Robinson v. Fire Ass'n

Sherwood, J. This is an action on a policy of insurance issued by the defendant to Rachel A. Kanaga, and assigned after loss to the plaintiffs. The declaration counted on the policy, and alleged an assignment of the same to the plaintiffs after loss. The plea was the general issue, with the following notice given thereunder: “You will please take notice that on the trial of said cause the above-named defendant will give in evidence, and insist in its defense, that, at the time of the alleged destruction and damage of the property claimed in plaintiffs’ declaration to have been destroyed and damaged by fire, as in said declaration set forth, none of said claimed to be insured property was so destroyed as alleged in said declaration; that said property had, prior to the said fire reaching it, been all removed to a place of safety, and was not in anywise damaged or destroyed, of which fact the assured and said plaintiffs had notice. “ That said policy of insurance declared upon contained the following condition: “ ‘Any fraud or attempt at fraud, or any misrepresentation in any statement touching the loss, or any false swearing on the part of the assured or his agent, in any examination, or in the proofs of loss, or otherwise, shall cause a forfeiture of all claim on this association under this policy; and in such case this association shall have the right, at any time, to require the same to be delivered up to be canceled.’ “ That the said assured, and the said plaintiffs, in making claim against this defendant, and in making proofs of loss to this defendant, violated the said condition.” [95] The cause was tried iu the Barry circuit before Judge Hooker, by jury, and a verdict for the defendant was directed by the court. The plaintiffs bring error. The policy issued by the defendant contained the following clause, among others: “ This policy shall become void, unless consent in writing is indorsed by the association hereon, in each of the following instances, namely: If the insured shall have, or shall hereafter obtain, any policy or agreement for insurance, whether valid or not, on the property above men-. tioned, or any part thereof.” The property insured in this case was a stock of boots and shoes. About ten months . after the insurance was obtained in the defendant’s company, Mrs. Kanaga took out a policy for $1,000 on the same property in the Boyal Insurance Company of Liverpool, and it is claimed by defendant this was done without any consent given by the defendant; that this was the situation when the loss occurred, and that by reason thereof the policy of defendant was rendered void, and no action can be maintained thereon. On the part of the plaintiffs it is claimed that what ■occurred between the defendant’s agent and Mrs. Kanaga, after the policy was issued, amounted to a waiver by the company of the necessity for its written consent to obtain the additional security. Harry A. Durkee was the agent of the company at Nashville, the village where the property was located, and the place where the insurance was taken. This is what occurred after the policy was issued to Mrs., Kanaga: Her husband, acting as her agent, sought to obtain additional insurance upon the stock of goods, and with that object in view called on Mr. Durkee, who asked Mr. Kanaga a higher per cent, for the additional insurance than others did, and Mr. Kanaga says in his testimony: [96] “And I told him I thought I could do better, as other parties in the same row of buildings were getting insurance a great deal cheaper than he was offering. I think two or two and a half per cent, was what he wanted, while others were paying one and' three-quarters, I believe.” “ After this conversation in the office of Durkee, I went to Webster & Mills, and procured a Royal Insurance Company policy, that I now have. Durkee came into my store and asked for Mr. Liedy, and while he was in there I showed him the Royal policy. He had it in his hands, opened it and looked at it, and laid it down again. Mr. Riggle was present.” “ Q. Upon that occasion what did Mr. Durkee say about additional insurance, if anything? “A. He did not say anything to me in particular, any more than he read the policy over, — looked it over, — and dropped it down upon the desk again, and opened it out and read the writing. I don’t know as he read any of the printing. “ Q. Did. he then and there raise any objection to it ?' “A. No, sir.” It is upon this testimony of Mr. Kanaga that the plaintiffs claim the assent in writing to subsequent insurance was waived by the company. The circuit judge held it was not sufficient, and did not even tend to prove a waiver of the required written assent, and so instructed the jury. We think he was correct, and that the judgment should be affirmed. Taking above testimony in the strongest manner against the company, it shows "no more than knowledge that Mrs. Kanaga desired cheaper insurance than the defendant was willing to give, and that she subsequently obtained it. This is no evidence, alone, of consent, or of waiver of written notice of consent, by the defendant, that such second insurance might be effected; and the policy issued by defendant became void as* soon as the contract for insurance was perfected in the Royal Insurance Company of Liverpool. Western Mass. Ins. Co. v. Riker, 10 Mich. 279; Security Ins. Co. v. Fay, 22 Id. 467; New York Cent. Ins. [97] Co. v. Watson, 23 Id. 486; Burt v. People’s Mut. F. Ins. Co., 2 Gray, 397; Pitney v. Glens Falls Ins. Co., 65 N. Y. 6; Shurtleff v. Phoenix Ins. Co., 57 Me. 137; Ill. Mut. Fire Ins. Co. v. Fix, 53 Ill. 151; Mussey v. Atlas Mut. Ins. Co., 14 N. Y. 79; Ill. Masons’ Ben. Soc. v. Baldwin, 86 Ill. 479; Allemania F. Ins. Co. v. Hurd, 37 Mich. 11; Westchester F. Ins. Co. v. Earle, 33 Id. 143; Kitchen v. Hartford Ins. Co. 57 Id. 135; Penn. Fire Ins. Co. v. Kittle, 39 Id. 51; Carpenter v. Continental Ins. Co., 61 Id. 635. We think the plaintiffs’ motion to strike out the testimony given by the defendant, showing a breach of one of the conditions contained in the contract of insurance sued, upon, made at the close of the trial, was correctly overruled. The testimony was not objected to when offered, and if it was inadmissible under the general issue, as claimed, a motion on the part of the defendant would have been entertained and allowed by the circuit judge upon the trial amending the defendant’s notice under his plea, thus- removing all grounds of objection. We do not think motions of this kind should be allowed to prevail when the testimony offered is competent, and no objection is made thereto at the time it is given. The judgment must be affirmed. The other Justices concurred.