195 Mich. 55 | Mich. | 1917
(after stating the facts). The evidence of fraud relied upon by the defendant for a reversal of this case relates to the cause of the fire and the proof of loss. It was the plaintiff’s claim that he did not know the origin of the fire, but first saw the fire on the top of the mow in the barn. The only explanation he gives as to its cause is that it might have originated from spontaneous combustion from the silo which was on the inside of the barn at one end of the hay mow, as this had recently been filled with green corn and green clover. The defendant insists that this theory of the origin was highly improbable, and that from plaintiff’s conduct and his statements concerning the fire, it is established that he either set the fire or that it originated through gross carelessness on his part. Be that as it may, the question was submitted by the
The other claim of fraud relates to the overestimating of the value and quantity of the property destroyed. It is apparent from the record that in the first list prepared by the plaintiff property was overvalued, and some property listed which was not burned which plaintiff testified he thought had burned at the time he made the list. The records of the meeting of the directors of the defendant company held on December 2, 1912, which the plaintiff attended, shows the following:
“After a few more questions Mr. Jelle Veenstra was excused, and upon his request he was permitted to make a new list of the property burned or damaged and to send that to the secretary.”
An- attempt was made to impeacn the second list by showing that the action of the board in truth was not to allow the plaintiff to make a new list. On December 16, 1912, the board of directors of the defendant company again met, and the record of this meeting discloses that:
“The minutes of the preceding meeting were read by the secretary and approved by the board.”
Plaintiff was not notified that the company claimed a forfeiture until December 20, 1912. The question of the waiver by the defendant company of the fraud in the original list and resulting forfeiture of the policy was submitted to the jury with the following instructions:
“You are instructed that, if you find from the evidence that on December 2, 1912, at an official meeting of the board of directors at Zeeland, it knew all the facts which the company now relies upon as showing fraud or an attempt to defraud the company, and at that meeting they permitted him, to make out a new list of burned and damaged property and directed him*59 to send it to the secretary and told him that they would then pay the loss, and you find that the plaintiff at some trouble did make a new list, and did send it to the company, I charge you that that would constitute a waiver of the forfeiture, if there was one, and the policy would still be in force, and the plaintiff would have a right to recover under it, and in that case, if you so find, your verdict should be for the plaintiff.”
At the meeting of December 2, 1912, the board of directors were in possession of all the facts which they are now relying upon as a defense to plaintiff’s action, and at this meeting the plaintiff claims he was told to go home and make out a new list and send it to the secretary and the matter would be adjusted. This claim finds strong support in the records of the company kept by its secretary above referred to, and, in our opinion, it must now be held to be bound by its own records. While the trial judge submitted this question of waiver to the jury, we are of the opinion that he might properly have directed the jury that as a matter of law the defendant had waived all defense based upon warranties and forfeitures. See Penn. Fire Ins. Co. v. Kittle, 39 Mich. 51; Marthinson v. Insurance Co., 64 Mich. 372 (31 N. W. 291); Granger v. Fire Assurance Co., 119 Mich. 177 (77 N. W. 693).
It also appears that, if the defendant company is liable, the amount of the verdict is considerably less than what the proofs show the loss to have been. It is therefore unnecessary to consider other assignments of error as to the argument of counsel and the charge of the court, because, if it should be found that there was error in this regard, it must be said to have been error without prejudice.
The judgment is affirmed.
