Improved-Match Co. v. Michigan Mut. Fire Ins. Co.

• Citation: 80 N.W. 1088,122 Mich. 256
• Court: Supreme Court of Michigan
• Decision Date: 12 December 1899
• Parties: IMPROVED-MATCH CO. v. MICHIGAN MUT. FIRE INS. CO.

80 N.W. 1088

122 Mich. 256

IMPROVED-MATCH CO. v. MICHIGAN MUT. FIRE INS. CO.

Supreme Court of Michigan

December 12, 1899

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by the Improved-Match Company against the Michigan Mutual Fire Insurance Company. From a judgment for plaintiff defendant brings error. Affirmed.

Bacon & Palmer, for appellant.

George Gartner, for appellee.

LONG J.

September 17, 1895, one W. A. Haines, acting as the agent of the defendant company, applied to the plaintiff to issue insurance to it for the amount of $1,500 on its mill property, machinery, etc., situate in the city of Detroit. The defendant company's office was in the city of Lansing. The application was made out by Haines, but not signed by the plaintiff or any of its servants or agents. In the margin of the application appeared the following indorsement: 'Brokers and solicitors: Please answer the following questions: Have you personally inspected this risk? A. Yes. Is this property profitable to the assured? A. Yes. Can you recommend this risk as free from any moral hazard, or anything which would make it undesirable? A. Yes.' This application, signed by Mr Haines, was forwarded to the defendant company by Mr. Haines. The defendant company thereafter issued its policy of insurance, dated October 20, 1895, and sent the same forward to Mr. Haines, who delivered it to the plaintiff some time between November 10th and 15th following. The building machinery, etc., were insured in other companies, and the policy in the present case had indorsed upon it, 'Other concurrent insurance permitted.' The premium was not paid at the time of the delivery of the policy to the plaintiff, but it appears that Mr. Haines gave the plaintiff 30 days in which to pay it. The property was totally destroyed by fire on November 16, 1895. This suit is brought to recover the amount stipulated in the policy.

The defendant with its plea of the general issue gave notice: (1) That the property insured by the policy was a manufacturing establishment, and was operated at night later than 10 o'clock, without the consent of the defendant, and that the fire mentioned in the declaration occurred later than 10 o'clock at night, while being so operated, and that, therefore, the policy is void; (2) that the premium on said policy was never paid by, or on behalf of, said assured; (3) that said policy was not delivered to, and accepted by, the assured until after the fire occurred; (4) that no statement of proof of loss under said policy had been made out and served upon said defendant prior to commencement of suit. The case was tried before a jury, which returned a verdict for plaintiff for the amount of its claim on the policy.

The first question discussed by counsel for defendant in their brief relates to the manner in which the suit was commenced, and a claim that the court below had no jurisdiction. It appears that a summons was issued out of the Wayne circuit court on October 21, 1896, and returnable on November 3d. This summons was returned not served, and on November 10th an alias aummons was issued returnable December 1st. A showing was made by affidavit to the court that defendant had an agent in Detroit, who received and delivered policies, and that affiant had good reason to believe he was the agent of defendant for the purpose of receiving or accepting service of process for defendant. On this showing the court made an order that the alias summons, with copy of affidavit, be served on such agent, and a copy be mailed to the defendant at Lansing, and that the same should stand as a valid service of the alias summons. Motion was then made by the defendant to quash the summons and service. This motion was overruled, when defendant applied to this court for a mandamus to compel the court below to vacate that order. This petition for mandamus was denied, on the ground that the remedy was by writ of error. Insurance Co. v. Wayne Circuit Judge, 112 Mich. 270, 70 N.W. 582. Defendant thereupon pleaded the general issue, and went to trial upon the merits.

1. It is now contended by counsel for plaintiff that by thus pleading to the merits, and going to trial thereunder, the defendant waived the question of due personal service of the writ by which the cause was commenced. That question is expressly ruled by Manhard v. Schott, 37 Mich. 234, and the cases there cited, in which it was held that pleading to the merits brings one into court, whether lawfully served with process or not, and that he cannot afterwards object to the manner in which he was brought in. Counsel for defendant, however, cites to sustain his claim the case of Warren v. Crane, 50 Mich. 300, 15 N.W. 465. But that case was distinguished in Dailey v. Kennedy, 64 Mich. 208, 31 N.W. 125, from the case of Manhard v. Schott, supra; and in Durrell v. Richardson (Mich.) 78 N.W. 650, the same distinction was made, and the claim that no waiver took place by pleading to the merits and going to trial was limited to cases in which the party is deprived of his liberty. The position taken by the defendant cannot, therefore, be sustained. The were properly before the court when the plea of the general issue was filed, and the court had jurisdiction to hear and determine the case.

2. It is contended that Mr. Haines was not the agent of the defendant company, and had no power to waive any of the conditions in the policy, but that he was a mere broker, and acted for the plaintiff in procuring the insurance.

This point does not appear to have been made in the court below; but, if it had been, the question is clearly placed at rest by the testimony of Mr. Haines, as follows: 'I received other policies from this company, and delivered them, and collected premiums, and forwarded the premiums, less my commissions, to the company. Mr. Garner is the manager of the defendant company, with his headquarters in Lansing, and it was through him that I negotiated the policies. I had a conversation with him prior to the 20th of October, 1895, in reference to my acting for the company. He said to me that he would write policies for me, if acceptable, and allow me a commission, and I placed other policies besides the one in question for the company, probably fifteen or twenty. I received the policies, delivered them, and collected the premiums, and forwarded them on. In the conversation I had with Mr. Garner, he said that thirty days would be allowed on the payment of the premium. In transacting my business, it was done by soliciting insurance. I went to the Improved-Match Company's place of business to see about procuring insurance several times. I knew of their getting some policies through other agents besides myself. My business there was to see whether I could write some insurance for them; that was all the business I had.' Under these circumstances, it appears conclusively that Haines was the agent of the defendant company, and not of the plaintiff. Russell v. Insurance Co., 80 Mich. 412, 45 N.W. 356; Kausal v. Insurance Co., 31 Minn. 20, 16 N.W. 430. The rule in such a case and the reason for it is fully stated in Russell v. Insurance Co., supra, by a quotation from the opinion of Mr. Justice Mitchell in Kausal v. Insurance Co.

3. Counsel for the defendant asked the court to charge the jury as follows: 'It appears conclusively, from the undisputed facts in this case, that the property insured was a manufacturing plant operated during the nighttime, and burned while being so operated in the night; and, no written permit to operate the plant during the night being attached to or indorsed on the policy, the policy is void, and your verdict will be for the defendant.' This request was refused, and the court charged...