254 N.W. 229 | Mich. | 1934
Plaintiff, assignee of the beneficiary of a life insurance policy, declared in assumpsit for what he calls the compromise value of the policy, and limited his claim to $458.80, that being the amount of the first year's premium, plus interest and costs. He pleaded payment and possession of a receipt for this amount and set up assignor's settlement receipt indorsed on the policy which reads:
"Marquette, Michigan, March 27, 1933.
"Received of the State Life Insurance Company one dollar and other valuable consideration in full for all claims under this policy No. 446084 now terminated by payment in accordance with agreement of release dated March 16, 1933, except for my right reserved by said agreement of release to recover under said policy the amount of any premium paid thereon.
"(Signed) FLORA EDITH HARRISON.
"In presence of:
"W.L. LEAHEY "GEO. BARSTOW."
Defendant denied the payment of the premium, attached to its answer the agreement of release, and moved to dismiss the declaration as insufficient in law and failing to state a cause of action.
The court, after trying the case without a jury, granted defendant's motion for a judgment in its favor, stated:
"Taking all the facts as true and accepting all the proofs the plaintiff has put in as true, I cannot see the plaintiff is entitled to recover."
Only two questions are involved. Does the declaration state a cause of action? From an examination *633 of defendant's answer and the attached agreement of release, which explains the settlement receipt set forth in paragraph four of the declaration, we hold that the declaration did reasonably inform the defendant of the nature of the cause it was called upon to defend. Court Rule No. 19 (1933). Appellee claims that it was necessary to allege and prove death by suicide. The agreement of release clearly indicates that the only question left to be determined between the parties was whether the premium had been actually and in fact paid.
Defendant further contends that the agreement of release placed the burden upon plaintiff to prove that the first year's premium had been "actually and in fact paid" and that, under the agreement, the receipt was not to be regarded as sufficient evidence of such payment. There is in evidence the delivered policy itself, dated October 26, 1931, and a receipt for the premium countersigned by its secretary October 29, 1931, and signed by the agent. This ordinarily constitutes prima facie
proof. Rosseau v. Brotherhood of American Yeomen,
Appellee contends, however, that the parties agreed to waive this rule and that plaintiff is required to do more than raise a presumption of payment. If such was the intention of the agreement, it should have been expressed in language that was clear and unequivocal. We have held that courts will not permit the course of justice, upon trials before them, to be stipulated or contracted in such a manner as to defeat the ends to be subserved by such trials. Utter v. Travelers' InsuranceCo.,
The judgment is reversed and one entered here for $458.80, with interest from March 16, 1933. The appellant shall have his costs.
NELSON SHARPE, C.J., and POTTER, NORTH, FEAD, WIEST, BUTZEL, and EDWARD M. SHARPE, JJ., concurred.
