Tennenbaum v. State Automobile Mutual Ins. (43 Ohio App. 159, 1931)

Ross, P. J.

These cases have been consolidated. Both come into this court on error from the court of common pleas of Hamilton county, wherein judgments Avere rendered for the defendants. The trials were had to the court without the intervention of juries. They involve the same questions of law.

In each case a policyholder in the defendant in error insurance company caused damages in the operation of the insured automobile, resulting in a judgment against him. Suits were filed to recover from the insurance company under Section 9510-4, General Code.

The policies contained this exception clause:

“B. This policy does not cover loss resulting from any of the following causes, nor while any motor vehicle described herein is being used or maintained under any of the following conditions, to Avit:

“While such motor vehicle is being operated by any person under sixteen years of age, or by any person prohibited by law from driving an automobile, or by any person other than the immediate members of the Assured’s family or his duly authorized employees; or while such motor vehicle is being used for any purpose in violation of any State or Federal law; or while such motor vehicle is being used for carrying persons for hire * *

In the findings of facts by the court, which are stipulated as the bills of exceptions, it appears that the driver was found guilty in the municipal court of Cincinnati of driving the automobile while intoxicated, contrary to the following ordinance of the city of Cincinnati:

“Whoever shall operate a motorcycle or motor vehicle of any kind upon any public highway or street while in a state of intoxication, shall be fined not less than $25.00, nor more than $100.00; or imprisoned not more than six months, or both.”

It is urged that the ordinance “prohibits” by law the driving of an automobile while intoxicated, and upon this theory the trial court rendered judgment in each case for the insurance company.

Reference to our Criminal Code will show that a great many offenses and crimes are prescribed by stating that whoever does such and such a thing shall be punished in a certain manner by fine, imprisonment, or both. But there are many other offenses which are predicated upon the doing of an act forbidden or prohibited by statute, and which are declared to be unlawful.

In one case the doing of a certain act is made a felony or misdemeanor but it is not prohibited, and in the other the violation of the prohibition is made an offense, but the act itself is not made the offense, though prohibited.

In Section 12607-1, General Code, it is provided that upon conviction of driving while intoxicated the “trial court may, in addition to or independent of all other penalties provided by law, prohibit such person from operating or driving a motorcycle or motor vehicle,” etc.; and the section provides a fine for operation while so prohibited by order of court from such operation.

Reference to the Building Code shows many instances wherein certain things are prohibited and an offense created for the violation of the prohibition.

Section 6212-15, General Code, states that no person shall after the passage of this act manufacture, sell, barter, transport, import, etc., intoxicating liquor.

Sections 6212-17 and 6212-17d provide for the punishment of the offense of violating the prohibition.

There is therefore a manifest difference where the Legislature or council makes a certain act an offense at law and where it prohibits the doing of an act and makes the violation of the prohibition an offense.

Enough has been said to show that the particular act of driving while intoxicated, though it is an offense under the city ordinances, is not expressly prohibited.

The company in writing its policy could have therein excepted from coverage loss resulting while such motor vehicle was being operated by any person violating the law or committing an offense at law. The insurance company saw fit to limit its exception to coverage to eases where the vehicle was operated by a person prohibited by law from driving.

We find no evidence in the record from which we are able to conclude that the driver had been prohibited by law from driving an automobile. If after his rights to drive had been suspended, in conformity to the statute noted, supra, he had driven a motor vehicle and caused damage, then the exception to coverage would have applied. Such is not the case here.

The judgments will be reversed, and, the facts not being in dispute, judgment may be entered in each case against the defendant in error.

Judgments reversed.

Hamilton and Cushing, JJ., concur.