Pawlicki v. Hollenbeck, 77.

• Decision Date: 06 March 1930
• Docket Number: No. 77.,77.
• Parties: PAWLICKI v. HOLLENBECK (MICHIGAN MUTUAL AUTO INS. CO., Garnishee).
• Court: Michigan Supreme Court

250 Mich. 38

229 N.W. 626

PAWLICKI

v.HOLLENBECK (MICHIGAN MUTUAL AUTO INS. CO., Garnishee).

No. 77.

Supreme Court of Michigan.

March 6, 1930.

Error to Circuit Court, Bay County; Samuel G. Houghton, Judge.

Action by Katherine Pawlicki, administratrix of the estate of Joseph Pawlicki, deceased, against M. Carl Hollenbeck, in which garnishment was filed against the Michigan Mutual Auto Insurance Company. To review a judgment on a directed verdict in favor of the garnishee, plaintiff brings error.

Reversed, and new trial ordered.

Argued before the Entire Bench.

Kinnane & Leibrand, of Bay City, for appellant.

Robert J. Curry, of Saginaw, for appellee.

FEAD, J.

Plaintiff had judgment against defendant Hollenbeck for negligent injuries resulting in the death of Joseph Pawlicki, a minor. Hollenbeck was driving south on the right side of Henry street in Bay City, with a trailer attached to his car, in which Joseph was riding by Hollenbeck's invitation or permission. A car ahead made a right turn into another street, backed out, and started north on Henry street. The cars approached each other, both swung to the east side of the street; there was a collision; Joseph was thrown off the trailer, and received the injuries from which he died.

Hollenbeck had insurance in the garnishee company, and plaintiff brought garnishment proceedings against it to recover the judgment. Issues were framed, trial had before a jury, and the court directed a verdict in favor of the garnishee. Several questions are raised.

Plaintiff claims garnishee is circumscribed in its defenses because its agent interviewed her about a settlement and denied liability on a specific ground. There was no proof of the agent's authority. The claim is untenable.

In addition to negligence in the operation of the insured's car, the declaration in the main case charged negligence in the operation and towing of the trailer. Garnishee contends the trailer was not part of the car, was not covered by the policy, and therefore garnishee is not liable for injuries caused by negligence in connection with it; but is only liable for injuries due to the operation of the car itself, under the policy clause:

‘Against liability for personal injury or death suffered by any person except occupants of the motor vehicle insured, or members of the assured's family or household, caused by an accident due to the ownership and operation of said insured motor vehicle.’

The declaration does not govern liability. The cause of action submitted to the jury, and upon which plaintiff had verdict and judgment, was for negligent operation of the car itself, as appears from the charge of the court, which presented four claims of negligence:

(1) Hollenbeck was driving at an excessive and unlawful rate of speed.

(2) He was driving at a speed which, while within the specific statutory limit, was unreasonable.

(3) He was driving on the wrong side of the street.

(4) He did not exercise due care under the circumstances.

In no way was negligence in connection with the trailer an issue as finally submitted and determined. As Joseph was not an occupant of the car insured nor a member of Hollenbeck's family or household, liability for his injuries and death falls within the general operation of the policy.

In its next point, garnishee reverses its position, and contends the policy should be construed as showing an intention of the parties that the trailer was part of the car to the extent that a person riding in the former was riding in the latter. No language indicating such intention was pointed out. Garnishee knew the use of trailers, and provided insurance on them at increased cost. The policy is to be construed in favor of the assured to effect the insurance, and exceptions to the general liability provided are to be strictly construed against the insurer. Kangas v. New York Life Ins. Co., 223 Mich. 238, 193 N. W. 867; 32 C. J. pp. 1155, 1157; 36 C. J. p. 1061; Messersmith v. American Fidelity Ins. Co., 232 N. Y. 161, 133 N. E. 432, 19 A. L. R. 876;Security Underwriters, Inc., v. Rousch Motor Co., 88 Ind. App. 112, 161 N. E. 569;Kalamazoo Auto Sales Co. v. Travelers' Ins. Co., 227 Mich. 74, 198 N. W. 579. As garnishee asserts it did not consider the trailer part of the car for the purpose of liability, it could hardly be held to have deemed it part of the car for exception to liability without language pointing thereto.

Garnishee further contends the attachment of the trailer to the automobile avoided the policy, because it increased the risk, and the company agreed only to ‘indemnify assured as owner of said motor vehicle as regularly equipped by the factory.’

The claim that the trailer increased the hazard in the present case was not shown by testimony, nor was increased risk on account of it involved in the issues upon which Hollenbeck's liability was predicated.

Garnishee next urges that the policy was inoperative because Hollenbeck was driving at an unlawful rate of speed and on the wrong side of the street, in violation of law, and in breach of the provision of the policy which...