Emery v. Mutual City & Village Fire Insurance Co. ex rel. Counties of Berrien

CaMpbbll, J. Plaintiff sued on a policy of fire insurance, and was defeated on the ground that he had not truly [471] answered a question referred to in Ms application concerning other insurance on tbe property. It was not claimed that this was done fraudulently or intentionally, and was allowed to have been inadvertently. The question was, “What insurance is there on it, and in whose favor?” The answer was “None after the dates above stated.” Those dates referred to the time when this policy was to become operative, the period being postponed until the supposed expiration of a previous policy in a Hartford company, which plaintiff supposed would shortly run out, but which in fact had another year to run. The agent of defendant knew of the policy, but not of its time of running. This Hartford policy contained a clause whereby, in case of further insurance without the written consent of the company endorsed thereon, the policy should be void. We have held in several cases that under such a clause the new insurance renders it at once null and void, without further action. See New York Central Ins. Co. v. Watson 23 Mich. 486, and cases cited, and notes. Plaintiff claimed below that inasmuch as his application referred distinctly to the period when the policy was to become operative as the time when no other insurance would exist, there was no misstatement, because this policy avoided the Hartford policy. The court below held otherwise, and decided that he had no cause of action left. We see no ground on which this decision can be sustained. Not only might it fairly be inferred that thei’e was a present policy, but such, we think, was the almost necessary inference, as it was the fact known to defendant’s agent. We see no reason why the inquiry should be made, except to learn whether there was double insurance. The objection suggested that the main reason, or an important reason, was to know whether a policy was existing at the time, without reference to its continuance, and that the failure to answer was itself a violation of duty, does not strike us as of any force. If defendants desired a more explicit answer instead of the one given, which really gave all necessary information for their protection, they should have declined [472] to issue tbe policy. By issuing it and entering into tlie contract they must be held to have been satisfied with it, if true in fact. We think it was true in fact. A policy that becomes void on a certain contingency cannot be regarded as having existence for any purpose, and whether' ended by agreement or lapse of time or breach of condition, it is to be regarded as no policy. It would be, in our opinion, an idle distinction to make its absolute nullity subject to different rules on account of the difference in its causes of extinction. If extinct at the time when the application said it would be, we think the representation was made good. We see no reason why plaintiff is barred from recovery. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.