Liverpool, London & Globe Insurance Co. v. Verdier

• Decision Date: 05 January 1876
• Citation: 33 Mich. 138
• Court: Michigan Supreme Court
• Parties: The Liverpool, London & Globe Insurance Company v. John A. S. Verdier and another

33 Mich. 138

The Liverpool, London & Globe Insurance Company v. John A. S. Verdier and another

Supreme Court of Michigan

January 5, 1876

Heard November 2, 1875

Error to Kent Circuit.

Judgment reversed, with costs, and a new trial ordered.

Hughes O'Brien & Smiley, for plaintiff in error.

Norris Blair & Stone, for defendants in error.

OPINION

Graves, J.

The defendants in error recovered in the court below on a fire policy issued to them in their firm name of Verdier & Brown by the company. The risk covered by the policy was from the 15th day of May, 1874, until the 15th day of May, 1875, and was taken on Verdier & Brown's "stock of hardware and gas fixtures, consisting of stoves, shelf goods, tinware, furnaces, pumps, mantels, plumbing materials, gas fixtures, gas pipes, and such other goods usually kept on sale by them as dealers in hardware and gas-fitters' goods, contained in three-story brick, tin roof building, situated on the east side of Canal street, No. 102, Grand Rapids, Mich." The amount of the risk was three thousand dollars, but the policy permitted other concurrent insurance of nine thousand dollars, and in fact there was other insurance in the association called the Underwriters, and also in the Merchants' Insurance Company, and making with that taken by the plaintiffs in error eight thousand dollars. That of the Merchants' company, however, included a small sum upon tools. The loss happened on the 4th of June, 1874, but was only partial. It amounted to six thousand eight hundred and eighteen dollars and twenty cents.

The plaintiff in error claimed that besides these insurances, there was one existing when the fire happened, of three thousand dollars, issued by the Home Insurance Company, and which ought to be taken into account in calculating the amount or share of the entire loss to be borne by them. This position being controverted by the assured, the plaintiffs in error, on the 15th of August, 1874, and before suit, tendered one thousand nine hundred and three dollars and seventy-six cents, as the sum they were liable for on the basis of the Home Company's policy being reckoned amongst those to be considered in fixing the sum called for from plaintiffs in error under the agreement in their policy. This was several hundred dollars less than they were bound to pay if the policy of the Home Insurance Company was excluded. The defendants in error continued in their opinion, and finally claimed upon the trial that the Home policy was not to be considered at all in fixing the amount lawfully payable by plaintiffs in error under the agreement in their policy, and the court below, being of that opinion, charged accordingly. And the question now is, whether it appears by this record that the court erred in so ruling. If it did, the recovery was excessive; if otherwise, it was not. To decide the point we must be governed by the record. The policy in suit is set forth, and by the seventh article the parties contracted as follows: "In case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, without reference to the dates of the different policies, or their invalidity from want of notice of this or other insurance, or from the violation of any of their conditions, or the insolvency of any or all the other insurance companies. And it is hereby declared and agreed that in case of the assured holding any other policy in this or any other company on the property insured, subject to the conditions of average, this policy shall be subject to average in like manner."

It appeared in evidence that the Home Insurance Company of the city of New York insured by their policy of May 1st, 1873 the defendant in error, John A. S. Verdier, in the sum of three thousand dollars for the term of one year, "on his stock of hardware, tin, iron, stoves, and such other articles as are usually kept on sale by him as a hardware and...