Peters v. Sturmer

• Decision Date: 05 June 1933
• Docket Number: No. 82.,82.
• Citation: 248 N.W. 875,263 Mich. 494
• Parties: PETERS v. STURMER et al. (PREFERRED AUTOMOBILE INS. CO., Garnishee).
• Court: Michigan Supreme Court

263 Mich. 494

248 N.W. 875

PETERS

v.STURMER et al. (PREFERRED AUTOMOBILE INS. CO., Garnishee).

No. 82.

Supreme Court of Michigan.

June 5, 1933.

Appeal from Circuit Court, Newaygo County; Earl C. Pugsley, Judge.

Action by Sally Peters, an infant, by her next friend, William C. Bird, against William H. Sturmer and Edith Sturmer, wherein the Preferred Automobile Insurance Company was garnished. Judgment for plaintiff, and Preferred Automobile Insurance Company appeals.

Affirmed.

Argued before the Entire Bench.

Rodgers & Dunn, of Grand Rapids, for appellant.

William J. Branstrom, of Fremont (C. W. Peters, of Miami, Fla., of counsel), for appellees.

POTTER, Justice.

Plaintiff sued defendants Sturmer to recover damages for personal injuries alleged to have been suffered in an automobile collision, at Coral Gables, Dade county, Fla., March 3, 1931, by reason of the alleged negligence of the defendants. There was judgment for plaintiff on default, and, after the entry of this judgment, the Preferred Automobile Insurance Company, garnishee defendant, was served with process, and the questions here presented relate to the validity of the judgment in garnishment. The assignments of error may be divided into four classes: (1) (a) Error in admitting in evidence the judgment entry in the action against the principal defendants; and (b) error in denying the garnishee defendant's motion for a directed verdict, and for judgment notwithstanding the verdict; (2) failure to give defendants' request to charge numbered 2, 3, and 4; (3) error in the charge of the court to the jury; (4) error in overruling defendants' motion for a new trial.

The declaration filed by plaintiff contained four counts, and charged substantially that plaintiff was riding along Ponce de Leon boulevard in an automobile owned and operated in a proper manner by one Anna K. Backer, and at the intersection of Ponce de Leon boulevard with Bird road defendants' automobile, operated by defendant Edith Sturmer, failed to stop at such intersection, was not operated in a careful and prudent manner with due regard to the traffic and right of way, and with due regard to persons rightfully in the public streets at such intersection; but that it was operated in violation of the speed laws in force in the city of Coral Gables, and was driven at an improper and unreasonable rate of speed without the driver having the same under control at a time and when the defendant Edith Sturmer failed to give her entire sober and careful attention to the driving and operation of the motor vehicle driven by her. The defendants, by way of answer, gave notice that defendants' car was being operated in a careful and prudent manner, had the right of way over the automobile operated by Anna K. Backer, that the collision between the two automobiles was caused entirely by the negligence and carelessness of Anna K. Backer, alleged that defendant Edith Sturmer drove her automobile carefully, and that plaintiff would not have been injured but for the negligence of Anna K. Backer, ‘which said negligence of said Anna K. Backer was the sole cause of the collision between said automobiles and consisted in then and there driving her said motor vehicle into said intersection at a high and excessive rate of speed, to-wit forty miles per hour, and in then and there driving and propelling her said automobile on the wrong, left hand and east side of said Ponce de Leon Boulevard, at said intersection.'

Defendants appeared in the original case, demanded a jury, and paid the jury fee. No jury was impaneled. Defendants did not appear at the trial. Judgment was entered by the trial court without the intervention of a jury, whereupon proceedings in garnishment, based upon such judgment, were instituted by plaintiff against the defendant Preferred Automobile Insurance Company, which filed a disclosure denying liability. A jury as demanded, and the jury fee paid, and a trial of the statutory issue in garnishment resulted in a verdict and judgment for plaintiff against the principal defendants and the garnishee defendant in the sum of $10,175 and costs, plus a motion fee of $10. It is from this judgment the defendant Preferred Automobile Insurance Company appeals. The statute, section 14128, Comp. Laws 1929, provides: ‘To entitle a defendant to avail himself of any matter of defense, which, according to the practice as it has heretofore existed, was required to be pleaded specially, or of which a special notice was required to be given under the general issue or other general plea, such defendant shall annex to his plea of the general issue a notice to the plaintiff, briefly stating the precise nature of such matter of defense.'

This statute has been amplified by section 4 of rule 23 of Michigan court rules as follows: ‘In a suit upon a policy of insurance, if the defendant shall rely, in whole or in part, upon any breach of any of the conditions, agreements, representations or warranties of the policy or application therefor, or upon the failure to perform or make good any promise, representation or warranty, or upon the failure to furnish any proof of loss, as required by the policy, the facts showing the nature of the defense relied upon shall be alleged.'

No notice was given in defendants' answer of any affirmative defense. Defendants in the principal case demanded a jury. They appeared by the same attorneys as appear for the garnishee defendant. It is claimed the principal defendants never waived a jury trial, and that it was error for the court to enter a judgment without a verdict by the jury as the basis thereof. Defendants, having demanded a jury and paid the jury fee, were entitled to a trial by jury. Boatz v. Berg, 51 Mich. 9, 16 N. W. 184. The principal case was set for trial by the trial court on a day certain, and May 2, 1932, the trial judge wrote defendants' attorneys:

‘My understanding is that you have demanded a jury in these cases and Mr. Branstrom, who represents the plaintiff, has been advised by the Court to be ready at that time.

‘I wish you would let me know at once whether you wish to continue your demand for a jury in view of the fact that there may be no necessity for calling a jury, except for these cases, and in order that the officer may be notified in time to have the jury in readiness.'

And on May 3, 1932, defendants' attorneys wrote to Mr. Branstrom, plaintiff's attorney: ‘If you desire to proceed with the trial on Monday, May 9th, without our having heard from the Sturmers and without our entering upon the actual defense of the case in court, we presume that you could take a judgment which would be equivalent to a default judgment against the Sturmers personally.'

And on May 5, 1932, defendants' attorneys wrote to the circuit judge: ‘We have received a wire today from attorneys in Florida stating that Mr. Sturmer has advised them that Mrs. Sturmer is physically unable to attend trial. If Mr. Branstrom desires to proceed under these circumstances, we shall not defend.'

No application was made for a continuance, no facts were presented indicating any reason for a continuance except by letter, and there was no necessity under the circumstances for a jury trial. We think defendants, notwithstanding their demand for a jury, under the circumstances waived one, and the court was not in error in entering judgment without impaneling a jury. Roberts v. Tremayne, 61 Mich. 266, 28 N. W. 113; and that the objection made by defendant and appellant to the entry of judgment by the trial court without a jury in the principal case against the principal defendants may not be raised here by objection to the introduction of such judgment in evidence. Maxwell v. Stewart, 21 Wall. (88 U. S.) 71, and 22 Wall. 77, 22 L. Ed. 564;Hoadley v. Gafill Oil Co., 241 Mich. 15, 216 N. W. 407.

‘The trouble with counsel's argument is that it is all directed to a collateral attack on the former judgment. That judgment was rendered by a court having jurisdiction of the parties and of the subject-matter. It is binding until set aside, and it can only be set aside in a direct proceeding brought for that purpose.’ Hoadley v. Gafill Oil Co., 241 Mich. 15, 216 N. W. 407, 408.

In this case, so long as the judgment in the principal case stands and is not set aside by the trial court, it is not a valid objection to its introduction in evidence that there was a demand for a jury and a judgment entered without a jury.

The garnishee defendant claims it is not liable because the principal defendants violated the terms of their policy of insurance by having their personal attorney enter his appearance in the case and enter into negotiations with the appellant to handle it. It appears that the principal defendants' personal attorney entered his appearance in the case after service of summons upon them, but that the garnishee defendant through its attorneys, took over the defense, entered their appearance, filed an answer to plaintiff's declaration, and conducted the negotiations and correspondence in relation to the case up to the...