Lum v. U.S. Fire Ins. Co.

• Decision Date: 19 March 1895
• Citation: 104 Mich. 397,62 N.W. 562
• Court: Michigan Supreme Court
• Parties: LUM v. UNITED STATES FIRE INS CO.

62 N.W. 562

104 Mich. 397

LUM v. UNITED STATES FIRE INS CO.

Supreme Court of Michigan

March 19, 1895

Error to circuit court, Alpena county; Robert J. Kelley, Judge.

Action by Manfred P. Lum against the United States Fire Insurance Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Charles F. Gates, for appellant.

Depew &amp Marshall, for appellee.

LONG J.

This is an action to recover upon a fire insurance policy. July 16 1891, plaintiff had issued to him by the defendant company a policy upon his household furniture in his dwelling house in Bay City. That policy expired on July 16, 1892. It was a Michigan standard in the usual form. In May 1892, plaintiff removed from Bay city to Alpena, leaving his furniture and house at Bay City in the keeping of his agent Benjamin F. Smith. Some time before the expiration of this policy the agent of the defendant company at Bay City, Mr. O. F. Forsyth, had concluded to renew it if the plaintiff so desired, and had signed a new policy, and left it with his office boy to fill out and deliver. On July 16th,-the date of the termination of the first policy,-Mr. Smith, plaintiff's agent, called at the office of defendant's agent, and ordered the renewal of the insurance. Mr. Forsyth was absent from the city, but the office boy informed Mr. Smith that it had been renewed, and showed him the record of the renewal on the insurance register of the defendant's agent, and pointed out the renewal policy which had been filled out for $300 on the household furniture of the plaintiff. On July 25th the property covered by the insurance was entirely destroyed by fire. It appears that Mr. Forsyth, on his return home, sent the policy forward to the general agent of the company at Detroit, and on the 18th of July received a letter from him to cancel the policy, as he had been instructed by the company not to issue any policies for less than three dollars in premiums. Mr. Forsyth returned the policy to the general agent for cancellation on July 18th,-being seven days before the fire. It is contended that Mr. Forsyth never notified plaintiff or his agent that the policy had been canceled until the next morning after the fire, while the defendant contends that Mr. Smith was notified on the 18th that the policy had been canceled. This question, however, was submitted to the jury, who found in favor of plaintiff's contention. That question, therefore, is not of importance in the case.

The declaration by which the suit was commenced, it is claimed, was not sufficient to warrant a recovery. It was not demurred to, and we think it contained sufficient averments to warrant a recovery under circuit court rule 104, which was adopted for the purpose of avoiding needless prolixity. It is said, however, that the time when the fire took place was stated as August 25th, while the proof showed that it was on July 25th, and that, the date not being averred under a videlicet, the variance was fatal. The court below refused to so charge, and we think properly. The date was not very essential, as the proofs of loss were made within the time fixed by the policy, and it is evident the defendant was not taken by surprise on the trial. It was a misstatement, which the court would have at once amended as of course, and which we may well treat as amended, except in describing a written instrument which bears a written date. Allegations of these are not, in general, material in a declaration. Howland v. Davis, 40 Mich. 545. The principal questions which were raised on the trial relate (1) to whether there was a new policy actually issued, and whether there was sufficient delivery, so that it took effect as a valid contract of insurance; (2) whether the nonpayment of the premium vitiated it; (3) whether the plaintiff's agent had notice of its cancellation; (4) whether the proofs of loss were sufficient, and, if not sufficient, whether the defendant is now in position to take advantage of the defects.

Mr Forsyth had been acting as the agent of defendant for some three years, and, it is claimed by defendant, under limited authority. A commission had been issued to him to do business, and, while it appears that plaintiff's agent had seen the commission hanging in Mr. Forsyth's office, there is no proof that he knew of any limitation upon Mr. Forsyth's power to issue insurance policies. It had been the practice of Mr....