Strausser v. Woodmen of the World , 283 Mich. 370 ( 1938 )

Plaintiffs sued defendant to recover on an insurance policy for the death of the insured, Harry D. Harinton, deceased. There was verdict for plaintiffs which was set aside upon motion for judgment notwithstanding the verdict and judgment entered for defendant. Plaintiffs appeal. Appellee took a cross-appeal.

The judgment of the court, whether rightfully or wrongfully entered, was, so long as the trial court had jurisdiction, under its control, and it could on its own motion open, vacate or set aside the same for error in law. It does not here appear the trial court abused that discretion. Though the record shows the judgment was intentionally entered, it also shows the court at the conclusion of the testimony denied defendant's motion for a directed verdict in its favor, saying: "I will submit the case under the statute." After verdict was returned, judgment was entered thereon and, upon objection to defendant's renewal of its motion for judgment notwithstanding the verdict after judgment entered, the trial court set aside the judgment, holding the judgment previously entered had been entered by inadvertence. This, the trial court had a right to do.Raridan v. Bick, 259 Mich. 200; Freedman v. Burton, 281 Mich. 208 . Having set aside the judgment entered upon the verdict, the trial court considered the motion for judgment notwithstanding the verdict and granted it. In so doing, there was no error.

The deceased died August 20, 1932, and suit was commenced February 23, 1934. The policy of insurance sued upon provides:

"No suit shall be brought upon this certificate unless said suit is commenced within one year from the date of death."

No suit was brought within the period fixed by the policy or certificate of insurance. It is claimed that after the death of the insured there were negotiations between plaintiffs and defendant and these negotiations for settlement amounted to a waiver of the provision of the policy above quoted. Though the defendant company in all cases responded to correspondence on behalf of plaintiffs, it at all times disclaimed liability upon the policy or certificate of insurance. There never were any negotiations upon the part of the defendant with plaintiffs, or their representatives, which indicated it in any way considered the question of admitting liability in whole or in part on the policy or certificate of insurance. Plaintiffs, and their representatives, also negotiated with one Engel, who appears to have been the district manager of defendant, but there is no testimony Engel ever had any authority to admit liability upon the part of the defendant or had any power or authority to waive the terms of the policy requiring suit to be instituted thereon within the period of one year provided therein. Passing without determination this question, it does appear from the undisputed evidence that the insured, during his lifetime and before his death, was suspended from the defendant order for nonpayment of premiums or assessments due upon his policy. This policy required monthly payments of $5.64. It is undisputed insured was in arrears at the time of his death, and there is no claim he was not suspended. Under the undisputed facts, plaintiff may not recover.

Judgment of the trial court affirmed, with costs.

WIEST, C.J., and BUTZEL, BUSHNELL, SHARPE, CHANDLER, NORTH, and McALLISTER, JJ., concurred.