O'Donnell v. Connecticut Fire Ins. Co.

• Decision Date: 28 November 1888
• Parties: O'DONNELL ET AL. v. CONNECTICUT FIRE INS. CO.
• Court: Michigan Supreme Court

41 N.W. 95

73 Mich. 1

O'DONNELL ET AL. v. CONNECTICUT FIRE INS. CO.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, Monroe county; EDWARD O. KINNE, Judge.

Assumpsit by Neil O'Donnell and Hugh O'Donnell against the Connecticut Fire Insurance Company upon an insurance policy. The declaration was in the usual form, with no allegation of fraud or mistake in the policy. Verdict and judgment for plaintiffs, and defendant brings error.

SHERWOOD C.J.

This suit is brought by the plaintiffs to recover for a loss sustained from the destruction of its property by fire, which was insured in, or is claimed to have been insured in, the defendant company, under policy issued to the plaintiff, and numbered 1,032. The property described in the policy of insurance is as follows, with the amount of insurance thereon: "$1,000 upon their stock of staves and heading contained in sheds and open yard; $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 contains the following 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 plaintiffs' mill and stave factory was located at Dundee, in the county of Monroe. There was no written application or survey made. The local agent who effected the insurance for the company lived at Tecumseh, was acquainted with plaintiffs' mill and yard, and knew the location of the property insured. There is no pretense but that the fire was accidental. The declaration is the usual one in such cases, and the plea was the general issue. The cause was tried in the Monroe circuit court by jury, and the plaintiffs had judgment. The defendant brings error. A large number of errors are assigned.

The property burned was a quantity of heading of the value of $1,000, and the judgment recovered was for $1,080. At the time the insurance was ordered the order was given by the plaintiffs' agent, Mr. Donahue. He says: "I gave the agent to understand that we wanted the staves and heading in the millyard insured. *** We asked De Matt [the company's agent] to place $1,000 on our staves and headings. He said he would do it." Mr. De Matt, when sworn, testified it was his best recollection that he told Donahue, when he gave the order, that, unless the staves and headings were 200 feet from the mill, the company could not insure the property. Mr Donahue testified that he did not recollect "any conversation" between them "to that effect at all." It is conceded that the property, when burned, was not 200 feet from the mill, but was in the same locality as when insured. The court in its charge left it to the jury to say which of the two agents was...