Beebe v. Ohio Farmers' Ins. Co.

• Decision Date: 02 December 1892
• Parties: BEEBE v. OHIO FARMERS' INS. CO.
• Court: Michigan Supreme Court

53 N.W. 818

93 Mich. 514

BEEBE v. OHIO FARMERS' INS. CO.

Supreme Court of Michigan

December 2, 1892

Error to circuit court, Livingston county; ROLLIN H. PERSON, Judge.

Action by Nancy M. Beebe against the Ohio Farmers' Insurance Company on two policies of insurance. From a judgment for plaintiff, defendant brings error. Affirmed.

Thomas E. Barkworth, for appellant.

Luke S. Montague, for appellee.

LONG, J.

This action was brought upon two insurance policies. Plaintiff had judgment. Defendant brings error. The cause was tried before the court without a jury, and the court found substantially that the plaintiff was the owner in fee of a farm situate on sections 8 and 17, in the township of Putnam, Livingston county, the land being used together as one farm. On the day the policies were issued (June 30, 1890) there was situate upon that portion of the farm on section 8 a dwelling house occupied by plaintiff as her residence, a barn, storehouse pigpen, corn house, crib, and wheat house; and upon that portion of the farm on section 17 another barn. These barns were within 10 rods of each other, a highway running between them, and the other buildings were all within 12 rods of the barns; both barns and the other buildings being used for general farm purposes. The plaintiff kept upon the farm stock, tools, and implements, and had crops and produce upon it. On the above day, the defendant issued its two policies,-the one, No. 1,440, covering barn No. 1, on section 17, to the amount of $750, and barn No. 2, on section 8, at $150; and the other policy, No. 1,441, made to the plaintiff and Mrs. Sophia Beebe, and covering dwelling house No. 1 household furniture, barn No. 1, hay, grain, fodder, and seeds while therein, live stock while therein, and against lightning on the farm, storehouse, horse barn, hay, grain, and fodder while therein, live stock while therein, and against lightning on the farm, farming implements, wagons, carriages, and harness while in barns or barn insured, dwelling house No. 2, household furniture and clothing while therein, barn No. 2, hay, grain, fodder, and seed while therein, pigpen, corn house, crib, wagon house, wagons, carriages, and farm tools while therein, and on the wheat house, in the total sum of $4,700. A writing was indorsed on policy 1,441, that "it is understood that produce is covered in barns, in granary, in crib, and hay stacks, within twelve rods of the buildings." March 18, 1890, further insurance to the sum of $800 was placed in policy No. 1,441, on produce while in barn and sheds, the same being the barn south of the road on section 17, designated originally in policy No. 1,440 as "barn No. 1 and foundation." At the date the policies were issued, Gov. Felch held a mortgage of $1,300, with accrued interest thereon of $700, on 20 acres of land on section 17. One Thomas Burkett held a chattel mortgage for $500, given by plaintiff upon 50 acres of beans then growing on the farm, the chattel mortgage being collateral and additional security for the same indebtedness covered by a real-estate mortgage held by Burkett. Permission was given upon the policies for the chattel mortgage of $500, as additional security to be placed on produce, "Loss, if any, payable to Thomas Burkett, mortgagee, as his interest may appear;" and upon policy No. 1,441 was indorsed: "Loss, if any, on real estate payable to Thomas Burkett, mortgagee, as his interest may appear." Upon policy No. 1,440 was indorsed: "Loss, if any, on real estate payable to A. Felch, mortgagee, as his interest may appear." August 15, 1890, the defendant, through its agent, further indorsed upon the policy: "Further chattel mortgage for $700 permitted, to put in and secure crops, but $350 returned, and not used." At the date the policies were issued, John Dyer held a bill of sale given as security upon certain personal property owned by the plaintiff. This was dated June 26, 1890, to secure the sum of $200. On the day the policies were issued, Mr. Morris, the agent of the defendant company, dictated a new bill of sale to secure the payment of the same indebtedness to Mr. Dyer, to take the place of the one of June 26, 1890. This was delivered to Mr. Dyer, and the old one taken up; also, on the date the policies were issued, Enoch Smith held a chattel mortgage given by the plaintiff to him to secure the payment of about $200. Just what personal property it covered is not shown. October 9, 1890, the plaintiff gave to Smith a new chattel mortgage to take the place of the one last mentioned, and to secure the same indebtedness; thereby mortgaging to him a horse, a piano, and 12 acres of growing wheat. The horse and piano were insured by policy No. 1,441; but the wheat was still growing on the farm at the time the fire occurred, and none of the property covered by this mortgage was destroyed by the fire. The bill of sale to Dyer and the mortgage to Smith, and the removal of the same, were known to defendant's agent, but no permissions were indorsed on the policies for the same. No steps were taken by the company to cancel the policies before the fire.

Each policy was preceded by a written application, which was made a part of the policy, and each recited: "This policy is based upon an application and survey of the property on file, which is hereby referred to as forming a part of this policy." It was also printed in and made a part of each policy that, "if the property, real or personal, covered by this policy, be or become incumbered by a mortgage, trust deed, judgment, or otherwise, this entire policy shall be void, unless otherwise provided by agreement, indorsed hereon or added hereto." It was also printed in the policy: "This policy shall be void if the insured has concealed or misrepresented in writing any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured touching matters relating to this insurance, or the subject thereof, whether before or after the loss." And also: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership, or the subject of insurance be personal property, and be or become incumbered by chattel mortgage." Also: "If the application, survey, plan, or description of the property be referred to in this policy, it shall be a part of this contract, and a warranty by the insured as to material facts." Also: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, and conditions as may be indorsed hereon or added hereto; and no officer, agent, or representative of this company shall have power to waive any provision or condition 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 or 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; nor shall any privilege or permission affecting insurance under this policy exist or be claimed by the insured, unless so written or attached. In the written application for policy No. 1,440 occurred the question, "Is the property incumbered?" The written answer was, "Yes." Then in the application is the following question, "If so, what amount, and the value of the premises?" The written answer is, "$1,300,-$1,800." Each of the written applications contains this clause: "The applicant hereby warrants the above answers and statements are true, and that no statement contradictory to above was made to or by the agent of the company, and he agrees that this declaration shall be the basis or form part of the contract or policy between the assured and the company." January 17, 1890, a fire occurred without the fault of the plaintiff, which destroyed the barn mentioned in policy No. 1,440 as "Barn No. 1," and a large amount of insured personal property, consisting of hay, cornstalks, oats cut and stored, harness, farming implements, 671 bushels of beans stored partly in stack within 12 feet of the barn, beanpods in barn and shed adjoining, and grain bags, making a total loss under both policies of $2,343.19, for which plaintiff had judgment. The value of the barn was in excess of the insurance.

The objection to the proceeding relates entirely to the conclusions of law reached by the court below, upon the grounds: (1) Because the...