Michaelson v. Simula , 170.
| Decision Date | 02 October 1933 |
| Docket Number | No. 170.,170. |
| Citation | 250 N.W. 264,264 Mich. 457 |
| Parties | MICHAELSON v. SIMULA (PREFERRED AUTOMOBILE INS. CO., Garnishee). |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Ontonagon County; George O. Driscoll, Judge.
Suit by Ida Michaelson against Michael Simula. Judgment in favor of plaintiff, who brought garnishment proceedings against the Preferred Automobile Insurance Company. From a judgment in favor of garnishor, garnishee appeals.
Reversed and remanded, with direction.
Argued before the Entire Bench.Charles M. Humphrey and Charles M. Humphrey, Jr., both of Ironwood (Harry E. Rodgers, of Grand Rapids, of counsel), for appellant.
Edward F. Le Gendre, of Laurium (Louis A. Keary, of Hancock, of counsel), for appellee.
Defendant Simula and plaintiff live in Northern Michigan and are brother and sister. They desired to attend the funeral of a relative in the city of Detroit. Simula had an automobile, and plaintiff proposed that he drive to Detroit and she would pay for the gasoline, his meals, and the repairs, if any, for the car. The offer was accepted, and they started on the trip and had not proceeded far when the automobile went into a ditch at a turn in the road and plaintiff was injured.
In the declaration, first filed, plaintiff alleged that she ‘was being conveyed as a guest’ and the accident occurred by reason of defendant's negligence. That declaration stated no case, because it failed to allege that the accident was ‘caused by the gross negligence or wilful and wanton misconduct’ of defendant. Comp. Laws 1929, § 4648. In an amended declaration plaintiff alleged that she ‘was being conveyed as a passenger for hire.’ That declaration, as pointed out later, released defendant insurance company from liability to the principal defendant. In still another amendment she alleged that she was a ‘passenger and guest paying for her transportation.’
Plaintiff tried the case on the theory she was a passenger for hire and the court submitted it to the jury on an issue of ordinary negligence on the part of defendant and plaintiff had judgment for $1,000 damages. Upon the judgment plaintiff sued out a writ of garnishment against defendant company, the insurance carrier for her brother. The insurance company filed a disclosure of no indebtedness and demanded trial of the issue thereon. The court tried the issue and found the insurance company liable. The insurance company prosecutes this appeal, claiming that, if plaintiff was a guest, the statute barred recovery unless the driver of the car was charged with and was guilty of wanton or willful misconduct and, if plaintiff was a passenger for hire or paying for her transportation, the policy of insurance expressly relieved the insurance company from liability.
The insurance policy...
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