Schempf v. New Era Life Ass'n, 115.

• Decision Date: 07 January 1931
• Docket Number: No. 115.,115.
• Parties: SCHEMPF v. NEW ERA LIFE ASS'N.
• Court: Michigan Supreme Court

253 Mich. 152

234 N.W. 177

SCHEMPF

v.NEW ERA LIFE ASS'N.

No. 115.

Supreme Court of Michigan.

Jan. 7, 1931.

Error to Circuit Court, Jackson County; John Simpson, Judge.

Action by Charles L. Schempf against New Era Life Association. To review a summary judgment for plaintiff, the defendant brings error.

Reversed, and new trial granted.

Argued before the Entire Bench. Whiting, Kleinstiver & Aubrey, of Jackson, and Dale Souter, of Grand Rapids, for appellant.

Blackman & Williams, for Jackson, for appellee.

McDONALD, J.

The defendant brings error to review a summary judgment for the plaintiff who brought suit as beneficiary to recover upon a benefit certificate issued by the defendant upon the life of his mother, Carrie L. Schempf, who died March 24, 1929. The defendant filed plea of the general issue with notice of special defense, that the certificate was issued on written application in which the insured falsely represented material facts in regard to her condition of health and illnesses during five years prior thereto which rendered the certificate void.

The plaintiff made a motion for summary judgment supported by his affidavit and that of James W. Williams, one of his attorneys. The defendant filed three affidavits of merits in opposition to the motion. The court held that defendant's affidavits did not show a meritorious defense and granted the motion for summary judgment.

The applicable portion of circuit court rule No. 34 relative to affidavits of merits reads as follows: ‘The facts so stated shall be the personal knowledge of the affiant, shall be set forth in the affidavit with particularity, and the affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.'

The defendant's affidavits do not comply with this portion of circuit court rule 34. In fact, as to matters equally within the knowledge of the deceased, all of the affiants, being agents of the defendant, are precluded from testifying. The plaintiff, as beneficiary, is an assign of the deceased and assigns are protected parties under the statute. Perkins Evidence by Survivor, § 85, pages 117 and 118.

Under the amendment of 1881, Act No. 245, page 335, in proceedings by or against corporations, their agents are prohibited from testifying to matters which, if true, were equally known to the deceased. A discussion of this act and applicable cases will be found in the excellent work of Judge Perkins on Evidence by Survivor, § 109, page 161.

In the instant case, the three affiants in the affidavits of merits are agents of the defendant corporation. If sworn as witnesses, they could not competently testify to any matter stated in their affidavits which, if true, was equally within the knowledge of the deceased.

The affidavit of Ora L. Bilsborrow contains no statement that he could competently testify to if sworn as a witness on the trial. He took the insured's application, and his affidavit sets forth the representations she made relative to her condition of health and illnesses, etc.

The affidavit of Joseph Kurzynowski says he interviewed doctors and examined records and charts in hospitals from which he undertakes to inform the court as to the condition of insured's health during the five years prior to her application for insurance. If sworn as a witness, he would not be allowed...