Kalamazoo Auto Sales Co. v. Travelers Insurance 227 Mich. 74

KALAMAZOO AUTO SALES CO. v. TRAVELERS INSURANCE CO.

1. Insurance — Public Liability Policy — Marine Insurance.

In an action by an automobile sales agency on a public liability insurance policy, the fact that the injury sued on was caused on an inland lake instead of on a' public highway would not of itself preclude recovery if the accident is otherwise within the coverage of the policy, although defendant does not write marine insurance.

2. Same — Policy Will Not be Construed to Limit Liability.

Where the policy does not itself limit liability to those accidents which occur at the location of the garage fixed at a definite place in certain items in the policy, the court should not so limit it by construction.

3. Same — Policy — Construction, — 'Construed Most Strongly Against Maker.

The policy should be considered in its entirety, and, if it is ambiguous, must be construed most strongly against the defendant, who prepared it.

4. Same — Should be so Construed as to Serve Purpose Intended.

In construing the policy, the court should not indulge in a strict construction to defeat liability, but, taking into consideration the policy as a whole, should indulge in such construction as will give it force for the purpose it was intended to serve.

5. Same — Liability of Insurer to Indemnify for Personal Injuries— Whether Injuries Caused Incidental to Business Question of Pact.

In an action by an automobile sales agency against an insurance company to recover the amount paid for personal injuries caused by a motor boat owned by plaintiff with which it was entertaining prospective purchasers of automobiles at the summer cottage of its president, the question as to whether such entertainment was necessary and incidental to the conduct of its business and therefore covered by the terms of its policy, held, under the testi*75mony, properly submitted to the jury as a question of fact.

Clark, C. J., and Bird and Sharpe, JX, dissenting.

Error to Kalamazoo; Weimer (George V.), J.

Submitted January 25, 1924.

(Docket No. 47.)

Decided May 8, 1924.

Assumpsit by the Kalamazoo Auto Sales Company against the Travelers Insurance Company on a policy of insurance. Judgment for plaintiff. . Defendant brings error.

Affirmed.

Fred L. Vcmdeveer, for appellant.

Harry C. Hoivard, for appellee.

Plaintiff is a corporation engaged extensively in the sale of automobiles both at retail and wholesale. For a number of years it carried public liability insurance with defendant company, and at the time of the happening of the events presently related held a policy issued by defendant. Such of its provisions as are deemed important by defendant’s counsel are set out in his brief and we here quote them:

“The insurance clause was:

“ ‘Does hereby agree with the assured, named and described as such in the declaration forming a part hereof, as respects bodily injuries accidentally sustained, including death at any time resulting therefrom as follows: 1. To indemnify the assured against loss by reason of the liability imposed upon him by law for damages on account of such injuries.’

“The following was the coverage:

“ ‘V. This agreement shall apply to such injuries sustained by any person or persons except those employed by the assured or to whom the assured may be held liable under any workmen’s compensation law, scheme or plan. This agreement shall not apply to any such injuries caused by any person employed by the assured in violation of law as to age, or if there is no legal age limit, under the age of fourteen years, nor regardless *76of legal age limit, under the age of sixteen years in the operation of any automobile.

“ ‘VI. This agreement shall apply to such injuries so sustained if caused by work incidental and necessary to the conduct of the automobile sales agency, service station or public garage, located and described in said declarations, which, for the purpose of this insurance, shall include the work of making ordinary repairs for the preservation of machinery or buildings and the renewal of existing mechanical equipment, and shall also include all structural or mechanical repairs to automobiles or their parts, if undertaken by the assured as a part of the work herein defined. This agreement shall also apply to such injuries so sustained if caused by the ownership, maintenance or operation, within the limits of the United States of America or the Dominion of Canada, of any style, type or make of automobile, tractor or trailer, for any and all purposes in connection with the work herein defined, including pleasure use but not the livery use of automobiles nor the carrying of passengers or property for an actual consideration, except as hereinafter provided, no such automobile shall be so operated except by a proprietor or an active executive officer whose name and remuneration is included in division 1 of item 3 of said declarations, or by other employees of the assured whose remuneration is or shall be included in said division 1. If division 2 of item 3 of said declaration contains a disclosure of estimated livery earnings as therein defined and provided, this agreement shall also apply to (a) the renting or hiring of private passenger automobiles for the carrying of passengers subject to call from within the premises covered hereby only. * ® *

“ ‘VII. This agreement shall apply to such injuries so sustained (a) while at, within or upon the agency station or garage located and defined in said declarations, or the public ways immediately adjoining, and (6) while elsewhere as hereinbefore limited, if caused by proprietors or employees of the assured, as above provided, engaged as such, in the business operations described in said declarations, while in the discharge of their duties in connection with such operations. * * *

“ ‘VIII. This agreement shall apply to such injuries so sustained by reason of accidents occurring during the policy period, limited and defined as such in item 2 of said declarations.

“ ‘IX. * * *

“ ‘A. Por all purposes except passenger and commercial livery service, as herein elsewhere defined, the premium is based upon its entire remuneration, subject to the provisions of said declarations, earned during the policy period, by all employees of the *77assured, including proprietors, active executive officers, salesmen, clerical office force, and all other employees engaged in the business operations described in said declarations. * * *

“ ‘K. The statements in items 1 to 8, inclusive, in the declarations hereinafter contained, are true; those stated as estimates only are believed to be true. This policy is issued upon such statements and in consideration of the provisions of the policy respecting its premium and the payment of the premium in such declarations expressed.’

“Location and time of coverage was:

“ ‘Item 2. The period during which the policy shall remain in force, unless canceled as in the policy provided (herein called the policy period) shall be from September 15, 1921, to September 15, 1922, at twelve and one minute o’clock a. m. Standard time, as to each of said dates at the place where any operation covered hereby is conducted, as respects that operation, or at the place where any injury covered hereby is sustained, as respects that injury.

“ ‘Item 3. Location of all automobile sales agencies, service stations, and public garages, by State, town or city with street, and number: West Main street, Kalamazoo, Kalamazoo county,, Michigan.

“ ‘All agency, service station and garage operations, including the executive and operative management thereof, and the clerical service connected therewith, conducted at or from the locations and premises defined above, as declared in each instance, by a disclosure of the estimated remuneration of all employees, or by a disclosure of actual gross livery earnings, or by both, under such of the following divisions as are undertaken by the assured. 1. All such operations defined in this division, including all proprietors and active executive officers, all salesmen, all clerical office employees and all other employees of any kind engaged upon, or in connection with these operations. 2. All passenger or commercial livery operations.

“‘All work incidental and necessary to the conduct of the automobile sales agency, public garage, or automobile service station as above located, including the ownership, maintenance or operation of any style, type or make of automobile, tractor, or trailer, for any and all purposes in connection with such business, including pleasure use but excluding livery use. The carrying of passengers for a consideration or the renting or hiring of automobiles to others whether for the carrying of passengers or property cannot be included in this division but may be covered by proper disclosures in division 2 following:

*78“ ‘Name of proprietors or active executive officers agreed remuneration for the policy period: H. B. Parker, president, $2,000.

“ ‘Location: As above.

“ ‘Estimated total remuneration for the policy period rate per $100 up to $10,000, $10,000 to $25,000 estimated premium, $437.50.

“ ‘Opposite the name of H. B. Parker, president, remuneration $2,000. Estimated total remuneration for the policy year, $2,000, rate $1.85 per $100. Estimated premium, $37. Minimum premium, $75; total, $75.00. * *

“ ‘Item 5. The foregoing enumeration and description of employees include all persons in the service of the assured in connection with the business operations above described to whom remuneration of any nature in consideration of service is paid, allowed, or due together with an estimate for the policy period of all such remuneration. The foregoing statement of livery earnings is an estimate for each stated class for the policy period. The foregoing estimates of remuneration and livery earnings are offered for the purpose of computing the advance premium. The company shall be permitted to examine the books of the assured at any time during the policy period, or any extension thereof, or within one year after its final termination, so far as they relate to the remuneration earned by any employee of the assured or the gross livery earnings while the policy was in force.

“ ‘Item 6. The assured is conducting no other business operations at this or any other location not herein disclosed — except as hereinafter stated — no exceptions.

“ ‘Item 7. No similar insurance has been canceled by any insurance carrier during the past year except as herein stated.

“ ‘Item 8. The following signature is authorized and accepted by the assured as his signature.

“‘Copy of signature to proposal: Kalamazoo Auto Sales Company, per H. B. Parker, president. Dated September 9, 1921.’ ”

It is the claim of the plaintiff that it is indemnified and defendant is liable to it under this policy in the sum of $2,540.93, which it paid to Mrs. Dennis Malloy for injuries received by her. The basis of such claim and the manner of the accident may be thus stated: Harry B. Parker, the president and general manager of plaintiff, owns a cottage on an island in Gull lake some 12 or 13 miles from Kalamazoo; he has small motor boats for his personal use there. Plaintiff *79owns and has on Gull lake a large motor boat which it uses in connection with Mr. Parker’s cottage in entertaining its prospective customers, its distributing agents and officers of the companies from whom it purchases automobiles. On the evening of July 1, 1922, while entertaining prospective customers at Gull lake plaintiff’s boat collided with a rowboat occupied by Mrs. Malloy, causing her such serious injury that she was confined in a hospital for a considerable time and suffered an amputation of one leg below the knee. She made claim against plaintiff company and upon defendant’s denial of liability and its refusal to assume the defense or make any adjustment with her, plaintiff, upon the advice of counsel, settled her claim and that of her husband at the figure above named.

To sustain its theory of the case, plaintiff introduced the testimony of its officers and other dealers in automobiles tending to show that such entertainment as above detailed was incidental and necessary to the conduct of an automobile sales agency; that other sales agencies own motor boats used in such manner; that plaintiff entertained through Mr. Parker 25 or 30 dealers out at the lake, used the boat in entertaining them, and established relationships with such dealers as could not otherwise be done; that at one time it was hard to get cars of a certain make and Mr. Parker invited the vice president of the company to spend a week at the lake which he did and that he there entertained him at his cottage, using the company boat, and succeeded in getting a large shipment of cars when other dealers were without cars to sell. Defendant by appropriate objections to the testimony, request for a directed verdict and motion for judgment non obstante veredicto raised the question of its liability. The trial judge accepted plaintiff’s theory of the case and submitted the case to the jury, charging them:

*80“It is for you, as jurors, to say whether or not at the time of the accident on Gull lake last summer the use of the motor boat in question was incidental and necessary to the conduct of the plaintiff’s automobile sales agency. That seems to be, I say, the only disputed question of fact to be submitted to you as jurors.

“If you find by a preponderance of the evidence, that is, the greater weight of evidence, the over-balancing of all the evidence, that the use of the motor boat at the time in question, on the occasion in question, was incidental and necessary to the conduct of the plaintiff’s auto sales agency, then your verdict should be for the plaintiff company for the full amount of $2,540.93 with interest at five per cent, from October to this date.”