119 Mich. 203 | Mich. | 1899
A church building belonging to plaintiff was insured in the defendant company. It was burned the 31st of May, 1897. Proof of loss was made to Mr. Dodd, the adjuster of the company, and he issued a certificate of adjustment dated June 3, 1897, in which he stated he found the loss to be $2,149, and that he had adjusted plaintiff’s claim against defendant at the sum of $1,000.
In the application appears the question, “What other insurance on the same ? ” The question was not answered. The policy is a standard policy, and contains this clause: ‘ ‘ This policy is issued on written application by the assured, which is hereby made a part of this policy. Other concurrent insurance permitted.” The proofs of loss showed there’ was a policy of $500 insurance upon the property in another company. The proofs of loss were filed with the
The provisions of the policy in relation to the payment of the loss are as follows:
*206 “The sum for which this company is liable pursuant to this policy shall be payable 60 days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.”
The policy provides that, in case there is any disagreement about the amount of the loss, the amount may be determined by appraisers, and then reads:
“The loss shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers, when appraisal has been required.”
The policy also contains this condition:
“ If this policy be made by a mutual or other company having special regulations lawfully applicable to its organization, membership, policies, or contracts of insurance, such regulations shall apply to and form a part of this policy, as the same may be written or printed upon, attached or appended hereto.
“ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto.”
There is no suggestion in the policy that, in case the company failed to pay the loss when due, a suit at law could not be commenced until 60 days after the loss became due and payable, nor is there any reference in the policy to any such provision of the statute. The policy itself provides that all agreements affecting it shall be written or printed upon the policy itself. The refusal to pay was not put upon the ground that satisfactory proof of loss was not furnished, nor that the loss was not yet due and payable, but was based upon the contention that other insurance forfeited the policy. By the terms of the policy, the loss was payable 60 days after proof of loss. June 3, 1897, the adjuster of the company made a certificate that he had carefully examined the loss and the circumstances of the fire, and found claimant had suffered loss,
It is also claimed on the part of defendant the policy was forfeited by reason of the insurance in another company, as permission for other insurance for a specific amount was not named on the policy. On the part of the plaintiff, it is claimed the words in the policy, “other concurrent insurance permitted,” was a consent to the insurance which was obtained. The defense of forfeiture on account of a breach of the conditions, agreements, or representations of the policy or application therefor, in a suit upon a policy of insurance, may be waived. Bonenfant v. Insurance Co., 76 Mich. 653; Cleaver v. Insurance Co., 71 Mich. 414 (15 Am. St. Rep. 275); Marthinson v. Insurance Co., 64 Mich. 372. Unless notice is given, with the plea, of such defense, it cannot be asserted upon the trial. Cir. Ct. Rule No. 7 (d); Home Ins. Co. v. Curtis, 32 Mich. 402; Hann v. National Union, 97 Mich. 513 (37 Am. St. Rep. 365).
The record shows that upon the trial defendant asked leave to amend its plea by giving notice of a forfeiture of the policy. It is claimed the court erred in its refusal to permit the amendment. As already appears, this suit was begun September 15th. Defendant then knew of the additional
Judgment is affirmed.