Nat'l Fire Ins. Co. v. York, 56.

• Citation: 231 N.W. 91,251 Mich. 83
• Decision Date: 02 June 1930
• Docket Number: No. 56.,56.
• Parties: NATIONAL FIRE INS. CO. v. YORK.
• Court: Supreme Court of Michigan

251 Mich. 83

231 N.W. 91

NATIONAL FIRE INS. CO.

v.YORK.

No. 56.

Supreme Court of Michigan.

June 2, 1930.

Appeal from Circuit Court, Kent County, in Chancery; William B. Brown, Judge.

Suit by the National Fire Insurance Company against George York. Defendant's motion to dismiss the bill was denied, and he appeals.

Affirmed.

Argued before the Entire Bench.

Michael Garvey, of Grand Rapids, for appellant.

Smith & Searl, of Grand Rapids, for appellee.

CLARK, J.

After defendant had commenced suit at law on a policy of fire insurance issued to him by plaintiff, plaintiff filed this bill to cancel the policy on the ground of fraud and to enjoin defendant from proceeding with the action at law. Defendant filed motion to dismiss the bill, and, this denied, he has appealed.

The allegations of the bill must be taken here as true. They are, in substance, that defendant applied for insurance, representing falsely that it was sought on a dwelling house occupied as such, that plaintiff believed the representations, relied on them, and issued the policy as upon a dwelling house at the premium rate of 72 1/2 cents per $100 for a three-year term, that after loss it learned the building insured was not a dwelling, but store or mercantile building, which, if the truth had been known, it could not have insured as a dwelling at the rate stated, but that, if it had written a policy on the store building, it would have been for one year at the rate of nearly $2 per hundred.

The bill praying cancellation states a case in equity.

It is argued that plaintiff has adequate remedy at law and in the law case. The law court may not cancel the policy. True, it may find it void for the fraud, but a long line of decisions in this state are that plaintiff nevertheless may resort to equity for cancellation. John Hancock, etc., Ins. Co. v. Dick, 114 Mich. 337, 72 N. W. 179,43 L. R. A. 566;Mactavish v. Kent Circuit Judge, 122 Mich. 242, 80 N. W. 1086;Fidelity Mutual Life Ins. Co. v. Blain, 144 Mich. 218, 107 N. W. 877;New York Life Ins. Co. v. Hamburger, 174 Mich. 254, 140 N. W. 510;Farmers' Mut. Fire Ins. Ass'n v. Smith, 245 Mich. 514, 222 N. W. 727;Fred Macey Co. v. Macey, 143 Mich. 138, 106 N. W. 722,5 L. R. A. (N. S. ) 1036;New York Life Ins. Co. v. Buchberg, 249 Mich. 317, 228 N. W. 770.

Other matter urged and here considered is covered sufficiently by the cases cited.

Affirmed, with costs to plaintiff.

WIEST, C. J., and BUTZEL, McDONALD, SHARPE, NORTH, and FEAD, JJ.,...