Rood v. Nat'l Cas. Co.
| Decision Date | 11 March 1941 |
| Docket Number | No. 49.,49. |
| Citation | 296 Mich. 530,296 N.W. 672 |
| Parties | ROOD v. NATIONAL CASUALTY CO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Clare Alfred Rood against the National Casualty Company, an insurance corporation, for sick benefits under a policy of insurance issued by defendant. From a judgment for defendant, plaintiff appeals.
Judgment set aside, and case remanded for entry of judgment for plaintiff upon further proofs to compute damages.
Appeal from Circuit Court, Marquette County; Frank A. Bell, judge.
Argued before the Entire Bench.
George C. Quinnell, of Marquette, for plaintiff.
Eldredge & Eldredge, of Marquette (Walters & Head and Nathan R. Berke, all of Detroit, of counsel), for appellee.
This is an action for sick benefits claimed to have accrued to plaintiff under a policy issued by defendant on February 24, 1936. The policy is one of a group issued under and subject to the terms of a master policy covering employees of the United States Department of Agriculture. The material provisions of the policy as applied to the case at bar are as follows:
‘The Insuring Clause
‘This certificate insures against-* * * (2) disability resulting from sickness during the term of this certificate, hereinafter referred to as ‘such sickness,’ * * *
‘Part II.
‘If such sickness shall wholly and continuously disable and prevent the insured from performing any and every duty pertaining to his or her occupation and shall require the regular attendance of a legally qualified physician or surgeon, the company will pay indemnity for the number of consecutive days commencing with the 8th day of disability at the rate per week stipulated in the insured's application herefor, but not to exceed fifty-two (52) consecutive weeks. * * *’
In the court below, the defendant claimed (1) that notice of disability was not given to the company within 15 days of the beginning of disability as prescribed by the contract; and (2) that affirmative proof was not given to the company within three months after the termination of the period for which the company was liable. The material provisions of the policy as to notice and affirmative proof are as follows: ‘(1) No claim hereunder shall be valid unless within fifteen (15) days of the beginning of disability, written notice with full particulars and full name and address of the insured employee, is given to the company of any accident and injury or illness for which claim is made, nor unless thereafter affirmative proof is given to the company at its home office in Detroit, Michigan, or to the authorized representative of the company at Washington, D. C., within three (3) months after the termination of the period for which the company is liable.’
The case was tried by the court without a jury. The court, in an exhaustive opinion, found that the plaintiff failed to give the company notice of claim within 15 days of the beginning of disability; and, mainly upon that ground, denied plaintiff the right to recover. In this court, the defendant expressly abandons this defense. This question is not raised in defendant's counter-statement of the questions involved, nor argued in defendant's brief in which the defendant waives the same by stating: ‘No question is raised on the sufficiency or the timeliness of the preliminary notice of claimed disability.’
Defendant relies upon the claim that the plaintiff did not furnish the defendant with affirmative proof within three months after the termination of the period for which the company is liable.
Plaintiff was an assistant 4-H club leader employed by Michigan State College and stationed at Marquette. He first felt symptoms of illness during August, 1936. He consulted a physician a number of times during September and October, developed more serious symptoms toward the last of October and was confined for several days to his room at a hotel. About November 1st, he went to the Henry Ford hospital in Detroit for examination, remaining three or four days. He was there advised that he should take a long period away from his present work. He returned to Marquette, continued to work for a time, and on November 27th notified the defendant that it would be necessary for him to leave his work and inquired as to his disability payments under the policy. Defendant provided him with claim forms which plaintiff filled out and sent to defendant on December 3d. On December 19th, plaintiff left his employment, shortly afterward purchased a house trailer and in company with his wife went South, traveling to Mexico where he remained until April 3d. Plaintiff drove the car part of the time on the trip. As to his condition, he testified: ‘My complaint, until I returned from the southwest to Michigan, is that I experienced abdominal pain which I had for a long time, and resulting in extreme exhaustion so that I was only good for short periods of time.’
Their trip took them to Hollywood where on May 11th plaintiff was examined by a physician at the request of another company in which he held a health policy. His illness was there diagnosed as chronic recurrent appendicitis and anxiety neurosis and he was advised to have his appendix removed. He returned to Michigan and had an appendectomy performed in Ford hospital about June 15th, after which his recovery was satisfactory.
Numerous exhibits in the record disclose the grounds on which the company denied liability. The renewal premium on the policy was due February 24th. It is undisputed that plaintiff had made arrangements at his Michigan address to take care of the premium when due and that a premium statement was not received at his Michigan addresses. On April 9th, ascertaining that the premium had not been paid, plaintiff enclosed a check to defendant for the same. On April 22nd, defendant company wrote plaintiff that it would not be able to continue his risk for the insurance and returned his check. Considerable correspondence ensued, the company insisting that the policy had lapsed for nonpayment of premium, both parties evidently assuming that if the policy lapsed on February 24th it would bar the plaintiff's right to claim benefits for his sickness beginning some months previously while the policy was unquestionably in effect. On July 21st, about a month after plaintiff's appendectomy at Ford hospital, plaintiff wrote defendant stating that the company seemed determined that the policy lapsed February 24th and stating that the plaintiff should at least be entitled to indemnityfrom the time he gave up work until the date the policy lapsed. The defendant on July 24th wrote the plaintiff with reference to the claim that plaintiff was at least entitled to indemnity until the policy lapsed and for the first time the company then made the claim that plaintiff had failed to give notice of disability: ‘We have...
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