133 Mich. 347 | Mich. | 1903
This suit is brought to recover a stipulated indemnity upon an insurance policy. The policy was issued by the United States Benevolent Society, March
“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. Insurance Co., 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
“I am in receipt of your letter regarding the cancellation of John B. Slater policy, and have looked it up carefully, and find he has one of the old policies, that does not have the clause for cancellation inserted. Mr. Forsythe, the adjuster, was ignorant of the same, and had no doubt his policy was one that could be canceled. * * * But Mr. Slater lapsed out of the society August 1st, and we would not care to reinstate .him .anyway. Of course, it would be optional with us whether we reinstated him or not, and I think we have paid him about enough money now, for one member.”
August 28th it wrote:
“We would just as soon he kept his policy up. It does not make any material difference. So you may mail $2 here for August and September dues, and we will mail you policy with receipt for those two months.”
And August 31, 1901, it wrote:
“We are in receipt of your letter, with check for $2 for John B. Slater for August and September dues, and you will find inclosed herewith receipt and policy.”
And this constitutes all the evidence which it is claimed has any tendency to prove that defendant ever waived its right to have the money returned. No claim is made that the rider attached to the policy, and dated January 29, 1901, in any way changed the obligations of defendant. That simply attached to the policy formal evidence of defendant’s existing obligation. It is for the court, and not the jury, to construe the correspondence. We are unable to find in it any evidence of intent to waive the return of the $45, or to set aside the settlement theretofore made. It seems to have been the opinion of the trial court and of plaintiff’s counsel that, because the settlement and the surrender of the policy were parts of one transaction, defendant’s voluntary assent to set aside the surrender also set aside the settlement. We cannot accept this
The judgment of the court below will therefore be reversed, and'a new trial granted.