Connecticut Fire Ins. Co. v. Judge of Monroe Circuit Court

• Decision Date: 01 November 1889
• Court: Michigan Supreme Court
• Parties: CONNECTICUT FIRE INS. CO. v. JUDGE OF MONROE CIRCUIT COURT.

43 N.W. 871

77 Mich. 231

CONNECTICUT FIRE INS. CO. v. JUDGE OF MONROE CIRCUIT COURT.

Supreme Court of Michigan

November 1, 1889

On application for mandamus.

SHERWOOD C.J., dissenting.

MORSE J.

Neil O'Donnell and Hugh O'Donnell, composing the firm of N. & H. O'Donnell, brought suit in assumpsit in the Monroe county circuit court against the Connecticut Fire Insurance Company. The suit was commenced by summons. A declaration was filed, to which the defendant company filed a plea of the general issue. A trial was had, and judgment rendered in favor of the plaintiffs, February 21, 1888, for the sum of $1,083.48. The case came to this court, and the judgment was here reversed, and a new trial granted. It will be found reported in 41 N.W. 95. The declaration was upon the policy as it read. The case was treated on the trial in the court below as a suit upon a contract for insurance, as claimed by the plaintiffs, which differed materially from the contract as contained in the policy of insurance. The property insured is described in the policy as follows, with the insurance taken thereon: "$1,000 upon their stock of staves and heading, contained in sheds and open yards; $200 upon frame barrel-house; $200 upon cooper stock therein,-all situated in yard east of and adjacent to their stave and heading mill, situate at Dundee, Monroe county, Mich." The policy also contained the following, among other, clauses: "Other insurance permitted. It is guarantied that there shall be a clear space of 200 feet between the staves and heading and mill." The property burned was a quantity of heading, of the value of $1,000. It was conceded on the trial and in this court that the property, when burned, was not $200 feet from the mill; but it was located in the same place as when insured, and the agent of the insurance company knew its location at the time of taking the insurance. The plaintiffs were allowed to recover in the circuit court upon the theory that the company agreed to insure this heading in their yard just where it stood, and that the condition as to the 200 feet space was put in the policy without the knowledge or consent of the plaintiffs, and that they knew nothing of such insertion until after the fire, when they for the first time examined the policy; that the clause was a mistake or a fraudulent interposition; that plaintiffs paid the insurance company the premium in good faith, upon the order they gave for the insurance of their property as it stood; and that they were therefore entitled to the benefit of their contract as made. We held that this theory was not permissible under the declaration in the cause. After the decision in this court and on January 17, 1889, a remittitur was filed in the court below, and the cause, March 12, 1889, noticed for trial for the April, 1889, term of that court by defendant. March 14, 1889, plaintiffs entered a motion for leave to file an amended declaration, and filed a copy of their proposed declaration as amended. Upon a hearing of this motion, which was resisted by the defendant, the circuit judge made an order granting the motion. A motion was then made to vacate this order, which was denied. We are now asked to compel by mandamus the vacation of the same.

The amended declaration is in two counts. The first count sets out an oral contract for insurance, substantially as plaintiffs claimed they had established it on the first trial. It alleges that plaintiffs made a verbal application to defendant for insurance. That in response to said application the agent of the defendant called at plaintiffs' place of business and there examined all the property to be insured, which was pointed out to him. That he then and there saw the property and knew its location with respect to the stave-mill; and, after such examination and designation, well knowing its location, he contracted on behalf of said defendant to insure said property for the sums hereinbefore stated, in consideration of $28 then and there paid by plaintiffs to defendant, for one year, and also agreed that defendant would issue a policy of insurance to plaintiffs in accordance with said contract. That defendant did not deliver the policy as agreed, but delivered a policy containing this clause: "It is guarantied that there shall be a clear space of two hundred feet between staves and heading and mill." Plaintiffs further allege that at the time said defendant inspected the property, as before stated, said staves and heading were not 200 feet from plaintiffs' mill, and such fact was known by the defendant at the time of the making of the contract for insurance, and that the clause in reference to the 200 feet clear space was written in the policy delivered by said defendant either through mistake or fraud, and without the consent or knowledge of the plaintiffs. Plaintiffs aver that they never knew of or consented to this clause in the policy, and that such clause is a fraud upon them; that they relied upon the contract as made by them, and did not examine or read said policy until after the burning of said staves and heading. The destruction by fire of the staves and heading is, then, whereby ...