Martz v. Detroit Fire & Marine Insurance Company

• Decision Date: 21 October 1873
• Citation: 28 Mich. 201
• Court: Michigan Supreme Court
• Parties: Francis Martz and others v. The Detroit Fire & Marine Insurance Company

28 Mich. 201

Francis Martz and others v. The Detroit Fire & Marine Insurance Company

Supreme Court of Michigan

October 21, 1873

Heard October 15, 1873

Error to Wayne Circuit.

Garnishment. Plaintiffs bring error. Affirmed.

Judgment of the circuit court affirmed, with costs.

Otto Kirchner, for plaintiffs in error.

C. E Warner and Moore & Griffin, for defendant in error.

Graves J. Campbell and Cooley, JJ., concurred. Christiancy, Ch. J. did not sit in this case.

OPINION

Graves, J.

On the 18th of December, 1872, the plaintiffs in error sued Adolph Hebel, in assumpsit, in the circuit court for Wayne county, and subsequently obtained judgment, part of which has continued unpaid.

Coincident with the commencement of such suit against Hebel, the plaintiffs in error also proceeded against the insurance company by garnishee process, which was served at the same time.

In this proceeding it was alleged that the company were indebted to Hebel, and also that they had property, money, goods, chattels, credits, and effects in their hands, or under their control, belonging to him. On the 29th of January following the company made disclosure from which it appeared that on the 27th of May, 1872, the company insured Hebel against loss by fire on a stock of groceries, liquors, etc., to the amount of one thousand seven hundred dollars, and against such loss to the amount of three hundred dollars on store furniture and fixtures. The disclosure further stated that no proof of loss had been furnished, and denied all indebtedness, and also denied that the company had possession or control of any property of Hebel at or after the service of process.

The policy given to Hebel contained the usual conditions, and among them that ordinarily employed to require notice and preliminary proof of loss. The tenth article of the conditions was in these terms:

"10. In case of any loss on or damage to the property insured, it shall be optional with the company to replace the articles lost or damaged with others of the same kind and quality, or to take the goods at their appraised value, or to rebuild or repair the buildings within a reasonable time, giving notice of their intention so to do within thirty days after having received the preliminary proofs of loss required by the ninth article of these conditions. In case differences shall arise concerning the amount of any loss or damage by fire, the matter shall, at the written request of either party, be submitted to the judgment of arbitrators, indifferently chosen, whose award, in writing, as to the amount of such loss and damage, shall be binding on the parties, but such award shall not determine any question as to the liability of this company under this policy."

Shortly before the garnishee writ issued, and during the life of the policy, the whole insured property was destroyed by fire, whereby a loss was caused, within the insurance, of one thousand four hundred and eighty-one dollars and thirty-seven cents. At that time Hebel was the legal owner of the property, and rightly entitled to claim indemnity pursuant to the policy. But up to the time the garnishee summons was issued and served there had been no proof of loss, nor had the company made any election under the tenth article of the conditions.

Subsequently however, and on the 9th of April, 1873, Hebel complied with the provisions of the policy as to notice and proof of loss, and on the 15th of July following there was a final hearing in the garnishee proceeding on application of plaintiffs in error pursuant to the statute.--Comp. L., § 6467. And on that hearing, which...