Schwier v. Atlas Assurance Co.

Michigan Supreme Court

Schwier v. Atlas Assurance Co.

198 N.W. 719, 227 Mich. 104, 1924 Mich. LEXIS 608

CourtMichigan Supreme Court

DecidedMay 8, 1924

DocketDocket No. 114.

StatusPublished

Cited by10 cases

This text of 198 N.W. 719 (Schwier v. Atlas Assurance Co.) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwier v. Atlas Assurance Co., 198 N.W. 719, 227 Mich. 104, 1924 Mich. LEXIS 608 (Mich. 1924).

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Opinions

To hold that one may sue first and obtain his cause of action afterwards is to set aside a general rule of long standing in this State. Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122);Moyer v. Scott, 30 Mich. 345; and sustained by the weight of authority. 1 R.C.L. p. 340; 1 C. J. p. 1149. Arbitration not having been theretofore waived when plaintiff sued, he had no cause of action; his then only remedy was arbitration.Baumgarth v. Insurance Co., 152 Mich. 479. This defense was pleaded. Evidence that plaintiff tendered arbitration after commencement of suit and was refused and that thereby a cause of action accrued was inadmissible. Negotiation between the parties after the suit was brought, by which plaintiff was misled in no way, looking to a settlement of the case, was not a waiver of the pleaded defense. 26 C. J. p. 429; Goldstein v.Insurance Co., 106 Wn. 346 (180 P. 409); Carp v.Insurance Co., 104 Mo. App. 502 (79 S.W. 757); Gage v.Insurance Co., 34 Okla. 744 (127 P. 407). The law commends, it does not punish, efforts toward amicable settlements avoiding litigation. Richards v. Insurance Co., 83 Mich. 508 (21 Am. St. Rep. 611). Verdict should have been directed for defendant.

Judgment reversed, with costs to defendant. New trial granted.

McDONALD, SHARPE, STEERE, and FELLOWS, JJ., concurred with CLARK, C.J. *Page 111

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To hold that one may sue first and obtain his cause of action afterwards is to set aside a general rule of long standing in this State. Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122);Moyer v. Scott, 30 Mich. 345; and sustained by the weight of authority. 1 R.C.L. p. 340; 1 C. J. p. 1149. Arbitration not having been theretofore waived when plaintiff sued, he had no cause of action; his then only remedy was arbitration.Baumgarth v. Insurance Co., 152 Mich. 479. This defense was pleaded. Evidence that plaintiff tendered arbitration after commencement of suit and was refused and that thereby a cause of action accrued was inadmissible. Negotiation between the parties after the suit was brought, by which plaintiff was misled in no way, looking to a settlement of the case, was not a waiver of the pleaded defense. 26 C. J. p. 429; Goldstein v.Insurance Co., 106 Wn. 346 (180 P. 409); Carp v.Insurance Co., 104 Mo. App. 502 (79 S.W. 757); Gage v.Insurance Co., 34 Okla. 744 (127 P. 407). The law commends, it does not punish, efforts toward amicable settlements avoiding litigation. Richards v. Insurance Co., 83 Mich. 508 (21 Am. St. Rep. 611). Verdict should have been directed for defendant.

Judgment reversed, with costs to defendant. New trial granted.

McDONALD, SHARPE, STEERE, and FELLOWS, JJ., concurred with CLARK, C.J. *Page 111

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Bluebook (online)

198 N.W. 719, 227 Mich. 104, 1924 Mich. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwier-v-atlas-assurance-co-mich-1924.

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