Valisano v. Cont'l Ins. Co. of N.Y., 23.

• Decision Date: 07 April 1931
• Docket Number: No. 23.,23.
• Citation: 254 Mich. 122,235 N.W. 868
• Parties: VALISANO v. CONTINENTAL INS. CO. OF NEW YORK et al.
• Court: Michigan Supreme Court

254 Mich. 122

235 N.W. 868

VALISANO

v.CONTINENTAL INS. CO. OF NEW YORK et al.

No. 23.

Supreme Court of Michigan.

April 7, 1931.

Error to Circuit Court, Gogebic County; George O. Driscoll, Judge.

Action by Anton Valisano, by Mary Valisano, his next friend, against the Continental Insurance Company of New York and others. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before the Entire Bench.

Charles M. Humphrey, of Ironwood, for appellants.

Jones & Patek, of Ironwood (Ernest A. O'Brien, of Detroit, of counsel), for appellee.

BUTZEL, C. J.

A dwelling house in the city of Wakefield, Mich., owned by plaintiff Anton Valisano, was insured in each of the four defendant insurance companies. The amount of the policies aggregated the sum of $3,800. Valisano had been insane since 1913, and his property was being looked after by his wife Mary, who has brought suit as his next friend. She obtained the insurance from defendants' agent, who knew of Valisano's insanity both at the time the policies were issued and for many years previous thereto.

On May 8, 1928, a fire occurred, resulting, it is claimed, in a total loss, Mrs. Valisano notified the insurance companies. The adjusters met and made her an offer of settlement. The testimony is in dispute as to just what occurred. Plaintiff's wife claims that they first offered her $2,700, and then only $1,700. She testified that they told her they would pay $1,700 and no more; that she thereupon stated she would get an attorney and fight for her rights, whereupon they said: ‘Do as you please, it's up to you.'

On June 20, 1928, she began four suits, which have been consolidated in this action. All of the policies follow the Michigan standard fire insurance form. The defendants claim that they did not know of plaintiff's insanity; that no proofs of loss were furnished them; that the suits were prematurely brought, and that there was no appraisement as demanded by them; that the verdict is excessive and against the great weight of the evidence. Plaintiff claims that, owing to Anton's insanity, no proofs of loss were required; that no notice of demand for appraisement was given until after the suits were begun; that proofs of loss, appraisement, etc., were waived by defendants' adjusters when they stated that the companies would pay a certain amount and no more; that this constituted a discharge of the obligation to furnish proof of loss, etc. This latter question was one of those submitted to the jury who found in favor of plaintiff for the full amount of the insurance. All of the questions raised are before us for review.

An insured person who is insane is excused from submitting a proof of loss. Such an action on his part would be a unllity. Insurance Companies v. Boykin, 12 Wall. 433, 20 L. Ed. 442;Hartford Fire Ins. Co. v. Doll (C. C. A.) 23 F. (2d) 443, 56 A. L. R. 1059;Houseman v. Home Insurance Co., 78 W. Va. 203, 88 S. E. 1048, L. R. A. 1917A, 299;Woodmen Accident Ass'n v. Pratt, 62 Neb. 673, 87 N. W. 546,55 L. R. A. 291, 89 Am. St. Rep. 777;Concordia Fire Ins. Co. v. Waterford, 145 Ark. 420, 224 S. W. 953, 13 A. L. R. 1387.

The question of failure to send notice by the assured on account of his mental incompetence arose in Reed v. Loyal Protective Ass'n, 154 Mich. 161, 117 N. W. 600, 605, where the court stated:

‘But we are committed to the doctrine in insurance cases, that a provision requiring a notice on pain of forfeiture will not be construed to require strict performance, when by a plain act of God it is made impossible of performance.'

The disputed question as to whether defendants' agent stated to Mrs. Valisano that they would pay a certain sum and no more was submitted to the jury. There were corroborating witnesses who testified that this statement was made, although defendants' witnesses vigorously denied they made it. It became a question of fact for...