McNess v. Bohannan's Rent-A-Car Co. , 43 Ohio App. 393 ( 1932 )

These two cases involve the same question of law, and are considered together.

The petitions set forth that the plaintiffs, Leslie McNess and Irvin C. McNess, a minor, secured judgments in the court of common pleas against Allen Boyce and Albert Werner, defendants in prior suits; that these judgments are wholly unsatisfied and unpaid.

The petitions further allege that the defendant, Bohannan's Rent-A-Car Company, engaged in the business of renting motor vehicles for hire, leased a machine to Boyce; that the judgments obtained against Boyce and Werner grew out of injuries sustained by reason of the negligent operation of the leased automobile.

The petitions then set up Section 65-7 of the Code of Ordinances of the city of Cincinnati, which provides for the depositing with the city treasurer of a policy or policies of liability insurance, or the giving of a bond to indemnify persons who might suffer injury either in person or property by the negligent operation of such motor vehicle while being operated by the lessee of a car belonging to the company seeking a license from the city.

The ordinance providing for the policy of insurance, or the bond given in lieu thereof, also provides that in case the vehicle is operated, maintained, or used with the consent or acquiescence of the owner, by one other than the owner, resulting in injury to person or property, due to the negligent operation, maintenance, or use of said vehicle, the insurer or obligors on the bond shall pay to any judgment creditor of the operator any final judgment rendered against him. The ordinance further makes it unlawful to lease automobiles without such insurance or bond.

The petitions further allege that the defendants were operating their business without depositing with the city treasurer policies of insurance, or a bond, before securing a license.

Plaintiffs filed with the city treasurer copies of their judgments in compliance with the provisions of the city ordinance, and allege that the defendants have refused to pay said judgments. Plaintiffs therefore ask for the amount of their judgments against the defendant, Bohannan's Rent-A-Car Company.

Demurrers were filed by the defendant company to the petitions, on the ground that they failed to state a cause of action against it, and the court, upon hearing, sustained the demurrers, and entered final judgment. Plaintiffs not desiring to plead further, judgments were entered for the defendant company.

From those judgments, plaintiffs prosecute error to this court, claiming that failure to comply with the ordinance made the defendant liable in the civil action for recovery of the amount of the judgments.

There is no statutory authorization for a suit of this kind.

The argument is that the injury grew out of the negligence of a lessee of the defendant in error; that the ordinance had in effect required that defendant in error arrange to indemnify by either insurance or bond any damages that might result from negligence of a lessee of the defendant in error; that defendant in error by leasing, in violation of the duty imposed by law, assumed a personal obligation to do that which the ordinance imposed, or be responsible for its failure.

The claim must be on the ground that it was a common-law duty to pay a judgment by reason of the failure to obey a regulatory ordinance. Certainly there could be no obligation under the common law requiring the principal to pay a judgment obtained against his agent.

The actions are grounded on an ordinance of the city, which, it is alleged, defendant failed to obey.

It is not claimed that they are liable under any of the provisions contained in the ordinance, but are liable on the ground of the refusal to bring themselves within the terms of the ordinance.

There is no allegation in the petitions that the judgment debtors are execution proof and the judgments uncollectible from them. The petitions simply allege that the judgments are unsatisfied and unpaid.

It may be that the plaintiffs might maintain an original action against the defendant company for damages, resulting from its failure to comply with the law, and the measure of the damage, if such suit were maintainable, would be the loss of judgment, or an amount equivalent to the judgment obtained.

The actions under consideration are based on the collection of judgments as provided for by the statutes of Ohio in suits against bonding companies. These actions do not constitute such cases.

The cases cited by counsel in the brief are direct actions under a statutory duty imposed, and are not in point in the cases before us.

As stated above, had these actions been grounded in tort, resulting in damage to the plaintiffs by reason of failure to obey the ordinance, we would have a different question.

The petitions, as herein indicated, fail to allege a cause of action, and the trial court did not err in sustaining the demurrers and entering judgments.

Judgments affirmed.

ROSS, P.J., and CUSHING, J., concur.