Budzinski v. Metropolitan Life Ins. Co.

• Decision Date: 06 July 1939
• Docket Number: 6.,Nos. 5,s. 5
• Citation: 287 Mich. 495,286 N.W. 842
• Parties: BUDZINSKI v. METROPOLITAN LIFE INS. CO. SAME v. AGRICULTURAL LIFE INS. CO. OF AMERICA.
• Court: Michigan Supreme Court

287 Mich. 495

286 N.W. 842

BUDZINSKI

v.METROPOLITAN LIFE INS. CO.

SAME

v.AGRICULTURAL LIFE INS. CO. OF AMERICA.

Nos. 5, 6.

Supreme Court of Michigan.

July 6, 1939.

On rehearing.

Judgment reversed without new trial.

For former opinion, see 287 Mich. 495, 283 N.W. 662.

CHANDLER, POTTER, and McALLISTER, JJ., dissenting.

Appeal from Circuit Court, Bay County; James L. McCormick, judge.

Argued before the Entire Bench.

S. A. Lambert and Clark & Henry, all of Bay City (Bulkley, Ledyard, Dickinson & Wright, of Detroit, of counsel), for appellants Agricultural Life Ins. Co. and for Metropolitan Life Ins. Co.

Bernard S. Frasik, of Bay City (Samuel H. Werner, of Bay City, of counsel), for appellees Fabian R. Budzinski and Victoria Budzinski, adm'x of Estate of Frank Budzinski, deceased.

Miller, Canfield, Paddock & Stone, of Detroit, amici curiae.

Dissenting opinion of Justice Sharpe adopted herein follows:

I am not in accord with the views of Mr. Justice Chandler. The policies provide for the payment of an additional sum of $1,000 upon receipt of due proof that death of the insured has resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means. Clause two of the policies provides that the additional accidental death benefit shall not be payable if the insured's death results directly or indirectly from infirmity of mind or body; from illness or disease.

In this cause the plaintiffs admit and the undisputed medical evidence shows that the injury suffered by deceased would not have caused his death except for the sclerotic condition of the blood vessels.

In Sturgis National Bank v. Maryland Casualty Co., 252 Mich. 426, 233 N.W. 367, we said [page 369]: ‘The court will not make a new contract for parties under the guise of a construction of the contract, when in doing so it will ignore the plain meaning of words.’

In Fidelity & Casualty Company v. Meyer, 106 Ark. 91, 152 S.W. 995, 44 L.R.A.,N.S., 493, the court said [page 998]: ‘It is the duty of courts to give such construction to a policy, if the language used fairly admits, as will make it of some substantial value and carry out the intention expressed therein that liability is incurred where death occurs from accidental injury. If liability is to depend upon the physical condition of the assured as contributing in some degree to death, then it should be so stated plainly in the policy.’

From my examination of clause 2 of the policies, I am constrained to hold that there is no liability in the instance cases as bodily infirmity or disease was a contributing cause of the assured's death. The policies are unambiguous and admit of no other construction.

The judgments of the circuit court are reversed without a new trial. Defendants may recover costs.

BUSHNELL, Justice.

Judgment for plaintiffs was affirmed in this cause on February 2, 1939. See 287 Mich. 495, 283 N.W. 662. The court divided four to three, with Chief Justice Butzel not sitting. Rehearing was granted on April 25, 1939, and the appeal was resubmitted upon briefs by stipulation under Michigan Supreme Court Rule No. 71.

Upon rehearing we are satisfied that, for the reasons expressed in the former opinion of Mr. Justice Sharpe, the judgments should be reversed without a new trial and with costs to appellants. It is so ordered.

BUTZEL, C. J., and WIEST, SHARPE, and NORTH, JJ., concurred with BUSHNELL, j.

CHANDLER, Justice (dissenting).

This case is again before us on rehearing. I find nothing in the application for rehearing or the briefs filed in support thereof that either requires or justifies any change in the original prevailing opinion reported in 287 Mich. 495, 283 N.W. 662. That opinion was not based on a ‘misconception of the meaning of the Michigan authorities', nor is it ‘contrary to the great weight of all outside authority’ as appellants contend.

If we adopt appellants' contention we must squarely overrule Abbott v. Travelers' Ins. Co., 208 Mich. 654, 176 N.W. 473;Kangas v. New York Life Ins. Co., 223 Mich. 238, 193 N.W. 867;Sanborn v. Income Guaranty Co., 244 Mich. 99, 221 N.W. 162, and Hoff v. Mutual Life Ins. Co., 266 Mich. 380, 254 N.W. 137, 138. In the last cited case, this court, in an opinion signed by all of its members, said:

‘The appellant's theory is that the tumor and the paralysis had an important part in bringing about the death of the insured, and that the injury was not the sole cause of death as required by the policy. The appellee contends that the abrasion and subsequent...