Michigan Automobile Insurance Exchange v. Vaughan , 2 Ohio Law. Abs. 55 ( 1923 )

Cushing, J.

This action was prosecuted by Bernard P. Vaughan to recover commissions that he claimed to have earned while acting as agent for the Michigan Automobile Insurance Exchange.

The jury returned a verdict in the sum of $2,-771.96. The trial court required plaintiff to remit $900 from the verdict, and entered judgment for the amount of the verdict less the remittitur. This action is prosecuted to reverse that judgment.

The Insurance Exchange claims that the action was improperly brought, contending that under Section 9556-1 et seq. the action should have been against the attorney in fact for the insurance company..

The record is that the action was brought against the Exchange, and that service was had on William J. Patrick, manager. The defendant below did not take any steps to test the correctness of the service of summons. It entered its appearance, filed an answer, and, after the jury had been impaneled and sworn, it then, in open court, undertook to take “exceptions to the manner in which they have brought this suit.”

While Sections 9556-1 and 9556-1 authorize actions of this character to be brought against the attorney in fact, the language of the statute is “may be brought against the attorney in fact,” and merely provides an additional remedy for persons bringing actions against an insurance company. If the action is commenced against the company, and it answers and enters its appearance, it will be bound by the judgment.

The controversy in the case grows out of insurance on the Waite Auto Livery & Taxicab Company’s automobiles. Vaughan originally secured this business for the Insurance Exchange. Its annual premium was between $8,000 and $9,000. Vaughan’s contract with Patrick was that he was to receive 15% on all business written by him, and 15% on renewals.

The Waite policies expired November 5, 1920. Vaughan secured a renewal of this business for one year. After the renewal had been secured the license commissioner of the city of Cleveland insisted that the policies be dated and made to expire at the time of the date and expiration of their city license. In order to work out this arrangement, the 1919 policies were extended from November 5 to December 31, 1920. The policies were written and dated January 1, 1921. Between the time of the renewal of the policies and January 1, 1921, the Exchange, for some reason, quit business, and, on January 1, 1921, the policies were written by the Michigan Automobile Insurance Company.

From the record it is clear that Vaughan’s 15% renewal was earned prior to or on November 5, 1920, and that any arrangement between Patrick, the Insurance Exchange, the Insurance Company, ■and the City License Commissioner, could not in any way defeat Vaughan’s right to recover his commissions. The Insurance Exchange was doing business at that time, it was- a proper party to his action, and having entered its appearance by answer it will be deemed to have waived any jurisdictional question of service of summons.

'Vaughan having consented to a remittitur of $900, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Buchw alter and Hamilton, JJ., concur. Judges of the First Appellate District, sitting in place of Judges Vickery, Sullivan and Levine, of the Eighth Appellate District.