Waen v. Ohio Farmers Insurance Co.

SPENCE, J.

Plaintiff herein had judgment against Mrs. Dora Lewis for the sum of $2,000 in an action brought to recover damages for personal injuries sustained in an automobile accident. Said judgment became final and after execution had been returned unsatisfied, plaintiff brought this action against Mrs. Lewis’ insurance carriers claiming the right to judgment against them under the provisions of Statutes of 1919, chapter 367. Upon a trial by the court sitting without a jury, plaintiff had judgment against defendants Ohio Farmers Insurance Company, a corporation, and Ohio Farmers Indemnity Company, a corporation, from which judgment said defendants appeal.

Appellants state that there are two questions involved on this appeal. The first of these questions as presented by appellants is, “Can a judgment against an insurance carrier be sustained for a loss against which the insurance carrier did not indemnify f ’ ’ This point arises by virtue of the fact that the ■ two appellants issued what is frequently termed a combination policy and the trial court gave judgment herein against both appellants. The point is urged solely on behalf of appellant Ohio Farmers Insurance Company. It is contended by said appellant that the findings of the trial court to the effect that both appellants agreed to indemnify the assured against the loss sustained by reason of the assured’s liability to respondent is not sustained by the evidence and is directly contrary to the evidence so far as said appellant is concerned. In our opinion this contention must be sustained.

While the policies were embodied in one instrument, the portions thereof relating to the respective liabilities assumed by each of the two insurers were kept separate and distinct. We find no ambiguity whatever in the policy. The schedule of coverage by the Ohio Farmers Insurance Company is headed “Loss of or damage to the automobile 1. Insured by Ohio Farmers Insurance Company.” The schedule of coverage by the Ohio Farmers Indemnity Company is headed, “Loss or damage by the automobile 1. Insured by Ohio Farmers Indemnity Company.” It will be noted that one company insured against “loss of or damage

to

the auto

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mobile” while the other insured against “loss or damage