26 N.W.2d 772 | Mich. | 1947
Plaintiff Dorothy Allor was injured while riding in an automobile driven by Marguerite Dubay and owned by Bernard Dubay. She obtained a default judgment against the Dubays in the sum of $4,500. Plaintiff's judgment being unsatisfied, on October 15, 1945, she obtained a writ of garnishment against defendant Keystone Mutual Casualty Company, which filed a disclosure. Plaintiff filed a demand for the trial of the statutory issue. A judgment was entered in the circuit court against the garnishee defendant, from which it has appealed.
Under the terms of Dubay's policy, liability was excluded "while the automobile is used as a public or livery conveyance, unless such use is specifically declared and described in this policy and premium charged therefor." The Keystone Casualty Company contends that it is not liable for damages to plaintiff Allor, because the Dubay automobile was being used at the time of the accident as a livery conveyance.
When Dorothy Allor was injured she was riding home from work with other employees of the Hudson Motor Car Company, pursuant to a "share-the-ride" arrangement, under which she paid Marguerite Dubay $2.50 per week for transportation.
The plaintiff in this garnishment proceeding cannot prevail unless at the time the writ of garnishment was served upon the insurance company, Bernard Dubay could have successfully prosecuted a suit on his policy. Musser v. Ricks,
The insurance contract, obviously prepared by the insurer, must be construed against it, if ambiguous *283
in its terms. D.F. Broderick, Inc., v. Continental CreditCorp.,
The garnishee defendant concedes that the Dubay automobile was not being used as a "public conveyance," but insists that at the time of the accident it was being used as a "livery conveyance." In support of this contention a number of authorities are cited in which the various insurance policies contained comparable language but, in addition, included the phrase, "carrying of passengers for a consideration." See Cartos v. HartfordAccident Indemnity Co.,
In Wood v. Merchants Ins. Co.,
"This schoolboy was not using his automobile 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."
In a subsequent action by one of the passengers against Wood, this Court reversed the judgment and, in doing so, referred to the previous holding that Wood was not operating "a public or livery conveyance for hire."
In Pimper v. National American Fire Ins. Co.,
"The term `public conveyance' means a vehicle used indiscriminately in conveying the public, and not limited to certain persons and particular occasions or governed by special terms. The words `public conveyance' imply the holding out of the vehicle to the general public for carrying passengers for hire. The words `livery conveyance' have about the same meaning."
We accept and adopt the definition used by the Nebraska court.
Appellant urges us to apply the definitions of "livery stable keeper" as given in 17 R.C.L. p. 1045; 24 Am. Jur. 481; andStanley v. Steele,
The judgment is affirmed, with costs to appellee.
CARR, C.J., and BUTZEL, SHARPE, BOYLES, REID, NORTH, and DETHMERS, JJ., concurred.