George Moehring had issued to him by the Great American Mutual Indemnity Co. a liability policy on his Overland automobile. He traded in his Overland and got a Hupmobile, but did not notify the Company of his change of machine because he did not know it was necessary and thought the policy still protected him.

On Sept. 4, 1921, Moehring struck and injured Morgan Reinhart and on the sixth the company was notified of the accident and of the fact that the Hupmobile and not the Overland was involved. The Company issued a rider, transferring the insurance to the Hup-mobile and accepted a premium of $7.00 therefor. Suit was brought in the Hamilton Common Pleas against Moehring and a judgment of $6000.was recovered; but he was financially irresponsible and it was not possible to collect the judgment from him.

Action was then brought against Moehring and the company jointly after 30 days had elapsed; and on submission to the Cincinnati Superior Court it was held Reinhart was entitled to recover against the Company in the amount of $5000, that being the limit fixed in the policy for injury to any one person. The Court of Appeals reversed the judgment, entering final judgment in favor of the Insurance Co.

The case is pending in the Supreme Court on a motion to .certify the record and it is contended:

When the company, with full knowledge of the situation, undertook to defend the action, assumed complete control of the investigation for settlement, and finally the defense of the law suit and thereby took from Moehring the right to interfere with negotiations or in the management of the litigation, it irrevocably admitted that its policy covered the very accident involved and became liable under GC. 9510-3 & 4, even though it was caused by the Hupmobile.

When the insurance company had once taken charge of the case it had admitted that its policy covered the accident and thereby induced the insured to surrender his control over the situation. The company cannot thereafter, reverse its attitude and deny that the policy covers the accident.

“A defense by the insurer that a certain claimed liability is not within the policy terms is waived when under the terms of its contract with insured, it assumes absolute control of the action against the insured to recover damages.”

It is urged that the defense of a law suit carries with it definite responsibilifiies and when the company assumed the defense of the law suit brought by Reinhart, it also assumed the responsibilities imposed by an adverse verdict and judgment.