Weller v. Cummins, 55

• Decision Date: 14 May 1951
• Docket Number: No. 55,55
• Citation: 330 Mich. 286,47 N.W.2d 612
• Parties: WELLER v. CUMMINS et al.
• Court: Michigan Supreme Court

Page 612

47 N.W.2d 612

330 Mich. 286

WELLER v. CUMMINS et al.

No. 55.

Supreme Court of Michigan.

May 14, 1951.

George A. Parmenter, Muskegon, William J. Balgooyen, Muskegon Heights, for plaintiff and appellant.

Alexis J. Rogoski, Robert Bunker Rogoski, Muskegon, for garnishee defendant and appellee.

Before the Entire Bench.

SHARPE, Justice.

This is a garnishment proceeding by which plaintiff seeks to enforce the payment by the Dearborn National Casualty Company, garnishee defendant, of a judgment under the property damage coverage of an automobile policy of insurance.

On September 23, 1947, the Dearborn National Dasualty Company issued a policy of insurance to defendant Charles Lowder. The policy period was from September 23, 1947, to September 23, 1948, and insured for bodily injuries, property damage liability and contained the following provision: 'If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons, or other process received by him, or his representative.'

On October 11, 1947, Lowder's automobile collided with an automobile owned by R. H. Lindeman and damaged plaintiff's building. On October 13, 1947, C. J. Rennells, an authorized agent of Dearborn National Casualty Company, was notified by Lowder of the collision. Subsequently, the Dearborn National Casualty Company settled with R. H. Lindeman for damages to his automobile as a result of the collision. This settlement was made and damages paid after R. P. Schulte, an attorney and representative of the insurance company, investigated the accident and advised Lowder that if any papers were served on him to notify him. On December 19, 1947, Schulte reported to the insurance company that he had inspected the premises of L. J. Weller, plaintiff herein, and reported: 'When assured's driver crashed into the car ahead, he drove it into the front of a building used by Louie's Auto Mart where they sell used cars and accessories. It broke in the entire North half of this building, plate glass window and all the sill.'

On February 11, 1948, plaintiff, Louis Weller, began an action in the circuit court of Muskegon county against Lowder and others to recover damages for the destruction of his property. Defendant Lowder was served with a notice of this action. He immediately telephoned Rennells that an action had been instituted against him and he also telephoned the office of Schulte and gave that office the same information. On February 24, 1948, Schulte wrote the insurance company as follows: 'Yesterday we received a call from Mr. Lindman who stated that he was being sued for the damage to the front end of a building used by Louis's Auto Mart. He also stated that our assured, Mr. Lowder, was being joined as a party defendant. This is the first information we had of this. We will undoubtedly hear from Lowder at a later date. I am giving you all the information I have at this time, and will keep you advised. Yours Very Truly, Schulte Adjustment Bureau, by R. P. Schulte.'

Subsequent to the starting of the above action, Schulte telephoned plaintiff's attorney and asked for additional time to file an answer, giving as his reason a projected vacation in Florida. On May 7, 1948, plaintiff's attorney wrote Schulte a letter in which he asked him to file his appearance. On or about June 3, 1948, Schulte notified plaintiff's attorney that he was not going to file an appearance in the case. On June 10, 1948, Schulte wrote the insurance company as follows:

'Gentlemen:

'For your further information, suit which was started by Mr. Balgooyen, attorney who is representing Louis Weller, is still pending in the Municipal Court of Muskegon Heights. Mr. Lowder has never referred the summons to this office, nor advised the writer that suit has been started and the records indicate that he was served. I am doing nothing in this at all. I think we have a good defense against the insured for failing to notify the company of the lawsuit.

'Yours Very Truly,

'Schulte Adjustment Bureau

'R. P. Schulte.'

On August 5, 1948, an order of default was filed and on October 21, 1948, a jury returned a verdict against Lowder and Cummins in the amount of $2,844 upon which judgment was entered.

On February 14, 1950, a writ of garnishment was issued and special interrogatories were filed and answered. The issue was tried before a jury which returned a verdict in favor of plaintiff and against Dearborn National Casualty Company, the garnishee defendant, in the sum of $3,111.09. On November 2, 1950, upon motion of the garnishee defendant, the court entered judgment for no cause of action notwithstanding the verdict of the jury.

The trial court filed an opinion in which he said:

'The sole question is whether there was evidence to support the finding of the jury that the garnishee defendant waived the condition of the policy relative to the insured forwarding process in connection with the suit to it. Plaintiff's claim of waiver of this requirement is based solely and entirely upon the request made to plaintiff's attorney by Mr. Scholte (Schulte) for further time in which to file an answer for the principal defendants. * * *

'I am impressed with the argument of the garnishee defendant that the mere request of Mr. Scholte for additional time to file an answer cannot be construed, as a matter of law, as a waiver of the requirement in question. Such request would be entirely consistent with an expectation on the part of the defendant that the insured would comply with the provision of the policy and forward process in the suit to it. His request came at a time when defendant still had time in which to answer the suit. If it was assumed that Mr. Scholte had authority to waive compliance with the requirement of the policy, and his request for further time was made subsequent to the time an answer was required, or after default of defendant for failure to file an answer, the situation would be entirely different. There is an entire absence of evidence that Mr. Scholte had any authority to waive the requirement of the policy, in this case or in any other matter which he represented the garnishee defendant. In my opinion, the evidence, considered in the light most favorable to plaintiff, does not permit a conclusion or inference that the garnishee defendant at any time proceeded on the theory that the requirement in question was to be waived. It is also true, as contended by garnishee defendant, that there is no evidence whatsoever to...