Wood v. Merchants Ins. Co. of Providence

• Decision Date: 20 December 1939
• Docket Number: No. 61.,61.
• Citation: 291 Mich. 573,289 N.W. 259
• Parties: WOOD v. MERCHANTS INS. CO. OF PROVIDENCE.
• Court: Michigan Supreme Court

291 Mich. 573

289 N.W. 259

WOOD

v.MERCHANTS INS. CO. OF PROVIDENCE.

No. 61.

Supreme Court of Michigan.

Dec. 20, 1939.

Action by Ezra J. Wood, guardian of Archie Wood, Jr., a minor, against the Merchants Insurance Company of Providence on an automobile collision policy. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Circuit Court, Bay County; James L. McCormick, judge.

Argued before the Entire Bench.

H. Monroe Stanton, of Saginaw, for appellant.

Albert W. Black and B. J. Tally, both of Bay City, for appellee.

WIEST, Justice.

Defendant company insured plaintiff against loss occasioned by damage to his automobile in accidental collision or upset, but not while ‘used as a public or livery conveyance for carrying passengers for compensation.'

In October, 1937, and for sometime before that, plaintiff, who was a minor, attended school at Bay City and used his automobile in going to and from school, a distance of about seven miles. October 4, 1937, while so driving, there was a collision, causing damage to his automobile. It had been plaintiff's practice to carry other students, each of whom voluntarily paid him seventy-five cents per week when so carried and, at the time of the collision, there were six other students in the auto with him.

On this account after the collision defendant declared the policy canceled, sent plaintiff the premium paid and he returned it and, by his guardian, brought this suit on the policy in November, 1937.

Trial was commenced before a jury in July, 1938. At the close of plaintiff's proofs defendant moved for a directed verdict and, upon denial, offered no proof. Thereupon plaintiff moved for a directed verdict in his favor which was also denied and, there being no disputed issue of fact, the court discharged the jury, took the case under advisement and rendered a judgment of $650 for plaintiff, that being the conceded damage to his automobile.

Defendant appeals and contends that a minor cannot affirm a contract of insurance by bringing suit on it before attaining the age of twenty-one years. A short answer to that is the fact that the contract was not void, and, even if recovery had to await plaintiff's coming of age, he was twenty-one years of age at the time of the trial and sought judgment under the contract.

We are not to be understood as entertaining the opinion that there is any merit in the point urged. See Monaghan v. Agricultural Fire Ins. Co., 53 Mich. 238, 18 N.W. 797.

Counsel for defendant also claims that, under the mentioned circumstances, the auto, at the time of the collision, was in use ‘as a public or livery conveyance for carrying passengers for compensation’, and, therefore, not within the insurance coverage.

This school boy was not using his auto as a public or livery conveyance for hire but to meet his own needs and, as a mere incident thereof and as an accommodation to his fellow students, carried them with him and they, in appreciation of his kindness, voluntarily contributed toward the expense and upkeep of the convenience.

The policy contained the following: ‘This entire policy shall be void, unless otherwise provided by agreement in writing added hereto if the interest of the assured in the subject of this insurance be or become other than unconditional and sole lawful ownership.'

At the time the policy was issued and at the time of the collision, title to the car was registered in the office of the secretary of state in the names of Archie Wood and E. J. Wood, and certificate of title had issued to such effect, and defendant contends that such record, by virtue of statute (Comp.Laws 1929, § 4633,...