Johnson v. Fid. & Cas. Co. of N.Y.

CourtSupreme Court of Michigan
Citation151 N.W. 593,184 Mich. 406
Docket NumberNo. 61.,61.
PartiesJOHNSON v. FIDELITY & CASUALTY CO. OF NEW YORK.
Decision Date17 March 1915

184 Mich. 406
151 N.W. 593

JOHNSON
v.
FIDELITY & CASUALTY CO. OF NEW YORK.

No. 61.

Supreme Court of Michigan.

March 17, 1915.


Error to Circuit Court, St. Clair County; Eugene F. Law, Judge.

Action by Catherine Johnson against the Fidelity & Casualty Company of New York. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Argued before BROOKE, C. J., and KUHN, MOORE, STONE, OSTRANDER, BIRD, STEERE, and McALVAY, JJ.

[151 N.W. 594]

Phillips & Jenks, of Port Huron (Edwin A. Jones, of New York City, of counsel), for appellant.

John B. McIlwain, of Port Huron, for appellee.


MOORE, J.

Suit was brought February 3, 1913, on a policy of insurance, which provides for the payment of $3,000 in case the assured comes to his death as the result of an accident. The policy was issued September 15, 1911, and the assured died November 21, 1911. The plaintiff is the mother and beneficiary named in the policy. It is the claim of the plaintiff that the proximate cause of the death was ptomaine poisoning, and that this is an accidental death within the meaning of the policy. The defenses urged will appear later. The case was tried before a jury, which returned a verdict for the plaintiff. A motion was made for a new trial, which motion was overruled, the trial judge stating at length his reasons for doing so. From a judgment for $3,346.25 in favor of the plaintiff, the case is brought here by writ of error.

The first group of assignments of error relate to the claim that the suit was not brought within the time limited by the policy, as article 3 of the policy provides that legal proceedings shall not be brought at all unless begun within 6 months from the date specified therein for final proofs, and it is said the suit should have been brought within 8 months from the time of death, while in fact more than 14 months elapsed. It is contended by plaintiff that this limitation is controlled by another provision of the policy and a statute of Illinois, in which state the policy was written and delivered. The policy provision is in article 3, and is as follows:

‘If any limitation set forth in this and the preceding article is prohibited by the statutes of the state in which the policy is issued, the said limitation shall be considered to be amended so as to agree with the minimum period of limitation permitted by such statutes.’

The Illinois statute relied upon by the plaintiff is Senate Bill No. 388, approved May 20, 1907 (Laws of Illinois 1907, page 367). Section 2 of the act provides:

‘No policy of life insurance shall be issued or delivered in this state * * * if it contain any of the following provisions: (1) A provision limiting the time within which any action at law or in equity may be commenced to less than three years after the cause of action shall accrue.’

It is claimed by defendant these provisions do not apply to the policy involved here because this is an accident and death policy and not a life insurance policy within the meaning of the statute, and cases are cited sustaining this contention. It must be conceded that the authorities are in conflict upon this question. No Michigan case is cited upon this point, though we have a statute with substantially the same provisions as the Illinois statute. See section 2, Act No. 187 of Public Acts of 1907, and section 6 of Act No. 236 of the Public Acts of 1909. The case of Logan v. Fidelity & Casualty Co. of New York, 146 Mo. 115, 47 S. W. 948, is an instructive one. The defendant in that case is the same defendant as is now before us, and it there urged a similar defense. The opinion is too long to quote here. We content ourselves with excerpts from it:

‘Section 5855, Revised Statutes 1889, reads as follows: ‘In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.’

‘Appellant's contention is that when section 5855 was enacted, it related to life insurance in its usual and ordinary significance, and referred to those life policies issued by life insurance companies furnishing...

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