Cady v. Fid. & Cas. Co. of N.Y.

• Decision Date: 26 November 1907
• Citation: 113 N.W. 967,134 Wis. 322
• Court: Wisconsin Supreme Court
• Parties: CADY v. FIDELITY & CASUALTY CO. OF NEW YORK.

134 Wis. 322

113 N.W. 967

CADY

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Court of Wisconsin.

Nov. 26, 1907.

Syllabus by the Judge.

Chapter 235, p. 313, Laws 1901, prohibiting any accident or casualty company from limiting the time for an insured person to serve notice of any injury for which he is entitled to make a claim to less than 20 days, and providing that a memorandum in respect to the matter shall be clearly and conspicuously placed on the face of the policy, and further providing that a specified manner of service shall be sufficient, does not relate to the claim of a beneficiary after the death of the insured person.

An ineffective attempt to comply with the law aforesaid does not extend beyond the intent so as to relate to a beneficiary, unless the language of the memorandum is unmistakably to the contrary.

The word “immediate,” in an insurance policy, in respect to giving notice of any accident or injury for which a claim is to be made, by settled judicial construction antedating the policy and so a part thereof, means as soon as practicable under the circumstances of the case, in the absence of some unmistakable limitation to the contrary.

Under the foregoing rule service of notice by a beneficiary as soon as practicable after obtaining knowledge of the existence of the policy is sufficient.

Evidence of the state of health of an insured person for a considerable period of time prior to his death, where it is claimed he died by suicide, is proper as bearing on whether the deceased came to his death as the result of a suicidal intent.

The term “death by suicide, sane or insane,” does not include death by the act of the assured without any mental purpose of self-destruction.

If one in a fit of delirium or other condition of irresponsibility, without intention to take his own life, does some act from which his death ensues, such death is by accident, not by suicide.

The distinction between suicide by a sane person and suicide by an insane person, within the meaning of a policy clause “death by suicide, sane or insane,” lies in the mental capability in the one case and the absence of it in the other to appreciate the moral nature and quality of the purpose.

A local affection is not a local disease within the meaning of a warranty in a policy of insurance, unless such affection has sufficiently developed to have some bearing on the general health.

In case of the defense of death by suicide being interposed in an action of a life insurance policy, the burden of proof is on the defendant to establish such defense.

Appeal from Circuit Court, Wood County; Chas. M. Webb, Judge.

Action by Anna L. Cady against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover on an accident insurance policy.

The assured came to his death March 30, 1904, and during the life of the policy. The plaintiff, who was the beneficiary, had no knowledge of the existence of the policy till about 60 days after her husband died. As soon as she obtained such knowledge she complied with the terms of the policy respecting notice to the defendant. The policy excepted from the risks insured against, death by suicide, sane or insane. There was a warranty that the assured at the inception of the insurance contract was in a sound condition, mentally and physically, and that he was not then and had not been within one year prior thereto afflicted with any local or constitutional disease.

The complaint was in the usual form.

The defendant answered, pleading want of notice of the accident immediately after the happening thereof as required by the policy, and that death was caused by an event not within the risk insured against, to wit, death by suicide; also breach of warranty, in that at the time the policy was taken out the assured was afflicted with a local disease, known as “stricture,” and by other local and constitutional diseases.

The language of the policy material to the case is as follows:

“Fidelity & Casualty Company of New York * * * does insure the person described in said schedule for the period of one year from * * * the day this contract is dated, against disability or death resulting directly, and independently of all other causes, from bodily injuries sustained through external, violent and accidental means, suicide sane or insane not included.”

“Immediate written notice must be given the company at New York of any accident and injury for which a claim is to be made, with full particulars thereof, and full name and address of the assured.”

“The words ‘immediate notice’ as used in this policy are to be construed as meaning notice deposited by registered letter within twenty days of the time of the happening of the casualty insured against.”

The assured warranted, as follows: “My habits of life are correct and temperate, and I am in sound condition mentally and physically. * * * I have not now nor have I had during the past year any local or constitutional disease.”

There was evidence to this effect: The assured complained of having a stricture in October, 1902, which was within one year prior to the date of the policy, and he mentioned the matter again in April thereafter. He went to Hot Springs for his health in February, 1904, and was there operated on for stricture. After remaining at Hot Springs for about a month he went to St. Joseph's Hospital at that place for treatment. Before going there he was low-spirited and his thoughts at times were on the subject of his dying. He said to a friend, in effect, that he did not believe that he would go from Hot Springs alive. During this period he was well enough to be up and about, to take walks, to read the newspapers and to visit with friends. He went to the hospital March 28, 1904, and was placed in charge of Sarah J. McElroy, a trained nurse. On the day mentioned he sent for an attorney to draw his will, which was done under his dictation, the will being regularly executed and witnessed. He was somewhat delirious the night thereafter. He was less so the next day, but not entirely free from delirium. The next day the nurse was with him, except about an hour in the morning and for a moment or two prior to the act causing his death. He was much depressed during the day such act occurred. He lay in bed most of the time, occasionally sighing. On one occasion he went to the glass and observing his face, suggested that he needed a shave. A friend stepped to his bedside and spoke to him, and at noon his wife did so, saying “Good bye,” as she was going to dinner. He did not appear to notice either of them. About that time he was asked what he would have for dinner. He replied, “Not anything,” but the nurse directed something to be brought, which was done. He ate some ice cream, remarking that it was “mighty good, but pretty sweet.” He then called for a drink of hot water. The nurse left the room to comply with such request. When she returned he was gone. She immediately went in search of him. A workman informed her where he was, pointing to an open shaft, which extended down to the first floor. She was on the fifth floor and looking down she saw him on the stone floor at the bottom of the shaft. She reached him as soon as practicable and found both his feet and limbs were broken. He died in about three minutes. The open shaft was about 12 feet in diameter. Around the opening on the fifth floor and on each floor there was a railing about 30 inches high. The only person who witnessed Mr. Cady's movements was Mary Edwards. She saw him going upstairs in a night robe from the first floor. He passed through the hall of what was called the “old building” into and through what was called the “sun parlor,” leading into the new building. She called to him. He was going very rapidly. Upon her calling to him he quickened his pace and she ran after him. Upon his arriving at the railing around the shaft he put his hands thereon and leaped over. He was on the fifth floor and had to go up two flights of stairs to reach it. It was light, there being a skylight in the room. The time was between 12 and 1 o'clock. Miss Edwards was within about an arm's length of Mr. Cady as he went over the railing. He threw himself over, as she said.

There was some conflict of evidence as to whether the assured was afflicted with a local disease at the time of, or within one year prior to the issuance of the policy.

At the close of the evidence defendant's counsel moved for the direction of a verdict, which was refused. The cause was submitted to the jury, resulting in a verdict in favor of the plaintiff.

Felker, Stewart & McDonald, for appellant.

Barbers & Beglinger, for respondent.

MARSHALL, J. (after stating the facts as above).

Did the court err in not granting the motion for a nonsuit, because there was a delay of some 60 days in giving notice to the company, notwithstanding the memorandum on the policy that “the words ‘immediate notice’ as used in the policy are to be construed as meaning notice deposited by registered letter within twenty days of the time of the happening of the casualty insured against.” and chapter 235, p. 313, Laws of 1901, providing that “the time for the service of any notice of injury that may be required of the person insured” shall not be limited “to a less period of time than twenty full, calendar days,” “the time, not less than twenty full, calendar days, that may be required of any injured person for serving a notice of injury * * * shall be clearly and conspicuously written or printed upon the face of” the policy and that “the deposit in any post office by any injured person, his agent or attorney, of a registered, postage prepaid letter, containing the proper notice of the injury at any time within twenty full, calendar days after the injury received by the assured, properly addressed to the company * * * issuing the * * * policy shall be sufficient service of any notice of injury that may be...