Van Dusen v. Interstate Bus. Men's Ass'n of Des Moines

• Decision Date: 03 January 1927
• Docket Number: No. 8.,8.
• Parties: VAN DUSEN v. INTERSTATE BUSINESS MEN'S ASS'N OF DES MOINES, IOWA.
• Court: Michigan Supreme Court

237 Mich. 294

211 N.W. 991

VAN DUSEN

v.INTERSTATE BUSINESS MEN'S ASS'N OF DES MOINES, IOWA.

No. 8.

Supreme Court of Michigan.

Jan. 3, 1927.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by Charles F. Van Dusen against the Interstate Business Men's Association of Des Moines, Iowa. Judgment granting plaintiff relief in part, and he brings error. Reversed and new trial granted.

Argued before the Entire Bench. Laurence W. Smith and Charles G. Turner, both of Grand Rapids, for appellant.

Henry E. McCurry, of Detroit, Leroy J. Herman, of Grand Rapids, for appellee.

BIRD, C. J.

Plaintiff, in 1917, was engaged in running a novelty store in Lowell. In October of that year he took a health and accident policy with defendant, in which it agreed that, in the event of sickness, it would pay him the following sums:

‘Loss by disease:

‘Non house confinement-$10 a week for ten weeks.

‘The insurance provided shall cover only in the event that the insured shall be compelled to refrain from performing any act of business, and be under the constant treatment and care of a regular physician, and during the uninterrupted period of such disability.

‘House confinement-$25 a week for fifty-two weeks.

‘The insurance provided shall cover only in the event that the insured shall be compelled to remain continuously and strictly within the house and be under the constant care and treatment of a regular physician during the period of such confinement.’

The plat found printed below shows the relative size of the type as it appears in the policy.

Loss by Disease House Confinement-

The insurance provided shall cover only in the event within the house and be under the constant care and treat

Plaintiff's bill of particulars called for payment of partial house confinement from March 1 to April 15, 1925, 6 weeks, $60, and 38 weeks, from April 15 to January 17, 1926, at $25 per week, for house confinement, $950.

Defendant pleaded the general issue, and gave notice, in substance, that it would show that plaintiff's illness did not bring him within either of the foregoing provisions of the policy.

The proofs show that plaintiff's condition was so bad on March 30, 1925, that he consulted Dr. Lee, who found him suffering from hardening of the arteries, and his blood pressure registered 255. Plaintiff was under the care of Dr. Lee until the middle of the summer, and later under the care of Dr. Green. He gradually grew worse, and finally gave up practically all business, but was not confined to the house all of the time. He would walk down to the store, to the doctor's office and elsewhere for exercise under the direction of his doctor.

At the close of the trial, the court, with the consent of defendant's counsel, directed a verdict for plaintiff of $60 on account of non house confinement, but held that he was entitled to nothing under the ‘house confinement’ clause, which provided $25 per week. This was based upon plaintiff's admission that he was not strictly confined to the house, although he was under the care of a physician most of the time.

Plaintiff raises the question that the restrictive clauses immediately following the house confinement clause and the non house confinement clause should be eliminated by reason of the following statute:

‘ Conditions to Issuance of Policy. * * * No such policy shall be so issued or delivered. * * * (6) unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply: provided, however, That any portion of such policy which purports, by reason of circumstances under which a loss is incurred, to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances, shall be printed in bold face type and with greater prominence than any other portion of the text of the policy.’ C. L. 1922 (Cahill) § 9100 (157).

The trial court refused to apply the statute, because he was of the opinion that the words ‘house confinement, $25 a week for 52 weeks,’ was simply a heading and not a...