Michigan Shingle Co. v. Pennsylyania Fire Insurance

Long, J. This suit was brought upon two policies, dated, respectively, August 4 and August 18, 1890, — both Michigan standard policies,— one covering $1,000 “on lumber (lath and shingles, if any) owned by the assured, or held in trust or on commission, or sold but not delivered, piled on their mill docks Nos. 4 and 5, Muskegon, Mich.,55 and the other covering $1,000 “on lumber (lath and shingles, if any) owned by them, or held in trust or on commission, or sold but not delivered, while ón their mill docks Nos. 3, 4, and 5, Muskegon, Mich.55 Both policies provide, in the written portions, as follows: “ Warranted by the assured that a continuous clear space of 150 feet shall hereafter be maintained between the property hereby insured and any wood-working or manufacturing establishment, and that said space shall not be used for handling or piling of lumber thereon for temporary purposes, — tramways, upon which lumber is not piled, alone being excepted, — but this shall not be construed to pro [610] Mbit loading or unloading within, or the transportation of lumber or timber products across, such clear space; it being specially understood and agreed by the assured that any violation of this warranty shall render this policy null and void.” The policies were originally written covering identically the same lumber upon these docks for a term of three months, at a premium of $20 each, and without any space clause. Upon receipt of the agent’s report, and several days after the policies were issued, the general agents of the company at Erie, Penn., telegraphed their agent at Muskegon to cancel the two policies just written on the Michigan Shingle Company’s docks. Upon receiving the telegram, he attached the 150 feet clear-space clause to the policies, and telegraphed the general agents that the policies had been changed to 150 feet clear space. Within a few days after these telegrams were sent, the agent at Muskegon received a letter from the general agents, as follows: “We have your telegram of yesterday^ stating that you had changed space clause in policies issued to the Michigan Shingle Company 150 feet. Now, if you can extend the term of the insurance for one year, the matter will be satisfactory. You are probably aware that we are not in the habit of writing short policies on lumber risks. Unless we can be favored with a yearly contract, which, of course, can be canceled any time the assured wishes, we do not care to retain the line.” After the receipt of this letter the general agents were advised that the clear-space clause had liben added, and the term extended to one year, the premiums being changed from $20 for three months to $27.50 for one year. A fire occurred on September 9, 1890. It started in the mill. A portion of the shingles on docks 1 and 2 was burned. The lumber on docks 3, 4, and 5 was totally destroyed. On the trial it was contended by the defendant [611] that the clear space was not kept and maintained by plaintiff as provided by the terms of the policies. The situation of the docks, and clear space between them and the mill, are substantially set out in Michigan Shingle Co. v. Insurance Co., 94 Mich. 389. The loss sought to be recovered for here occurred as stated in that case. It was the same fire. In that case is set out the situation of the Hovey & McCracken mill, and its piles of lumber, and the facts need not be here repeated. The cases are substantially alike in all particulars. The policy in that case contained the same clear-space clause; and in the present case the.record shows that the agent of the company at Muskegon knew, as in that case, the situation of the mills and lumber, and the manner in which plaintiff conducted its business. The fact that the general agents of the company insisted upon the clear-space clause being inserted in the policies does not change the rule. From the entire record, it clearly appears that it was understood between the parties that the use of the docks was to continue as in the past, and that the then situation of the lumber and shingles was regarded by all the parties as equivalent to the clear space required by the policies. Judgment affirmed. McGrath, C. J., concurred with Long, J. Montgomery, J. I am not able to distinguish this case from Michigan Shingle Co. v. Insurance Co., 94 Mich. 389, and therefore concur with Mr. Justice Long.