City Poultry & Egg Co. v. Hawkeye Cas. Co.
| Decision Date | 21 May 1941 |
| Docket Number | No. 15.,15. |
| Citation | 298 N.W. 114,297 Mich. 509 |
| Court | Michigan Supreme Court |
| Parties | CITY POULTRY & EGG CO., Inc., v. HAWKEYE CASUALTY CO. |
OPINION TEXT STARTS HERE
Action by the City Poultry & Egg Company, Inc., against the Hawkeye Casualty Company, assignee of the United Automobile Insurance Company of Grand Rapids, Mich., to recover the amount of attorney's fees expended by plaintiff in defending a personal injury action. From a judgment for plaintiff, defendant appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; Robert M. Toms, judge.
Argued before the Entire Bench.
Knight & Panzer, of Detroit, for appellant.
Bernstein & Bernstein, of Detroit, for appellee.
On February 14, 1937, plaintiff company purchased a policy of automobile accident insurance from defendant covering liability for damages resulting from the operation of a truck. In the policy, the insurer agreed:
‘(1) Property Damage
‘To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of ownership,maintenance or use of the automobile.
‘To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile.
‘It is further agreed that as respects insurance afforded by this policy under coverages 1, 2, and 3 of section 1 the company shall
‘(1) defend in his name and behalf any suit against the insured alleging such injury or destruction on account thereof, even if such suit is groundless, false, or fraudulent; but the company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company, and by investigation, attempt at settlement, and defense of suit the company shall not be deemed to have waived any defenses under this policy.’
After many further provisions, the following is set forth in the policy under the heading of ‘Limitations': ‘This policy does not apply: * * * (5) under coverage 2 of section 1, to bodily injuries or to death of * * * any person or persons being transported by any commercial vehicle described herein.’
On June 29, 1937, while the policy was in effect, Rose Onickel, while riding as a passenger in the truck, suffered injuries as a result of a collision, and brought suit against plaintiff company which referred the case to defendant insurance company.
Defendant filed an answer on behalf of plaintiff, but after the case had been placed on the trial docket, defendant advised plaintiff to secure its own attorney. Plaintiff responded by informing defendant that unless it continued to handle the case, it would be held liable for all loses sustained in the suit and for all costs that might be incurred in its defense. When the insurance company refused to continue the defense of the suit, plaintiff secured another attorney. The case was tried, and plaintiff herein received a judgment of no cause of action. Thereafter plaintiff presented the bill of its attorney in the amount of $771 to defendant for payment, and upon refusal thereof sued defendant.
The case was tried without a jury, and the trial court held that under the terms of the policy defendant was obligated to defend plaintiff company in the damage suit; and entered judgment against the defendant for...
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