119 Mich. 177 | Mich. | 1899
This case was brought to recover an amount due for insurance. It was heard before the circuit judge without a jury. From the judgment rendered in favor of plaintiff, defendant appeals, alleging by way of defense as follows:
1. There is no privity of action between the plaintiff and the defendant.
2. Plaintiff had only a derivative right in the policy; whatever would defeat the right of Post, the principal, must, of necessity, defeat any right of the plaintiff, under whom he claims.
3. Plaintiff is conclusively presumed to know the terms of the contract upon which he brought his action, and whether, as a matter of fact, he knew them or not, “cannot enlarge the liability which is imposed upon the defendant.’"’
4. The policy became absolutely void after it was issued, by the conveyance of the subject of the insurance by Post, the insured, to his wife, without the consent of the company.
5. There was no waiver of the forfeiture by the defendant or its agents, after knowledge of the facts constituting the forfeiture.
6. There can be no splitting up of causes of action on a single policy, as plaintiff had only a partial interest in the premises insured, viz., in only one of the three buildings insured.
There is some conflict in the testimony, but it is shown by the record substantially as follows: In 1892, Joseph Post and wife gave a mortgage upon real estate at Clarksville, for $600, to the plaintiff, and agreed to keep the buildings on the property insured for the benefit of the mortgagee. The insurance was kept up by Mr. Post until
“Q. Is the application signed by the applicant in person ?
“A. No.
“Q. If this property has not been recently insured, what induces this application ?
“A. Policy expired February 12th; this application to secure mortgagee.”
Upon receipt of the application and report, the company issued a policy in the name of Mr. Post, insuring a two-story building for $500, — loss, if any, thereon, payable to J. Granger, as his interest may appear, — and also insuring a barn in the sum of $75, and a shed in the sum of $25. This policy was delivered to the plaintiff by the agent of defendant, who assured him it was all right, and at the same time the plaintiff paid the premium to the agent. The plaintiff did not know until after the fire that an application had been procured from Mr. Post by the agent, or that the policy was in his name, or that the entire insurance for which he had paid was not payable to him. In May, 1894, Mr. Post gave.his wife a quitclaim deed of the property. This was not known to plaintiff until after the fire.
In October, 1894, the two-story building and the shed were burned. The barn was not burned. The company was notified of the loss, and sent Mr. Witherbee, who had full authority to adjust losses and make settlements in Michigan, to investigate the loss. Mr. Witherbee notified the plaintiff, who lived at Saranac, to meet him
Upon the trial it appeared that Mr. Post never claimed any interest in the insurance money, but expressly disclaimed having any interest in it. The judge found, from the facts stated, that the defendant should be deemed to have waived any special matter of defense, and is es-topped from making it at this trial.
Counsel for defendant has presented 80 assignments of error, and has argued them ably and at length. The pivotal questions in the case have been before this court so recently that we do not deem it necessary to enter upon a lengthy discussion of them. The plaintiff undertook to get insurance for his own benefit, and paid for it. The company, until after suit was brought, always treated him as the party interested in the insurance. When it proposed to adjust the loss, he was notified to be present. The settlement was agreed upon with him. Additional proofs were required of him. After it knew the nature of his claim and the conveyance of the property insured by . Mr. Post to his wife, it did not treat the policy as forfeited, or insist there were no contract relations between it and the plaintiff, but saw fit to ask further proofs, which involved an expenditure of time and money on the part of Mr. Granger. If the company intended to insist upon these defenses, it was its duty, after it had learned the facts, to so inform Mr. Granger, instead of remaining silent and asking for further proofs. The case is governed by Hopkins Manfg. Co. v. Insurance Co., 48 Mich. 148; Marthinson v. Insurance Co., 64 Mich. 372; Burnham v. Interstate Casualty Co., 117 Mich. 142, and the cases therein cited.
As to the claim that there can be no splitting up of causes of action, and that there can be no recovery on the policy in this suit for that reason, it is sufficient to say the declaration, in addition to declaring upon the policy, con
Judgment is affirmed.