123 N.W. 795 (Mich. 1909), O'Toole v. Ohio German Fire Ins. Co.

Citation:123 N.W. 795, 159 Mich. 187
Opinion Judge:OSTRANDER, J.
Attorney:[159 Mich. 188] Bird & Sampson, for appellant. D. B. Morgan and Smith, Baldwin & Alexander, for appellee.
Judge Panel:Argued before BLAIR, C.J., and MONTGOMERY, OSTRANDER, HOOKER, and BROOKE, JJ.
Case Date:December 10, 1909
Court:Supreme Court of Michigan

Page 795

123 N.W. 795 (Mich. 1909)

159 Mich. 187




Supreme Court of Michigan

December 10, 1909

Error to Circuit Court, Lenawee County; Guy M. Chester, Judge.

Action by Myrtle E. O'Toole against the Ohio German Fire Insurance Company. There was a judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.


Page 796

[159 Mich. 188] Bird & Sampson, for appellant.

D. B. Morgan and Smith, Baldwin & Alexander, for appellee.


The policy of insurance sued upon--a Michigan standard form--is dated November 12, 1904. The barn, a portion of the property insured, burned November 5, 1906. This suit was begun by summons April 2, 1907; the declaration being filed April 10, 1907. The trial began February 7, 1908. With its plea the defendant gave notice that it would rely upon a number of the conditions violations of which would avoid the policy, among them the one relating to a change other than by death of the insured in the interest, title, or possession of the subject of insurance. The specification in this behalf was that upon a day named a writ of attachment had been levied upon the property. It also gave notice that it would show (I omit the verbiage) that plaintiff fired the barn, or caused it to be fired, with intent to defraud the defendant. The assignments of error relied upon will be referred to in the order in which they are presented in the brief for appellant.

1. It appeared at the trial that, when the policy was issued, plaintiff represented that she was sole owner of the property, when, in fact, it was owned by herself and her husband by entireties; that, the fact being discovered, a rider was placed upon the policy correctly stating the title. About a year before the fire plaintiff again became of record the sole owner of the legal title, a fact not discovered by defendant until the trial had begun. After [159 Mich. 189] plaintiff's case was closed, the court was moved to permit defendant to amend the notice so as to set up specifically the change in the title last above mentioned. The motion was denied, and error is assigned upon the ruling. The proofs of loss contained the statement that the interest of plaintiff in the destroyed property was a total interest, except as to the interest of a certain mortgagee. The statement of counsel to the trial court was that the change of ownership was first discovered from an examination of the records of title made after the trial was begun. The ruling of the court is sustained upon the authority of Baptist Church v. Insurance Co., 119 Mich. 203, 77 N.W. 702.

2. The second and third assignments of erred are based upon rulings which permitted two witnesses for the plaintiff, who in the order of proof preceded her, to detail certain statements made by plaintiff. To one of the witnesses her statement, made by telephone, was directed. The other heard her talking at the telephone. Neither witness was incompetent to testify to what they heard plaintiff say. What she said, in their presence was a fact within their knowledge. It is said that the effect of the rulings was to bring to the attention of the jury selfserving statements of the plaintiff. The fact is that she called the office of the sheriff, and said, in substance, that she would like to have the matter of the fire investigated, that there were suspicious circumstances connected with the burning of the...

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