Shirts v. Phoenix Acc. & Sick Benefit Ass'n

• Citation: 135 Mich. 439,97 N.W. 966
• Parties: SHIRTS v. PHOENIX ACCIDENT & SICK BENEFIT ASS'N OF BENTON HARBOR.
• Decision Date: 12 January 1904
• Court: Supreme Court of Michigan

97 N.W. 966

135 Mich. 439

SHIRTS v. PHOENIX ACCIDENT & SICK BENEFIT ASS'N OF BENTON HARBOR.

Supreme Court of Michigan

January 12, 1904

Error to Circuit Court, Oceana County; Fred J. Russell, Judge.

Action by Loren A. Shirts against the Phoenix Accident & Sick Benefit Association of Benton Harbor, Mich. Judgment for plaintiff. Defendant brings error. Reversed.

E. J. Adams, for appellant.

Hartwick & Skeels and A. E. Souter, for appellee.

HOOKER C.J.

The plaintiff was a member of the defendant, a co-operative mutual benefit association; having made application for membership in February, 1898. On February 12, 1898, a certificate was issued to him . Soon after he became a member, he was attacked by the grippe, and received indemnity under the contract of membership, which included sick and accident benefits. On the 27th of November he filed written proofs of loss arising from an injury to his eye. They show that he was taken sick October 8, 1901, and that it was 'caused by a piece of steel, four weeks before, and that the doctor called it 'iritis," and that the 'external visible marks were eyes swollen and bloodshot'; that he had 'done no work nor chores since'; that he 'quit work on account of his disability October 8'; and that he was 'wholly disabled from any work from October 8 to November 25 1901.' This was subscribed and sworn to on November 26 1901. Some correspondence followed with regard to the time the plaintiff was actually confined to the house; defendant being apparently desirous of ascertaining when he first went out of the house after October 8th, and informing him that he was not entitled to benefits for any time when he was not so confined. The plaintiff was a little slow about giving this information, but finally, on December 11th, wrote, 'In regard to my claim for sickness under my policy, will say in reply to yours of December 10th that I was confined to the house from October 8th to November 26th inclusive.' On receipt of this letter the defendant forwarded a check for $25.33 indemnity for 19 days, and plaintiff accepted the check, indorsing it as follows: 'Policy No. 3,752. Received December 13th, 1901, of the Phoenix Accident and Sick Benefit Association, twenty-five and 33/100 dollars, same being settlement in full for all claims against said association for indemnity as stated within. L. A. Shirts.' It seems to be conceded that this check paid to November 10th; five days being deducted from the total, according to the terms of the policy. On December 20, 1901, one A. E. Souter, an attorney, wrote defendant, on behalf of the plaintiff, that he would not accept pay for 19 days as final settlement of his claim, and that he would not wait very long before beginning suit to recover the balance. On December 23d defendant's cashier replied that its auditor was out of the office for a week, so that the writer could not answer him definitely, and added: 'However, we call your attention to the conditions of Mr. Shirts' policy before you bring suit.' Soon after, the plaintiff's claim was placed in the hands of Mr. Cady, a lawyer of Benton Harbor, who had several conferences with defendant's auditor, at one of which he handed him Exhibits I and J. These were affidavits of the plaintiff and his physician. They were executed January 25th and 27th, respectively; and they state, in substance, that on October 13, 1901, the plaintiff called Dr. Wilson, going to his office to save expense, and that after that he was confined to the house until November 26th, when he went to the doctor's office for medicine, and also to his shop, but did no work of any kind, and was not able to work, until during the first week in December. The uncontradicted testimony shows that defendant's auditor folded these papers, and was about to file them, when Cady demanded and received them on the promise that he would send copies, and the auditor did not read them. The copies were not received. In April, Hartwick & Skeels, representing plaintiff, had some correspondence with the defendant, which ended with the following letter from the defendant's auditor:

'April 19, 1902.

'Hartwick & Skeels, Hart., Mich.--Dear Sirs: I am in receipt of yours of the 16th inst. in re L. A. Shirts of Shelby, Mich., policy No. 3,752. In reply to the same will say, that it would be almost impossible to furnish a copy of everything pertaining to this claim. We enclose herewith copy of the check sent Mr. Shirts on December 12th, 1901, and which you will note he cashed on December 13th. You will also note that it is receipted as settlement in full for his claim. You will also

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