don E. Uhl. However, your applicant had reason to consider said sums as advancements to the said Don E. Uhl.
“Your applicant says that since the filing of the inventory herein information has come to her attention which tends to prove that such sums were in fact loans and accordingly assets of this estate.
“Your applicant says that since the filing of the inventory herein it has also come to her attention that further and additional sums probably passed to the said Don E. Uhl in the aggregate sum of two thousand and 93/100 dollars.
“Your applicant says that in the interest of her trust judicial determination should be made as to whether or not such sums are debts and therefore assets of this estate and incorporated in the inventory as such.
“Wherefore, your applicant prays that determination be now made as to the character of such sums received by the said Don E. Uhl and if found to be indebtedness due the estate, that the same be ordered incorporated in the inventory as assets of this estate.”

At the time this application came on for hearing the court overruled the motion of the son, Donald E. Uhl, to dismiss the application, and proceeded, over the objection of the son, to hear testimony supporting the application.

The court, after ruling on the exceptions filed to the inventory and appraisement, made the following finding- as it applied to the application filed by the administratrix, to wit:

“1. That a portion of the indebtedness of said estate to The Marion County Bank, Marion, Ohio, to wit: $2,147.25 which was borrowed on or about November 12, 1949, was, in fact, a loan for the benefit of Donald E. Uhl, the proceeds of said loan having been used for the purchase of a tractor delivered to and received by the said Donald E. Uhl on his farm, and for which the estate has a claim against the said Donald E. Uhl, which claim should be included, with interest at six per cent (6%) per annum from November 12, 1949, as an asset in the amended inventory and appraisement of said estate.

“2. That any and all other sums paid to Donald E. Uhl by Louis G. Uhl during the latter’s lifetime, as disclosed by the evidence herein, were gifts.”

Upon said finding, the court made the following order:

“It is further ordered and decreed that upon the making of an amended inventory and appraisement herein that there be included therein the indebtedness of Donald E. Uhl to the estate of Louis G. Uhl in the sum of $2,147.25, with interest at six per cent per annum thereon from the 12th day of November, 1949, as an asset thereof.”

No summons was issued upon the filing of this application nor was any notice given to anyone of the filing thereof.

Every executor and administrator is required to make a return, on oath, into court, of a true inventory of all real estate in Ohio, and the chattels, moneys, rights and credits of the deceased which are to be administered and which have come into his possession or knowledge. (Section 10509-41, General Code, Section 2115.02, Revised Code.) Such inventory must contain a statement of all debts and accounts belonging to the deceased which are known to such executor or administrator. (Section 10509-52, General Code, Section 2115.09, Revised Code.) Newly discovered assets coming into the hands of the administrator or executor after the filing of the original inventory shall be administered and accounted for and distributed in like manner as if received prior to the filing of such inventory. He shall file an itemized report of such assets and shall not be required to make an inventory and appraisement of the same, unless ordered by the court to do so, either upon its own motion or upon the application of any interested party. (Section 10509-147, General Code, Section 2113.69, Revised Code.)

The above statutory provisions make it the duty of an administrator to inventory all debts owing to the estate, and permission or direction of the court is not required to include debts in an inventory or to account for them if newly discovered after the filing of the original inventory.

There is no statutory provision which requires or authorizes the filing of such an application as was filed by the administratrix in the instant case, nor is there any statutory authority vested in the court to make any order based upon such an application, unless such application can be construed as a petition for a declaratory judgment.

The Declaratory Judgments Act, as it applies to executors and administrators, is set forth in Section 12102-4, General Code (Section 2721.05, Revised Code), and provides that such executor or administrator may have a declaration of rights or legal relations in respect thereto: (b) to direct the executors, administrators, trustees, or other fiduciaries to do or abstain from doing any particular act in their fiduciary capacity; or (c) to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

In any case seeking a declaratory judgment there must be of necessity a plaintiff and a statement of such plaintiff’s rights or claims and there must be likewise an adversary party, and the averments of the petition seeking judgment must set forth the existence of a real justiciable controversy between the parties, and it must appear by the petition that the judgment asked will conclusively determine the issues raised. The petition must set forth a dispute between parties who face each other in an adversary proceeding.

The application of the administratrix in the instant case does not meet the requirements of a petition for a declaratory judgment, either in form or substance. The application is not adversary in character. There is no party plaintiff or parties defendant. The facts set forth in the application do not allege any justiciable controversy, and such application is an attempt to obtain from the court a decision in advance concerning a right before it has been actually asserted or contested.

The fact that the application sets forth claims which the administratrix desires to have the court rule on does not clothe the court with jurisdiction to entertain the application or to enter any judgment thereon.

It is generally held that a court should refuse to consider a petition for a declaratory judgment that requires the court to render a futile judgment, one that would not terminate the uncertainty giving rise to the proceedings. It is also the rule that proceedings for a declaratory judgment will not be entertained where another equally serviceable remédy has been provided for the character of the case at hand. Radaszewski v. Keating, Exrx., 141 Ohio St., 489, 49 N. E. (2d), 167.

■ In the instant case the administratrix does have another equally serviceable remedy by filing in the Court of Common Pleas an action to recover the amount claimed by her to be due the estate from Donald E. Uhl.

The court finds that the Probate Court erred in not sustaining the motion of Donald E. Uhl to dismiss the application filed by the administratrix, and further finds that the finding and judgment- of the Probate Court are contrary to law.

The judgment of the Probate Court is reversed, and this court, coming now to render the judgment which the court below should have rendered, sustains the motion to dismiss the application filed herein by the administratrix, and remands the cause for execution.

Judgment reversed.

Younger, P. J., and Guernsey, J., concur.