Bowie v. Olympic Insurance

Michigan Court of Appeals

Bowie v. Olympic Insurance

166 N.W.2d 287, 15 Mich. App. 129, 1968 Mich. App. LEXIS 794

CourtMichigan Court of Appeals

DecidedDecember 23, 1968

DocketDocket No. 3,809

StatusPublished

This text of 166 N.W.2d 287 (Bowie v. Olympic Insurance) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bowie v. Olympic Insurance, 166 N.W.2d 287, 15 Mich. App. 129, 1968 Mich. App. LEXIS 794 (Mich. Ct. App. 1968).

Pincite

Opinion

Levin, J.

At the conclusion of plaintiff’s proofs the court directed a verdict for the defendants on the ground that plaintiff’s proofs were insufficient to establish that the defendants had made a fraudulent misrepresentation to the damage of the plaintiff.

Taking the view of the evidence most favorable to the plaintiff, as we must, it appears that the defendant, Bohn, an insurance agent representing Olympic, notified the plaintiff that Olympic’s policy, which was amended to cover plaintiff’s 1966 Cadillac, would expire on March 11, 1966, and asked the plaintiff to remit $111 to renew the policy. Bohn received plaintiff’s check on March 11, 1966, the date on which, according to Bohn’s testimony, the renewal was to take effect. The check was deposited to Bohn’s agency account.

Plaintiff’s automobile was damaged April 1, 1966, in a collision with another automobile. The insurance policy, which expired March 11, 1966, provided collision coverage. When on April 2, 1966, a claim for plaintiff’s damages was filed with Bohn, Bohn said that the damaged automobile was not insured. He then offered to return to plaintiff the sum of $111.

In announcing that he would direct a verdict for the defendant, the trial judge stated that there was no [131]*131testimony before the court whether the plaintiff was “given” or denied a new policy. However, there was testimony from witnesses for the plaintiff that Bohn told such witnesses shortly after the accident that plaintiff’s automobile was not covered by insurance.

In our opinion there was sufficient evidence on the issue of fraudulent misrepresentation to withstand a motion for directed verdict at the conclusion of plaintiff’s proofs. The record would support a jury finding that the evidence showed more than a mere breach of promise. The unexplained retention of plaintiff’s money under the circumstances of this case made a prima facie case sufficient to resist a motion for directed verdict at the conclusion of plaintiff’s proofs. See Cook v. Metropolitan Life Ins. Co. (1938), 186 SC 77, 82, 84 (194 SE 636, 638, 639); Philadelphia Storage Battery Co. v. Kelley-How-Thomson Co. (CA 8, 1933), 64 F2d 834, 838; Bronson v. J. L. Hudson Company (1965), 376 Mich 98, 101-103.

Although plaintiff’s damage proofs were inadequate, the trial judge did not direct a verdict on that account. We are persuaded that, had the judge concluded that plaintiff’s liability proofs were sufficient to entitle him to go to the jury, he might very well have granted plaintiff’s motion for a continuance to allow sufficient time to bring in another witness on the damage issue.

Reversed and remanded for a new trial. Costs to appellant.

Lesinski, C. J., and Andrews, J., concurred.

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Levin, J.

At the conclusion of plaintiff’s proofs the court directed a verdict for the defendants on the ground that plaintiff’s proofs were insufficient to establish that the defendants had made a fraudulent misrepresentation to the damage of the plaintiff.

Taking the view of the evidence most favorable to the plaintiff, as we must, it appears that the defendant, Bohn, an insurance agent representing Olympic, notified the plaintiff that Olympic’s policy, which was amended to cover plaintiff’s 1966 Cadillac, would expire on March 11, 1966, and asked the plaintiff to remit $111 to renew the policy. Bohn received plaintiff’s check on March 11, 1966, the date on which, according to Bohn’s testimony, the renewal was to take effect. The check was deposited to Bohn’s agency account.

Plaintiff’s automobile was damaged April 1, 1966, in a collision with another automobile. The insurance policy, which expired March 11, 1966, provided collision coverage. When on April 2, 1966, a claim for plaintiff’s damages was filed with Bohn, Bohn said that the damaged automobile was not insured. He then offered to return to plaintiff the sum of $111.

In announcing that he would direct a verdict for the defendant, the trial judge stated that there was no [131]*131testimony before the court whether the plaintiff was “given” or denied a new policy. However, there was testimony from witnesses for the plaintiff that Bohn told such witnesses shortly after the accident that plaintiff’s automobile was not covered by insurance.

In our opinion there was sufficient evidence on the issue of fraudulent misrepresentation to withstand a motion for directed verdict at the conclusion of plaintiff’s proofs. The record would support a jury finding that the evidence showed more than a mere breach of promise. The unexplained retention of plaintiff’s money under the circumstances of this case made a prima facie case sufficient to resist a motion for directed verdict at the conclusion of plaintiff’s proofs. See Cook v. Metropolitan Life Ins. Co. (1938), 186 SC 77, 82, 84 (194 SE 636, 638, 639); Philadelphia Storage Battery Co. v. Kelley-How-Thomson Co. (CA 8, 1933), 64 F2d 834, 838; Bronson v. J. L. Hudson Company (1965), 376 Mich 98, 101-103.

Although plaintiff’s damage proofs were inadequate, the trial judge did not direct a verdict on that account. We are persuaded that, had the judge concluded that plaintiff’s liability proofs were sufficient to entitle him to go to the jury, he might very well have granted plaintiff’s motion for a continuance to allow sufficient time to bring in another witness on the damage issue.

Reversed and remanded for a new trial. Costs to appellant.

Lesinski, C. J., and Andrews, J., concurred.

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Bluebook (online)

166 N.W.2d 287, 15 Mich. App. 129, 1968 Mich. App. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowie-v-olympic-insurance-michctapp-1968.

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