28 Mich. 173 | Mich. | 1873
Of tbe errors assigned on this record several relate to the admission of evidence which the defense in the court below insisted was immaterial. We bave considered each of their objections in the light of the argument that has been made here, and are of opinion that no incompetent evidence was received which could bave. prejudiced the defense. And while we agree' that the erroneous reception of evidence is presumptively injurious, yet when
The objection that the daughter of the plaintiff was allowed to testify to the value of articles burned, without having been shown to possess the proper knowledge to qualify her to speak as an expert, was not well taken. She testified that she bought a good many of the articles, and was present when others were bought. On this evidence she had some knowledge of values which it was proper she should communicate to the jury. The extent of that knowledge, and its sufficiency as a basis for a verdict, were to be tested by her examination, and by the good sense and judgment of - the jurors.
The most important questions in the case relate to the existence of other insurance. The policy in suit contained a. provision that it should be void if the insured should have or procure any other insurance on the property without consent of the defendants endorsed on their policy. It was undisputed that the husband of the plaintiff had previously obtained in his own name an insurance on the same property in the Genesee County Farmers’ Mutual Fire Insurance Company, which had not been surrendered or cancelled at the time insurance by the defendants was applied for, and was not noted on the policy. The plaintiff claimed, however, that this previous insurance was void,
We are not satisfied that the defense did not have the full benefit of this theory before the jury, but we do not pause to demonstrate this, because we think it unimportant. The undisputed facts are that while the second insurance was being negotiated, both parties were aware of the exist- . ence of the prior policy, and it was a part of their understanding that it should be cancelled. It was cancelled in fact, but whether before or after this second policy was delivered, is the disputed point. The most that the defense can claim is that it was not_ cancelled until the following day. Their witness was the secretary of the Genesee company, who testifies that plaintiff’s husband came to him with the second policy, and asked him to look it over to see if it was good, expressing a purpose to have the first policy cancelled if it was; and on being told it was, the cancelment took place. At this time it is conceded that the premium on the second insurance had not been paid. Now the defense were entitled to have the jury draw any legitimate inference from this evidence; but we have been
Further exceptions relate to a policy subsequently applied for by plaintiff’s husband in her name in the Hartford Fire Insurance Company, notice of which was not given to the defendant. It appears by the evidence on both sides that such a policy was made out by an agent of the Hartford company, and was taken from his office by Mr. Horton. The premium was not paid, and it is left uncertain on the evidence whether it was or was not countersigned by the agent. No written application had been made for it by the plaintiff or her agent, as was customary. Both Horton and the agent testified that it was never delivered, and the
The circuit judge correctly charged the jury that the provisions of the policy in regard to other insurance are a part of the contract, with which, if material, the plaintiff must comply, and with which if the jury are satisfied she did not comply, she cannot recover. Also, that to make a valid delivery of a written contract, the one party must deliver it intending that it should take effect as his contract, and the party receiving it must accept it as a binding contract to take effect on its acceptance. On the question of the authority of plaintiff’s husband to procure insurance for her, he was requested to charge that if Horton was the agent of the plaintiff, authorized to transact her business generally, as well insurance as other business in the care and management of the plaintiff’s property, he would be authorized to obtain insurance on her property without her special or direct assent or direction. This request was granted with a modification effected by the insertion of two words only, as follows: That if he was the general agent of the plaintiff, authorized to transact all her business, etc. This modification was excepted to. It is true that the instruction given in that form contained an element of error, inasmuch as, by implication at least, it required something more than authority in the husband to effect insurance for his wife, to warrant his doing it without her special assent or direction. But the instruction requested contained precisely the same error, for that also assumed
There was evidence in the case that previous to the making out of the Hartford policy an attempt had been made to burn the house insured, and there was testimony both ways on the question, whether this fact was communicated to the agent of the Hartford company. The defense requested the judge to instruct the jury as follows:
“If the plaintiff recognized and regarded the Hartford policy as valid at the time of the loss, and the same had been taken by the agent, whether by previous direction or
“If the jury are satisfied that notice of the attempt to fire the building was brought to the attention of the agent who issued the Hartford policy, before he issued the same, and that such notice was sufficient to put him upon inquiry, the Hartford company will be charged with notice of such attempt, and the policy cannot be held void in this suit for want of notice.
“ The question of the concealment of the fact of a former attempt to burn the building, from the agent of the Hartford company, is a fact to be pleaded by the Hartford company, and being a fact extrinsic of and not appearing on the face of the policy, cannot avail the plaintiff in this action to divest the Hartford policy of the character of additional insurance, if said Hartford policy was regularly issued and accepted by the plaintiff.”
All these requests were refused. And however correct they may have been as abstract propositions, we think they were correctly refused, unless the plaintiff was relying on some extrinsic fact to defeat the Hartford policy. The record does not show that such was the fact. That being so, the defense had no interest in suggesting possible infirmities in the Hartford policy, which the plaintiff was not urging. It was sufficient for the defense to answer the objections to that policy actually made by the plaintiff, and any thing more was a work of supererogation in which they were not entitled to assistance from the court.
A question was made on the trial whether the plaintiff was owner of all the property insured, and the judge
We think the judgment should be affirmed, with costs.