Morley v. Liverpool & L. & G. Ins. Co.
| Decision Date | 17 April 1891 |
| Citation | 85 Mich. 210,48 N.W. 502 |
| Parties | MORLEY v. LIVERPOOL & LONDON & GLOBE INS. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Saginaw county.
Action by George W. Morley against the Liverpool, London & Globe Insurance Company, on a policy of insurance. Circuit Court Rule Mich. No. 104, provides that "in order to avoid needless prolixity, inasmuch as policies of insurance are generally issued upon printed forms, of the contents of which the companies issuing them are fully advised, it shall not be necessary hereafter, in declaring upon such policies, to set forth specifically any more than the date and amount of the policy, the premiums paid or to be paid, the property or risk insured, and the loss; and upon the trial proofs may be made in the same way as if the declaration had set forth the policy in full."
Wisner & Draper, for appellant.
William G. Gage, for appellee.
Plaintiff's assignor, Joseph M. Lenhoff, was engaged in the clothing business in East Saginaw in February, 1887. His stock was insured to the amount of $13,000 in seven companies, of which the defendant was one, having a policy of $2,000. A fire occurred in the store February 19th, resulting in a total destruction of part of the stock, and damage to the rest. Among the provisions of this policy are the following: "All fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claims on this company under this policy." "The assured shall, if required, submit to an examination or examinations under oath by any person appointed by the company." "It is furthermore expressly provided and mutually agreed that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or chancery until after an award shall have been obtained fixing the amount of such claim in the manner above provided." Two days after the fire the adjusters for the several companies met to investigate the loss. Being unable to agree, the adjusters made oral requests for arbitration. To this Lenhoff assented and March 8th an agreement for submission was duly executed by him and the companies interested. The parties agreed upon were Carl Heavenrich and Fred Osborn, with one James C. Mercer as umpire in case of their disagreement. This agreement had the following clause: "It is understood and agreed that the appraisers are not to take into account or to consider the question of merchandise totally consumed." On the same day the appraisers accepted and qualified by taking the proper oath. They completed their work on the 10th, and agreed without any intervention of the umpire. The award was written out and ready for signatures on March 10th. Mr. Osborn signed the award; Mr. Heavenrich, under the direction of Lenhoff, refused to sign. They found the value of the goods before the fire to be $5,890.88, and the damage to be $4,858.11. This did not include the goods totally destroyed. On the same day plaintiff's assignor, under the advice of his counsel, revoked the arbitration in writing, in which he said to the defendant and the other insurance companies: "I have elected, and do hereby elect, to cancel, annul, and revoke the same, and I decline to proceed with or be bound thereby." The reason for this revocation as given by his attorney upon the trial was that the agreement for arbitration did not embrace the whole controversy, but involved only the damage to the goods injured, and not the damage resulting from those totally destroyed. No such reason, however, was given to the defendant, and no request was then made by Lenhoff for any such submission. March 17th Lenhoff submitted his proofs of loss to the defendant. April 2d defendant wrote Lenhoff, notifying him that the proofs were insufficient, and not in accordance with the terms of the policy. May 2d Lenhoff submitted his second proofs of loss, duly verified, in which he adopted, item by item, the valuation agreed upon by the arbitrators. Immediately after serving his notice of revocation upon the companies he procured an appraisal to be made by two men, and proceeded at once to sell the goods, all of which he sold before July 4th. May 18th defendant, by letter, notified Lenhoff that he was required to submit to an examination under oath by Mr. C. S. Draper, at his office in East Saginaw, on May 25th, touching his loss by fire, and the liability of defendant under its policy. Lenhoff appeared, and submitted to such examination. August 6th Lenhoff wrote defendant as follows: "Liverpool, London & Globe Insurance Company-Gentlemen: On May 25th last, at your request and that of other companies which have written upon my stock, I submitted to an examination, and produced before the agents and attorneys who conducted the same for the insurance companies such of my books and papers as were called for. At the conclusion of that examination I was informed by your attorney that an early answer would be given me as to the course the several companies proposed to pursue, since which time I have heard nothing from you. For the purpose of arriving at a speedy settlement of my claim, I hereby offer to submit the question of my loss
and damage under your policy number 996 to arbitration, and I request that said arbitration be entered into pursuant to the terms and conditions of said policy. Please favor me with an early reply, and oblige, Yours, truly, J. M....
To continue reading
Request your trial