Wicking v. Citizens' Mutual Fire Insurance

Grant, C. J. (after stating the facts). 1. Plain» [647] tiffs’ counsel contend that the submission to arbitration was not under the policy, but outside of it, and that it must stand on the general ground of a common-law arbitration. In support of this, they cite Connecticut Fire Ins. Co. v. Hamilton, 8 C. C. A. 114, 59 Fed. 258, which is cited with approval in Hamilton v. Phoenix Ins. Co., 9 C. C. A. 536, 61 Fed. 385, and Harrison v. German-American Fire Ins. Co., 67 Fed. 585. The appraisal demanded in that case was not such as the policy called for. All the companies in that case made a joint demand, but the terms of the policies were different, and each of necessity, therefore, mixed its controversy with the others. On page 118, 8 C. C. A., and page 262, 59 Fed., Judge Severens states wherein these policies differed, and shows that each had a separate and distinct controversy from the others. In this case the policies are all alike-, except in the names of ‘the companies, and are those prescribed by the laws of this State. All the companies could therefore join in this arbitration to determine the value of the loss without mixing separate controversies. In other words, the appraisal was just such as each policy provided, and was binding upon plaintiffs and each company only so far as the policy and the submission under it provided. Neither was -bound by the appraisal. It was only prima facie correct, and either party attacking it assumed the onus probandi. If, therefore, the circuit court relied upon the submission as a waiver of all the other provisions of the policy, he was in error. The policy expressly provides that “this company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal,” etc. It was therefore incumbent on plaintiffs to make proofs of loss, notwithstanding the submission for an appraisal. 2. It is urged that plaintiffs failed to show that they had furnished proofs of loss. By this is meant valid proofs of loss. Proofs were furnished in good faith, and under the belief that they complied with the contract of insurance. [648] A copy was produced by plaintiffs upon the trial, and they-were examined in regard to it. An extract from it was read in evidence, which showed the goods totally destroyed, and their value, $65.9.29. It also showed the cash value of the goods on hand at the time of the fire to be $15,-939.66, and amount of loss thereon to be $10,909.95. These proofs, called “Exhibit I” in.the record, were offered in evidence. They were objected to as “incompetent, irrelevant, and immaterial.” After some discussion, the attorney for plaintiffs stated that he withdrew them for. the present. It does not appear that they were after-wards offered in evidence, and they do not appear in the record. The objections made to them in the letter of March 7th by Mr. Dodd are technical. We fail to find in this letter any statement of a material defect. Some of the objections are frivolous. Mr. Dodd and his principal fully understood that plaintiffs sent these as their proofs of loss. It was unnecessary to write a formal address to the defendant, or to state accurately the addresses of the other companies. The frivolity of some of the objections appears in his statement: ' “ There is nothing to show whether the fire was at 116 West Exchange street, or at 927 west side of North Washington street, or at the southwest corner of Washington and-Exchange streets.” Defendant’s agents knew the location, and to permit any such objection to defeat a valid claim would be a reproach to the law. The provision of the policy in regard to these proofs is as follows: “If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon, and within 60 days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowl [649] edge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof, and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not,' covering any of said property, and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described, and the several parts thereof, were occupied at the time of the fire; ánd shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances, and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.” The only objections entitled to any consideration are: (1) That the policy requires a statement in the proofs of loss of “any changes in the title, use, occupation, location, possession, or exposures of the property since issuing the policy.” It is manifest from this record that the title, use, location, and situation of the property were the same at the time of the fire that they were at the issuance of the policy, 44 days before; and it is a fair inference from the letter of March 7th that this was stated in the proofs of loss. (2) That the proofs failed to show that the plaintiffs were the sole owners of the stock at the time of the fire. This is based upon the technical objection that the proofs were dated February 7th, and that the language is in the present tense. The fair inference is that both plaintiffs and defendant understood this to refer to the time of the fire. We think there is enough upon this record to show that correct proofs of loss were furnished. 3. The policy provides for an examination of the insured under oath. Such an examination was demanded, [650] and had February 25th to 27th. Upon that examination,, plaintiffs, under the advice of their attorney, Mr. Miner, refused to produce their books showing the amount of sales since February 5th, and, under the like advice, refused to answer any questions concerning their business or sales since that -date. They had bought other goods, mingled them with their old stock, and sold them. This conduct was in plain violation of the contract, and, if the result depended upon this, it would become a serious question whether it would not defeat recovery. This conduct, however, was clearly waived by subsequent proceedings. Negotiations were subsequently renewed. Plaintiffs, by appointment, went to Detroit, and, at the request of defendant, made a statement of their business, submitted it to the defendant, and offered to be questioned under oath. These things involved an expenditure of time and money, and, under our decisions, operated as a waiver of this and other defenses which are claimed. Burnham, v. Interstate Casualty Co., 117 Mich. 155, and authorities there cited. For the same reason, if there were any defects in the proofs of loss, they were waived. The court may have given a wrong reason, but its conclusion was correct. The result will not, therefore, be disturbed. Other objections are raised, but, as they come within the above determination, we refrain from discussing them! Judgment affirmed. The other Justices concurred.