Slater v. U.S. Health & Acc. Ins. Co.

• Decision Date: 29 May 1903
• Citation: 95 N.W. 89,133 Mich. 347
• Parties: SLATER v. UNITED STATES HEALTH & ACCIDENT INS. CO. OF SAGINAW.
• Court: Michigan Supreme Court

95 N.W. 89

133 Mich. 347

SLATER v. UNITED STATES HEALTH & ACCIDENT INS. CO. OF SAGINAW.

Supreme Court of Michigan

May 29, 1903

Error to Circuit Court, Washtenaw County; Edward D. Kinne, Judge.

Action by John B. Slater against the United States Health & Accident Insurance Company of Saginaw, Mich. From a judgment for plaintiff, defendant brings error. Reversed.

Cavanaugh & Wedemeyer and Arthur Brown, for appellant.

Frank E. Jones and Carl T. Storm, for appellee.

CARPENTER J.

This suit is brought to recover a stipulated indemnity upon an insurance policy. The policy was issued by the United States Benevolent Society, March 30, 1893. Defendant assumed its obligations January 29, 1901. By the provisions of this policy plaintiff was entitled to $7 per week during the time he might be ill, not to exceed 26 weeks, and his heirs were entitled to $75 as a burial fund in the event of his death. Plaintiff's testimony proved that he became ill June 28, 1901; that on July 20, 1901, he adjusted his claim against defendant for that illness for the sum of $45 and received a check for that amount; that he was induced to make this adjustment by the false and fraudulent statements of defendant's agent that defendant had a right to take up his policy of insurance; and that said policy was taken up at the time of the adjustment. When said settlement was made plaintiff signed a receipt, describing his illness, and containing the following language: 'I hereby agree to accept the sum of $45 in full and complete settlement compromise, satisfaction, discharge, and release of any and all claims, either of indemnity or otherwise, that I may have or hold against the United States Health & Accident Insurance Company under policy No. 7,129, or any other policy or policies which I now hold, issued by said company, by reason of the aforesaid illness, or by reason of any disability the cause of which originated prior to this date.' Said plaintiff's illness continued for a period of 26 weeks. He brought this suit without returning or tendering the money received by him when said adjustment was made. It is conceded that under the decisions of this court (see Pangborn v Continental Insurance Company, 67 Mich. 683, 35 N.W. 814) this he could not do, unless defendant had waived said tender. This question of waiver was submitted to the jury, who found for the plaintiff, and the only question raised in this court is whether or not there was any evidence which justified their finding.

Plaintiff claims this waiver is proved by the following testimony. While the policy was in the possession of the defendant, it attached thereto a rider, purporting to be dated January 29 1901, by which it agreed 'to and with the holder of said policy or certificate to assume the obligations of said policy or...