Cleaver v. Traders' Ins. Co.
| Decision Date | 05 October 1888 |
| Citation | 71 Mich. 414,39 N.W. 571 |
| Parties | CLEAVER v. TRADERS' INS. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Tuscola county.
Action on an insurance policy, by James W. Cleaver against the Traders' Insurance Company. The court directed a verdict for defendant, and plaintiff brings error. For opinion on former appeal, see 32 N.W. 660.
This case has been once before in this court, and will be found reported in 32 N.W. 660. Upon a trial since then, in the circuit, the defendant had judgment; the court instructing the jury to find a verdict in its favor. It is claimed by the counsel for the defendant that the case as presented upon this last trial does not differ materially from the case made at the first trial, and that the ruling of the circuit judge was in accord with the decision of this court, as above reported. But the counsel for the plaintiff contends that the evidence taken on the last trial, and contained in the record now before us, differs from that taken before in this: First, there is testimony now not presented before, that the plaintiff never had his policy in his possession, and therefore knew nothing of the clause which governed the ruling of this court in its former opinion; second, that it is now shown that the agent, Quinn, did have authority to consent to the taking of other insurance; third, that there is testimony in the present record tending to show that, after the fire, with full knowledge of all the facts, the defendant, by its acts waived the forfeiture of the policy, if any such forfeiture had taken place. It appears from the record that the plaintiff testified on the last trial that Quinn asked him where his policy was, and plaintiff replied that he had never had it. Quinn says: "I know now you never had it." Quinn then said that the consent for the additional insurance ought to be indorsed upon the policy, but that he could enter it upon his books,-make a memorandum of it,-and it would be just as well. He went and got his book, but plaintiff did not see him write anything in it. Quinn denies that any such thing took place. The plaintiff's excuse for not testifying to this fact upon the first trial is that he was not asked about it. Quinn also testified on the last trial that, as agent of the company, he had power to consent to other insurance and had done so repeatedly. This fact did not appear in the record before us of the first trial. The extent of his authority to consent, however, was by indorsing the same upon the policy, and reporting such indorsement immediately to the company. The plaintiff testifies also that he never saw the policy in suit before the fire, but that this policy was a renewal of one which he had upon the same property before, which policy he thinks he read, and probably got the idea from reading it that he must get the consent of the company before taking additional insurance. We do not think that these additional facts, as testified to by the plaintiff and Mr. Quinn, materially change the status of the case. As we said when the case was here before, it was the duty of the plaintiff to know what his contract of insurance was, and the insured must be held to a knowledge of the conditions of his policy, as he would be in the case of any other contract or agreement. The fact that plaintiff had never seen his policy does not help him any more than the fact that he had not read it, which appeared upon the first trial. There is no adequate reason shown why he could not have seen the policy had he desired to do so, and the same was not kept from him through any fault or fraud of the defendant or its agent. It was delivered to Mr. Whitney, with his knowledge and consent, who assigned it back to him before the commencement of this suit. The fact that Quinn had authority, in a certain way and manner, to consent to the taking of the additional insurance, and had done so in other cases, does not aid plaintiff. He did not consent in this case, within the line of his authority, or in the manner prescribed by the policy; and it is not shown that he was authorized to waive any of its provisions. The case, therefore, in this respect, stands as it did before, controlled by the clauses in the policy providing that the policy should be void if the insured procured further insurance without the indorsement of the consent of the company upon the policy, and that the agent has no authority to waive or modify this condition.
But we think that the question of waiver should have been submitted to the jury. It appears that on the day of the fire Quinn informed the company by telegraph of the loss. The secretary of the company, at Chicago, upon the same day wrote to Quinn in reference to the fire. Quinn replied by letter of date December 30, 1884, three days after the fire, in which he stated to the company that there was this additional insurance upon the property in the Millers' Mutual Insurance Company of Lansing, and, as there was no indorsement of permission in his record of contents of policy, he would make an explanation of his knowledge of such additional insurance. He then proceeds to state in his letter, substantially as he testified on both trials, that Cleaver, who was a client of his, came into his office, and said that the agent of the Millers' Mutual Insurance Company had examined his mill, and had urged him to take insurance; that he had made up his mind to take $2,000 in that company. Quinn looked over the application, and "filled up" some of the answers. He understood that the Millers' Mutual Insurance Company had agreed to accept this application, and carry the insurance, and knew that Cleaver had received the policy afterwards. He further stated in this letter that nothing was said by Cleaver about getting consent for other insurance, and, his attention not being called to it, he (Quinn) did not think about there being no permission for the other insurance. "If he had asked for it, I would of course have consented, as the property would stand more insurance, and Cleaver is a first-class man." The letter concludes as follows:
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