Bowman v. Preferred Risk Mut. Ins. Co.

• Decision Date: 03 June 1957
• Docket Number: No. 21,21
• Citation: 348 Mich. 531,83 N.W.2d 434
• Parties: George H. BOWMAN, Plaintiff and Appellant, v. PREFERRED RISK MUTUAL INSURANCE COMPANY, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 434

83 N.W.2d 434

348 Mich. 531

George H. BOWMAN, Plaintiff and Appellant, v. PREFERRED RISK MUTUAL INSURANCE COMPANY, Defendant and Appellee.

No. 21.

Supreme Court of Michigan.

June 3, 1957.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids, Don V. Souter, Grand Rapids, of counsel, for plaintiff and appellant.

Luyendyk, Hainer, Hillman, Karr & Dutcher, Grand Rapids, Richard B. Baxter, Grand Rapids, of counsel, for defendant and appellee.

Before the Entire Bench.

EDWARDS, Justice.

The trial judge and my Brother would deny this insured recovery under the policy for which he had paid premiums for public liability coverage in his 'use' of automobiles. Two grounds are advanced: First, that he did not 'use' the automobile in question within the meaning of the policy; and second, that if he did, it was without the owner's authority and hence a criminal act which barred recovery on the grounds of public policy.

Let us first take a look at the 'crime.' For several days a car had been parked in front of plaintiff's house, obstructing 2 parking spaces in which plaintiff was accustomed to park his own automobile. Intending to move the vehicle 6 feet to free 1 of these parking spaces for his own use, plaintiff got into it and released the hand brake--whereupon, due to defective foot brakes and the slope of the street, the car rolled backwards across the street and struck and damaged another automobile. Plaintiff here was sued and judgment for $374.55 taken, with defendant here declining to defend to pay on its policy.

This record contains no hint of criminal complaint, indictment, trial or conviction in relation to plaintiff's act. It may even be safely asserted that it was an act, even though unauthorized and perhaps petulant, upon which no prosecuting attorney would indict, no examining magistrate would hold for trial, no judge or jury would convict, and no appellate court would affirm a conviction.

My Brother with inexorable logic points out that if plaintiff 'used' the car, he did so without the owner's authority and hence came within the express language of a criminal statute:

'Any person who takes or uses without authority any motor vehicle without intent to steal the same * * * shall upon conviction thereof he guilty of a misdemeanor.' C.L.1948, § 750.414 (Stat.Ann.1954 Rev. § 28.646).

Plaintiff has not been convicted of violating the above statute, and doubtless will not be. The answer to the logic of words is de minimis non curat lex. Bristol-Meyers Co. v. Lit Bros., 336 Pa. 81, 6 A.2d 843; 26 A C.J.S. De Minimis p. 175; 12 Words & Phrases, De Minimis p. 38 et seq. See, also, Ling v. Currier Lumber Co., D.C. Mich., 50 F.Supp. 204; Daly v. Citrin, D.C. Mich., 53 F.Supp. 876. The law is not concerned with trifles. And certainly some contemplated invasion of the owner's rights, beyond moving an automobile a few feet under the circumstances above cited, would be required for conviction.

It is perfectly true that well-established law in this and other jurisdictions refuses, on grounds of public policy, to allow insurance of illegal activities lest such be encouraged thereby. Northwest Amusement Co. v. Aetna Casualty & Surety Co., 165 Or. 284, 107 P.2d 110, 132 A.L.R. 118; 44 C.J.S. Insurance § 242(b).

Also, on grounds of public policy, it has been frequently held that felons cannot recover insurance for injuries or damages proximately caused by their own intentional crimes. Acme Insurance Co. v. National Insurance Co., 118 Colo. 445, 195 P.2d 728; Annotation, 23 A.L.R.2d 1105.

We have reviewed the many cases cited in which liability of the insurer has been denied for violation of the law by the insured. Our instant case is distinguished therefrom on 1 or more of the following factual grounds:

1) The alleged violation of law has been the subject of no complaint, arrest or trial. On facts show, we cannot, in fact, hold that any crime was committed;

2) There is in the instant insurance contract no clause pertaining to exclusion of liability in case of violation of law;

3) If violation of the statute were assumed, such violation would represent a misdemeanor, not a felony;

4) The policy certainly had no inducting effect on any purported violation.

Michigan does not as a general rule bar recovery under public liability policies because some illegal act was involved in the damage. Pawlicki v. Hollenbeck, 250 Mich. 38, 229 N.W. 626.

In the Pawlicki case, the insured was driving at an unlawful rate of speed and on the wrong side of the street in violation of the law, and in violation also of a provision of the policy purporting to exempt the insurer unless the driver complied with State and municipal law. Justice Fead, for a unanimous Court, said (250 Mich. at page 44, 229 N.W. at page 628):

'The policy was written, in large part, to indemnify the assured against liability for injuries caused by negligence or so found on trial. Act No. 318, Pub. Acts 1927, details the regulations covering the operation of motor vehicles on highways. By ordinance, municipalities have added a multitude of rules. It may well be doubted whether an instance of negligence injury can be imagained in the operation of a motor vehicle on a highway which does not involve a violation of law. Under garnishee's present contention, the whole public liability phase of the policy, as well as property damage and some of the collision aspects, becomes practically a sham, and the collection of premiums therefor a virtual fraud.'

Blashfield, on the point in question, says:

'Notwithstanding the general rule against indemnifying another from the consequences of his willfully criminal acts, a liability policy which indemnifies against loss from liability imposed by law, on account of injuries accidentaly suffered as a result of the ownership, maintenance, or use of an automobile, by the insured is not necessarily confined to cases in which there has been no violation of the criminal law, or other public offense, by him. So to restrict it would reduce indemnity to a shadow.' 6, pt. 1, Blashfield Cyclopedia of Automobile Law & Practice (Perm. ed.), § 3974.

See, also, 5A Am.Jur., Automobile Insurance § 79.

In automobile accidents there is almost always an alleged (and frequently proven) violation of some law or ordinance. We believe the facts of our current case bring it far closer to those involving violations of traffic laws than to those involving bank robbery or murder.

We hold that there is no public policy which demands invalidation of the instant insurance policy as to this claim.

As to the first of the grounds for affirmance of the trial judge urged by my Brother, we can be even more brief. The policy insured plaintiff in his 'use' of automobiles other than his own. He got into this one, released the hand brake, turned the steering wheel, and it moved, to his dismay, considerably farther than he intended.

Webster defines 'use' as follows: 'to make use of; to convert to one's service; to avail oneself of; to employ; to put into operation.' Webster's New International Dictionary (2d ed.), p. 2806.

We believe that when one operates an automobile, he uses it within the normal definition and understanding of the word. Cronan v. Travelers Indemnity Co., 126 N.J.L. 56, 18 A.2d 13; Brown v. Kennedy, Ohio App., 49 N.E.2d 417, affirmed 141 Ohio St. 457, 48 N.E.2d 857; Annotation 51 A.L.R.2d 924.

Insurance policies should be read with the meaning which ordinary laymen would given their words. New York Life Insurance Co. v. Modzelewski, 267 Mich. 293, 255 N.W. 299; Tomlyanovich v. Tomlyanovich, 239 Minn. 250, 58 N.W.2d 855.

Defendant could by clear language in the policy have limited its liability to the insured's own automobile or to only such use of automobiles of others as was authorized by them. Failing to find any such limitations in this policy, we decline to infer them.

The judgment of the court below is reversed and the case remanded for entry of a judgment in accordance with this opinion. Costs to appellant.

SMITH, VOELKER and BLACK, JJ., concurred with EDWARDS, J.

DETHMERS, C. J., and KELLY, J., concurred in result.

CARR, Justice (dissenting).

This case has resulted from a controversy between the parties to an automobile insurance contract. Plaintiff, a resident of Kent County, under date of February 5, 1954, took out a policy of insurance in defendant company, covering his Buick automobile while used for pleasure and business. Said policy, originally for a six months period, was extended on August 5, 1954, for an additional period of the same length. Directly involved here is paragraph V of the contract, relating to the use of other automobiles and providing, insofar as to is material, as follows:

'If the named insured is an individual who owns the automobile classified as 'pleasure and business' or husband and wife either or both of whom own said automobile, such insurance as is afforded by this policy for bodily injury liability, for property damage liability and for medical payments with respect to said automobile applies with respect to any other automobile, subject to the following provisions:'

The provisions referred to related to the scope of the term 'insured', and further specifically designated certain situations to which the insurance agreement did not apply.

The facts in the case are not in dispute. For a period of two days and one night one Emmet Needham left his automobile parked in the street in front of plaintiff's home. Apparently plaintiff was inconvenienced to some extent because of being prevented from parking his own car in space occupied by the Needham automobile. He inquired from a neighbor as to the ownership of the parked car, was advised that it belonged to Needham, and was further informed that the brakes 'were not too good.' However, he got into the automobile and straightened out the front wheels, which evidently were against the curb, with the intention of...