Emlaw v. Travelers' Insurance

Moore, J. The plaintiff held two accident policies of insurance in defendant company. In April, 1894, he received an injury that, he claims, totally disabled him, and entitled him to $50 a week for four weeks. His claim was disputed by the company. He brought suit, and obtained judgment for $200, and the case is appealed here. The plaintiff declared under Circuit, Court Pule No. 104. The defendant pleaded the general issue, and gave notice that the plaintiff was not entitled to any indemnity ; that he was insured in the preferred class, and his application called for only $25 per week when totally disabled; that he was not totally disabled; that, when he was injured, he was not acting as manager or proprietor of the gas works, but as a machinist, and voluntarily exposed himself to unnecessary danger; that in his application of November 9, 1892, he agreed tó be classed as “preferred,” and that, as a machinist, he would be classed as “medium,” and would be entitled to no more than the premium he actually paid would purchase in that class in which he was actually injured, if entitled to anything. In said notice a copy of the application upon which one of the policies was issued was set 'up in full, and then the statement followed that the work [556] of a machinist is classed as more hazardous than that of the “preferred.” Objections were made to some of the questions upon the ground that they were leading. The plaintiff was called as a witness, and after describing the accident, and its effect upon him, he was asked, “How long were you confined in the house, as a result of that accident? ” and allowed to answer. After describing the character of his work, and the manner in which it was done, in detail, he was asked, “Will you state if part of your duties as proprietor of the gas works called you to do more or less manual labor in and about it,” and he was allowed to answer. In view of the examination which immediately preceded these questions, and the cross-examination that followed, we do not think it was so prejudicial to allow these answers as to require a reversal of the case. It is assigned as error that copies of the application furnished by the agent of the defendant company were allowed to be read in evidence. As defendant had set out in its notice of defense a copy of the application, and afterwards offered the original in evidence, the error, if any, was cured. The last application made by the plaintiff had a printed clause reading, “I,have no other insurance in this company.” It is claimed that, as there was a prior policy, this statement was a fraud, and voided the second policy. Both applications were taken by the same agent. Both policies were issued by the defendant company. The printed statement was undoubtedly an inadvertence. The insured, the insurance agent, and the defendant company all knew it to be untrue. It deceived no one. The company, knowing the facts, acted upon both applications, received the premiums, and issued both policies, and it cannot now be heard to question the validity of either of them. Copeland v. Insurance Co., 77 Mich. 554. It is urged that as the insured asked, in'his application, to be classed as “preferred,” when he should have been [557] classed as “medium,” lie cannot recover. It is sufficient reply to that to say the agent of the company had known Mr. Emlaw and his business for 25 years. Mr. Emlaw, in his application, truthfully described his calling as proprietor of gas works. If he was not properly classified, it was not his fault. The company had the facts before it when the classification was made. O'Brien v. Insurance Co., 52 Mich. 131. Mr. Emlaw was injured while assisting in uncoupling a gas pipe with a wrench. It is insisted that this was not proper work for a proprietor of gas works to be engaged in. The questions growing out of that feature of the case were properly and guardedly submitted to the jury. The other questions involved in the case were properly disposed of by the trial judge. The judgment is affirmed, with costs. The other Justices concurred.