ON APPLICATION FOR REHEARING
Decided- May 28, 1934
By THE COURT■ An application designated motion for rehearing ^as sent to each member, of this court by counsel-.for plaintiff in error.
We have a communication from counsel for defendant in- error in which we are .cited t-o Rule 13 and it is ■ claimed that its provisions were not observed., JWhile, technically, . this is. true, yet, substantially, the motion complies with the rule as it contains a memorandum and was filed in time. We, therefore pass upon the questions presented.
The application presents two grounds for rehearing: First, that the court has not properly construed the policy as it relates 'to the obligation of the Company to defend the suit against its assured. - Second, that pur. decision is contra the case of State ex Physicians Defense Company v Laylin, Secretary of State, 73 Oh St, 90.
Both of these propositions were capably and extensively presented and urged in the comprehensive briefs of counsel on the original presentation of the case. We are of opinion that our former decision gives full weight and consideration to all the terms pf the policy necessary to determine the question presented.
It is our belief that the obligation of lire insurer to defend suits against the assured is, under the 'terms of the insurance contract, broader than its obligation to pay ultimate liability as disclosed by a judgment against the assured. Nor does our judgment contravene the case of State ex v Laylin, supra. It is not necessary for us to quote from this -’opinion at length but the distinction between the cited case and the instant case is m'ade apparent by a careful reading of the first proposition of the syllabus' in the cited case, together with the ‘opinion of Crew, J., speaking for the court at pages 98 and 100 thereof.
The cited case has been criticized in well-reasoned opinions, in Physicians Defense Company v Cooper, 199 Fed. 576, and particularly at page 581, which, was an affirmance' of the same case found in 188 Fed. 832. ' -
If it be claimed that State ex v Laylin, supra, had application to the contract under construction in this case, we question if .it would prevent recovery upon the contract by the assured, as State v, Laylin was a mandamus action by the company, seeking to compel Laylin, Secretary of State, to issiie and deliver to it a certificate authorizing it to transact business in the State of Ohio as a foreign corporation. We seriously doubt if the company in this case could be heard to urge against its assured the claim that its contract did not protect the assured because it is not an insurance contract within the contemplation of the act requiring a certificate by a foreign insurance company to do business in Ohio.
The, 'cited Ohio case proceeded clearly upon the theory that the contract of the company was one for personal services and was based in part upon the fact that the sole purpose of the contract was to defend suits for malpractice. In this case there can be no question that the general import of the contract is indemnity insurance and that the clause agreeing to deferid certain suits is but an incident to the main purpose of the contract.
The application for rehearing will be overruled.
HORNBECK, PJ, and BARNES, j, concur. KUNKLE, J, not participating.