Gervickes v. Royal Exch. Assur. Co. of London, England, 127

• Decision Date: 22 March 1923
• Docket Number: No. 127,Oct. Term.,127
• Citation: 222 Mich. 103,192 N.W. 654
• Parties: GERVICKES v. ROYAL EXCH. ASSUR. CO. OF LONDON, ENGLAND.
• Court: Michigan Supreme Court

222 Mich. 103

192 N.W. 654

GERVICKES

v.ROYAL EXCH. ASSUR. CO. OF LONDON, ENGLAND.

No. 127, Oct. Term.

Supreme Court of Michigan.

March 22, 1923.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by John A. Gervickes against the Royal Exchange Assurance Company of London, England. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ. Frederick J. Ward, of Detroit, for appellant.

John M. Dunham, of Grand Rapids, for appellee.

STEERE, J.

Defendant seeks reversal of a judgment against it based on a fire loss under a $1,000 insurance policy which it had issued to plaintiff covering a frame dwelling house located at 515 Webster street, Grand Rapids. The policy was issued January 2, 1916, The fire occurred November 11, 1918, resulting in a total loss. This action was begun in the circuit court of Kent county on June 19, 1919. The case was tried before the court without a jury. Findings of fact with conclusions of law thereon were filed by the court on May 10, 1921, followed by entry of judgment on the same date in favor of plaintiff. Omitting formal parts, they are as follows:

‘(1) That on January 2, 1916, defendant, the Royal Exchange Assurance Company of London, England, a foreign corporation, in consideration of premiums paid and to be paid by the plaintiff, issued to him its policy No. 4851685, and insured his property at 515 Webster street, N. W., Grand Rapids, Mich., against loss or damage by fire to the amount of $1,000.

‘(2) That at the time said policy was issued plaintiff held title to the property, that it was used as a dwelling house, and insured as such, and the character of such use was never materially changed. The property was subject to a mortgage of $1,000, and had been sold on a land contract which had been abandoned and terminated by the vendees prior to the fire in question, and that due notice of said mortgage and said contract was had by the defendant.

‘(3) That the policy in question was issued on behalf of defendant by the Grand Rapids Insurance Agency, its agent, and was procured by one Frank D. McKay, a licensed broker representing said agency.

‘(4) That prior to the fire in question which destroyed the property, and upon which this action is founded, a small loss occurred on the premises, which was taken up for adjustment by Mr. Blickle, of the Grand Rapids Insurance Agency, and by Mr. McKay. That proofs of loss were filed with Mr. Blicke, the loss was passed upon by Blickle and McKay, and the defendant insurance company paid the loss as adjusted by them in the sum of $15, which payment reduced the principal amount of the policy in that sum.

‘(5) That prior to July 12, 1918, plaintiff had been indebted to one Archibald B. McKay in the sum of $500. That to pay his taxes, etc., plaintiff, through Frank D. McKay, borrowed from the latter's brother, Archibald B. McKay, the further sum of $150. That prior to this time plaintiff had given said McKay an assignment of a land contract and a deed to certain property, and, after the further advance of $150 to plaintiff, he gave the said Archibald B. McKay an assignment of the land contract and a deed of the property insured by defendant. That, although absolute on its face, it was agreed by the parties that it was to be held merely as collateral to secure said Archibald B. McKay.

‘(6) That Frank D. McKay, the representative of the Grand Rapids Insurance Agency, agent for the defendant, had knowledge of all these transactions. That he handled plaintiff's business affairs and secured the advance by the said Archibald B. McKay, and secured the assignment and deed in question, to secure his said brother.

‘(7) That on November 11, 1918, a fire occurred, resulting in a total loss within the meaning of the policy. That at that time plaintiff was pastor of a Catholic church in the city of Saginaw. That he was notified of the loss by the said Frank D. McKay, who, on behalf of plaintiff, procured blanks from the Grand Rapids Insurance Agency, had them filled out, and filed them with Mr. Blickle of the Grand Rapids Insurance Agency, at the latter's request. That these proofs of loss were later turned over to the Western Adjustment & Inspection Company, adjuster for the defendant insurance company, who, on March 10, 1919, through its manager, Mr. Reilly, denied liability on behalf of defendant, and refused to pay the loss.

‘(8) That at the time of this loss plaintiff had an interest in the insured property to the amount of $1,000 and upwards.

‘(9) That the mortgagee, although protected by a full contribution clause in the policy, never brought any action to recover under it, nor did he ask to join or intervene in this case. That by the terms of the policy suit must be brought within a definite time, which has long since passed.

‘(10) That this loss became due and payable at the time of the refusal by defendant's agent to pay said loss, which amounted to the principal sum named in the policy as reduced by the first loss paid, to wit, $985, interest upon that amount from that date amounting to $109.12.’

Conclusions of Law.

‘I find and conclude as a matter of law:

‘(1) That the terms and conditions of the policy had been complied with, and at the time of the loss the policy was in full force and effect.

‘(2) That the loss suffered by plaintiff was covered by the policy, and the defendant is liable to plaintiff under said policy.

‘(3) That the amount the plaintiff, together with interest to date, amounts to $1,094.12, with costs to be taxed.

‘Let judgment be entered accordingly.’

No proposed amendments to the court's findings of fact and conclusions of law were filed or points of law presented to the court in writing, as upon requests to charge, at any time, so far as this record discloses. No motion was made for a new trial. On May 16, 1921, a motion was granted extending time for settling bill of exceptions 60 days. No exceptions to the court's findings and conclusions were filed until September 15, 1921, over four months after judgment was entered. They were in blanket form as follows:

‘The defendant Royal Exchange Assurance Company does hereby except to the findings of fact and conclusions of law as found by the court in the above-entitled action.’

These exceptions not only fail to point out any particular error to which the attention of the court is directed or grounds for taking them, but they were not filed within four days after the completed findings were filed, and judgment entered, as required by section 3 of circuit court rule No. 45 (191 N. W. xxii). Counsel for plaintiff contend that, owing to noncompliance with the prerequisites for review imposed by rule 45, defendant's technical grounds of error are not properly before the court for review. As to most if not all the questions defendant seeks to raise this objection is well taken. The mandatory requirements of rule 45 have been so often and fully discussed by this court that it seems sufficient to refer to a few of the later cases upon that subject where the force and effect of that rule is declared. Cascarelli v. New York Cent. R. Co., 202 Mich. 304, 168 N. W. 427;Engel v. Tate, 203 Mich. 679, 170 N. W. 105; Marshall & Ilsley Bank v. Mooney, 205 Mich. 518, 171 N. W. 534;Messer v. Dornbos, 210 Mich. 46, 177 N. W. 199;Curry v. Shears, 216 Mich. 699, 185 N. W. 671;Murphy v. Bonewell, 218 Mich. 171, 187 N. W. 256. In the Curry Case it is said:

‘Defendant's exceptions to the findings were not filed within four days, as required by this rule [45]. This precludes us from considering whether the findings are against the clear weight of the evidence as is required, when exceptions are...