Taylor v. Supreme Lodge of Columbian League
| Decision Date | 22 December 1903 |
| Citation | 97 N.W. 680,135 Mich. 231 |
| Court | Michigan Supreme Court |
| Parties | TAYLOR v. SUPREME LODGE OF COLUMBIAN LEAGUE. |
Error to Circuit Court, Calhoun County; Herbert E. Winsor, Judge.
Action by Ida E. Taylor against the Supreme Lodge of the Columbian League. Judgment for plaintiff, and defendant appeals. Affirmed.
Ralph L. Aldrich, for appellant.
Andrew W. Lockton (Joel C. Hopkins, of counsel), for appellee.
The plaintiff sued and recovered on an insurance certificate issued to her husband, John I. Taylor, in which plaintiff was named as beneficiary. The two main defenses insisted upon at the trial were: First that John I. Taylor falsely stated in his application for insurance that he had had no illness within the preceding 10 years, and had not consulted a physician; and, second, that the assured had not paid the dues for the month during which his death occurred. As to the question arising out of the first contention, it may be stated that a waiver of this defense was clearly made out. After the death of Mr. Taylor it appears that the defendant's officers were in correspondence with Dr Pitcher, and were informed by him that he had treated Mr Taylor for an acute ailment some four or five years earlier. With this information before them, they wrote plaintiff's attorney, in response to a letter demanding settlement of claim, declining on the distinct ground that John I. Taylor never paid an assessment. No mention of any other defense is made, the ground of refusal being distinctly stated that the deceased never became a member of the order. This constituted a waiver of other known defenses, and defendant will not after expense of suit has been incurred, be permitted to shift ground, and assert additional grounds of defense. Marthinson v. Ins. Co., 64 Mich. 372, 31 N.W. 291; Towle v. Ins. Co., 91 Mich. 219, 51 N.W. 987; Burnham v. Casualty Co., 117 Mich. 142, 75 N.W. 445.
The plaintiff produced a certificate containing the recital 'This certificate is issued in consideration of the membership fee, and the warranties and agreements contained in the application for this certificate, and the applicant's medical examination, and the compliance with and conformity to all the statutes of the League as they now exist, or as they may from time to time be amended, added to, or repealed, and the payment of One and 44/100 Dollars on delivery hereof and a like payment on or before the last...
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