Mondou v. Lincoln Mut. Cas. Co.

• Decision Date: 25 February 1938
• Docket Number: No. 31.,31.
• Citation: 283 Mich. 353,278 N.W. 94
• Parties: MONDOU v. LINCOLN MUT. CASUALTY CO. et al.
• Court: Michigan Supreme Court

283 Mich. 353

278 N.W. 94

MONDOU

v.LINCOLN MUT. CASUALTY CO. et al.

No. 31.

Supreme Court of Michigan.

Feb. 25, 1938.

Action by Ruth Mondou against Rachel Rousse and the Lincoln Mutual Casualty Company, as garnishee, to recover damages resulting from being hit by principal defendant's automobile. Judgment for plaintiff, and garnishee defendant appeals.

Reversed.

POTTER and SHARPE, JJ., dissenting.Appeal from Circuit Court, Bay County; James L. McCormick, judge.

Argued before the Entire Bench.

Stewart A. Ricard, of Detroit, for appellant.

Samuel G. Houghton, of Bay City, for appellee.

BUTZEL, Justice.

I am not in accord with the opinion of Mr. Justice POTTER, which for the first time raises the question of jurisdiction. It has not been raised by either party. Jurisdiction cannot be thrust upon a court by consent of the parties, when such jurisdiction does not exist under the law. It does exist in the instant case and jurisdiction was acquired to review the judgment of the lower court. It is true that the term ‘decree’ instead of ‘judgment’ was used by appellant in its appeal, but such an error, made in a case tried by a judge without a jury, is so patent that a correction should be considered as if made.

We are also mindful of the fact that when appellant filed claim of appeal and notice thereof on June 2, 1937, he described it as a ‘decree’ entered on the 13th day of May, 1937. The mistake in date may be due to the fact that the office of the attorney for appellant is located in Detroit, while the case was tried in Bay county. The trial judge concluded his opinion with the statement that ‘judgment’ might be entered in favor of plaintiff and against the garnishee-defendant in the amount of $2,409.24 with interest. The opinion including this order is dated May 13, 1937. Appellant evidently was misled by the date of the order of judgment in the opinion. If appellant had been as careful as it was prompt, these slight procedural errors would have been avoided.

It was not until June 2, 1937, that appellant filed its claim of appeal, dated June 1, 1937. On June 4, 1937, it sent appellee's attorney the notice thereof. On June 2, 1937, appellant also filed a bond on appeal, of which it also notified appellee. The judgment as it appears in the record filed in this court was ‘read, approved and signed’ by the trial judge on June 2, 1937, so that on the date the appeal and bond were filed, the judge had signed an order of judgment, though it was not entered until the following day.

When the notice of claim of appeal was sent to appellee, the judgment had been signed and entered on ercord. These procedural errors could have been corrected, or a new claim of appeal filed, or permission to file a delayed appeal been asked, had an objection promptly been made. Appellee has never questioned the regularity of the proceedings and apparently does not do so now. She has permitted the appellant to go to the expense of perfecting the appeal, printing the record and brief, and these is no showing that she has been prejudiced. At most, the errors were entirely procedural and not prejudicial. This is not a case where through delay the court lost jurisdiction or where the case comes to us without a judgment. The appeal was unquestionably from the judgment, as it appears on the record. It will be so regarded, notwithstanding the careless practice, which we condemn, but overlook in this case.

Plaintiff sued the principal defendant, Rousse, for damages alleged to have resulted from being hit by defendant Rousse's automobile. She recovered judgment.

The Lincoln Mutual Casualty Company carried insurance on defendant's automobile which, at the time of the injury to plaintiff, was being driven by an unlicensed driver. The garnishee-defendant, Lincoln Mutual Casualty Company, defended the principal case and denied liability on the ground it was not, under the terms of the policy, liable to plaintiff, the automobile of the principal defendant having been driven at the time of the injury by an unlicensed driver. Plaintiff claims the garnishee-defendant is liable. The trial court so held and the defendant Lincoln Mutual Casualty Company appeals.

The insurance policy issued by the garnishee defendant to the principal defendant provided: ‘The Company shall not be liable while any automobile herein covered is used, operated, manipulated or maintained: (a) in any race or speed contest, or (b) any person prohibited by law from driving the automobile, (c) while being used for the transportation of passengers for a consideration, actual or implied, or the transportation of explosives.’

This provision of the policy does not include in it the word ‘by’ before subdivision (b) of paragraph 7 thereof, but defendant contends this court should construe the policy as if the word ‘by’ appeared before the word ‘any’ in subdivision (b) of paragraph 7 of the policy. On the other hand, plaintiff contends the policy should be construed most strongly against the insurance company which prepared it; that the provision under consideration amounts to an exception to the general terms of the policy and must be clearly established and cannot be left to interpretation; that this court cannot make a contract for the parties, but must take the contract as it is and interpret it according to its express terms; and that when so interpreted, the exception does not clearly appear, and hence the judgment of the trial court should be affirmed.

There is no question the provision of an insurance policy, providing the insurer shall not be liable thereunder when the automobile is being driven contrary to law, is good. Zabonick v. Ralston, 272 Mich. 247, 261 N.W. 316. And the insurer having prepared its policy, an ambiguity therein, if any exists, must be construed most strongly against the company. Boesky Bros. Twelfth St. Corp. v. U. S. F. & G. Co., 267 Mich. 628, 255 N.W. 307;Hallock v. Income Guaranty Co., 270 Mich. 448, 259 N.W. 133.

An insurance policy must be construed most strongly against the insurer. A court by an interlineation may not write a new clause into a policy. Neither of these two rules, however, is involved in the instant case. The words ‘or (b) any person prohibited by law from driving an automobile,’ as quoted in the excerpt from the policy, present no ambiguity nor question, nor are they susceptible of two interpretations. Their only meaning is that there is no liability when a car is being driven by a person prohibited by law from driving an automobile. While the expression in the policy may not be grammatically correct, its meaning is plain and certain. Worship of the literal should not overcome common sense or be used to bring about an absurdity if it can be avoided. A construction in accordance with these views violates neither the spirit nor the reason of the rules hereinbefore stated.

If the language of an insurance policy is not ambiguous, no construction, in the usual sense of the word, is called for. Wertman v. Michigan Mutual Liability Co., 267 Mich. 508, 255 N.W. 418;Indemnity Ins. Co. v. Geist, 270 Mich. 510, 259 N.W. 143. A contract will be construed so as to give effect to every word or phrase as far as practicable. Hapke v. Davidson, 180 Mich. 138, 146 N.W. 624. This has always been the rule in this state. It was set forth by Mr. Justice Christiancy in Washington County Bank v. Jerome, 8 Mich. 490, 491, in the following language:

‘But it is said, the office of interpretation or construction is to ascertain the intention of the parties from the words which they have used; and that we are not at liberty to insert words which they have omitted, and which are not to be found in the instrument.

‘This rule is correct when taken with its proper limitations. But it must be understood with this qualification, at least, that words the omission of which by way of ellipsis, is sanctioned by usage, for the sake of brevity, and which are necessarily understood in order to give an intelligible meaning to the words used, or to complete the grammatical construction, must often be supplied, or, what is equivalent, understood as included in the words used.’

Mr. Justice Graves in Newton v. McKay, 29 Mich. 1, stated: ‘The whole writing is always to be considered, and the intent will not be defeated by false English or irregular arrangement, unless the defect is so serious as absolutely to preclude the ascertainment of the meaning of the parties through the means furnished by the whole document and such extrinsic aids as the law permits.’

Had there been any doubtful meaning or ambiguity with the word omitted, there is no question but that the word could not have been supplied. Kaifer v. Georgia Casualty Co., 9 Cir., 67 F.2d 309. But where the context of a written contract clearly implies or suggests that a certain word has been omitted, such word will be supplied by construction. Hamilton v. Wead, 122 Neb. 854, 241 N.W. 556, citing Goodrich v. Hubbard, 51 Mich. 62, 16 N.W. 232.

In leases, the language is usually construed most strongly against the lessor in the same manner as an insurance policy is construed most strongly against the insurer. In Dodd v. Mitchell, 77 Ind. 388, a case involving a lease, the court stated: ‘A word plainly omitted by inadvertence will always be supplied to accomplish justice by enforcing the intention of the parties. * * * Where a material word appears to have been omitted in a lease by mistake, and other words can not have their proper effect unless that word be introduced, such lease must be construed as if that word were inserted.’ To like effect, see Irwin v. Nichols, Dean & Gregg, 87 Ark. 97, 112 S.W. 209;Caldwell v. U. S. Fid. & Guaranty Co., 205 Ala. 463, 88 So. 574.

The policy relieves defendant from liability in case of an accident when the car is being driven at the time by one not authorized by law to drive an automobile. It is admitted in the stipulation that the car was so driven. Therefore, there is no...