104 Mich. 397 | Mich. | 1895
This is an action to recover upon a fire insurance policy. July 16, 1891, plaintiff had issued to him by the defendant company a policy upon his household furniture in his dwelling house in Bay City. That policy expired on July 16, 1892. It was a Michigan standard in
The declaration by which the suit was commenced, it is •claimed, was not sufficient to warrant a recovery. It was mot demurred to, and we think it contained sufficient
It is said, however, that the time when the fire took place was stated as August 25, while the proof showed that it was on July 25, and that, the date nof being averred under a videlicet, the variance was fatal. The court below refused so to charge, and we think properly. The date was not very essential, as the proofs of loss were made within the time fixed by the policy, and it is evident, the defendant was not taken by surprise on the trial. It was a misstatement which the court would have at once' amended as of course, and which we may well treat as-amended. Except in describing a written instrument which bears a written date, averments of time are not, in general, material in a declaration. Howland v. Davis, 40 Mich. 545.
■ The principal questions which were raised on the trial' relate to—
1. Whether there was a new policy actually issued, and' whether there was sufficient delivery, so that it took effect, as a valid contract of insurance.
2. Whether the non-payment of the premium vitiated it.
3. Whether the plaintiff’s agent had notice of its cancellation.
4. Whether the proofs of loss were sufficient, and, if not. sufficient, whether the defendant is now in position to-take advantage of the defects.
Mr. Forsyth had been acting as the agent of defendant. for some three years, and, it is claimed by defendant, under limited authority. A commission had been issued, to him to do business, and, while it appears that plaintiff’s agent had seen the commission hanging in Mr. Forsyth’s office, there is no proof that he knew of any limitation upon Mr. Forsyth’s power to issue insurance policies. It .had been the practice of Mr. Forsyth to fill out, sign,
The third question has already been disposed of, as it was submitted to the jury as before stated.
On the subject of the proofs of loss the policy provides that—
“The insured, * * * within 60 days after the fire, unless such time is extended in writing by this com*402 pany, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof, and the amount of loss thereon, and all incumbrances thereon.”
Proofs of loss were made out and sent to the general agent of the company at Detroit. They did not comply with the terms of the policy, in that there was nothing contained therein stating the knowledge and belief of the insured as to the time and origin of the fire, and the interest of the insured and of all others in the property, and such proofs were not signed and sworn to. The proofs of loss did give the list of articles destroyed, and their value, and their ownership as in the plaintiff, and as insured under policy No. 1,926 in the defendant company. It is evident that the proofs of loss did not comply with the requirements of the policy. The court below held, however, that the company denied all liability, and that, therefore, no proofs of loss were necessary.
It is well settled that an insurer who has denied liability for a loss is estopped from objecting to the want or sufficiency of the preliminary proof thereof. O’Brien v. Insurance Co., 52 Mich. 131. The proofs were made out and sent forward to the general agent of the company, and, so far as this record discloses, no objection whatever was made to them. From the outset of the trial the defendant claimed that the policy had been canceled, and that no valid insurance existed upon the property. Counsel sought to establish the fact that the plaintiff’s agent had notice of the cancellation. A letter was put in evidence from the general agent of the company to Mr. Forsyth, dated July 18, 1892, ordering the policy canceled, and from that time it is evident that the company absolutely refused to recognize the plaintiff’s claim; and we
Some other questions are raised, but the principal ones have been discussed. We find no error in the record.
The judgment must be affirmed.