Continental Ins. Co. v. Horton

• Decision Date: 21 October 1873
• Citation: 28 Mich. 173
• Court: Michigan Supreme Court
• Parties: The Continental Insurance Company v. Susan A. Horton

28 Mich. 173

The Continental Insurance Company v. Susan A. Horton

Supreme Court of Michigan

October 21, 1873

Heard October 9, 1873; October 10, 1873 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Genesee Circuit.

Assumpsit. Defendant brings error. Affirmed.

This was an action upon a policy of insurance against loss by fire, covering a dwelling house and barn and their contents, brought by Mrs. Horton against the company. She obtained judgment, and the defendant brings error.

Judgment affirmed, with costs.

Howard & Long and Ashley Pond, for plaintiff in error.

William Newton and M. E. Crofoot, for defendant in error.

OPINION

Cooley, J.

Of the errors assigned on this record several relate to the admission of evidence which the defense in the court below insisted was immaterial. We have considered each of their objections in the light of the argument that has been made here, and are of opinion that no incompetent evidence was received which could have prejudiced the defense. And while we agree that the erroneous reception of evidence is presumptively injurious, yet when the cases are so numerous in which the distinction between that which is admissible and that which is not is faint and shadowy, it becomes absolutely necessary in the administration of justice that an appellate court should guard against being over nice and technical in reviewing the decisions of the circuit courts on the reception of testimony, especially when to all appearance the rulings were harmless. Otherwise a cause may be kept for an indefinite time passing fro the circuit to the Supreme Court on writ of error, and back again for new trials, because those courts happen not precisely to agree on some of the numerous questions of evidence which may arise, and which, decided either way, it can be seen would not be likely to influence a decision on the merits.

The objection that the daughter of the plaintiff was allowed to testify to the value of articles burned, without having been shown to possess the proper knowledge to qualify her to speak as an expert, was not well taken. She testified that she bought a good many of the articles, and was present when others were bought. On this evidence she had some knowledge of values which it was proper she should communicate to the jury. The extent of that knowledge, and its sufficiency as a basis for a verdict, were to be tested by her examination, and by the good sense and judgment of the jurors.

The most important questions in the case relate to the existence of other insurance. The policy in suit contained a provision that it should be void if the insured should have or procure any other insurance on the property without consent of the defendants endorsed on their policy. It was undisputed that the husband of the plaintiff had previously obtained in his own name an insurance on the same property in the Genesee County Farmers' Mutual Fire Insurance Company, which had not been surrendered or cancelled at the time insurance by the defendants was applied for, and was not noted on the policy. The plaintiff claimed, however, that this previous insurance was void, because the husband was not the owner of the property, and also because the Genesee company, by their articles, were prohibited insuring city property, which this had become by an enlargement of the boundaries of the city of Flint since it was obtained. The plaintiff also claimed that this insurance was actually cancelled before the other was obtained, and gave evidence to that effect. The defense, on the other hand, produced testimony that the cancelment took place the day after their policy was issued, and they claim that there was evidence from which the jury might infer that the husband, in taking the first policy in his own name, acted with the authority and as agent of the plaintiff, and that she relied upon it as a valid insurance, so that all the evils and temptations designed to be guarded against by the condition against double insurance would exist in the case to the same extent as if the first policy had been valid in fact. And they claimed the right to go to the jury on this theory.

We are not satisfied that the defense did not have the full benefit of this theory before the jury, but we do not pause to demonstrate this, because we think it unimportant. The undisputed facts are that while the second insurance was being negotiated, both parties were aware of the existence of the prior policy, and it was a part of their understanding that it should be cancelled. It was cancelled in fact, but whether before or after this second policy was delivered, is the disputed point. The most that the defense can claim is that it was not cancelled until the following day. Their witness was the secretary of the Genesee company, who testifies that plaintiff's husband came to him with the second policy, and asked him to look it over to see if it was good, expressing a purpose to have the first policy cancelled if it was; and on being told it was, the cancelment took place. At this time it is conceded that the premium on the second insurance had not been paid. Now the defense were entitled to have the jury draw any legitimate inference from this evidence; but we have been unable to discover that it tends to show any purpose on the part of the plaintiff to hold the two insurances in force at the same time. On the contrary, all the evidence on both sides shows that it was not only fully understood and agreed that the first insurance should be cancelled if the second was taken, but that this understanding was carried into effect by an act which, if not actually before the manual reception of the second policy was substantially contemporaneous. The cancelment of the first policy, under the circumstances, was one of several steps which were to be taken to complete the second insurance, and whether taken a few minutes or a few hours before or after any other step necessary to effect a completed contract, was immaterial, if all were taken substantially at the same time, and before the transaction was considered closed. In this case there was no delay between the several steps which indicated that the plaintiff considered the transaction closed, before the surrender of the first policy; but on the contrary, the evidence most favorable to that view, only...