Knop v. National Fire Insurance

McGrath, C. J. Action on a fire insurance policy issued by defendant upon plaintiff’s dwelling and household effects. [361] It is insisted that under a clause in the policy which provided that the policy should be void “if the interest of the insured be other than unconditional and sole ownership/5 inasmuch as plaintiff held under a land contract, he could not recover. Plaintiff marU no written application, nor is it claimed that he null any representations as to ownership. It has been repeatedly held that such a condition will not invalidate the policy in such case. Farmers’ Mut. Fire Ins. Co. v. Fogelman, 35 Mich. 481; Dupreau v. Insurance Co., 76 Id. 615. Nor do we think that the statement in the affidavit, made after the loss, that he was the sole and unconditional owner, would prevent a recovery. The defendant could not be prejudiced by such a statement. A motion for a new trial was made in the court below, and a review is sought of the court’s ruling denying the motion. The language of the act of 1893 (No. 134) is that— “Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court." In the present case no exceptions were taken, and the error, if any, must he deemed to have been waived. An objection was made to the introduction of proof as to the contents of the dwelling, for the reason that the bill of particulars described the articles for which recovery was sought as “contents of house." Defendant had demanded a bill of particulars. That furnished was obscure and evasive. A bill of particulars is expected to be explanatory of the declaration, and in amplification of it. The paper served in the present case in response to the demand gave no additional information whatsoever, and possessed none of the qualities of a bill of items or particulars. In those cases where it has been held that it is the duty of the party demanding the bill to re-move for a more specific [362] bill, and that an objection upon the trial comes too late, there had been some effort at compliance with the demand. Freehling v. Ketchum, 39 Mich. 299; Township of Buckeye v. Clark, 90 Id. 432. It is urged that defendant had in its, possession a list of the lost articles furnished by plaintiff; but, after such list had been furnished, a number of articles, corresponding in description to those named in that list, had, to plaintiff’s knowledge, been discovered sebreted in a barn upon the premises, and defendant was entitled to know whether plaintiff still claimed to recover for such articles. The court should have exercised its discretion, under Circuit Court Rule No. 38. For this error the judgment must be reversed, and a new trial granted. The other Justices concurred.