U.S. Cas. Co. v. Bagley

• Decision Date: 03 December 1901
• Citation: 87 N.W. 1044,129 Mich. 70
• Court: Michigan Supreme Court
• Parties: UNITED STATES CASUALTY CO. v. BAGLEY et al.

87 N.W. 1044

129 Mich. 70

UNITED STATES CASUALTY CO. v. BAGLEY et al.

Supreme Court of Michigan

December 3, 1901

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by the United States Casualty Company against John N. Bagley and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This is an action on the case for negligence. The plaintiff is an insurance company, which had insured the goods of Burnham Stoepel & Co. against damage which might be caused by the accidental discharge or leakage of water from the automatic fire-extinguishing apparatus in the building occupied by that firm. The Bagley estate, so called, represented by the defendants, is the owner of the building, and the landlord of Burnham, Stoepel & Co. On July 4, 1897, water escaped from the extinguishing apparatus, and damaged the goods of Burnham, Stoepel & Co. That firm made claim against the plaintiff here, under the policy of insurance, and brought suit against it. The cause was tried in the United States circuit court for the Eastern district of Michigan, and judgment was rendered therein for the plaintiff. The casualty company took a writ of error, and the judgment was affirmed in the court of appeals. Thereafter the casualty company paid the judgment and the costs, amounting to $12,459.26, and took from Burnham, Stoepel & Co. a writing, which, after reciting the receipt of the amount of the judgment, proceeds: 'In consideration of the payment of the above amount, we hereby in pursuance of the provisions of said policy, subrogate the said United States Casualty Company to all claims or rights of the undersigned against any third party in respect to the loss that occurred under said policy, for which the judgment above referred to was recovered.' The casualty company thereupon brought this action, claiming to have been subrogated to the rights of Burnham, Stoepel & Co. The premises in question are the westerly part of the building the easterly portion of which was occupied by the Peerless Manufacturing Company. The flow of water complained of here took place substantially at the same time with, and under like circumstances as, that involved in the case of Manufacturing Co. v. Bagley, which was before this court, and is reported in 85 N.W. 568. The decision in that case settled the legal questions which would have been involved in a suit between Burnham, Stoepel & Co. and the Bagleys. There was evidence introduced from which a jury might infer negligence on the part of the extinguisher company in putting such a head in the skylight, and the court instructed the jury that the defendants were chargeable with the negligence, if any of the extinguisher company. Mr. Stoepel testified that the installation was complete when the insurance was written; that, before the policy was signed and delivered, 'I think our building was inspected by some of the agents or representatives of the casualty company. No objection was made to me personally by the representatives of the United States Casualty Company, before this policy was issued, as to anything connected with the sprinkler system. Before the policy was written, the casualty company had full opportunity to inspect the system.' There was no testimony to contradict Mr. Stoepel. The only question in this case is whether, when the plaintiff had full opportunity to inspect the extinguisher system, and did inspect it before writing its policy, it can charge the defendants with the result of the negligence of the fire-extinguisher company, free from any charge of contributory negligence on its part.

Wells, Angell, Boynton & McMillan, for appellants.

Brennan, Donnelly & Van De Mark (Alfred Lucking, of counsel), for appellee.

MONTGOMERY C.J. (after stating the facts).

The defendants contend that there was...