Exo v. Detroit Automobile Inter-Insurance Exch.

• Decision Date: 16 September 1932
• Docket Number: No. 37.,37.
• Citation: 259 Mich. 578,244 N.W. 241
• Parties: EXO v. DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE.
• Court: Michigan Supreme Court

259 Mich. 578

244 N.W. 241

EXO

v.DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE.

No. 37.

Supreme Court of Michigan.

Sept. 16, 1932.

Appeal from Circuit Court, Ottawa County; Fred T. Miles, Judge.

Action by William Exo, as administrator of the estate of Kate Exo, deceased, etc., against the Detroit Automobile Inter-Insurance Exchange. From the judgment for plaintiff, defendant appeals.

Affirmed.

Argued before the Entire Bench. David Anderson, of Paw Paw (Howard D. Brown, of Detroit, of counsel), for appellant.

Carl E. Hoffman, of Holland (Leo. W. Hoffman and Clare E. Hoffman, both of Allegan, of counsel), for appellee.

BUTZEL, J.

John A. Hagerman was insured against liability in the amount of $5,000 for injuries to one person and $10,000 to two or more persons arising out of one accident by defendant, Detroit Automobile Inter-Insurance Exchange. On November 10, 1929, his car collided with that of Neil Sandy, and severe injuries were sustained by Lena Sandy, Eleanor Sandy, William Exo, and Mrs. Exo, as well as himself. The car of Neil Sandy was also burned. Mrs. Exo and Hagerman both died as a result of the injuries. Defendant was immediately notified of the accident and sent its representative to investigate. Upon the death of Mrs. Exo, a coroner's inquest was held. Defendant was notified but did not attend. William Exo was appointed administrator of his wife's estate and is also a claimant in that capacity. Defendant's representative later discussed settlement with the injured parties or their representatives, and offered $4,500 to the entire group together if they would accept it in full settlement and divide the amount between themselves. Upon refusal of this offer, it is claimed that the adjuster stated that the company would pay the claims if they were adjusted by court proceedings. Liability was not denied at the time, but the amounts due the injured parties, or their representatives, who are the respective claimants, nevertheless remained unadjusted. Thereafter a petition was filed in the probate court for the county of Van Buren for the administration of the estate of John A. Hagerman, and a printed copy of the notice of hearing on the petition, clipped from the newspaper, was sent to defendant by the assured's son-in-law. Defendant's claim manager acknowledged receipt and stated that the purpose of the petition was evidently the instituting of a lawsuit. It wrote that it did not believe it advisable to make any effort to communicate with Exo or any of the interested parties. It also asked if Hagerman left any estate. Hagerman's son-in- law in his reply stated that there was no estate ‘as respects real or personal property.’ Defendant's claim manager admitted that, when notice of the petition for appointment of the administrator was received, he had an idea that Exo intended to prove his claim.

An administrator of the Hagerman estate was duly appointed, each of the claims was filed in the probate court and allowed in the sum of $500 without any contest. Thereupon each of the claimants filed an appeal to the circuit court for the county of Van Buren. Plaintiff's attorney wrote defendant asking whether it intended to defend the actions pending in the Van Buren circuit court. The administrator of the Hagerman estate also made similar inquiry by letter. Defendant replied to the attorney that it had previously received no notice whatsoever of any action pending in regard to the claims. Thereupon the claims were remanded by consent of all the parties to the probate court. The court ordered a hearing de novo and that defendant be notified by registered mail at least ten days before the hearing. A copy of the order was served on defendant who appeared specially in the probate court and moved that the claims be dismissed on the ground that the probate court had lost jurisdiction and the circuit court had no right to remand the cases. This motion was denied. The claims were reheard and each allowed again in the sum of $500, and claimants once more took an appeal to the circuit court for the county of Van Buren. Thereupon defendant entered its special appearance in the circuit court and moved to dismiss for want of jurisdiction. The latter motion was overruled by the circuit court. The cases were consolidated, heard before a jury, and claims against the estate allowed in the aggregate sum of $9,179.50. The judgments were thereupon remanded to the probate court for enforcement against the Hagerman estate.

Petition was filed in the probate court showing that there were no assets in the estate except the policy of insurance issued by defendant; there were no claims except those hereinbefore stated, all of which had been assigned to plaintiff, and the court made an order directing that the administrator of the Hagerman estate deliver to plaintiff herein proper assignment of any and all interest of deceased in the insurance policy issued to John A. Hagerman, and gave the assignee power to discharge any judgments obtained against defendant. Suit was brought against defendant by plaintiff individually and as assignee of all the other claimants and judgment rendered for $9,179.50.

Defendant disclaims liability on the ground that the assured failed to immediately forward to defendant ‘every summons or other process that may be served upon the assured.’ It further contends that the judgments were null and void and claims that the circuit court had no right to remand the claims to the probate court for a hearing de novo, and that it follows, therefore, that the judgments rendered on appeal from such claims allowed on a hearing de novo are void.

Defendant received full notice of the accident. It sent its adjuster, attempted to make settlement, and notified claimants to reduce their claims to judgment, received notice of the petition for the appointment of the administrator, and knew its purpose was to establish the claims. No other process was served and defendant cannot escape liability for lack of notice. It is true that it is entitled to all reasonable notice and failure to give it would release defendant from liability. Oakland Motor Co. v. American Fidelity Co., 190 Mich. 74, 155 N. W. 729;Wisconsin Michigan Power Co. v. General Casualty & Surety Co., 252 Mich. 331, 233 N. W. 333, 76 A. L. R. 1. However, this...