Benton v. Farmers' Mut. Fire Ins. Co., of Kent County

• Decision Date: 16 October 1894
• Citation: Benton v. Farmers' Mut. Fire Ins. Co., of Kent County, 60 N.W. 691, 102 Mich. 281 (Mich. 1894)
• Parties: BENTON v. FARMERS' MUT. FIRE INS. CO. OF KENT COUNTY.
• Court: Michigan Supreme Court

60 N.W. 691

102 Mich. 281

BENTON v. FARMERS' MUT. FIRE INS. CO. OF KENT COUNTY.

Supreme Court of Michigan

October 16, 1894

Error to circuit court, Kent county; William E. Grove, Judge.

Action by Reuben F. Benton against the Farmers' Mutual Fire Insurance Company of Kent County. There was a judgment for plaintiff, and defendant brings error. Reversed.

Myron H. Walker, for appellant.

Wesselius & Corbitt, for appellee.

McGRATH C.J.

On the 4th of April, 1884, plaintiff made written application to defendant for insurance upon the following property, and in amounts named: "One dwelling house $275; contents in same, $300; one barn, $175; contents in same, $300; one tool house, $75; contents in same, $300 stock on said farm, against lightning, in Kent county $175-total, $1,600; all situate on section 27, in township of Bowne." On the same day a policy was issued describing the property as: "One dwelling house, $275; on contents in same $300; one barn, $175; on contents in said barn, $300 one tool house, $75; on contents in tool house, $300; on his stock, against lightning, in Kent county, $175,-total, $1,600." On January 26, 1889, the defendant executed and delivered to said plaintiff, in pursuance of said application of the same date, a certain other contract of insurance, as stated in said declaration, as follows, to wit: "On one frame granary, $100; on contents in said granary, or in stacks on farm $600,-total increase, $700." On April 4, 1884, when said policy was issued, there were a barn and tool house on said premises, being the ones mentioned in and covered by the policy of insurance of that date; and on the 26th of January, 1889, there was a frame granary on said premises, being the one mentioned in said contract of increase. But the plaintiff afterwards considered that said tool house and barn had become unfit or insufficient for his purposes, and in 1891 commenced the erection of a new and larger barn on another part of said farm, which he completed in July, 1892, and in which he stored his grain from the harvest of 1892, and the tools, or a part of the tools, he then had and used upon said farm; and the new barn and said grain and tools therein stored as aforesaid were the ones destroyed by the fire mentioned in said declaration, which occurred, as therein stated, the 28th day of July, 1892. The old barn and tool house and said granary then stood, and still stand, on said premises, and they had contents therein at the time of said fire. Plaintiff procured a policy of insurance on the new barn in the German Baptist Mutual Fire Insurance Company for the sum of $1,100, which sum was paid after said fire. Defendant had no notice of the transfer of the tools or the grain to said new barn, or of the erection of said barn; and the plaintiff had no insurance thereon, unless the insurance mentioned in the declaration, and as a part of defendant's policy of insurance, covered the same. Said barn and its contents were destroyed by fire, caused by lighting, at the date aforesaid.

Plaintiff's proofs of loss covered unthreshed wheat and hay in the new barn, and tools and implements in the new tool house. Plaintiff insists that the terms "contents in barn" and "contents in tool house" covered the articles, wherever situate. The old barn and old tool house were still in use. Plaintiff had obtained another policy, in another company, on the new barn. The policy in this case was not for any given term, but was to continue in force so long as plaintiff continued to pay his assessments and remained a member of the defendant company. The barn risk was a permanent one, but in respect of the contents of the barn and tool house the risk was not limited to the contents on hand at the date of the policy, but was what is termed a "shifting risk," and covered substituted property. The only language that can be looked to for a description of the property issued is that specifying its situation. There is a class of cases which hold that the words "contained" or "being in" or "stored in," when used in a policy which is not a shifting policy, but which, independently of such terms, sufficiently describes property the use of which necessitates its temporary absence from the building, are considered as further description merely, and as indicating their place of deposit when not temporarily absent in the ordinary course.

In Everett v. Insurance Co., 21 Minn. 76, the property was described in the application as "stored in barn on," etc., and in the policy as a "threshing machine," reference being made to the application for a more particular description. In Holbrook v. Insurance Co., 25 Minn. 229, the property was described as "36 mules, contained in," etc. In McCluer v Insurance Co., 43 Iowa, 349, a phaeton was destroyed while in a carriage shop for repairs. In Haws v. Association, 114 Pa. St. 431, 7 A. 159, certain horses, "all contained in," etc., were insured under a policy containing a lightning clause. One of the horses was killed by lightning while at pasture in a field on plaintiff's farm. The court say: "It is true, in an insurance upon such personal property as household goods or a stock of merchandise, the words 'contained in a' particular building would seem to imply that the property insured should remain in such building, and that, if removed therefrom, the policy would not cover it. But in such cases the contract contemplates that the property shall remain in the building, and there are obvious reasons why a change of location would affect the insurance. The very nature of such property implies permanency in its location. But it is not so with a man's horse. It is of no use to him if kept in a stable. We can understand that if, in a fire policy, hay, straw, or grain is insured in a barn, the insurance would cease if removed to some other building. Such would be the reasonable meaning of the contract of insurance, and what the parties probably contemplated when they made it. But none of this reasoning applies to a lightning clause upon horses or other stock. The terms and conditions to which such an insurance is subject must be such as are reasonably applicable to such kinds of insurance upon this particular species of property, and such, therefore, as the parties may be presumed to have had in view when the contract was made." In Peterson v. Insurance Co., 24 Iowa, 494, the policy covered plaintiff's seven horses, situated on section 22, etc. While marketing his grain, plaintiff put up at an hotel, and placed his horse in the hotel barn, which was destroyed by fire. In these cases the property was fully described without reference to the words describing its...