Gould v. Dwelling-House Ins. Co.
| Citation | 90 Mich. 302,51 N.W. 455 |
| Court | Supreme Court of Michigan |
| Decision Date | 12 February 1892 |
| Parties | GOULD v. DWELLING-HOUSE INS. CO. [1] |
Error to circuit court, Bay county; GEORGE P. COBB, Judge.
Action by Jennie F. Gould against the Dwelling-House Insurance Company on a fire policy. Verdict directed for defendant. Plaintiff brings error. Affirmed.
Curtis E. Pierce and J. E Simonson, for appellant.
Shepard & Lyon, for appellee.
On November 28, 1887, defendant, at its agency at Bay City issued a policy of insurance to plaintiff, insuring her in the sum of $250 on her dwelling-house in West Bay City. On September 20, 1889, the property insured was totally destroyed by fire. Notice of the loss was given defendant's agent the following morning. On November 15th following, plaintiff forwarded proper proofs of loss, which defendant refused to receive on the ground that they were not furnished in time required by the policy. There is no dispute but that the plaintiff owned the property in fee; that the building was totally destroyed; that her loss was $400. Defendant contended in the court below (1) that the proofs of loss were not furnished within the 30 days after the fire,-the time limited by the policy; (2) that at the time of the fire the building was vacant and unoccupied. The court directed the verdict in favor of the defendant. Plaintiff brings error.
The policy provides: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if * * * a building described whether intended for occupancy by owner or tenant, be or become vacant or unoccupied or not in use." In another clause of the policy it is provided: "In case of loss or damage under this policy, the insured shall give immediate notice thereof in writing to this company, protect the property from further damage, * * * and within thirty days after the loss or damage by fire or lightning shall render a statement to this company, signed and sworn to by said insured, stating knowledge of the insured as to the time and origin of the loss by fire or lightning; the interest of the insured and of all others in the property; the cash value of each item thereof, and the amount of the loss thereon; all incumbrances thereon; the title to and incumbrances on the ground upon which the property insured is situate; all other insurance, whether valid or not, covering any of said property; a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom loss or damage took place; and shall furnish, if required, verified plans and specifications of any building destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of the loss, stating that he has examined the circumstances, and believes the insured has honestly sustained the loss to the amount that such magistrate or notary public shall certify." In another clause of the policy it is provided: "No suit of action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the insured shall have fully complied with all the foregoing requirements, nor unless commenced within six months after the fire or damage by lightning; and, if any suit or action shall be commenced after the expiration of six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding."
It is claimed upon the part of the plaintiff in this case (1) that the failure to make the proofs within the 30 days, as required by the policy, only postponed the right of action until they were supplied, but that the plaintiff could not sue upon the policy for the loss until such proofs were furnished; (2) that the company waived all right to have the proofs of loss furnished within the 30 days through its local agent at Bay City.
The first proposition of plaintiff's counsel is based upon the ruling of this court in the case of Tubbs v Insurance Co., 84 Mich. 646, 48 N.W. 296. In that case it was shown that the proofs of loss were not made within 30 days as provided by the policy. There was no limitation in the policy as to the time within which suit must be brought, nor did the policy contain any provision that the failure to furnish proofs of loss within 30 days should work a forfeiture. The policy simply provided that, until such proofs, plans, and specifications and certificates should be furnished, and such examination had, the claim should not be due or payable. It was held in that case that the failure to make the proofs within 30 days did not operate as a forfeiture, but only postponed the right of action until they were supplied. In the present case there is a...
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