Allen v. Milwaukee Mechanics' Ins. Co.

Decision Date09 July 1895
Citation64 N.W. 15,106 Mich. 204
PartiesALLEN v. MILWAUKEE MECHANICS' INS. CO.
CourtMichigan Supreme Court

Error to circuit court, St. Clair county; Samuel W. Vance, Judge.

Action by Mary Allen against the Milwaukee Mechanics' Insurance Company on a fire insurance policy. Judgment was rendered for plaintiff, and defendant brings error. Reversed.

E. C Babcock, for appellee.

HOOKER J.

The defendant appeals from a judgment upon a policy of insurance. It seeks to avoid liability upon the technical claims that an inventory of plaintiff's goods was not kept outside of the burned building, or in an iron safe, and that proofs of loss were not furnished within the period stipulated in the policy. Insurance contracts, like all others, are made by the parties, and cannot be changed by the courts. There is no impediment to agreements for forfeitures, if the parties choose to make them. This contract of insurance contains provisions which create a forfeiture if the assured has failed to comply with its terms, unless she can be relieved through the application of the doctrine of estoppel. She has consented to a provision that the policy shall be void if she fails to take an inventory of stock once a year, and to keep the last inventory in an iron safe, or other secure place, in a building other than the one containing the property insured. She has consented to a similar provision in case she fails to furnish proofs of loss of a stipulated character within 60 days after the fire, the policy providing "that no action *** shall be sustainable *** until after compliance," etc., "nor unless commenced within twelve months next after the fire." The contract contains the further provision that "no officer, agent, or other representative of this company shall have power to waive any condition or provision of this policy, except such as by the terms of this policy may be the subject of agreement, indorsed hereon or added hereto; and as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto." Also, the following: "This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act or proceeding on its part relating to the appraisal, or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company." It is admitted that no satisfactory proofs of loss have been received by the defendant, and that no written proofs of loss have been made and furnished by the plaintiff at any time. The action was brought about seven months after the fire. It is also admitted that she never took an inventory of stock after she bought the stock. Her policy was destroyed by the fire, which occurred soon after; her purchase being in February, the policy having been issued in April, for one year, and the fire having occurred July 19, 1892. No question was raised over the validity of this provision relating to the inventory. The circuit judge instructed the jury that it was his construction of that clause "that Mrs. Allen was not required between the time of issuing this policy on May 30th [i. e. April 30] and the time of the fire, on July 19th, to make any inventory of this property, and that the failure to do it does not defeat her right to recover on this policy, if she is otherwise entitled to recover." It was admitted upon the trial that this policy was a Michigan standard policy. It was issued for one year. Under this provision, the plaintiff should be allowed a reasonable time to make her inventory, if she did not have one, which may be inferable from the statement that she took none after her purchase in February, although she began one that she did not finish. If she had an inventory taken when she purchased, she should have cared for it as provided in the policy, and in such case it would have been unnecessary to take another before the fire, as that would have been a compliance with the terms of her policy. If the testimony showed that she had an inventory, the judge may not have erred in saying that it was unnecessary for her to take another. If not, it should have been left to the jury to say...

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