Tubbs v. Dwelling-House Ins. Co.

• Decision Date: 27 February 1891
• Citation: 84 Mich. 646,48 N.W. 296
• Court: Michigan Supreme Court
• Parties: TUBBS v. DWELLING-HOUSE INS. CO.

48 N.W. 296

84 Mich. 646

TUBBS v. DWELLING-HOUSE INS. CO.

Supreme Court of Michigan

February 27, 1891

Error to circuit court, Tuscola county; WATSON BEACH, Judge.

Hanchett, Stark & Hanchett, for appellant.

D. B. Richardson, (C. F Collier, of counsel,) for appellee.

MCGRATH J.

This is an action upon a three-year policy of insurance, issued by defendant May 14, 1887,-$100 on plaintiff's frame dwelling-house; $700 on household furniture, beds and bedding, wearing apparel, provisions and stores, piano organ, and sewing-machine, in said dwelling; $60 on frame ice and milk house; and $50 on dairy furniture, provisions, and stores,-situate on a farm owned by plaintiff. The application sets forth that applicant's interest in the property was under contract with one Lacey, who held the title, and that the property was incumbered with the sum of $2,000 due said Lacey. The application contained the following printed provision: "I hereby agree that * * * the foregoing shall be deemed and taken to be promissory warranties, running during the entire life of said policy. * * * The company shall not be bound by any act done or statement made by or to any agent or other person which is not contained in this, my application." The policy refers to the application on file in the office of the company, and provides that the loss is "to be paid 60 days after the notice and due and satisfactory proof of the same shall have been made by the assured, and received at the company's home office at Boston, Mass., in accordance with the terms and conditions of this policy hereinafter named." The policy contains the following provision "By the acceptance of this policy the assured covenants that the application herefor shall be and form a part hereof, and a warranty by the assured, and the company shall not be bound by any act or statement made to or by any agent, unless inserted in this contract. * * * Any fraud or attempt to defraud or deceive on the part of the assured, and any misrepresentation in the proofs or examination as to loss or damage, shall forfeit all claims under this policy. * * * All persons having a claim under this policy shall forth with give written notice of the loss or damage, and within thirty days furnish proofs thereof, signed and verified by the claimants;" and then follows a statement as to what the proofs shall contain. Fire occurred March 29, 1889, and the company refused to pay the loss, because: (1) The representation made in the application as to the incumbrance upon the property was untrue, in that the amount thereof was $3,000, instead of $2,000, as stated in the application; (2) the proofs of loss were not furnished until May 25th, more than 30 days after the loss occurred; and (3) that the proofs of the loss embraced property that did not belong to the assured, and therefore all claims under the policy were forfeited.

It appeared upon the trial that one Taylor, an agent of the defendant, solicited the insurance, and filled out the application; that plaintiff did not read the application, but signed it when presented by Taylor; that Taylor asked her how the land was owned, and she told him that she had bought it on land contract from one Lacey; that the purchase price was $3,500, and that she had paid $500 down, and kept the interest up. No testimony was offered by the defendant, and plaintiff's testimony is uncontradicted. To the proofs of loss was attached plaintiff's affidavit, which contained the following clause: "That the annexed and foregoing schedule of articles is a true list of the articles insured under said policy which are burned and totally destroyed by said fire; that the same are a total loss to deponent; that said property insured under said policy, and burned by said fire, as aforesaid, was free and clear from incumbrance, lien, or levy; and that claimant's title thereto is absolute ownership thereof;" and also the following: "That the farm and dwelling-house and ice-house were purchased by assured upon contract, which said contract is held and owned by William Lacey, of Holly, Mich., and upon which there remains due and unpaid three thousand dollars." The proof of loss contained an itemized list of articles lost by the fire, with the present value of each article. It included some of her husband's wearing apparel, and some of the apparel of an adopted son. Plaintiff testified that she was told by Taylor to include in the list all articles burned in the house, and that she supposed that her husband's wearing apparel was covered by the policy.

1. Upon the first question raised by the defendant, the court instructed the jury as follows: "One fact for you to determine there is whether the plaintiff, Mrs. Tubbs correctly informed the agent as to the actual amount of incumbrance, or the amount still due, upon the premises. You will determine that fact. If you find that she did correctly state it, you will determine the fact whether the agent understood it,-whether he inserted the amount in the policy understandingly or not. You will also determine whether it was inserted by mistake. Then I say to you, as a matter of law, that if she correctly informed him as to the amount, and the statement in the application, that the incumbrance was $2,000, was inserted by the agent knowing the true amount, or through mistake, and the application was presented to her to sign, and she was requested to sign it, and didn't read it through, understanding by the acts and conduct of the agent that the application correctly stated the answer which she had made, and she so signed it, and with that impression, derived from the acts and conduct of the agent, then the claim of fraud could not be maintained here, and the policy would not be void on that account. But if she did understand the amount that was stated in the application herself, and the agent had misunderstood the statement, didn't understand it, or made a mistake in regard to it, as I say, if she understood the amount which was inserted in the application, the agent not having got the answer correctly, through deafness, or any other reason, and she knew the amount stated in the application to be wrong, and signed the application so knowing, then that would avoid the policy. Now, there is a question of fact for you to determine as to how that amount came in the application, and what the parties knew and understood about it. I will say, further, if she had an opportunity to read that application, and neglected to do so of her own motion, of her own will, not misled by the acts or conduct of the agent, or lulled into silence as to what is contained by his acts and conduct, in preparing the application and all the circumstances surrounding the preparing of it; that it was a mere act of carelessness or neglect on her own part,-then, under those circumstances, the policy would be void, and she could not recover in this case." This question has been frequently before this court, and there was no error in the instruction given. See Crouse v. Insurance Co., (Mich.) 44 N.W. 496. See, also, ...