Opinion
No. 113925
Decided January 12, 1965.
Insurance — Automobile liability — Vehicle borrowed by insured's wife who permitted filling station owner to drive it — Insurance company not liable.
Under an automobile liability insurance policy, the insurance company is not liable for damages for bodily injury as the result of an accident which occurred when the insured's wife borrowed a car not covered by such policy, from a nephew of insured who was not a member of insured's household; permitted such borrowed car to be driven by a filling station owner who, while driving it, collided with plaintiff's automobile causing the damage.
Messrs. Holzfaster, Hoefling Cecil, for the plaintiff.
Mr. Thomas E. Reilly and Messrs. Curtner, Selva, Parkin Sellers, for the defendants.
This cause is before the court on the supplemental petition of plaintiff, agreed statement of facts and evidence introduced.
Plaintiff says he recovered judgment against Leslie Elden Dement on November 5, 1959 in the sum of $30,000 and costs for damages suffered on account of bodily injuries on July 13, 1957, arising out of the negligent operation of an automobile by Leslie Elden Dement; that said judgment has become final, remains in full force and effect and has been partially satisfied to the extent of $10,000 paid by American States Insurance Company to the plaintiff, and that an entry recording the partial satisfaction of the judgment was filed November 10, 1959.
Plaintiff says that $20,000 of said judgment remains wholly unpaid and unsatisfied and that more than thirty days have expired since said judgment and the partial satisfaction thereof.
Plaintiff says that at the time of this accident the defendant, All State Insurance Company, had in full force and effect its contract of insurance under the terms of which it agreed to pay on behalf of Thomas Jennell and Lucille Jennel and any person responsible for the use of their Packard automobile, which automobile was involved in this accident, providing the actual use of said automobile was with the permission of said Thomas Jennell and/or Lucille Jennell. Plaintiff says that said All State Insurance Company under said contract agreed to pay all sums which said person should become obligated to pay as damages because of bodily injury sustained by any person caused by accident, and arising out of the use of said Packard automobile.
Plaintiff further says that American States Insurance Company had issued a policy of liability insurance to Leslie Elden Dement, and plaintiff asks judgment against the defendant All State Insurance Company in the sum of $20,000 with interest at 6% from November 5, 1959 with costs of this case.
To the supplemental petition of plaintiff, defendant, All State Insurance Company, denies liability under the policy issued by All State Insurance Company to Thomas and Lucille Jennell.
The following stipulations were entered into by counsel, and were dictated into the record:
"It is stipulated by and between the parties that on April 13, 1955, Jackson L. Jennell was issued Certificate of Title No. 571725276 on a 1955 Packard two door purchased from Marshall Brothers, as evidenced by Exhibit 1. It is further stipulated that Jackson L. Jennell moved to Charlotte, North Carolina in 1956 and maintained his residence with his wife and family in Charlotte, North Carolina from that time on, and that Certificate of Title issued in Montgomery County, Ohio for the 1955 Packard two door was transferred to Charlotte, North Carolina and surrendered in Charlotte, North Carolina;
"It is further stipulated on August 8, 1957, Ohio title No. 290280509 was issued to Jackson L. Jennell by the Clerk of Greene County, Ohio, Jackson L. Jennell's address being RR 1, Charlotte, North Carolina;
"It is further stipulated that thereafter, on October 16, 1957 a power of attorney was executed by Jackson L. Jennell in favor of Lucille L. Jennell authorizing her to sign the name of Jackson L. Jennell to the Certificate of Title issued by Greene County;
"It is further stipulated that on October 29, 1957 the title issued by the Clerk of Greene County to Jackson L. Jennell, No. 290280509 was endorsed by Lucille Jennell under the power of attorney issued to her and that endorsement was to Thomas Jennell;
"It is further stipulated that on November 18, 1957, Ohio title 290286362 was issued by the Clerk of Greene County, Ohio to Thomas Jennell on the 1955 two door Packard automobile involved in the accident of July 13, 1957;
"It is further stipulated that copies of the certificates of title may be introduced into evidence."
The testimony shows that on April 13, 1955, a 1955 Packard 2 door sedan was in the name of Jackson L. Jennell, at which time Jackson L. Jennell lived at the home of his uncle, Thomas Jennell, and that this was the automobile being driven by Lucille Jennell on July 13, 1957, near the East Town Shopping Center on Linden Avenue, when something went wrong with the brakes as Lucille Jennel stopped in front of the garage and filling station owned by Leslie Dement. She sought help from Leslie Dement, who volunteered to drive said 1955 2 door Packard about a square farther west and into the parking lot of East Town Shopping Center, turned it around and came out the east exit of said shopping center and failed to stop and thereupon had a collision with an automobile driven by John P. Williams, plaintiff herein, who recovered a judgment against Leslie Dement for $30,000.
It appears, that on the 23rd day of May, 1955, Thomas Jennell, husband of Lucille Jennell, had also purchased and owned a 1955 Packard 4 door sedan which he used and upon which he had an insurance contract with All State Insurance Company. This 4 door also purchased from Marshall Brothers, Xenia, Ohio. The insurance contract terminated in August 1957. He did not secure coverage on the 2 door sedan owned by Jackson L. Jennell and being driven by Lucille Jennell, and on July 13, 1957, the 1955 2 door Packard was still titled in Jackson L. Jennell and operated under the dealer plate of Marshall Brothers by Lucille Jennell.
It appears that in late 1956 Jackson L. Jennell moved to an apartment in Oakwood and was never again a member or resident of the home of Thomas Jennell. Later in 1956, Jackson L. Jennell left Oakwood, went to North Carolina, took the 1955 Packard 2 door sedan, and secured a North Carolina title and license plate for the car and married and established his residence in that state.
In the fall of 1956 Jackson L. Jennell returned to Dayton and left his 1955 2 door Packard at the home of Thomas Jennell, and in January, 1957, Thomas Jennell borrowed Ohio dealers' license plates from Marshall Brothers, put the plates on the 1955 2 door Packard so that Lucille Jennell could drive the car owned by Jackson L. Jennell. Thomas Jennell did not secure coverage on the 2 door Packard owned by Jackson L. Jennell, and it was driven by Lucille Jennell until July 13, 1957, the date of the accident.
It appears further that on August 8, 1957, Ohio Title 290280509 was issued by the Clerk of Greene County, Ohio, to Jackson Jennell, and thereafter, on October 16, 1957 he issued a power of attorney to Lucille Jennell, who on October 29, 1957 endorsed the name of Jackson L. Jennell on Ohio title 290280509, and on November 18, 1957 Ohio title 290286362 was issued to Thomas Jennell and he became the owner of the involved car.
The law is established in Brewer v. DeCant, 167 Ohio St. 411.
The car purchased by Thomas Jennell and owned by him on July 13, 1957 was a 4 door Packard.
Under the policy issued by All State Insurance Company to Thomas Jennell on the 4 door Packard afforded coverage on a non-owned car to the insured, Thomas Jennell and his spouse, Lucille Jennell.
Under Section I, Liability Protection, part 1, subsections of the All State Insurance Company policy issued to Thomas Jennell, reads:
1. The named insured with respect to the owned or a non-owned automobile;
2. Any resident of the named insured's household with respect to the owned automobile;
3. Any other person with respect to the owned automobile, provided the actual use thereof is with the permission of the named insured;
5. Any other person or organization with respect to any automobile or trailer, provided:
(a) The actual use is by a person who is an insured under any of the four preceding paragraphs, with respect to such automobile or trailer, and
(b) such other person or organization is legally responsible for the use and, except with respect to a temporary substitute automobile, does not own or hire the automobile or trailer.
The following definitions of words used above are given in the policy:
(a) "insured" means any person or organization listed as insured in this Part;
(b) "named insured" means the individual named on the Supplemental Page, and his spouse if a resident of the same household; and
(c) "relative" means a relative of the named insured who is a resident of the same household:
Definition of automobiles covered is given as follows:
(a) "owned automobile" means the vehicle described on the Supplement Page, and, as defined herein, any replacement automobile, any additional automobile, any temporary substitute automobile, and any trailer owned by the named insured.
The automobile covered by the All State Insurance Policy under Part 2
"owned automobile" means the vehicle described on the Supplement page,
and is the four door Packard, or any replacement automobile, or any temporary substitute automobile; "replacement automobile" means any other private passenger or utility automobile of which the named insured acquires ownership, provided it replaces the owned automobile.
The court finds this was not a replacement for the 4 door Packard, nor a utility automobile of which the named insured, Thomas Jennell acquired ownership; nor an additional automobile or another automobile to which Thomas Jennell acquired ownership; nor was it in the name of the relative living in the home.
"Temporary substitute" according to the policy means any automobile which is temporarily used as a substitute for the owned automobile, withdrawn from normal use because of break down, repair, servicing, loss or destruction.
Leslie Dement, the driver of the non-owned 1955 2 door Packard at the time of the accident, was not a named insured, nor was he a relative as defined in the All State policy, and therefore was not an insured under Section 5 of the policy.
Plaintiff's supplemental petition is predicated upon the ownership of the 1955 4 door Packard owned by Thomas Jennell, and since there was no ownership in the 1955 2 door Packard by either Thomas or Lucille Jennell at the time of the accident on July 13, 1957, the supplemental petition herein is dismissed and judgment entered for the defendant, All State Insurance Company; all of which this court finds.
Judgment accordingly.