Pennsylvania Fire Ins. Co. v. Kittle

• Decision Date: 11 June 1878
• Citation: 39 Mich. 51
• Court: Michigan Supreme Court
• Parties: Pennsylvania Fire Insurance Company of Philadelphia v. Emma Kittle

39 Mich. 51

Pennsylvania Fire Insurance Company of Philadelphia v. Emma Kittle

Supreme Court of Michigan

June 11, 1878

Submitted June 7, 1878

Error to Superior Court of Detroit.

Assumpsit. Defendant brings error.

Judgment affirmed with costs.

D. C Holbrook for plaintiff in error. An insurance policy is forfeited by taking additional insurance without the consent of the first insurer, where the policy makes it a ground of forfeiture, N. Y. Cent. Ins. Co. v. Watson, 23 Mich. 486; Western Mass. Ins. Co. v. Riker, 10 Mich. 279; Security Ins Co. v. Fay, 22 Mich. 467; and the reason for taking such insurance is not admissible, Westchester Ins. Co. v. Earle 33 Mich. 143; Hibernia Ins. Co. v. O'Connor, 29 Mich. 241.

Julian G. Dickinson and Theodore Romeyn for defendant in error. A cause of forfeiture of insurance is waived, where although it is known to the company, the insured is put to the expense of making proof of loss, Ins. Co. of N. A. v. Hope, 58 Ill. 75; Webster v. Phoenix Ins. Co., 36 Wis. 67; Wood on Fire Insurance, 837; Dohn v. Farmers' Insurance Co., 5 Lans. 275; McBride v. Republic F. Ins. Co., 30 Wis. 562; Lycoming F. Ins. Co. v. Dunmore, 75 Ill. 14; the question whether the conduct of the insurer did not amount to a waiver is properly given to the jury, Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 202; Whitwell v. Putnam F. Ins. Co., 6 Lans. 166; Shearman v. Niagara Ins. Co, 46 N. Y., 531; Pelkington v. Nat. Ins. Co., 55 Mo. 172; Viele v. Germania Ins. Co., 26 Ia. 9; Ripley v. AEtna Ins. Co., 30 N. Y., 136; Hayward v. Nat. Ins. Co., 52 Mo. 181; Vroman v. Darrow, 40 Ill. 171; Rohrback v. AEtna Ins. Co., 62 N. Y., 613; Pechner v. Phoenix Ins. Co., 65 N. Y., 195; Van Schoick v. Niagara Ins. Co., 68 N. Y., 434; Walker v. Metropolitan Ins. Co., 56 Me. 371; Gans v. Ins. Co., 43 Wis. 108.

OPINION

Cooley, J.

No question is made in this case upon the policy issued by the plaintiff in error to Mrs. Kittle, or upon the loss by fire of the property insured. It is claimed, however, that the policy became void by the taking out of another insurance on the same property without the consent of or notice to the plaintiff in error, and also that the proofs of loss are insufficient. Some errors in the admission of evidence are also assigned.

I. The date of the policy in suit was February 4, 1876, and it contained a provision that it should become void in case of subsequent insurance not assented to. The plaintiff below put in evidence a policy covering the same property, issued by the Citizens' Fire Insurance Company of New Jersey, dated November 1, 1876. She was then allowed to give evidence that the reason for obtaining the second insurance was that she had been advised the first was invalid because the policy was not countersigned by the agent who issued it.

The court was plainly in error in receiving this evidence. The provision regarding subsequent insurance was an important part of the contract between the parties, and if it was disregarded, the motive was immaterial. The absence of any purpose to defraud cannot excuse the breach of a contract. The insurance company therefore had a right to rely upon the second insurance as a forfeiture of the first. But whether the court did not cure the error committed in the reception of this evidence will be seen further on.

II. The plaintiff claimed a loss which, if apportioned between the two companies according to the amount insured by each, would be paid by them in the proportion of nine-sixteenths by the Pennsylvania company and seven-sixteenths by the New Jersey company. Against objection she was allowed to show that the New Jersey company settled with her on the basis of a loss of $ 1400, and paid seven-sixteenths of that sum. We see no error in admitting this evidence. Indeed it was essential. It proved neither the loss itself nor the extent of it as against the Pennsylvania company; it showed only what had been paid in reduction of their risk. If the loss should prove to be less, the latter company would of course reduce its liability in proportion.

III. The court instructed the jury that the taking out of the second policy avoided the first unless the breach of the condition on that subject was waived by the Pennsylvania company afterwards. This instruction, we think, cured any error in the reception of evidence of the reasons which induced Mrs. Kittle to negotiate the second...