McGannon v. Michigan Millers' Mut. Fire Ins. Co.

• Decision Date: 19 July 1901
• Citation: 87 N.W. 61,127 Mich. 636
• Parties: McGANNON v. MICHIGAN MILLERS' MUT. FIRE INS. CO.
• Court: Michigan Supreme Court

87 N.W. 61

127 Mich. 636

McGANNON v. MICHIGAN MILLERS' MUT. FIRE INS. CO.

Supreme Court of Michigan

July 19, 1901

Error to circuit court, Ingham county; Howard Wiest, Judge.

Action by John George McGannon against the Michigan Millers' Mutual Fire Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Grant J., dissenting.

Crane, Norris & Drew, for appellant.

Cahill & Wood, for appellee.

MOORE J.

The defendant is a fire insurance company organized under the laws of the state of Michigan, with its principal office at Lansing, Mich. The plaintiff is the owner, by assignment from the Verona Mill Company, of a policy of insurance issued to said Verona Mill Company by the defendant company. In March 1899, the Verona Mill Company made a written application for insurance. Among other things stated in the application is the following: 'What facilities have you in the way of force pumps, extinguishers, etc., for putting out fire? A. Waterworks. Do you agree to keep a watchman on the premises at all times when not in operation? A. Yes. Do you agree to keep at least one cask of salt water on each floor of the buildings, and one or more buckets to each cask always in order and ready for use in case of fire? A. Yes. Do you agree not to use open, movable lights on the premises insured? Yes. If both water and steam power are used, state what proportion of the time a permit for steam is wanted. Is smoking permitted except in the office? No. What is the capacity of the mill in twenty-four hours? 200 bbls. State anything affecting the risk, not otherwise fully explained. Through what bank do you prefer to have collections on you made? Farmers' Bank. And the undersigned applicant hereby warrants that the above is a just, full, and true exposition of the facts and circumstances in regard to the property to be insured, and is and shall be considered as the basis on which insurance is to be effected and continued in force, and the same is understood as incorporated in and forming a part and parcel of the policy as a continuing warranty during the life of such policy. And it is covenanted and agreed that if the situation or circumstances affecting the risk shall be so altered or changed as to render the risk more hazardous, or if there be any change affecting the title, interest, or possesstion of the property, the assured will notify the secretary of said company forthwith, in writing, of such alteration or change.' Upon this application a policy of insurance was issued. The provisions of said policy which counsel deem material in this controversy read as follows: '* * * Reference is made to assured's application and survey on file in the office of this company, and which is made part of this policy. * * * This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. This entire policy, unless otherwise provided by agreement indorsed hereon and added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy, or if the subject of insurance be a manufacturing establishment, and it be operated in whole or in part at night later than ten o'clock, or if it cease to be operated for more than ten consecutive days. * * * If an application, survey, plan, or description of property, to be referred to in this policy, it shall be a part of this contract, and a warranty by the insured. * * * This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or addecd hereto, and no officer, agent, or other representative of this company shall have power to waive any provisions or conditions 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.' Afterwards a loss occurred, and this suit was brought. A stipulation of facts was filed, the material parts of which read as follows: 'April 17, 1899, at or about 11:30 p. m., fire originated from an unknown cause in the insured property, and the same was totally destroyed by fire. The mill was generally running from 7 o'clock a. m. until 6 o'clock p. m. It was not running during the night nor on Sundays. The mill company maintained in the mill a small electric light plant, which furnished electric lights in the village of Verona; said light plant being started up at dusk in the evening, and closing at ten o'clock p. m. The Verona Roller-Mill Company employed J. U. Robinson, who was also secretary of the company, as one of its engineers and watchman. He was a competent man to perform the duties for which he was employed. He was hired and had agreed to take charge of the machinery as millwright, engineer, and watchman, as follows: To go on duty at twelve o'clock noon of each day, Sundays excepted, and so long as the mill was running to run the engine, do the firing, look after the repairs to the mill machinery, and when the mill ceased running at six o'clock p. m. to run the electric plant above referred to until ten o'clock p. m., and while running the plant to perform the duties of night watchman at the mill, and after ten o'clock p. m. to remain on the premises and perform the duties of night watchman until twelve o'clock midnight, when he was relieved by W. B. Taylor and went off duty. He ran the electric light plant Sundays from dark until ten p. m., and watched Sunday nights from 10 to 12 p. m. W. B. Taylor was employed by the Verona Roller-Mill Company as second engineer and watchman, to perform duties as follows: He was to go on duty every night at twelve o'clock midnight, act as watchman until the mill started up in the morning, when he ran the engine as engineer and fireman until twelve o'clock noon, when he was relieved by J. U. Robinson, and went off duty. On Saturday nights Mr. Taylor went on at twelve o'clock midnight, and watched until daylight, when he went off duty, and no watchman, or other person having the duties of watchman, was in charge of the mill premises on Sundays until the electric light plant was started up in the evening. The employ�s and officers of the mill company were around the mill on Sundays, there being some one of them at the mill once or twice each Sunday, but no one performing the duties of watchman on Sundays during the day. Mr. Taylor was a competent man for his employment, and was paid by the Verona Roller-Mill Company for performing the duties as above detailed. On the night when the fire occurred, J. U. Robinson ran the electric light plant until 10 o'clock. At that hour he shut down the lighting plant, carefully inspected all the stories of the mill, and went home, leaving the mill at about 10:15 p. m.; his wife being quite sick at the time, which was the occasion of his leaving the mill on this occasion prior to twelve o'clock p. m. Robinson went straight home and went to bed, and at the time the fire broke out was in bed at his house at the other end of the village of Verona, about 200 yards away from the mill, and out of sight of the mill. The other officers and stockholders of the Verona Roller-Mill Company were not aware that Robinson had left the mill that night. Said Robinson had on a few occasions prior to the date of the fire left the mill alone in a similar way between the hours of ten and twelve o'clock p. m., but his absence on these occasions was likewise unknown to any of the other officers or stockholders of the Verona Roller-Mill Company. It is admitted that the officers and stockholders of the Verona Roller-Mill Company used due diligence in the selection of Robinson and Taylor as watchmen at the mill; that Robinson's absence was occasioned solely by the sickness of his wife, who was quite sick; that the mill property destroyed was worth in excess of the total amount of the insurance upon the same; that the company sustained quite a loss not covered by insurance; and that there was no fraud or bad faith upon the part of the plaintiff or his assignor, the Verona Roller-Mill Company. It

is admitted that all of the conditions and agreements set forth in said application and policy have been fully and literally complied with by the Verona Roller-Mill Company and the plaintiff herein, except as regards the absence of the watchman, as hereinbefore set out, and as to whether this condition of the application of the policy has been complied with is to be determined by the court upon this agreed state of facts; and, if the facts herein set out constitute such a compliance, then judgment is to be rendered for the plaintiff for $2,849.67, with interest at six per cent. per annum from the 25th day of April, 1899; otherwise, judgment is to be rendered for the defendant.' The circuit judge rendered a judgment in favor of plaintiff for the full amount of his claim. The case is brought here by writ of error.

The circuit judge held that section 5180, Comp. Laws 1897, applies to this...