Hall v. Concordia Fire Ins. Co.

• Decision Date: 04 March 1892
• Citation: 51 N.W. 524,90 Mich. 403
• Court: Michigan Supreme Court
• Parties: HALL v. CONCORDIA FIRE INS. CO.

51 N.W. 524

90 Mich. 403

HALL v. CONCORDIA FIRE INS. CO.

Supreme Court of Michigan

March 4, 1892

Error to circuit court, Ingham county; ROLLIN H. PERSON, Judge.

Action on an insurance policy by Charles H. Hall against the Concordia Fire Insurance Company. Plaintiff had judgment, and defendant assigns error. Affirmed.

Norris & Norris, for appellant.

Cahill & Ostrander, for appellee.

MONTGOMERY J.

The plaintiff sued upon a policy of insurance of $1,000, issued by the defendant upon a stock of eggs. The evidence being undisputed, and all offered on behalf of the plaintiff counsel on both sides agreed that it was a case in which the court should direct a verdict one way or the other. The plaintiff recovered, and the defendant appeals. The three principal points relied on are: (1) The claim that the policy is void because of other insurance applying to the property mentioned in the policy, which was placed without notice to the company; (2) that the policy has been avoided, because proofs of loss were not furnished by the assured within the time required by the policy; (3) that, if the policy is not held void for the reasons stated, nevertheless the assured could only recover for eggs in pickle at the time of the fire.

1. The policy contained the following clauses: "I. The assured by the acceptance of this policy, hereby covenants and agrees: * * * (3) To notify the company if at the making of the insurance, or at any time during its continuance, there shall be any other insurance applying to the property herein described, or any part thereof, whether the same be valid or not. II. This entire policy shall become void and of no effect (1) if the assured shall fail or neglect to comply with its terms, conditions, or covenants." This is followed by 10 additional clauses, stating conditions under which the policy shall become void, and these in turn are followed by 11 recitals of circumstances for all losses under which the company will not be liable. Among the conditions, under the heading, "This entire policy shall become void," etc., occurs: "(5) If the assured shall have, or hereafter have, any other policy, purporting to create insurance, whether valid or not valid, on the property herein specified, or any part thereof, without the written consent of this company thereto indorsed hereon." The plaintiff contends that all these provisions are to be construed together, and that the policy, after providing that the same shall be void if the assured fails to comply with its terms, conditions, or covenants, immediately proceeds to recite the terms, conditions, or covenants a violation of which will avoid the policy, and expressly recites the same covenants stated under heading I, including the clause relating to over or other insurance, although put in somewhat different form, and that the condition No. 5 under head II, when the rule of law as to overinsurance or other insurance is applied, is precisely the provision mentioned under the first head of the policy, requiring the assured to give notice of other insurance. The facts as to the overinsurance are that the plaintiff had an undivided interest in the stock of eggs insured. One Taylor was a co-tenant, and subsequently obtained insurance on his interest. It is also claimed that one Bennett, who was also interested in the property, had concurrent insurance; but the record discloses that he had no insurance on his pickled eggs, which is the only property covered by plaintiff's policy. No additional insurance was placed upon the undivided interest owned by the plaintiff, nor did he know of any insurance by Taylor.

We think the policy was not void. Covenants against overinsurance are usually construed to relate to additional insurance affecting the interest of the assured. May, Ins. � 365; Assurance Co. v. Scammon, 126 Ill. 355, 18 N.E 562, Insurance Co. v. Turnbull, 86 Ky. 230; ^[1] Williams v. Insurance Co., 15 La. Ann. 651. In this state it has been held that the conditions which avoid a policy of insurance in case of other insurance are not violated by insurance effected by the mortgagee. Guest v. Insurance Co., 66 Mich. 98, 33 N.W. 31; Carpenter v. Insurance Co., 61 Mich. 635, 28 N.W. 749. The defendant's contention is that the provision in question here should be construed to relate to any insurance effected upon the property, whether it covered the same interest as that insured to plaintiff or not. But it seems to us that in no event can it mean more than that the plaintiff shall be required to give notice to the company of any other insurance which may come to his knowledge. In the case of Insurance Co. v. Drake, 2 B. Mon. 47, the assured held an equitable interest in two-fifths of a brick block, and took out a policy of insurance covering the two-fifths of the building, which policy contained as one of its provisions the following: "(6) Persons insuring property at this office must give notice of any other insurance made on their behalf on the same, and cause such other insurance to be indorsed on their policies. * * * Unless such notice is given, the insured will not be entitled to recover in case of loss." A subsequent policy was taken out on the entire building by the legal owner as trustee. The court say: "We are equally clear that his [plaintiff's] policy is not forfeited. It is contrary to the principles of justice, and cannot be deemed to have been within the contemplation of the parties, or to be required by any proper construction of the sixth article, that he should be made to forfeit his whole policy for a failure to give notice of that which was done by another without his privity or consent, and of which he had no notice. * * * The stipulation requiring notice to be given implies that no other policy was meant than one that was or should be effected at his instance or upon his authority. Of such policies he must have notice, and, having notice, might be required to give it at the office at which he had insured; but, if the...