Webb v. Grimm (116 Ohio App. 63, 1961)

Shebeb, J.

This case originated in the Common Pleas Court of Montgomery County, Ohio, by the filing of a petition by the plaintiff, Arthur Webb, against Mad Biver Milk Producers, Inc., Beatty Motor Sales, Glenn Eobison and John B. Grimm, for damages for injuries claimed to have been sustained in an automobile accident.

All the defendants excepting Grimm were dismissed before or during trial and a judgment was then rendered in favor of the plaintiff, Arthur Webb, and against the defendant Grimm for $40,000. When that judgment remained unsatisfied, Webb filed a supplemental petition against Buckeye Union Casualty Company, Hoosier Casualty Company and American Insurance Company. At the time of the collision, Buckeye Union Casualty Company had in force a contract of insurance with Eobison, Hoosier Casualty Company had in force a contract of insurance with Mad Biver Milk Producers, Inc., and American Insurance Company had in force a contract of insurance with Beatty Motor Sales.

The trial court, upon the issues joined by Webb’s amended supplemental petition and the answers of Buckeye Union Casualty Company, Hoosier Casualty Company and American Insurance Company, made findings of fact and conclusions of law from the evidence and briefs of counsel and rendered judgment on June 6, 1960, in favor of plaintiff Webb against defendants Buckeye Union Casualty Company and Hoosier Casualty Company. The trial court absolved the defendant American Insurance Company from any liability to plaintiff Webb.

Thereafter, defendants Buckeye Union Casualty Company and Hoosier Casualty Company filed motions for new trial anc for judgment non obstante veredicto, which motions were overruled by the Common Pleas Court. Both then filed a notice oil appeal from the judgment of the Common Pleas Court of Juna 6, 1960, and from the order of August 4, 1960, overruling theiil motions for new trial and for judgment notwithstanding thJ verdict. H

Plaintiff Webb filed a motion to set aside tbe judgment in favor of American Insurance Company, and to enter judgment in favor of plaintiff against that defendant, or, in tbe alternative, to grant plaintiff a new trial against American Insurance Company for tbe reason that tbe judgment in its favor is contrary to law and tbe evidence. Tbe trial court overruled botb motions. Appellants seek final judgment in tbis court.

Tbe undisputed facts, in brief, are as follows: Prior to June 1957, John Grimm and Glenn Robison operated separate milk routes and bauled cans of milk into Dayton. In June 1957, Robison orally agreed to sell bis route to Grimm for $5,000, if Grimm could get tbe money. It was agreed between them that Grimm was to drive Robison’s Dodge truck on tbe route, paying for tbe gas and oil. Prior to tbe sale, Robison would haul milk into Dayton and tbe dairy would pay tbe farmers for their milk and would send a check to Robison for bis commission on tbe milk delivered. After Grimm took over Robison’s route the dairy continued to send Robison a check for commissions on milk delivered by Grimm from Robison’s route. It was agreed that these latter commissions would be credited on Grimm’s

É5,000 obligation to Robison until Grimm could raise tbe bal-nce of tbe purchase price. Grimm bad a farm sale in early leptember 1957 in order to raise money to pay Robison. Up to ;his time, Robison received approximately $2,000 from Grimm yy collection of commissions on milk delivered by Grimm from be route sold. It was agreed by Robison and Grimm that Robi-son was to retain title to tbe Dodge truck until tbe full amount )f tbe purchase price of $5,000 was paid. Tbe title to tbis truck vas in tbe name of Robison at tbe time of tbe accident which is be subject of tbis action.

It was further agreed by Robison and Grimm that during he time Grimm was having bis sale Robison was to drive tbe Dodge truck and collect tbe milk from tbe route sold and deliver t to Dayton. Robison was driving bis Dodge truck in accordance with his agreement with Grimm on September 4 and 5,1957. )n September 4,1957, the transmission of tbe Dodge developed rouble and Robison bad it taken to Beatty Motor Sales for re-iair. Robison then called John L. Yoder, who was connected dth Mad River Milk Producers, Inc., and obtained permission to se a Ford truck owned by that company to replace tbe Dodge. Robison drove the Ford all day on September 4 and 5, 1957, collecting milk on the route he had agreed to sell to Grimm. On the evening of September 5,1957, Robison and Grimm picked up the Dodge and Robison returned the Ford truck belonging to Mad River Milk Producers, Inc., to Hostetler’s Filling Station in West Liberty, where it had been obtained. Grimm drove the Dodge truck in the evening of September 5,1957, and noted that the gears clashed. On the morning of September 6, 1957, Robi-son and Grimm went out to collect milk in the Dodge and gear trouble developed. They took it to Beatty’s again, transmission adjustments were made and Grimm drove it away alone toward Dayton with a load of milk. En route to Dayton the transmission rumbled and quit.

Grimm then called the residence of Robison, but was unabli to reach him. He talked briefly with Mrs. Robison. Following this conversation, Grimm called Beatty Motor Sales. Employees of Beatty Motor Sales then came with a wrecker to the piact where the Dodge was and brought the Ford truck belonging t( Mad River Milk Producers, Inc., which Robison had used on th< previous day. The milk was transferred from the Dodge to th< Ford and Grimm proceeded toward Dayton. As Grimm nearet Dayton in the Ford truck he collided with the plaintiff, Arthu: Webb, and caused him injuries which gave rise to the judgmen which is the subject of this appeal.

The court’s judgment herein was predicated upon finding of fact and conclusions of law, not requested by a party herei: but which are a part of the court’s judgment in this case.

First, we will consider the question of the liability of Bud eye Union Casualty Company under its policy issued to Rob: son. The trial court awarded judgment in favor of plaintif Webb, against Buckeye Union Casualty Company and Hoosie Casualty Company in the sum of $40,000.

For its assignments of error herein, Buckeye Union Cas ualty Company says that the trial court erred in the following

(1) In overruling this defendant-appellant’s motions fcl judgment and in granting judgment in favor of plaintiff-appell* against this defendant-appellant which was against the evident! and was contrary to law. I

(2) In giving judgment in favor of American Insurant! Company. !

(3) In failing to find tliat even if there was any coverage under the policy of this defendant-appellant, Buckeye Union Casualty Company, that was excess insurance only.

Plaintiff contends that Buckeye Union is liable under its policy with Robison because Grimm was operating the Dodge with the permission of Robison and that he was operating the Mad River truck on September 6, 1957, as a substitute vehicle with the implied permission of Robison and with the permission of Mrs. Robison, his spouse.

This policy provides, under “Insuring Agreements

“III. Definition of Insured (a) * * * the unqualified word ‘insured’ includes the named insured, * * * and also includes any person while using the automobile and any person * * * legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either * *

Article IY, subsection 3, of the policy provides:

“Temporary substitute automobile — Under coverage A, B and division 1 of coverage C, an automobile not owned by the named insured or his spouse, if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

Plaintiff and defendant, Buckeye Union, entered into a stipulation of facts herein, which was as follows:

“It is stipulated by and between counsel for plaintiff and counsel for defendant, The Buckeye Union Casualty Company that if Kent Atha were called to testify he would state as follows:

“That at all times mentioned in plaintiff’s supplemental petition he was an agent for The Buckeye Union Casualty Company and that some time prior to August 31, 1957, Glenn Robi-son, of Zanesfield, Ohio discussed with him the renewal of policy DA-777840 which was to expire September 1, 1957. That Mr. Robison advised Mr. Atha that he was negotiating with John B. 3-rimm of 221 Fenwick Drive of New Carlisle, Ohio for the sale )f his 1954 Dodge 2% ton milk truck to Mr. Grimm but that the leal would not be made until Mr. Grimm could raise some money md as Policy OA-777840 was expiring on September 1, 1957, ffr. Atha agreed to bind coverage for a period of ten days starting September 1 and on August 31, 1957 Mr. Atha requested Buckeye Union Casualty Company to bind the expiring policy for a period of ten (10) days, that prior to expiration of the binder, Mr. Atha issued policy OA-1-011-510 to Glenn Robison on the 1954 Dodge 2% ton milk truck and the premium of one hundred forty four dollars ninety five cents ($144.95) was paid on September 9, 1957 by Mrs. Glenn Robison, that on September 25, 1957, Glenn Robison requested an assignment of interest endorsement on policy No. OA-1-011-510 in favor of John B. Grimm of New Carlisle, Ohio and this was issued on that date.”

Buckeye Union contends Grimm was not “using the automobile” (which was the Dodge) and was not using either the Dodge or Ford with the permission of the named insured, Robi-son, or his spouse.

We find that the judgment of the trial court that Grimm was using the Dodge with the permission of Robison and was using the Ford of Mad River as a temporary substitute vehicle within the terms of this appellant’s policy is amply supported by the evidence.

First, the evidence is that in July 1957 Robison sold his milk route to Grimm if he could raise the money. Second, the evidence is that Grimm was to go ahead and drive Robison’s Dodge on Robison’s route, pay the gas and oil, the truck to re-1 main in Robison’s name until Grimm could raise the purchase! price. Third, the evidence is that the deal was completed on! September 12, 1957, by the payment by Grimm of the balance oil the purchase price. Fourth, the evidence is that when the agree-j ment between Robison and Grimm was made in July 1957 Robij son agreed that Grimm was to use Robison’s license and insurl anee on the Dodge truck until the deal was completed. Fifth! that between July 1957 and September 12, 1957, both Robisori and Grimm exercised some control over the Dodge truck. Sixth* that between July 1957 and September 12, 1957, Robison obi tained the gross receipts from the milk route, Grimm paying all expenses. Seventh, Robison had repairs and adjustments mad