Holmes v. Bankers Life Co.

Wiest, J. I cannot concur in the opinion of Mr. Justice Potter. I find no fraud or duress. Defendant, in good faith, claimed that the death of the insured was not accidental but by suicide, and that claim was not unsupported by evidence. At the time of the settlement plaintiff claimed and insisted upon payment of double indemnity but, after conferring with a former agent of defendant, who advised her to take the proffered check and sue for the balance, she accepted the check and signed a release with full knowledge that it was in satisfaction of indemnity under the policy. She testified: “Well, I knew that I signed a release but I signed with in my mind to sue for the balance that was coming to me.” Plaintiff could not execute the settlement receipt with her tongue in her cheek or the mental reservation to not be bound by it, and this suit is exactly what she intended to bring at the time she signed the settlement receipt. I am not in favor of that kind of dealing. Payment to plaintiff of the amount conceded by defendant furnished consideration for settlement of the whole. As said in Long v. Ætna Life Ins. Co., 259 Mich. 206, 209: “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 *462 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 receipt was fully understood by plaintiff and bars this suit. The judgment is affirmed, with costs to defendant. North, Fead, Butzel, and Edward M. S-harpe, JJ., concurred with Wiest, J.