Walz v. Peninsular Fire Ins. Co. of Am.

• Decision Date: 29 December 1922
• Docket Number: No. 102.,102.
• Citation: 221 Mich. 326,191 N.W. 230
• Parties: WALZ et al. v. PENINSULAR FIRE INS. CO. OF AMERICA.
• Court: Michigan Supreme Court

221 Mich. 326

191 N.W. 230

WALZ et al.

v.PENINSULAR FIRE INS. CO. OF AMERICA.

No. 102.

Supreme Court of Michigan.

Dec. 29, 1922.

Error to Circuit Court, Washtenaw County; George W. Sample, Judge.

Action by William L. Walz, trustee, and another against the Peninsular Fire Insurance Company of America. Judgment for plaintiffs, and defendant brings error. Affirmed, with remittitur.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ. Henry C. Walters, of Detroit (Arthur P. Hicks, of Detroit, of counsel), for appellant.

Cavanaugh & Burke, of Ann Arbor (James O. Murfin, of Detroit, of counsel), for appellees.

CLARK, J.

This action is on a $25,000 fire insurance policy issued to Sarah Goffe by defendant. She owned a plant in Ann Arbor, in which, under the name of Ann Arbor Stamping & Metal Company, she was principally engaged in the purchase and sale of sheet metal scrap and in the manufacture therefrom and the sale of small stampings, such as automobile license plates, frying pans, shovels, hoes, spades, etc. A fire occurred in the plant between 11 and 12 o'clock in the night of December 31, 1920. She had ordinary fire insurance amounting to $375,000, and use and occupation insurance to the amount of $30,000. The insurance was written by two agents of the different companies of which Mrs. Goffe said:

‘No, sir; I build up the business, and when the business is built up, Mr. Brooks and Mr. Butler came up and asked me why I didn't take insurance.’

‘A. I told Brooks and Butler that they should take a look around the shop and see what there is, and they should give me insurance on it.

‘Q. When did you tell them that? A. When I take insurance, when they come to the office.

‘Q. Every time you took a new policy you told them that? A. No; I just told them once, and they take care of me.’

There was a fire in the same plant on August 22, 1920, because of which Mrs. Goffe was paid $125,000 by insurance companies. Most of the insurance in question was written after the first fire. This is the first, in point of trial, of, it seems, 58 suits against 46 insurance companies, brought to recover the amount of the loss. The plaintiff Ann Arbor Savings Bank, a Michigan corporation, is named in a loss payable clause as payee as its mortgage interest may appear. The policy in the case at bar is dated October 8, 1920. The loss payable clause was attached or indorsed October 27, 1920. On both of these dates the mortgage interest of the bank was $50,150 excluding interest. On December 4, 1920, the bank took another mortgage of $25,000 given by Mrs. Goffe, and also signed by her husband, Jacob Goffe. The total mortgage debt at the time of the fire was $75,150 and interest. Mrs. Goffe was also indebted to some 70 creditors whose claims were said to be unsecured, in an aggregate of approximately $265,000; the bank being one of these in the sum of about $91,000.

On January 6, 1921, Mrs. Goffe assigned her rights under the insurance policies to Wm. L. Walz as trustee for herself and her creditors, and gave the trustee power to collect insurance and to adjust and pay claims. Sworn proofs of loss were rendered to the companies through public adjusters, which claimed of the defendant here the sum of $25,531.30, and stated the sound value of the insured property and the loss and damage thereto as follows:

+----------------------------------------------------+
                ¦                            ¦Cash       ¦Loss or    ¦
                +----------------------------+-----------+-----------¦
                ¦                            ¦Value.     ¦Damage.    ¦
                +----------------------------+-----------+-----------¦
                ¦Building....................¦$200,000 00¦$ 68,211 92¦
                +----------------------------+-----------+-----------¦
                ¦Equipment...................¦164,871 75 ¦98,460 50  ¦
                +----------------------------+-----------+-----------¦
                ¦Stock.......................¦393,082 53 ¦393,082 53 ¦
                +----------------------------+-----------+-----------¦
                ¦Total....................   ¦$757,954 28¦$559,754 95¦
                +----------------------------------------------------+
                

Prior to the proofs of loss Mrs. Goffe caused to be submitted to the adjusters representing the insurance companies a schedule of sound value and loss and damage. The extent to which such schedule is particularized is indicated by the fact that 17 pages of the record are required to print it. The plaintiffs are the bank and the trustee. The declaration is in usual form, counts on the policy, avers a total loss or damage of ‘to wit $350,000,’ and that there is due the plaintiffs from defendant $25,000 and interest, and claims damages in the sum of $25,000. Defendant demanded a bill of particulars. Plaintiffs filed and served a bill setting forth the various aggregates of value and damage and stating:

‘The details from which the foregoing figures are taken, comprising a great many typewritten sheets, have already been served upon the defendant company before suit was brought.’

There was motion for a more specific bill of particulars. The motion was supported by affidavit, and likewise opposed. In disposing of the motion the trial court said:

‘And it having appeared from the records in said cause and the argument of counsel upon the hearing of the motion that the records of the equipment and material were mostly, if not entirely, destroyed by fire and therefore not available; and it further appearing from argument of counsel for the plaintiffs and the defendant that details upon which the figures submitted in the bill of particulars filed were furnished to the defendant, and that the same comprise many typewritten sheets, and that the same was binding on the plaintiffs as a bill of particulars, and that the plaintiffs were willing so to be bound; and it further appearing that every courtesy had been extended to the defendant to pass upon the premises which were destroyed by fire, examine and list the condition of the damage by the destruction, and that a very thorough examination had been made. The court is therefore of the opinion that, if the plaintiffs in this cause file, as a part of their bill of particulars, the typewritten sheets presented to the court on the day of the hearing by the respective counsel for the parties, the same will constitute a complete bill of particulars if the plaintiffs cause to be added to the said typewritten sheets the name or names of the maker or makers of the said equipment, dies, and tools, as is available from memory or otherwise.’

The suggestion or order of the court was complied with. The motion for a more specific bill of particulars was renewed. This motion and its supporting affidavit complain of a lack of particulars of raw steel stock. The record shows nearly eight pages of fine print of such particulars. In deciding this motion the trial court again said:

‘This court is advised by the admissions of counsel for the defendant in court upon the argument of the motion that the bills of particulars filed were satisfactory, except as to the steel, and this, it is claimed by the defendant, should be more specifically described. It will appear from the statement attached to the supplementary motion that the defendant has a very complete itemized statement of the steel claimed to be destroyed. This statement furnished to the defendant and made a part of the motion is complete in every detail. It gives the defendant complete knowledge of the dimensions of the steel, number of piles of the steel and the volume and kind of material. The parties may differ as to the volume and price per ton, but that is a question which should be determined by the jury at the time of the trial based upon the testimony. The defendant's counsel did not claim in his argument that the defendant was in any way surprised, or that he could not prepare the case for trial; therefore it is the conclusion of the court, after careful consideration of the argument upon the two motions for more specific bills of particulars, and from an examination of the records and files, and the affidavits attached to the motions, that the decision of this court, made on the 7th day of November, 1921, should be affirmed, and this motion should be denied, and the same is hereby denied.’

With its plea of the general issue defendant gave notice of the following defenses, which it says it urged at the trial, quoting from brief of counsel:

‘The first defense charged the assignor of the plaintiffs, Sarah Goffe, with falsely, fraudulently, and willfully overstating the sound value of the property, and the loss and damage thereto, in her sworn proofs of loss, and alleged the overstatement, in dollars and cents, to be several hundred thousand dollars.

‘The second defense charged that the assignor fraudulently and willfully included in her proofs of loss stock and fixtures that were not injured or destroyed by the fire.

‘The third defense charged the assignor with concealing the fact that stock, dies, materials, and fixtures, which she alleged had been destroyed, were saved from destruction, and not injured in the fire.

‘The eighth defense charged that the company was not liable for a great quantity of machinery, which was described in this defense, for the reason that it was covered by a chattel mortgage, at the time of the fire, without any agreement that the company should be liable for loss on property so incumbered.

The ninth defense, being one of the five defenses relied on, charged that Sarah Goffe, assignor, and her husband, Jacob Goffe, procured the fire to be set, and the property to be damaged and destroyed, for the purpose and with the intent to defraud the defendant.'

Jacob Goffe, Jack Sands, and Jack Isaacs were arrested, and charged with burning the property in an attempt to defraud the insurance companies. An examination was had. They were held to the circuit court for trial. After some delay on motion of the defense and by consent of the prosecution an order nolle prosequi was entered as to all d...