Davis v. Minnesota Mutual Life Insurance

205 N.W. 137, 232 Mich. 362, 1925 Mich. LEXIS 860

Opinions

The life insurance policy for $10,000 was issued March 29, 1921. Mr. Davis died November 30, 1921. Of the premium for the first year there remained unpaid $101.30. Plaintiff beneficiary consulted Arthur E. Fixel, an attorney, and left with him the claim for adjustment. Plaintiff disclaims knowledge of the fact, but it was the contention of defendant, as stated to Mr. Fixel, that the policy could be avoided because of a misstatement of material fact in the application and that the defendant would deny liability. Mr. Fixel was impressed that there was merit in defendant's contention. But after negotiation a settlement of $7,000 was agreed upon by Mr. Fixel and the defendant. A settlement receipt was prepared, and it was signed by plaintiff in the office of defendant's agent in Detroit. Both Mr. Fixel and the agent testified that the matter was explained to and approved by the plaintiff. Seven thousand dollars less the unpaid premium, was paid and accepted. Later plaintiff brought this suit in assumpsit. The theory of the declaration is that the $7,000 was a part payment and that defendant promised to pay the remaining $3,000 later and has not done it. There is no averment of fraud, deceit or conspiracy. Her case rests on her naked statement in support of the theory of her declaration. The testimony of Mr. Fixel, the testimony of the agent, the documentary evidence, the circumstances, are against her claim.

The verdict is against the great weight of the evidence.

Judgment reversed; new trial granted; costs to abide the result.

SHARPE, STEERE, FELLOWS, and WIEST, JJ., concurred with CLARK, J.