Cronin v. Fire Ass'n of Philadelphia

• Decision Date: 13 March 1900
• Citation: 123 Mich. 277,82 N.W. 45
• Parties: CRONIN et al. v. FIRE ASS'N OF PHILADELPHIA.
• Court: Michigan Supreme Court

82 N.W. 45

123 Mich. 277

CRONIN et al. v. FIRE ASS'N OF PHILADELPHIA.

Supreme Court of Michigan

March 13, 1900

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by Michael B. Cronin and another, for the use and benefit of Milton M. Rose, against the Fire Association of Philadelphia. From a judgment for plaintiffs, defendant brings error. Reversed.

Crane Norris & Stevens, for appellant.

Walter McBride (Watson & Chapman, of counsel), for appellees.

HOOKER, J.

This cause is before us for the third time, on writ of error sued out by the defendant. Our former opinions in relation to it are reported in 112 Mich. 110, 70 N.W. 448, and 77 N.W. 648. Upon the last trial the court left to the jury the following questions: (1) Was the policy issued upon a written application, as alleged by the defendant? (2) Was the creamery idle for 10 consecutive days? (3) Was the policy avoided by a failure to procure the defendant's consent to foreclosure proceedings against the property? It is claimed that it was error to submit either of these questions to the jury, and that a verdict should have been directed for the defendant. The building was owned by the plaintiffs, who used it for a creamery. One Milton M. Rose had a mortgage upon it.

Samuel W. Cooper was defendant's local agent, at Corunna. W. R Chappell was also an agent of defendant, and he also lived in Corunna. There is testimony tending to show that Rose's brother and agent asked Cooper to insure his interest because the Cronins would not attend to it, and that Cooper having some doubts whether his company (the defendant) would carry the risk, procured an application from Chappell, who prepared it and caused the Cronins to sign it on December 5, 1894, and sent it to the home office in Chicago, and was authorized by its general officers to issue the policy, which he then did. It was issued in the name of the Cronins, loss, if any, payable to Rose as his interest might appear, and was delivered to Rose, who paid the premium. Cooper testified that the only person who requested him to insure the creamery was Rose, and that, 'in getting the written application referred to, he acted on his own responsibility, and sent it to the company as a matter of information, and had been conducting this business that way for four or five years, and had the exclusive agency in Corunna.' This question was held in our first opinion, upon testimony substantially the same as this, to be for the jury.

In this connection we are asked by counsel for the plaintiff to determine whether the written application should be considered a part of the contract, and a warranty, in any event. We have no doubt that it should be so considered, if the policy was issued upon it. The policy contains the provision that 'this entire policy shall be void, if the subject of insurance be a manufacturing establishment, if it cease to be operated for more than ten consecutive days unless otherwise provided by agreement indorsed upon or added to the policy.' The defendant's counsel alleges that this creamery was idle for more than 10 days, and that the undisputed testimony shows it. Cronin testified that they shut the creamery down in September, and never resumed manufacture. They afterwards stored some corn there, and they had some butter there, that they shipped out as they got orders for it. They had it in the refrigerator. He said on cross-examination that they ceased bringing milk in September, and that in October they made no use of the building, except for the storage of their butter, which they shipped out as fast as they could get a market for it, and that he thought the last butter or merchandise was shipped out in October. Several...