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for the purpose of restoring the sick to health, and directly related to public health, to protect which is peculiarly within the police power of the State. We are not prepared to say that the exercise of that power by this legislation is unwise or unreasonable.
For these reasons, we conclude that the case should have been permitted to proceed to trial under the information filed, and the order quashing said information should be set aside.
BROOKE, C. J., and McALVAY, KUHN, STONE, OSTRANDER, BIRD, and MOORE, JJ., concurred.
SIMPSON v. OHIO FARMER'S INSURANCE CO.
INSURANCE-DWELLING HOUSE-PRINCIPAL AND AGENT-AUTHORITY
ing which was occupied at the time as a mission house
used as a mission house.1 * Upon the effect of the agent's insertion in the application of false answers to questions correctly answered by the insured, see notes in 4 L. R. A. (N. S.) 607 and L. R. A. 1915A, 273.
Error to Washtenaw; Kinne, J. Submitted January 26, 1915. (Docket No. 67.)
(Docket No. 67.) Decided March 17, 1915.
Assumpsit by Martha Simpson against the Ohio Farmer's Insurance Company. Judgment for plaintiff, defendant brings error. Affirmed.
Floyd E. Daggett, for appellant.
MOORE, J. The plaintiff, the 19th day of October, 1912, took a policy of insurance from the defendant, which described the property as follows: $500 on the two-story shingle roof, frame building and additions, while occupied as a private dwelling house, situate No. 523 Second avenue, Ypsilanti, Mich. The premium of insurance was paid. The application for insurance was an oral one. Proofs of loss were made. The defendant declined to pay the loss, and this suit was brought. The case was tried before a jury. From a judgment in favor of plaintiff in the sum of $450, the case is brought here by writ of error.
In the plaintiff's declaration was incorporated a copy of the policy. In the amended declaration it was averred:
“That at the time of the procuring of said insurance by said plaintiff of said defendant, the said defendant, through its agent, Edmund Hewett, was notified that the property insured by the terms of said policy was not being used at that time as a dwelling house, but instead thereof that it was being used and occupied as a mission house and a place of holding meetings for religious worship. And the plaintiff further avers that said building so insured by the terms of said policy continued to be used as a mission house and as a house of worship from the time of the issuance of said policy until said building was destroyed by fire as hereinafter described."
There are many assignments of error, but all of them which are important hinge upon whether the trial court correctly stated the law in the part of his charge reading as follows:
“The principal controversy arises through a clause in what may be termed a rider, but which is nevertheless an essential part of the policy, as follows: 'While occupied as a private dwelling. From that more particularly it is that the controversy in this case has arisen.
“It is the claim of the plaintiff that on or about October 19, 1912, she, through her husband, who was acting as her agent, secured a policy of insurance upon the building located at 523 Second avenue, Ypsilanti, from the defendant company in the sum of $500, and paid the premium therefor.
"It is further claimed on the part of the plaintiff that, at the time she secured said insurance, Mr. Edmund Hewett, the duly authorized agent of the said defendant company, was informed before said policy was issued, and knew at the time of the issuance of said policy, that the building was being used for a meeting or mission house and for other religious purposes and that it would be so used during the life of the policy.
“Now, if you find from the evidence that these contentions on the part of the plaintiff have been sustained by the evidence, and you further find, from the evidence, that the company has not been injured by any breach of the conditions mentioned in the policy, and if you further find that said loss did not occur by reason of any breach of any condition in the policy, then the plaintiff is entitled to recover in this case.
“As I have said to you before, the policy of insurance in this case provided, among other things, that it should remain in force while the building was occupied as a private dwelling. Under the undisputed evidence in this case, this building was never during the life of this policy used as a private dwelling, but wholly as a building for public religious purposes, and, as I said to you before, about this clause arises the principal controversy in this case.
“I instruct you, if you find from the evidence that there was no understanding between the insuredthat is, between Mrs. Simpson, who was represented by her husband—and the agent of this company, other than as written in this policy, then there can be no recovery in this case.
"If you find from the evidence that there was no understanding between the insured, Mrs. Simpson, and the agent, Mr. Hewett, that this building was being used, and that it was to be used in the future while the policy was in force, as a mission house and for religious purposes, then the defendant is entitled to your verdict; but, on the other hand, if you find from the evidence that Mrs. Simpson, through her husband, as her agent, stated to Mr. Hewett, as agent of the insurance company, that the building was rented already to Mr. Taylor, who appears to be a clergyman, and that it was being used and would be used as a mission house and for religious purposes, then I think the said company is estopped from setting up as a defense in this case that said building was not occupied as a dwelling. That defense must fail, if you do so find."
It was the claim of plaintiff, and proof was given tending to support the claim, that the agent of the defendant was informed, when application was made for the policy, that the building was used, and was to be used, as a mission house in which religious services were to be held, and that neither the husband of the plaintiff nor the plaintiff read the policy or knew its contents until after the fire.
The agent was a witness and denied that he was told the building was to be occupied for any other purpose than as a dwelling. His authority was not restricted. He had authority to write a policy on the building had it been occupied as a mission house. The agent knew the building and had insured it previously in the sum of $600. He passed it frequently both before and after the insurance.
"I knew the building, I had passed by it perhaps 100 times and knew it was there.
tention was never called to the fact that this place was being used as a mission house."
It is insisted all the testimony as to what was told the agent is incompetent. We quote from the brief:
"It is the contention of the defendant that the policy of insurance was perfectly plain, in that it insured certain property therein described only while occupied as a private dwelling house. The language is plain, unambiguous, and therefore needs no outside evidence to explain its meaning. And, further, that the evidence shows, and is admitted, that the building was never so occupied, and that therefore the policy never covered the property.
"If a policy of insurance does not read correctly, it may be amended in a court of equity, says this court in Kleis v. Insurance Co., 117 Mich. 469 [76 N. W. 155], but that in an action of law the contract as written must prevail. The declaration in this case is upon the insurance policy itself. No new count is sought to be added by the amendment. The amendment simply introduces into the original declaration certain oral statements made at the time the agent was approached to write the risk."
Counsel also cite Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833), and many other cases which may be found in the briefs. In the Wierengo Case it was claimed as a defense to the policy the property insured was mortgaged without the consent of the company. The opinion states:
"Neither the defendant nor its agent, White, had any knowledge of the existence of this mortgage at the time the policy was issued."
Clearly a different case from the one before us.
In Kleis v. Insurance Co., supra, the plaintiff sought to recover upon an oral contract; the court held there was no oral contract. We quote from the opinion:
“A few days later, the policy which was subsequently issued by the defendant company was received by the plaintiff; and, a week or two after that, she was required to sign an application, which she did.