Opinion
No. 29742
Decided July 12, 1944.
Declaratory judgments — Statutes liberally construed and applied — Question of construction or validity arising under contract, determined — Section 12102-2, General Code — Insurer not entitled to declaratory judgment upon insurance contract — No question of construction or validity raised.
1. The Declaratory Judgments Act is a salutary, remedial measure and should be liberally construed and applied.
2. Under the provisions of Section 12102-2, General Code, any person interested under a contract may have determined any question of construction or validity arising under the contract and obtain a declaration of rights, status or other legal relations thereunder.
3. An insurer may not obtain a declaratory judgment with reference to its insurance policy when no question of construction or validity thereof is raised.
APPEAL from the Court of Appeals of Hamilton county.
The plaintiffs, the Ohio Farmers Insurance Company and the Ohio Farmers Indemnity Company, issued to the defendant, John Heisel, Sr., a policy insuring him against loss by reason of liability imposed upon him by law for damages accidentally resulting from the ownership, maintenance or use of a certain automobile.
In their petition the plaintiffs allege that on November 2, 1941, while the automobile was being operated by the insured's son, Howard, it collided with a motor vehicle driven by Joseph Lowenstein; that as a result of the collision both of these individuals were killed; that the defendant, Goldie W. Lowenstein, has been appointed executrix of the estate of Joseph Lowenstein and has presented a claim against the plaintiffs; that a claim likewise may be asserted against them by the defendant, Russell Fehrenbach, who at the time of the collision was riding with the insured's son; that under the terms of the policy the plaintiffs agreed to insure "any person while using the automobile and any person or organization legally responsible for the use thereof * * * provided further the actual use is with the permission of the named insured"; that at the time of the collision the automobile was operated without the permission or knowledge of the insured and in violation of instructions previously given by the insured to his son; that the plaintiffs have notified the insured that the coverage afforded under the policy does not include this operation of the automobile since the insured had not given his permission therefor; and that the plaintiffs are entitled to have an adjudication of the question whether coverage included this operation of the automobile so that they may be advised beforehand whether it will be necessary for them to enter into and defend actions brought against John Heisel, Sr., as administrator of the estate of his son, Howard L. Heisel. The prayer of the petition is as follows:
"Wherefore, plaintiffs pray the court for an order declaring and determining the rights, duties and obligations of these plaintiffs and these defendants and further pray for an order declaring, determining and adjudicating that plaintiffs should not be and are not required to defend any actions brought by said Goldie W. Lowenstein, executrix of the estate of Joseph Lowenstein, or by said Russell Fehrenbach through his next friend; and that said policy described in this petition did not afford insurance protection to John Heisel, Sr., as administrator of the estate of Howard L. Heisel, deceased, and did not cover the operation of the 1940 Pontiac sedan at the time of the collision described herein and for such other and further relief in the premises to which plaintiffs may be entitled."
To the petition the defendant, Goldie W. Lowenstein, executrix, filed a demurrer which was sustained and the petition dismissed as to her by the Court of Common Pleas.
Upon an appeal to the Court of Appeals on questions of law the judgment of the Court of Common Pleas was reversed and the cause was remanded for further proceedings.
The case is in this court for review by reason of the allowance of a motion to certify the record.
Mr. August A. Rendigs, Jr., and Mr. Elmer E. Strasser, for appellees Ohio Farmers Insurance Company and Ohio Farmers Indemnity Company.
Messrs. Walsh Walsh and Messrs. Andrews Weiss, for appellant.
The demurrer of the defendant, Goldie W. Lowenstein, executrix, is based upon seven grounds. However, it is necessary to consider but one of them, inasmuch as it is decisive. Does the plaintiffs' petition state facts which show a cause of action for a declaratory judgment?
Since a declaratory judgment was unknown to the common law, jurisdiction to render this form of redress is dependent upon statutory authorization. In Ohio the controlling sections are 12102-1 to 12102-16, inclusive, General Code. The first of these sections is general and provides in part that "courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." This is followed by the specific provisions of Section 12102-2, General Code, that:
"Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder."
Then the next section provides that a contract may be construed either before or after there has been a breach thereof.
Are these plaintiffs asking to "have determined any question of construction or validity arising under the * * * contract" of insurance? Of course the demurrer admits the plaintiffs' well-pleaded allegations, but in the petition there is not even a suggestion of any question of "construction or validity" of the policy. The plaintiffs allege that they insured "any person while using the automobile and any person or organization legally responsible for the use thereof * * * provided further the actual use is with the permission of the named insured." This the demurrer admits. Neither the meaning nor the validity is challenged. What, then, is the question the plaintiffs want to have decided at this time in the form of a declaratory judgment? According to the petition, the single issue presented is a question not of "construction or validity" but merely of fact as to whether at the time of the collision the automobile was being driven with the permission of the insured.
In the opinion in the case of Walker v. Walker, 132 Ohio St. 137, 5 N.E.2d 405, it was observed that the declaratory judgment act is a salutary, remedial measure and should be liberally construed and applied. This, of course, is true, but the courts are without power to judicially legislate into the statute something clearly not placed there by the General Assembly.
The plaintiffs cite the cases of Schaefer v. First National Bank of Findlay, 134 Ohio St. 511, 18 N.E.2d 263, and Radaszewski v. Keating, Exrx., 141 Ohio St. 489, 49 N.E.2d 167. In both of these this court held that a declaratory judgment was a proper remedy. Both are distinguishable from the instant case. The first involved a question of the validity of a promissory note. The second was an action involving a determination of a question of rights arising in the administration of an estate and was brought under the provisions of Section 12102-4, General Code.
The trial court was correct in holding that this petition does not state facts which show a cause of action for a declaratory judgment. Hence, the judgment of the Court of Appeals must be reversed and that of the trial court affirmed.
Judgment reversed.
MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.