Dickinson v. Homerich
| Decision Date | 03 December 1929 |
| Docket Number | No. 166.,166. |
| Citation | 227 N.W. 696,248 Mich. 634 |
| Parties | DICKINSON v. HOMERICH et al. (AMERICAN CASUALTY UNDERWRITERS, Garnishee). |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Case-Made from Circuit Court, Kent County; Major L. Dunham, Judge.
Action by Walter Dickinson, by his next friend, F. E. Dickinson, against Peter J. Homerich and another, in which garnishment proceedings were instituted against the American Casualty Underwriters after default judgment against defendants. Judgment against garnishee defendant, which brought the case to the Supreme Court on case-made. Affirmed.
Argued before the Entire Bench.Shelby B. Schurtz, of Grand Rapids, for appellant.
Renihan & Lilly, of Grand Rapids, for appellee.
On October 31, 1928, Walter Dickinson sustained serious injuries in consequence of the negligent operation of a Ford Fordor sedan owned by defendant Peter J. Homerich and driven by the defendant John Todd. Default judgment for $5,000 damages and $39.60 costs was taken against these two defendants in January, 1929. In May following garnishment proceedings were instituted against the American Casualty Underwriters, an unincorporated voluntary association, which had issued to Homerich a $5,000 auto insurance policy. Judgment for the full amount of the policy was rendered against the garnishee defendant; and it has brought the matter to this court on case-made. It denies liability here for the following reasons:
(1) The insured did not give appellant immediate written notice of the accident nor forward immediately to the appellant the summons served upon the insured.
(2) There was no waiver of the provisions of the policy as to notice, and the trial court was in error in holding otherwise.
(3) At the time of the accident, defendant's automobile was being driven by an intoxicated person, in violation of law, and by the express terms of the policy appellant is not liable; and also the appellant is not liable because the policy of insurance had been canceled for non-payment of premiums prior to the accident.
The pertinent parts of the policy are:
etc.
* * *'
* * *'
The case was tried without a jury and special findings of fact and conclusions of law filed. While the insured did not give immediate written notice of the accident, and did not immediately forward the summons, the trial judge found that: ‘Said garnishee defendant was notified of said collision and agreed to look after plaintiff's interests therein by reason thereof, and all notices required to be given to said garnishee were either given as provided in said policy or waived by said garnishee defendant.'
For reasons hereinafter indicated, we need not pass upon the sufficiency of the telephone notice which the insured claims he gave to Mr. Chellis' office. Mr. Chellis was the general agent of the garnishee defendant. He denied having received the notice or having any knowledge thereof. However, it may be noted in passing that the...
To continue reading
Request your trial
-
Amerisure Mut. Ins. Co. v. Carey Transp., Inc.
...or should have been raised in the underlying litigation. Morrill v. Gallagher, 370 Mich.578, 122 N.W.2d 687 (1963); [Dickinson] v. Homerich, 248 Mich. 634, 227 N.W.696 (1929). These cases are closely akin to the principle behind collateral The second class of cases allowing the limits of a ......
-
Macey v. Crum
...City Cotton Mills Co., 103 Kan. 118, 172 P. 987, L.R.A.1918E, 541; Connolly v. Bolster, 187 Mass. 266, 72 N.E. 981; Dickinson v. Homerich, 248 Mich. 634, 227 N.W. 696; Commercial Casualty Ins. Co. v. Skinner, 190 533, 1 So.2d 225, 226; Taverno v. American Auto Ins. Co., 232 Mo.App. 820, 112......
-
Van Dyke v. White
...Wash. 459, 58 P.2d 835; Eakle v. Hayes, supra; Goergen v. Manufacturers' Casualty Ins. Co., 117 Conn. 89, 166 A. 757; Dickinson v. Homerich, 248 Mich. 634, 227 N.W. 696. Respondent is thus foreclosed from asserting the breach against both the insured and the Reversed and a new trial ordered......
-
Citizens State Bank of Clare v. State Mut. Rodded Fire Ins. Co. of Mich.
...the insurance company when it disclaimed liability solely on the ground of lack of insurable interest in Vandewarker. Dickinson v. Homerich, 248 Mich. 634, 227 N.W. 696;Cohen v. London, etc., Co., 247 Mich. 226, 225 N.W. 549;Martinek v. Firemen's Ins. Co., 247 Mich. 188, 225 N.W. 527. Altho......