Eddy v. Merchants' M. & C. Mut. Fire Ins. Co.

• Decision Date: 28 November 1888
• Citation: 72 Mich. 651,40 N.W. 775
• Parties: EDDY v. MERCHANTS', MANUFACTURERS' & CITIZENS' MUT. FIRE INS. CO.
• Court: Michigan Supreme Court

40 N.W. 775

72 Mich. 651

EDDY v. MERCHANTS', MANUFACTURERS' & CITIZENS' MUT. FIRE INS. CO.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, Genesee county; WILLIAM NEWTON, Judge.

Action by Jerome Eddy against the Merchants', Manufacturers' & Citizens' Mutual Fire Insurance Company, of Kent Allegan, and Ottawa counties, on a policy of insurance on property in Genesee county. The proofs of loss stated that there was other insurance on the building insured, as specified in the schedule thereto attached, which gave the names of the companies, the amounts of the policies, a description of the property insured by them, and the time covered by each. Defendant alleged a breach of warranty by reason of the double insurance. Defendant also denied its power to issue the policy. Act No. 175 of the year 1883 provides that "no mutual fire insurance company, whether organized under the laws of this or any other state, and authorized to do business under the laws of this state, and which shall confine its business to manufacturing risks, or the other risks mentioned in this act, shall be limited by law in the performance of its business, or the taking of its risks, to any of the territorial subdivisions of the state less than the whole thereof. ***" Plaintiff had judgment, and defendant appeals.

William E. Grove, (W. H. Haggerty, of counsel,) for appellant.

Arthur J. Eddy, for appellee.

SHERWOOD C.J.

This action is upon a policy of insurance issued by the defendant company, March 27, 1885, to one Samuel J. Lewis, for one year, upon the property mentioned in the policy. Plaintiff is assignee of the policy. The company received as cash premiums when the policy was taken out $100, which it still retains. On July 24, 1885, the insured property was destroyed by fire. Immediately after the fire, Lewis forwarded to the company statement of all insurance upon the property, and of the loss to the company; and, it being informed, the company forwarded to him blanks upon which to make the statement more in detail of the insurance and loss and the president of the company came on to adjust the loss. The statement and proofs of loss were completely made August 3, 1885. It would appear from the testimony that the defendant did not at any time disclaim its liability, or claim any defense to the plaintiff's claim before the assignment to him, and not until after the commencement of this suit, but, on the contrary, it promised to pay the same. After the proofs of loss were made, the board of directors ordered an assessment for the purpose of paying it, and both the secretary and treasurer of the company wrote the plaintiff,...