Opinion
Docket No. 106, Calendar No. 36,407.
Submitted April 13, 1932.
Decided June 6, 1932.
Appeal from Wayne; Campbell (Allan), J. Submitted April 13, 1932. (Docket No. 106, Calendar No. 36,407.) Decided June 6, 1932.
Assumpsit by Lillian M. Long against Ætna Life Insurance Company of Hartford, Connecticut, a corporation, on the double indemnity clause of an accident insurance policy. Judgment for defendant. Plaintiff appeals. Affirmed.
Brown, Stoneman, Lorenzo Springstun, for plaintiff.
Stevenson, Butzel, Eaman Long ( Leo W. Kuhn, of counsel), for defendant.
June 27, 1925, plaintiff's husband was in the basement of their home, cleaning clothes with gasoline in an electric washing machine. An explosion occurred, his clothing was set on fire, and he was fatally burned. Plaintiff testified that, on hearing the explosion, she ran to a basement window, saw her husband dazed but without any fire about his person, saw the rafters on fire and that fire came down from the rafters and ignited his clothes.
The suit is upon a clause in a $1,100 accident policy held by plaintiff's husband, which provided double indemnity —
"if the injuries are sustained by the insured and by reason and in consequence of the burning of a building, provided the insured is therein at the commencement of the fire."
Counsel agree that the double indemnity clause does not apply if Mr. Long's clothes were ignited directly from the explosion or otherwise than from the burning building.
Plaintiff's claim under the policy was handled by her brother-in-law, Roy Long, who was State agent of a life insurance company. July 2d Mr. Long gave defendant written notice of the injury. July 17th proofs of death were prepared by him, sworn to and signed by plaintiff, making claim for double indemnity of $2,200, naming plaintiff as an eyewitness to the event causing the injury and death, and, accompanied by a separate affidavit of plaintiff, were forwarded to defendant. In none of these documents was it claimed that the insured's clothes caught fire from the burning building. The separate affidavit of plaintiff stated that she saw her husband —
"who at the above-mentioned time and place was engaged in act of cleaning some clothes with gasoline and gasoline was ignited and exploded by a spark from the electric motor attached to washing machine in basement of his home which resulted in the fire which caused his body to be badly burned later resulting in death. About 80 per cent. of his body being covered with second degree burns."
Defendant admitted primary liability under the policy but denied liability for double indemnity. Negotiations between defendant and Roy Long ensued, and, in November, it left a draft for $1,100 with him, accompanied by a release, reciting that the money was "in full payment, satisfaction and discharge" of the policy. Plaintiff accepted the draft and executed the release. Over a year later she tendered back the money, the tender was refused, and she brought this suit.
The court held the release binding on her, and entered judgment for defendant.
Plaintiff claims fraud in being induced to make the settlement, in that a representative of defendant told her she was not entitled to double indemnity because her husband did not die in the building. She said she relied on his statement of her rights. It appears, however, that she did not rely on the representation, because, after it was made, she presented claim for double indemnity, negotiations to obtain it were had by her agent, Roy Long, and she was guided by him in finally accepting settlement. There is no merit in the claim of fraud.
Plaintiff contends that the release is not binding on her because defendant did not in good faith dispute liability for double indemnity, in that defendant made no prior inquiry of plaintiff as to the facts of injury although she was the only eyewitness to the accident.
The proofs of death and accompanying affidavit, which assumed to describe the accident, did not state facts showing double liability. It is undisputed that, in negotiations for settlement, Roy Long, plaintiff's representative, told defendant's adjuster that he had talked with plaintiff about the accident, that there were no eyewitnesses to it, that no one saw the deceased until he was outside the home after the accident, and that, while he claimed double indemnity on his theory of the cause of death, he had no specific evidence to support the claim. The obligation was on plaintiff, in the proofs of death and claim of double indemnity, to inform defendant of the facts which entitled her to so recover. As she failed to give the necessary information, defendant was under no obligation to assume she had not made full disclosure and to make direct inquiry of her. It had a right to rely upon the statements of the agent whom she intrusted with negotiations. It may be added that defendant honestly could have doubted plaintiff's version of the accident as she told it in court. The record does not show that defendant's denial of double liability was not made in good faith.
Plaintiff had only one claim under the policy, the amount of which depended upon the circumstances of the injury. The fact that part of the claim was conceded did not divide the liability into two liquidated claims. Whatever the rule in other jurisdictions, this court holds that such a claim is unliquidated and payment of the conceded amount furnishes consideration for settlement of the whole. Tanner v. Merrill, 108 Mich. 58 (31 L.R.A. 171, 62 Am. St. Rep. 687); Kern Brewing Co. v. Royal Ins. Co., 127 Mich. 39.
The settlement was binding on plaintiff, and judgment is affirmed, with costs.
CLARK, C.J., and McDONALD, POTTER, SHARPE, NORTH, WIEST, and BUTZEL, JJ., concurred.