Travelers Indem. Co. v. Duffin

• Decision Date: 30 November 1970
• Docket Number: No. 2,Docket No. 6911,2
• Citation: 184 N.W.2d 229,28 Mich.App. 142
• Parties: The TRAVELERS INDEMNITY COMPANY, a foreign corporation, Plaintiff-Appellant, v. Donald E. DUFFIN, Donald E. Duffin, Administrator of the Estate of Kathleen A. Duffin, Deceased, William J. Laming and Louise E. Laming, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 229

184 N.W.2d 229

28 Mich.App. 142

The TRAVELERS INDEMNITY COMPANY, a foreign corporation Plaintiff-Appellant, v. Donald E. DUFFIN, Donald E. Duffin, Administrator of the Estate of Kathleen A. Duffin, Deceased, William J Laming and Louise E. Laming, Defendants-Appellees.

Docket No. 6911.

Court of Appeals of Michigan, Division No. 2.

Nov. 30, 1970.

Released for Publication March 4, 1971.

D. Dean Luce, Bush, Luce, Henderson & Black, Port Huron, for plaintiff-appellant.

Gerald E. Mugan, Port Huron, for defendants-appellees.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

BRONSON, Judge.

This case involves a policy of insurance issued by The Travelers Insurance Company to Louise E. Laming.

On March 15, 1964, Donald E. Duffin was driving his 1961 Dodge automobile in an easterly direction on West Water Street in the Township of Port Huron. With him in the car was his wife, Kathleen. At the same time William J. Laming was driving a 1949 Nash Rambler owned by Kenneth Stone. , the vehicle which Laming was driving crossed the center line and collided head-on with the Duffin vehicle, killing Mrs. Duffin and seriously injuring Mr. Duffin.

At the time of the accident and insurance policy issued by the Travelers Insurance Company to Louise Laming, William Laming's mother, was in force. The insurance policy provided standard coverage, with liability for personal injury up to the amount of $25,000 per person and $50,000 per accident. The policy contained the following provision:

'Any relative of the insured is covered for public liability with respect to a nonowned automobile (private passenger automobile or utility trailer) if the use thereof is with the permission of the owner. Relative is defined as: 'a relative of the named insured who is a resident of the same household, Provided neither he nor his spouse owns a private passenger automobile.' Private passenger automobile is defined as: 'a four wheel private passenger or station wagon type automobile." (Emphasis supplied.)

It is undisputed that at the time of the accident that William J. Laming was a resident in the household of his mother, the named insured.

Plaintiff brought this present action seeking a declaratory judgment that plaintiff's insurance policy issued to Louise Laming did not cover Louise Laming's son on March 15, 1964, the date when William Laming was involved in the automobile accident. The St. Clair County Circuit Court denied plaintiff's motion for declaratory judgment. From that decision, plaintiff appeals.

On September 14, 1963, William J. Laming had purchased a 1955 Oldsmobile from William B. Spicer for $125.00. The certificate of title, however, had never been registered in the name of William J. Laming, although it had been signed by the seller, notarized and delivered to Mr. Laming. From the middle of December 1963 until approximately three months before the accident in question, the 1955 Oldsmobile had been left in the front yard of Mrs. Laming's residence, because the car was inoperable and unlicensed. Mr. Laming stated that he felt the cost of repairs exceeded the value of the vehicle and that he did not intend to repair it. The vehicle at the time of the accident displayed 1963 license plates, which were then expired. No new 1964 license plates had been purchased either before or after the accident of March 15, 1964. William Laming finally gave the vhicle to Kenneth Stone. Mr. Stone towed the vehicle from the Laming house and on August 23, 1964 sold the vehicle to a junk dealer for $15.00.

The insurance policy in question defines 'private passenger automobile' as 'a four wheel private passenger or station wagon type automobile.' Nothing in the policy specifically excludes or includes non-operable cars within the above definition.

Where there is language in an insurance policy calling for construction, an insurance policy prepared by an insurer should be construed most strongly against him and liberally in favor of the insured. Martin v. Ohio Casualty Insurance Company (1968), 9 Mich.App. 598, 157 N.W.2d 827; Utter v. Travelers' Insurance Company (1887), 65 Mich. 545, 32 N.W. 812. Exceptions to general liability provided are to be strictly construed against the insurer. Farm Bureau Insurance Company of Michigan v. Pedlow (1966), 3 Mich.App. 478, 142 N.W.2d 877.

The terms of an insurance policy should be construed in the plain, ordinary, and popular sense of the language used. Economy Mills of Elwell, Inc. v. Motorists Mutual Insurance Company (1967), 8 Mich.App. 451, 154 N.W.2d 659.

The term 'automobile' is applied generally to a self-moving vehicle designed to travel on common roads and, specifically, to a wheeled vehicle for use on roads without rails, which carries in itself a mechanical motor as its source of power. Mattox v. Pennsylvania Threshermen Farmers' Mutual Casualty Insurance Company (1964), 276 Ala. 172, 160 So.2d 458; Bonds v. State (1915), 16 Ga.App. 401, 85 S.E. 629.

The body of a car stripped of its engine and wheels is not an 'automobile'. While it might closely resemble an automobile visually, there is no functional similarity because the stripped car does not have wheels and an engine and is, therefore, incapable of 'independent' movement. By definition it is not an 'automobile' even though it might still be referred to as such in casual conversation.

The Oldsmobile then owned by Mr. Laming had wheels and an engine, and it is possible that, with repairs, it could have become operable. It was never repaired because the owner felt that the cost was prohibitive. The automobile was not licensed and was not running. There is authority for the proposition that a car in such condition is not an 'automobile' as defined earlier in this analysis. Glens Falls Insurance Company v. Gray (5 Cir. 1967), 386 F.2d 520; Canal Insurance v. Brooks (D.C.1962), 201 F.Supp. 124; Republic Insurance Company v. State Farm Insurance (Tex.Civ.App.1967), 416 S.W.2d 557.

The question seems to reduce itself to one of intent. The record indicates that before the accident, at the time of the accident, and subsequent to the accident, William Laming did not intend to repair the Oldsmobile and use it as a private passenger vehicle. Accordingly, it was not unreasonable to find that the 1955 Oldsmobile as then owned by William Laming was not a 'private passenger automobile' within the clear meaning of Louise Laming's insurance policy and that William Laming was covered by the terms of the policy on the date of the accident in question. Plaintiff further asserts that it should have been entitled to trial by jury and that this right was erroneously denied by the trial court. A review of the trial transcript and record does not disclose any dispute regarding a material fact. The request for jury trial was not timely made. GCR 1963, 508.2(1). The plaintiff was not wrongfully deprived of a jury trial.

Affirmed. Costs to appellees.

LEVIN, Presiding Judge (dissenting).

A jury trial was timely demanded by the plaintiff. Within 20 days after defendant Donald E. Duffin ¹ filed his answer, the plaintiff moved to strike a part of the answer, ² and within 30 days after the motion to strike was denied the plaintiff filed its reply and jury demand. ³

Moreover, plaintiff's jury demand has been treated as timely; the pretrial statement provides: 'A jury trial has been demanded by pla...