Fuhrman v. Sun Insurance Office

Brooke, J. (after stating the facts). Defendant first claims that the plaintiff should not be permitted to recover because, at the time the policy was written, he had no insurable interest in the lumber, for the reason he had been paid in full and accepted his money. As nearly as we are able to determine from a careful examination of the record, it seems to have been the claim of Fortier, representing the Michigan Manufacturing & Lumber Company, that the plaintiff had been paid in full according to the scale sheets of McComb, the scaler employed by Fortier. The total amount of hemlock settled for according to said sheets was 36,523 feet. Mitchell claims to have paid according to the scale sheets for 26,551 feet. The plaintiff produced his scale book made at the time the lumber was cut, from which it appears that there was hardwood to the amount of 56,417 feet, and hemlock to the amount of 70,144 feet. The insurance agent before writing the policy in question made a personal examination of the lumber, counted the piles and the tiers in each pile, and estimated the amount at about 100,000 feet. It is apparent that, if the agent Schmidt’s estimate was correct, there was at that time in the piles nearly 40,000 feet for which the plaintiff had not been paid. The record discloses that the plaintiff refused to accept the scale given him by Fortier and Mitchell, and had forbidden the removal of the lumber until a new scale could be made. Under these circumstances we are of opinion that the title to the lumber, or at least such portion of it as had [446] not been scaled or paid for, remained in plaintiff. Plaintiff’s application for insurance was verbal; but Mr. Schmidt, the agent, testifies that he was told by plaintiff that the lumber was contracted to be sold to Mitchell and Fortier. Plaintiff does not claim to have disclosed to the agent the exact amount which had been paid him thereon. This, however, we think is unnecessary; the agent not having requested such information. Guest v. Insurance Co., 66 Mich. 98 (33 N. W. 31) ; Gristock v. Insurance Co., 87 Mich. 428 (49 N. W. 634) ; Boose v. Insurance Co., 84 Mich. 309 (47 N. W. 587, 11 L. R. A. 340) ; BrunswickBalke-Collender Co. v. Northern Assurance Co., 142 Mich. 29 (105 N. W. 76). Upon this question, the court charged the jury as follows: “Now, gentlemen of the jury, that is a question of fact what he informed Mr. Schmidt. That is for you to determine what he really did say to Mr. Schmidt. You have heard Mr. Schmidt’s testimony, and you have heard his testimony. But I tell you, gentlemen, that unless at that very time he fairly and fully apprised Mr. Schmidt of what his real interest there was, that he could not recover in this case at all. “But I also charge you, gentlemen of the jury, that if he at that time fully and fairly stated to Mr. Schmidt the truth — the truth — that he had an interest there in that lumber, that he had not been paid fully for the lumber, that he had an interest there of several hundred dollars, more than he had been paid, that he could recover in this case.” It ,is next urged that plaintiff cannot recover because the interest, title, and possession of the lumber changed after the policy was written and before the fire. This claim is based upon the fact that plaintiff received two small checks from Mr. Fortier and Mr. Mitchell shortly after the policy was issued. In view of the circumstances under which this policy was issued, and the contracts for the sale of the lumber covered by it which were known to defendant through [447] its agent, we are of opinion that the receipt of these sums cannot be held to vitiate the policy. In other words, that it did not effect a change in the interest, title, or possession of the subject of insurance. Defendant next urges that plaintiff cannot recover because he misrepresented the material facts and circumstances concerning the insurance, the subject thereof, after the fire, and in his proofs of loss. This claim is based upon the fact that Fortier’s name was not mentioned as one of the vendees of the lumber in question. It is the claim of the plaintiff that he told the adjuster that Fortier, as well as Mitchell, was interested in the lumber, and it is admitted by the agent Schmidt that such information was imparted to him at the time the policy was written. As Schmidt was present with the adjuster at the time the loss was adjusted, it cannot be said that the insurance company was in any wise injured by the failure to include Fortier’s name as a vendee in the description of the title. The paper itself was prepared by the defendant’s agent. It was read to and signed by the plaintiff, who swears that he did not notice the omission of Fortier’s name. Knop v. Insurance Co., 101 Mich. 359 (59 N. W. 653); Brunswidc-Balke-Collender Co. v. Northern Assurance Co., supra. Attached to the proofs of loss was a schedule or statement of loss as follows: Put nothing here except what assured actually agrees to and signs. All other statements and reports should he separate from proofs. Original amount lumber per estimate made by assured at time of piling: Hardwood, 41,000 ft. cost at $10............... $410 00 Hemlock, 50,000 ft. cost at $8................ 400 00 $810 00 Deduct for sold and del. 21,000 ft. hardwood... 210 00 $600 00 Less purchaser’s interest per advance pmt. made. 80 00 $520 00 [448] The defendant next urges that, as the plaintiff relies upon the draft, his action is an action upon the case, trover, and not in assumpsit. With reference to this point, it is only necessary to state that the question was raised for the first time in a motion for a new trial. It will not now be considered. Defendant’s final claim of error is based upon three grounds: First, admission of the testimony; second, improper remarks of counsel; and, third, improper remarks of the court, and improperly conducting the trial of the case. We are of opinion that no reversible error was committed in the admission or exclusion of the testimony. With reference to the two latter grounds, it is enough to say that the case for one involving so small an amount was rather unduly prolonged. The learned trial judge at times displayed some slight impatience; but we are unable to say that he disclosed any bias which tended to defendant’s prejudice. His charge was very full and presented the issues to the jury in a manner entirely fair to defendant’s claims. The judgment is affirmed. McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.