Casualty Ins. Co. v. Motor Trucking Co. , 36 Ohio App. 241 ( 1930 )

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county, the purpose being to reverse a judgment in favor of the Knutsen Motor Trucking Company against the Commercial Casualty Insurance Company, in the sum of something over $7,000.

From the record, arguments of counsel, and the briefs, we learn that the foundation of this lawsuit grew out of an accident wherein George Steiner was injured by a truck under the control of the Knutsen Company, for which injury George Steiner brought an action against the Knutsen Company for damages and recovered in that action $12,500.

The trucks of the Knutsen Company were insured on the twenty:forty basis in the Commercial Casualty Insurance Company, and it is claimed by the Commercial Casualty Insurance Company that the Knutsen Motor Trucking Company had also an insurance on a twenty-five:fifty basis to cover the same loss in the Travelers' Insurance Company. Whether it did or not is one of the issues sought to be raised by the Commercial Casualty Insurance Company in the court below and in this court.

It seems that the Commercial Casualty Insurance Company paid about one half of the judgment that was rendered against the Knutsen Motor Trucking Company in the case of George Steiner v. Knutsen Company, and declined to pay any more, because it claimed that the Travelers' Insurance Company was liable for this injury in the proportion its insurance bore to that of the Commercial Casualty Company, and that the Knutsen Company would have to look to the Travelers' Insurance Company for the balance.

When the Commercial Casualty Insurance Company paid what it thought its proper proportion of the judgment, the Knutsen Company, in order to prevent a levy upon Knutsen's property, he being responsible financially, had to pay the difference between what the Commercial Casualty paid and the judgment that Steiner had obtained against the Knutsen Company, which it thereupon paid and thereafter brought suit against the Commercial Casualty Company, under the terms of its policy, to recover what it (the Knutsen Company) had been compelled to pay to Steiner on his judgment and for attorney's fees for bringing the suit.

On the trial of the case below a judgment was rendered in favor of Knutsen and against the Commercial Casualty Company for the difference between the amount that the Commercial Casualty Company had paid on its liability and the face of the judgment in favor of Steiner against Knutsen, and it is to reverse that judgment that error is prosecuted here.

The errors alleged are: First, that the Knutsen Company had concurrent insurance with the Travelers' Insurance Company, and that by virtue of a contract between them the Knutsen Company was to look to each insurance company for the amount, in proportion that the insurance of each company bore to the amount of the judgment that was rendered against it, and that the Travelers' Insurance Company was liable to the Knutsen Company for the amount sued for in this action, if anybody was, and that the Knutsen Company had no right or claim against the Commercial Casualty Insurance Company, and therefore that the judgment rendered in the common pleas court was wrong and should be reversed.

Now it is admitted in this record that the truck that caused the injury to Steiner was especially and particularly insured by name in the Commercial Casualty Company's policy; but it is claimed by the Commercial Casualty Insurance Company that the policy of the Travelers' Insurance Company likewise, by a blanket clause, covered all the trucks that were used by the Knutsen Company, and, therefore, that it was likewise liable and the Knutsen Company should have pursued its remedy against the Travelers' for the balance.

There is a grave question whether the Travelers' Insurance Company, in addition to Knutsen's Cleveland property, covered anything more than emergency trucks, that is, trucks that were used temporarily to take care of added or emergency business demands by the Knutsen Company — that it covered anything more than the emergency trucks and automobiles only. It is admitted that the truck that caused the injury was specifically insured in the Commercial Casualty Company's policy, and that it wasregularly used. It belonged to a man by the name of Benson, of Canton, Ohio, at the time of this accident, and the policy covered that particular truck, which was used regularly by Knutsen through Benson. Benson was employed regularly by Knutsen, and the policy in question covered this particular truck and named Benson so as to insure it particularly.

The claim made by the plaintiff in error is that it was not liable because the policy of the Travelers' Insurance Company had insured this same truck. There was one possible theory of the lawsuit which escaped the attention of both sides. Let us assume, for the sake of argument, that the Travelers' policy did cover this truck. Then we have the relationship of the Commercial Casualty Company and the Travelers' Insurance Company as being cosureties to cover the same obligation, or the same loss that might occur.

Now it is well settled law that where two or more parties become liable for the same obligation, even though on separate papers in separate contracts, as between themselves they are cosureties, and the person who has the right to enforce the obligation may enforce it in its entirety against either of the cosureties, and recover a judgment against either surety and issue an execution and collect the whole amount from that one. If he fails to get his entire amount, or cannot collect any part of it on account of the insolvency of the cosurety, or for any other reason, he may then sue the other and collect the balance, or the full judgment, as the case may be, notwithstanding the judgment against the other; but a satisfaction or payment by either surety discharges the obligation so far as the creditor is concerned, and that creates a relation between the two cosureties, so that the one who paid could sue and recover contribution from his cosurety or cosureties, even if, as already stated, the contract arose on separate obligations, or rather on separate contracts or separate writings.

I think there can be no question under the law of suretyship that, where the same obligation is protected by two companies in separate papers, each or both are liable and may be sued, and, perhaps, must be sued, separately, and a judgment against one does not bar the right to a judgment against the other; but full satisfaction against one does bar the right of action against the other; and, in the case of satisfaction by either, the one that paid has a right to contribution against his fellow cosurety.

Now if the theory of the plaintiff in error is right, that the Travelers' Insurance Company is liable for this obligation, we think in that view of the case the plaintiff had the right to pursue his remedy in its entirety against the Commercial Casualty Company, and if the Commercial Casualty Company paid, it would have a right to contribution against the Travelers'. If, on the other hand, the Travelers' policy does not cover this truck, if this is not an emergency truck, and the Travelers' only purpose was to cover trucks that were called in emergencies, then, of course, the Travelers' would not be responsible, inasmuch as this accident was not caused by an emergency truck.

So, however one looks at the case, we cannot see but that the Commercial Casualty Insurance Company was liable, inasmuch as the maximum of its policy was greater than the judgment rendered against the Knutsen Company, and the Knutsen Company having paid, as it was compelled to under the circumstances, it can recover against the Commercial Casualty Insurance Company for the full amount of its loss; it being less than the amount covered in the policy. And so we can come to no other conclusion than that the court of common pleas reached a right conclusion, and that the judgment was properly rendered, and that there is no error that would warrant us in disturbing the verdict and the judgment thereon. Therefore the judgment will be affirmed.

Judgment affirmed.

SULLIVAN and LEVINE, JJ., concur.