Kleis v. Niagara Fire Ins. Co.

• Decision Date: 12 July 1898
• Citation: 117 Mich. 469,76 N.W. 155
• Court: Michigan Supreme Court
• Parties: KLEIS v. NIAGARA FIRE INS. CO. OF CITY OF NEW YORK.

76 N.W. 155

117 Mich. 469

KLEIS v. NIAGARA FIRE INS. CO. OF CITY OF NEW YORK.

Supreme Court of Michigan

July 12, 1898

Error to circuit court, Allegan county; Philip Padgham, Judge.

Action by Maggie Kleis against the Niagara Fire Insurance Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Howard Roos & Howard, for appellant.

Gerrit J. Diekema, for appellee.

HOOKER J.

The undisputed evidence in this record shows that the plaintiff's husband, acting upon her behalf, made application to Walsh, the local agent of the defendant, for insurance upon the plaintiff's buildings, upon a Saturday. He desired insurance to the amount of $1,000. The rate was fixed, and he paid Walsh $10, taking his receipt reading as follows: "Holland, Mich., May 25th, 1895. Received of M. W. Kleis ten dollars, insurance money for three years on house and household goods. W. C Walsh." Walsh promised to draw the policy upon the following Monday, and did so, and two or three days later the policy was delivered to the plaintiff's husband, who called for it according to agreement. In September following the property was burned, and this action is brought to recover the insurance. The policy contains a clause, to be found in all Michigan standard policies, to the effect that this "entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance. *** No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist, or be claimed by the insured, unless so written or attached." As a fact, the plaintiff had, at the time the defendant's policy was purchased, insurance in another company, to the amount of $400, $300 of which was upon the dwelling, and $100 on the contents; and afterwards she procured $500 more upon the dwelling, and $100 on the furniture. At the time of the fire, then, she had in the three companies $1,550 upon the dwelling, and $450 upon the furniture. The testimony shows that the plaintiff's husband considered the dwelling worth $1,000. Other testimony indicates that it could have been replaced for $500. The plaintiff's husband testified that, at the time of his application for the insurance in the defendant's company, he stated to the agent that there was other insurance upon the property, procured from one Marsh, and that, as soon as he obtained sufficient money, he intended to take out more insurance upon the premises; and that Walsh told him not to go to Marsh for such prospective insurance, but to come to him (Walsh) for it, but that he afterwards procured it from Marsh. The plaintiff also testified that at the time she signed the application, which was some days later, she asked Mr. Walsh: "'If we wanted to insure higher, must I let him know?' and he told me, 'No;' I could insure in any policy I liked, but he would like to insure me." This was before the policy was received. This testimony is disputed, but, for the purposes of the case, must be assumed to be true.

The following quotation from the brief of counsel for the plaintiff will show his understanding of the issue which was made: "The first point relied upon by the appellant is that there can be no recovery under the declaration in the case. This point was raised by the defendant early in the trial of the case in the court below, and, we think, was properly overruled by the circuit judge. The declaration contains but one count, and the plaintiff relies entirely upon a verbal contract made with the defendant, on the 25th day of May, A. D. 1895. On that day, all the terms and conditions of insurance were agreed upon between the parties and the money was paid by the plaintiff, and a receipt taken therefor; and the agent of the defendant then stated that he would draw up the policy on the next Monday, and that, if the property burned before said Monday, it would be considered insured. There was no written application, and the whole contract was a verbal one. If the plaintiff had declared upon a written contract, and had made the policy issued the basis of his action, then it is true that if, either through mistake or fraud, the written contract did not represent the intentions of the parties, the injured party must come into a court of equity to have the contract reformed before he can base his action upon it." He seems to concede that he is not attempting to recover upon the policy, but upon the oral contract for a policy; and the declaration alleges that the policy delivered was not in conformity to the agreement for insurance, and "that by reason of the defendant not performing its said contract and agreement for insurance so made with the plaintiff, as aforesaid, and by not executing and delivering to the plaintiff, a policy of insurance therein and thereby insuring the plaintiff against loss or damage by fire upon said property, according to the terms of said contract and agreement for insurance so made as aforesaid, and by fraudulently inserting in said pretended policy said clause relating to other contracts of insurance upon the property covered in whole or in part by said policy of insurance delivered by defendant to plaintiff, she is injured and has sustained damage to the amount of one thousand (1,000) dollars." We are justified in saying, therefore, that the plaintiff's brief shows that recovery was sought upon an alleged oral contract, made by the defendant, to insure her building and its contents, and to issue a policy to her in conformity to their talk. The evidence in the case shows conclusively that the defendant was not designated as the company to furnish this insurance, and issue the policy. Plaintiff's husband, who is alleged to have made the oral contract, testified that he met Mr. Walsh, and told him that he wanted to insure some property; and Walsh said it was all right, and asked how much, and Kleis told him; and then Walsh asked him a few questions, and then said, "Well, it is all right," but that he was too tired to draw up the policy that night, so he gave him a receipt for the money, reading as follows: "Holland, Mich., May 25, 1895. Received of M. W. Kleis ten dollars, insurance money for three years on house and household goods. W. C. Walsh." Walsh promised to draw the policy the first thing Monday morning, and told Kleis to call in any time the next week, and get it, and also said, "If it burns from now until Monday, we will call it insured." It appeared that Walsh was agent for several companies, and it is manifest that, had a fire occurred before Monday, it would be difficult for the court to find from this testimony that the defendant was a party to the contract, any more than any one of a dozen other companies. There was therefore, at the most, a contract with Walsh to insure. Insurance Ass'n v. Boniel, 20 Fla. 817; Sheldon v. Insurance Co., 65...