Mirunczak v. Michigan Farmers Mutual Fire Ins.

291 N.W. 224, 293 Mich. 65, 1940 Mich. LEXIS 513

• Court: Michigan Supreme Court
• Decided: April 1, 1940
• Docket: Docket No. 7, Calendar No. 40,785.
• Status: Published

Opinions

On November 7, 1930, fire destroyed a farm dwelling occupied by Mrs. Victoria Mirunczak and members of her family. Because her husband disappeared some years before trial of the case we herein refer to her as plaintiff. At the time of the fire she, or possibly she and her husband, had a contract vendee's interest in the farm property and she had in her possession a fire insurance policy which had been issued on this property to a predecessor in title, Mike Skurko. While it is seriously urged by the defendant fire insurance company that this policy was never properly assigned to plaintiff and therefore she was not the insured thereunder, still for the purposes of this case we may assume, though we do not so hold, that plaintiff was insured in the defendant company at the time of her fire loss. At the conclusion of the proofs defendant's motion for a directed verdict was granted on the ground that plaintiff's suit was not brought within the time limitation provided in the policy. Judgment was entered accordingly and plaintiff has appealed.

On the face of plaintiff's policy it is provided: "that this policy is made and accepted in reference to the foregoing terms, and to the conditions printed in the charter and bylaws of this company, which are hereby declared to be a part of this contract." Bylaw number 9 provides: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the requirements, nor unless commenced within 12 months next afterthe date of loss."

Notwithstanding the fire occurred November 7, 1930, plaintiff did not institute her suit until June 25, 1932. It may be conceded, as appellant contends, that delay in bringing her suit was induced by promises of the defendant extending over a period of months to pay the loss; and that therefore the defendant should not be heard to urge the running of the limitation period of one year during the time plaintiff was led by defendant to believe her claim would not be contested. But granting appellant's above-noted contention, still under her own testimony at the trial of the case it definitely appeared that the defendant company denied liability in May, 1931. Notwithstanding such denial, plaintiff delayed more than a year thereafter before instituting suit. Such was the condition of the record made in the trial court and upon which the trial judge directed a verdict in favor of defendant. Clearly his ruling was correct and on the record made should be sustained.

After this case was in this court on appeal, appellant filed a petition that she be allowed to supplement the record by taking further testimony which would disclose that she was in error when she testified that the defendant disavowed liability in May, 1931, that instead such disavowal was made in May, 1932. Permission to supplement the record was granted; but our present consideration of the whole record discloses that this was ill-advisedly done, and we are of the opinion that proper practice necessitates disregard on this appeal of plaintiff's testimony taken after the appeal was perfected and which is wholly contradictory of her testimony given at the trial of the case and on which the trial judge directed the verdict.

It is apparent that the practice pursued by appellant in the instant case, whereby after appeal she was allowed to change her own testimony on a controlling issue, cannot be countenanced. In effect such practice would destroy the record upon which the trial judge made his ruling; and perhaps more important than that, it would deprive the adverse party of meeting and contradicting on the trial of the case plaintiff's testimony. Such a practice would be so obviously improper that it is self-condemnatory. Instead, plaintiff's remedy was to move for a new trial in the circuit court, after obtaining permission of this court so to do. Court Rules Nos. 47, 56, and 66, § 6 (1933 as amended). In so holding, we are mindful that testimony given by other witnesses for plaintiff was produced in the trial court which was inconsistent with her statement that defendant denied liability in May, 1931, and was to the effect such denial was at a much later date. Notwithstanding this, plaintiff was bound by her own testimony. Under the circumstances her subsequent testimony taken to supplement the record on appeal and which contradicts the testimony she gave in the trial court must be wholly disregarded in reaching decision herein.

As above noted, the ruling of the trial court in directing a verdict in favor of defendant was fully justified by the record at the time the order was made, and plaintiff not having sought a new trial, the order made and the judgment which followed are affirmed.

SHARPE, WIEST, and BUTZEL, JJ., concurred with NORTH, J.