Rice v. Fid. & Cas. Co. of N.Y.

• Decision Date: 07 April 1930
• Docket Number: No. 119.,119.
• Citation: 250 Mich. 398,230 N.W. 181
• Court: Michigan Supreme Court
• Parties: RICE v. FIDELITY & CASUALTY CO. OF NEW YORK.

250 Mich. 398

230 N.W. 181

RICE

v.FIDELITY & CASUALTY CO. OF NEW YORK.

No. 119.

Supreme Court of Michigan.

April 7, 1930.

Error to Circuit Court, Wayne County; Alfred J. Murphy, Judge.

Action by Phillip Rice against Fidelity & Casualty Company of New York, a New York corporation. To review judgment for plaintiff, defendant brings error.

Reversed and remanded.

Argued before the Entire Bench, except McDONALD, J.Bishop & Weaver, of Detroit, for appellant.

Louis Starfield Cohane and Regene Freund Cohane, both of Detroit, for appellee.

WIEST, C. J.

This is an action upon a claimed oral renewal of a $2,000 burglary insurance policy upon an open stock of merchandise. Plaintiff had recovery, and defendant reviews by writ of error.

In January, 1921, and for many years previous thereto, plaintiff was a merchant tailor with an establishment on Woodward avenue in the city of Detroit. For the year ending January 29, 1921, he was insured in the sum of $2,000, by defendant, against loss or damage to his merchandise occasioned by the felonious taking thereof from his place of business. Just before the expiration of the insurance, plaintiff added to his stock of merchandise, desired continued insurance protection and claims that defendant's agents assured him that the policy was renewed for a year. February 7, 1921, plaintiff's place of business was burglarized and much merchandise stolen. Defendant denies renewal of the policy.

The assignments of error, as grouped in the brief for defendant, will be mentioned and considered as we proceed.

It is claimed there was no oral renewal of the insurance policy. James H. Gallagher was employed by defendant as a soliciting agent and paid a salary. Henry V. Upington, of Detroit, was defendant's Michigan manager, authorized to issue policies of insurance and employ soliciting agents. Mr. Gallagher took up with plaintiff the matter of insurance, and, as a condition of reinsurance, required the placing of bars and screens over the windows and door at the rear of the place of business. The bars and screens were installed by plaintiff and inspected and approved by another agent of the defendant. Thereafter, plaintiff claims, Mr. Gallagher assured him that the policy had been renewed by the company. This was denied by Mr. Gallagher and presented a question of fact for the jury. Defendant claims that, if the claimed assurance was given by Mr. Gallagher, it was not binding upon the company, because he was not authorized to make contracts of insurance coverage. Plaintiff also claims that he telephoned the defendant's Detroit office, asked for, talked with, and was assured by a person who said he was Mr. Upington, that the policy had been renewed and would be delivered. This was denied by Mr. Upington. The legal point that Mr. Gallagher had no authority to bind the company is of little moment if Mr. Upington ratified his acts by way of assuring plaintiff that the insurance had been renewed. Plaintiff was not familiar with Mr. Upington's voice, and this fact presents the question of whether plaintiff's testimony relative to the telephone conversation had probative value. The call for Mr. Upington at his business telephone number, together with the claimed relevant reply to the inquiry of whether the insurance had been renewed and the assurance received, furnished prima facie proof of identity of Mr. Upington. Theisen v. Detroit Taxicab & Transfer Co., 200 Mich. 136, 166 N. W. 901, L. R. A. 1918D, 715;Rotter v. Detroit United Ry., 217 Mich. 686, 187 N. W. 271;People v. Thompson, 231 Mich. 256, 203 N. W. 863; Van Riper v. United States (C. C. A.) 13 F.(2d) 961, 968. Of course, such prima facie proof was open to rebuttal, and, if met by evidence accepted as credible by the jury, the evidence controlled. If the jury found that the claimed assurance was given by Mr. Upington, who was confessedly vested with authority, then the statements of Mr. Gallagher have importance in connection with the assurance given by Mr. Upington in accord therewith.

Plaintiff, by assignment, turned his chose in action against defendant over to his son, went through bankruptcy without listing the claim as an asset, and, upon his discharge in bankruptcy, his son, by assignment, returned the chose in action, and defendant insists that plaintiff has no interest in the subject-matter of this suit.

The court advised the jury that the chose in action passed to plaintiff's creditors under the bankruptcy law, unless the assignment to the son was for a valuable consideration and without intent to defraud creditors.

There was also evidence of a greater consideration than the $50 mentioned by the circuit judge. The issue so submitted to the jury was all defendant could ask.

Plaintiff testified that Mr. Gallagher, defendant's soliciting agent, agreed to pay the renewal premium to the company, and, when he should deliver the policy, he would have plaintiff measure him for a suit of clothes. This was denied by Mr. Gallagher. In view of this testimony, want of consideration for the renewal of the policy is claimed. If renewal of the policy was made, the premium was due the company, and the claimed arrangement with the agent, in the absence of authority, was void, and the premium was payable to the company. See Hurley v. Watson, 68 Mich. 531, 36 N. W. 726.

June 16, 1921, Helen Oleson made an affidavit that, on February 3, 1921, in plaintiff's place of business, ‘one Gallagher, describing himself as the duly authorized agent of the Fidelity & Casualty Company of New York, * * * told the said Phillip Rice that his policy of insurance with the said Fidelity & Casualty Company of New York was renewed and that should anything happen between the said date of February 3, 1921, and the date the renewal certificates from said company arrived in Detroit everything would be taken care of.’ Helen Oleson was a witness in behalf of plaintiff at the trial, eight years later, and was unable to recall any such conversation, and the affidavit did not serve to refresh her memory. The court, over objection, admitted the affidavit in evidence.

This court has held that a memorandum made by a witness, at the time, if the witness has no present remembrance, and his recollection is not refreshed by his own memorandum, may, if the witness testifies it was true when made, be admitted in evidence. Fisher v. Kyle, 27 Mich. 454;Spalding v. Lowe, 56 Mich. 366, 23 N. W. 46;Koehler v. Abey, 168 Mich. 113, 133 N. W. 923.

The question presented by this record is not solved by the mentioned holdings, for here there was no memorandum made by the witness at or near the time of the alleged conversation, but an affidavit, prepared four months later by an attorney representing plaintiff. The affidavit was at the most a reduction of the relation of a conversation...