Miotke v. Milwaukee Mechanics' Ins. Co.

• Decision Date: 28 May 1897
• Citation: 71 N.W. 463,113 Mich. 166
• Parties: MIOTKE v. MILWAUKEE MECHANICS' INS. CO.
• Court: Michigan Supreme Court

71 N.W. 463

113 Mich. 166

MIOTKE v. MILWAUKEE MECHANICS' INS. CO.

Supreme Court of Michigan

May 28, 1897

Error to circuit court, Wayne county; George S. Homer, Judge.

Suit by Frank Miotke against the Milwaukee Mechanics' Insurance Company on an insurance policy. From a judgment for plaintiff, defendant brings error. Affirmed.

Wilkinson & Post, for appellant.

Morse Rohnert, for appellee.

HOOKER J.

The plaintiff is a Polander, who is unable to write or speak the English language. He was approached by the defendant's solicitor, who proposed to insure his house, and he finally consented to allow him to do so. When he was asked to insure he at first declined, saying that he had the place on a contract which was not paid up, and he needed his earnings to pay upon it. Again the solicitor says that he inquired what title he had, and plaintiff said that he had it on contract and that he (the solicitor) so informed his superior before the policy issued. There was no written application. A loss occurred, and an interview as had, and the amount of loss was agreed on, and proofs of loss were prepared by the agent in conformity thereto. At this time it became known to the agent that the contract ran to the plaintiff and his wife jointly. The agent testified that this was the first knowledge that he had that the place was held upon contract, while the solicitor testified that he so informed him at the time the insurance was effected. It seems undisputed, however, that nothing was said or known by either in regard to the wife's relation to the contract previous to the making of proofs of loss. This discovery was followed by a denial of liability by the defendant, and a transaction in which the plaintiff was paid $200 followed. The defendant claims this to have been a settlement, while the plaintiff and his witnesses say that the defendant's agent said the company was not liable, and would not pay, because he had not told that the land was held on contract, but that, as plaintiff was a poor man, he would make him a present of $200 out of his own pocket, and did so. The jury must have believed the latter version. Upon the trial a verdict and judgment for the plaintiff were rendered for the amount of the loss and interest, less the $200, which his counsel asked the jury to deduct from the amount of the loss.

The plaintiff cannot be said to have misrepresented his interest in the premises in saying that he held it on contract, and the policy does not contain anything indicating that he made any claim about it. It does not purport to insure his property in terms, but "the house situate," etc. The defendant relies upon the condition in the standard policy, which reads as follows: "This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise, any material fact or circumstance concerning the 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 or added hereto, shall be void *** if the interest of the insured be other than unconditional and sole ownership or if the subject of insurance be a building on ground not owned by the insured in fee simple." The day has gone by in Michigan for successfully contending that the mere acceptance of a policy containing a condition like this makes it conclusive against the holder, who accepts it in ignorance of the clause, and whose title does not conform to the strict letter of the condition. Even in the case of Schroedel v Insurance Co. (Pa. Sup.) 27 A. 1077, which counsel for the defendant cite, there is a plain intimation that the condition cannot stand against fraud on the part of the company or mistake; and there are many cases that hold that these conditions may be waived, not alone (as counsel contend) by express agreements to waive, but by...