
    LAGDEN v. CONCORDIA MUTUAL FIRE INSURANCE CO. OF BAY, SAGINAW & ARENAC COUNTIES.
    Insurance — Fire Insurance — Violation of Policy — Prejudice to Insurer — Statutes—Directed Verdict.
    In an action on a fire insurance policy, where defendant failed to sustain the burden of proof that it had been prejudiced by the failure of plaintiff to pay assessments or to notify it that he had taken out additional insurance, under Act No. 128, Pub. Acts 1911 (2 Comp. Laws 1915, § 9481), plaintiff was entitled to a directed verdict.
    Error to Bay; Houghton, J.
    Submitted April 29, 1919.
    (Docket No. 4.)
    Decided May 29, 1919.
    Assumpsit by Harry T. Lagden against the .Concordia Mutual Fire Insurance Company of Bay, Saginaw and Arenac counties on a policy of insurance. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.
    
      Kinnane, Black & Leibrand, for appellant.
    
      Curtis E. Pierce, for appellee.
   Moore, J.

This case has been here before and is reported in 188 Mich. 689. Upon the second trial the evidence taken on the first trial was read in evidence and. some additional testimony taken. At the close of the testimony each of the parties asked for a directed verdict. It was the claim of the plaintiff that Act No. 128 of the Public Acts of 1911 (2 Comp. Laws 1915, § 9481) controlled the case and that a verdict should be directed in his favor. It was the contention of the defendant that as the policy was issued in 1908 that Act No. 128 had no applicability and such was the view of the circuit judge who directed a verdict in favor of the defendant. The case is brought here by writ of error. When the case was here before, Justice Bird, who wrote the majority opinion, quoted, from many of the provisions of the charter.and the by-laws and it will be helpful to refer to both of the opinions then filed. It may be well to add some things that did not appear in the record before. Section 21 of the charter reads:

“If any person having property insured in this company shall procure the same to be insured in any other company it shall be his duty to at once give notice of such other insurance to the secretary; and the president and secretary may in their discretion cancel his policy, and in case he shall fail to give such notice, his policy shall be void from the date of such other insurance, and this company shall not be liable for any losses occurring after that, date.”

Section 24 reads in part:

“The board of directors shall make assessments to pay all claims against the company, but they shall not (except as hereinafter provided) make more than one assessment in any one year; * * * that if the directors cannot borrow money at current rates of interest to pay losses, the board of directors may make a second assessment for the purpose.”

We quote from section 28:

“If any member shall not pay such assessment within the said thirty days, his policy shall thereupon be suspended without any further action on the part of the company or any officer thereof, until he shall have paid such assessment together with the further sum of twenty-five per cent, thereon as a penalty. The treasurer’s or receiver’s receipt shall be sufficient evidence of such payment, and shall reinstate the policy from the date of such receipt. The company shall not be liable to pay any loss on such policy occurring during the suspension thereof.” * * *

The policy had this provision in it:

“Provided, however, that if the said insured shall refuse or neglect for the space of thirty days after demand, as provided by the charter of said corporation to pay any assessment or assessments made against said insured according to the charter and by-laws of said corporation, then in such case this policy of insurance shall cease and be of no further binding force and validity whatever as against said corporation until payment of such assessment is made, as provided in section 28 of the charter.”

We quote from the testimony of the plaintiff:

“I always paid my assessment. The last assessment I paid was on November 15, 1911; that would pay me up to the 31st of December, 1911. On January 21, 1912, fire destroyed my house and all the contents. * * *
“At the time I took out the other policy of insurance^ had my father pay my assessment in the Concordia. I instructed him to tell the treasurer of the company that I had taken out additional insurance in the Patrons’ Mutual Fire Insurance Co., of Lansing. The Concordia issued assessments every year and I always 'paid them.”

See Brady v. Insurance Co., 11 Mich. 425; Ladies of the Modern Maccabees v. Surety Co., 196 Mich. 27.

The father of Mr. Lagden testified that he paid the assessment as requested by his son.

“He had an office up where I went to pay the insurance. He received the money and I told him Mr. Lagden had taken out another insurance in another policy. He said all right. I told him tb_e other company was the Patrons’. He gave me a receipt. I don’t know how it was signed.”

The treasurer was not called. We think upon this record a verdict should have been directed for the plaintiff.

The case is reversed and a new trial ordered, with costs to the plaintiff.

Bird, C. J., and Ostrander, Steere, Brooke Fellows, Stone, and Kuhn, JJ., concurred.  