Cleaver v. Traders' Ins. Co.

• Decision Date: 21 April 1887
• Citation: 65 Mich. 527,32 N.W. 660
• Parties: CLEAVER v. TRADERS' INS. CO.
• Court: Michigan Supreme Court

32 N.W. 660

65 Mich. 527

CLEAVER v. TRADERS' INS. CO.

Supreme Court of Michigan

April 21, 1887

Error to circuit court, Tuscola county.

T.W. Atwood, for plaintiff.

Norris & Uhl, for defendant and appellant.

MORSE J.

The plaintiff brought suit to recover the amount of a policy of insurance issued by the defendant. The policy was issued on the ninth day of February, 1884, and expired February 9 1885. The property covered by the policy was destroyed by fire, December 27, 1884. Proofs of loss were furnished, about which no question is made. November 14, 1884, additional insurance was placed on the property covered by defendant's policy, in the sum of $2,000, in the Michigan Millers' Mutual Fire Insurance Company of Lansing Michigan. The policy in suit provides that, if the insured shall procure any other or further insurance upon the property insured, without the consent of the company written upon the policy, the policy shall become void. The consent of the company to the taking of the additional insurance in the Lansing company was not indorsed upon the policy.

Upon the trial in the circuit court for the county of Tuscola, the circuit judge directed a verdict for the plaintiff in the sum of $2,797.16. This direction is assigned as error.

After the argument of counsel in the court below, it is stated in the bill of exceptions that the counsel for defendant "consented, for the purpose of raising the said questions as to the validity of such clauses, that plaintiff's (Cleaver's) testimony be regarded as correct."

The clauses referred to were the one already noticed, as to the taking of additional insurance, and the following: "It is further understood, and made part of the contract, that the agent of this company has no authority to waive, modify or strike from the policy any of its printed conditions, *** nor, in case this policy shall become void by reason of the violation of any of its conditions, *** has the agent power to revive the same. And it is hereby mutually understood and agreed, by and between this company and the assured, that this policy is made and accepted upon and with reference to the foregoing terms and conditions, all of which are hereby declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto in all cases not herein otherwise specially provided for in writing."

The plaintiff claims that because of the action of defendant's agent, Mr. Quinn, with reference to his procuring the additional insurance, the defendant is estopped from setting up the defense of additional insurance in this case. The substance of the plaintiff's testimony in regard to Quinn's action in the premises is this: When an application was sent by the Lansing company to him to be filled out, he took it to Quinn, and told him that he was calculating to take out $2,000 insurance in that company, and asked him if it would be all right with Quinn's company, and Quinn said it would, the property being amply worth the amount of both insurances; and thereupon Quinn helped him fill out the application, and Cleaver sent it on to Lansing. Quinn also looked at his books, and said the insurance was not yet out in his company, and asked Cleaver if he calculated to drop it; and Cleaver answered, "No;" and told him that he would make arrangements to have another policy issued when that expired. Quinn also asked him why, if he was going to take more insurance, he did not take it in the defendant company, and Cleaver replied that he could get it for a less per cent. in the Lansing company. After plaintiff received his policy in the Lansing company, he informed Quinn that he had procured the same. Quinn replied, "All right," and passed on, without any further conversation. Cleaver also states that he obtained the additional insurance, relying upon the statement of Quinn that it would make no difference with his insurance in the defendant's company. It also appeared that Quinn was an attorney at law, and before this had done some legal business for Cleaver. Plaintiff, however, denies that, in this instance, he went to Quinn as a lawyer to get advice and assistance in filling out the application. He testifies he called upon him to talk with him about the getting of additional insurance, and because he did not wish to put such additional insurance upon the property unless it would be satisfactory to the defendant company.

The counsel for defendant contend that this case is not governed by Westchester Fire Ins. Co. v. Earle, 33 Mich. 143, because of the clause in the policy providing that the agent of the company "has no authority to waive, modify, or strike from the policy any of its printed conditions." It is insisted that, if the conduct of Quinn is held to operate as a waiver, a new contract is constructed for the parties by judicial creation, in direct antagonism to the express agreement of the insured and insurer in the policy of insurance upon which plaintiff is seeking to recover.

In Westchester Fire Ins. Co. v. Earle it is stated, in the opinion of Mr. Justice CAMPBELL, at page 153,...