Cronin v. Fire Ass'n of Philadelphia

• Decision Date: 28 December 1898
• Citation: 119 Mich. 74,77 N.W. 648
• Parties: CRONIN ET AL. v. FIRE ASS'N OF PHILADELPHIA.
• Court: Michigan Supreme Court

77 N.W. 648

119 Mich. 74

CRONIN ET AL. v. FIRE ASS'N OF PHILADELPHIA.

Supreme Court of Michigan

December 28, 1898

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

Action by Michael B. Cronin and Thomas Cronin, for the use and benefit of Milton M. Rose, against the Fire Association of Philadelphia, on a fire insurance policy. There was a judgment for plaintiffs, and defendant brings error. Reversed.

Crane, Norris & Stevens, for appellant.

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

LONG J.

This case was in this court at the January term, 1898. 70 N.W 448. In the trial in the court below in the first instance plaintiffs had recovered a judgment by the direction of the court for $1,449.30. The case was reversed and remanded for a new trial. The principal defenses then attempted were: (1) That the policy was issued upon a written application containing representations of fact, material to the risk which were violated; (2) that the assured ceased to operate the creamery for more than 10 days before the fire; (3) that foreclosure proceedings were commenced, to the knowledge of the assured; (4) that the building insured was unoccupied for 10 days prior to the fire, without the consent of the company indorsed upon the policy. It was held that none of these defenses, except that based upon the representations contained in the application for the policy was set up in the pleadings by defendant, and that only such as were set up could be considered, under the pleadings. The case was reversed upon the ground that the questions should have been submitted to the jury, whether the written application offered in evidence was the basis of the insurance, or whether the policy was issued upon a distinct oral application; and whether there was a material misrepresentation. The facts are set out in the former opinion, and need not be again stated, except so far as they become necessary in the determination of the questions raised upon the record now before us. The case has been again tried, and plaintiffs had verdict for $1,682.75. The plea now contains notices of the several defenses referred to in the former opinion, and apparently has been amended since the former trial.

1. The policy provides that "this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy, by virtue of any mortgage or trust deed." It appears that on January 9, 1895, Milton M. Rose, as mortgagee, filed a bill to foreclose this mortgage. It was the mortgage mentioned in the policy, and the interest of Mr. Rose as mortgagee was covered by the policy. A subp na was issued in the case on the filing of the bill, and served on the Cronins. No permit to foreclose was ever indorsed on the policy. It is therefore contended by counsel for defendant that there was a breach of that condition of the policy. It was shown, however, that on December 7, 1894, when the policy was issued, the agent of the insurance company, Mr. W. S. Cooper, was informed that the mortgage would be foreclosed in a short time. Mr. Rose testified that, when he was ready to foreclose, he went to see Mr. Cooper; that he had the policy with him, and asked Mr. Cooper to fix it, as he had just commenced proceedings that day to foreclose the mortgage; that Mr. Cooper told him to go on with the foreclosure proceedings. It is claimed that this constituted a waiver of the condition in the policy above set forth. In this, we think, counsel for plaintiffs is right. Beebe v. Insurance Co., 93 Mich. 514, 53 N.W. 818; Rediker v. Insurance Co., 107 Mich. 224, 65 N.W. 105. It is true that in the above cases the questions arose over the placing of chattel mortgages upon the property without having the permission of the companies indorsed on the policies as provided by them. The provisions were held to have been waived by the action of the local agents; and we think here that Mr. Cooper, the agent of the company, having been informed that the mortgage was about to be foreclosed, and advising, in effect, that it was all right to go on with the foreclosure without permission being indorsed on the policy, the company cannot now insist upon the forfeiture, but must be held to have waived that provision.

2. We have carefully examined the testimony and the charge of the court in reference to the question whether there was a written application presented to the agent, and upon which it is claimed by defendant that the policy issued. The jury found against the claim by defendant's counsel, and, in effect, found that there was no written application made....