Bonenfant v. American Fire Ins. Co.

• Decision Date: 18 October 1889
• Citation: 76 Mich. 653,43 N.W. 682
• Court: Michigan Supreme Court
• Parties: BONENFANT v. AMERICAN FIRE INS. CO.

43 N.W. 682

76 Mich. 653

BONENFANT v. AMERICAN FIRE INS. CO.

Supreme Court of Michigan

October 18, 1889

Appeal from circuit court, Iosco county; WILLIAM H. SIMPSON, Judge.

Action by Alexander Bonenfant against the American Fire Insurance Company on a policy of insurance. There was a judgment for plaintiff, and defendant appeals.

McCutcheon & Elliott, (Hanchett, Stark &amp Hanchett, of counsel), for appellant.

Henry & Cornville, for appellee.

LONG J.

This action is brought upon a fire insurance policy issued by defendant company August 27, 1887. The declaration alleges that the defendant, by its policy of that date, insured the plaintiff for one year for $600 on his two-story frame building, occupied by a tenant as a dwelling and inn, the plaintiff being the owner and in possession of the property; that at the time of making the insurance, and from thence to the time of the loss, the plaintiff had an interest in the property to the amount of $1,000, being the sole owner of said property; and that on March 10, 1888, the property was destroyed by fire, and that defendant has had due proof of said loss and damage by fire in accordance with the terms of the policy. At the time the policy issued the plaintiff resided at Oscoda, the property insured being situated in Alcona county, some 18 miles distant. The policy was issued to the plaintiff by Mr. McCutcheon, who was defendant's local agent, residing at Oscoda, who saw the building before the insurance was made, and while it was occupied by one Mr. McNurney, and issued the policy on the plaintiff's statement that McNurney had gone out, and that plaintiff had a good tenant. The premium was fixed regarding the building at hotel rates. September 12, 1887 Bonenfant sold the property by contract to Thomas Carroll for $1,200, a payment of $200 being made down, $40 to be paid October 1, 1887, and monthly payments of $40 to made thereafter. This contract was drawn by Mr. Elliott, the law partner of Mr. McCutcheon, while the latter was absent from his office, but who was informed afterwards by Elliott of the contract, and that the parties to it wanted the policy assigned to Carroll. Mr. McCutcheon filled out and signed the company's assent to the assignment of Bonenfant's interest in the policy to Carroll, which was indorsed on the policy. Mr. McCutcheon also indorsed on the policy an assignment of this interest to Carroll, but this was never executed by Bonenfant. Bonenfant testified that he left with Elliott directions to have the policy transferred to Carroll loss, if any, payable to Bonenfant, according to his interest. The contract of sale to Carroll and the policy were kept in the office of McCutcheon & Elliott until after the fire, and, as Bonenfant claims, with the understanding that loss, if any, should be payable to him, as his interest should appear under the contract. At the time of the fire Carroll had paid on the contract about $160. The plaintiff claimed an insurable interest in the property to the extent of the amount named in the policy. Carroll forfeited under his contract by not keeping up his payments, and after the fire assigned all his interests in the contract, as well as in the policy, to Bonenfant. The policy was in the usual form, and contained certain conditions, among which are the following: "If during the existence of this policy, or any renewal thereof, the risk shall be increased by any means whatever, with the knowledge of the assured, and the assured shall fail to notify this company thereof, and have the same indorsed thereon, paying therefor such additional premium as shall be demanded; or if the building herein described shall be or became vacant or unoccupied without consent of the company indorsed thereon, *** then, and in every such case, this policy shall be null and void." The defendant gave evidence that there were nine lumber camps within four or five miles of the house, and that the house had the reputation of being a house of ill fame, and that such use increased the risk to such an extent as to render it uninsurable. Defendant also gave evidence that the house had become vacant at the time of the fire. The plaintiff gave some evidence tending to show that the house had not become vacant, and insisted under his proofs that if the house was being used for the purposes of prostitution the fact was without the knowledge of plaintiff. There does not seem to be much controversy but that the premises were being used for purposes of prostitution, and that such use would naturally tend to increase the fire risk. Upon these issues the case was submitted to the jury, who found a verdict for plaintiff for the amount of policy, and interest. Defendant's counsel requested the court to charge the jury: "(1) The policy provided that if the assured shall sell or transfer the property insured, or incumber the property, or if any change takes place in the title, location, interest, or possession of the property, whether by sale, transfer, or conveyance, without the consent of the company indorsed on the policy, then, in...