Comstock v. Fraternal Accident Ass'n of Am.

• Decision Date: 13 January 1903
• Citation: 93 N.W. 22,116 Wis. 382
• Parties: COMSTOCK v. FRATERNAL ACCIDENT ASS'N OF AMERICA.
• Court: Wisconsin Supreme Court

116 Wis. 382

93 N.W. 22

COMSTOCK

v.FRATERNAL ACCIDENT ASS'N OF AMERICA.

Supreme Court of Wisconsin.

Jan. 13, 1903.

Appeal from county court, Winnebago county; C. D. Cleveland, Judge.

Action by C. H. Comstock against the Fraternal Accident Association of America. From a judgment for plaintiff, both parties appeal. Reversed.

Action to recover on an accident insurance policy. The complaint stated two causes of action; one for $25 per week for 27 weeks for disability caused by a fall from a bicycle, and one for $25 per week for 23 weeks for disability caused by a fall on a sidewalk, where plaintiff was walking by aid of a crutch, he not having fully recovered from his first injury. The certificate of insurance specified plaintiff's occupation as proprietor of a chair factory, and office duty. It insured him for $25 per week for not exceeding 52 weeks, as follows: For loss of time resulting from bodily injury effected during the life of the certificate “through external, violent and accidental means, which shall independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation above stated, * * * except that if the insured is injured while engaged temporarily or otherwise in any occupation or exposure classed by this association as more hazardous than that here given, his insurance and weekly indemnity shall only be so much as the premium paid by him will purchase at the rates fixed for such increased hazard.” On the face of the certificate it was conditioned upon acceptance by the assured of “the conditions contained in this certificate as a basis of this contract,” payment to be subject to the “conditions in this certificate contained and indorsed on the back hereof.” Among such indorsed conditions was this:

“Written notice shall be given the said association at Westfield, Mass., within ten days of the date of the accident, and injury for which claim of indemnity or benefit is made, with full particulars thereof, including a statement of the time, place and cause of the accident, the nature of the injury and the full name and address of the insured and beneficiary, and unless such notice and statement is received as aforesaid, all claim to indemnity or benefit under this certificate shall be forfeited to the association.”

The issues presented for consideration in the county court were: (1) Was the condition on the back of the certificate a part of the contract of insurance? (2) Was the notice of the first injury given in time? (3) Was the notice of the second injury given in time? (4) If plaintiff was entitled to recover at all on the first cause of action, was he entitled to recover $25 per week? (5) Was the second injury caused by external, violent and accidental means independently of all other causes, immediately and wholly disabling the plaintiff from transacting any and every kind of business pertaining to his occupation stated in the certificate?

At the close of the evidence defendant's counsel moved for the direction of a verdict, which was denied. Plaintiff also moved for the direction of a verdict, for $25 per week for 27 weeks, which was also denied. The court then directed verdict in plaintiff's favor for $10 per week for 27 weeks, with interest. Judgment was rendered accordingly. Both sides appealed, plaintiff claiming that he was entitled to recover $675, being $25 per week for 27 weeks, with interest; and defendant that upon the undisputed facts of the case notice of the accident was not sent to it in time, and that therefore all claims under the certificate were forfeited.

Barber Bros. (F. W. Houghton, of counsel), for plaintiff.

Phillips & Hicks, for defendant.

MARSHALL, J. (after stating the facts).

If the plaintiff, because he was made unconscious by the accident depriving him of ability to comply with the condition of his policy as to giving notice to defendant within ten days of the date of such accident, was not required to do so under the terms of the insurance contract, but permitted to give such notice as soon as ability in that regard was restored, the motion for the direction of a verdict in favor of defendant was properly denied, and plaintiff was entitled to recover at least the sum for which judgment was rendered.

It may safely be admitted that there is some conflict of authority as to whether, under any circumstances in a case like this, liability can survive failure to comply with the requirement as to notice. The overwhelming weight of authority, we may safely say, however, is in favor of plaintiff's position. The reasoning of courts supporting conclusions in that regard are far from being harmonious or satisfactory. However, when the contract in question was made, the law was deemed so well settled that, notwith standing the mandatory language of a policy requiring some act to be done as a condition precedent to the right to recover for a loss, it should be read with an exception saving the rights of the assured from forfeiture for a failure to comply therewith where he is totally incapacitated from acting in the matter, that we hold the parties here entered into the contract in contemplation thereof, and that language to that effect became a part of the instrument the same as if it were plainly embodied therein, though it violates the literal sense of the words used, and regardless of whether it can be, by general rules for judicial construction, found within the reasonable scope of such words. We place our decision of this case on the ground indicated, rather than upon the reasoning found, in general, in the opinions of the courts that have passed upon such matters. We do not feel justified in saying, as some courts have, that the contract must necessarily be held to mean something different from the literal sense thereof, merely because otherwise the parties would be convicted of stipulating for an impossibility, or because, otherwise, a great hardship would be inflicted upon the assured, or because forfeitures are not favored by courts and should not occur where any other result can be reached within the reasonable meaning of the contract, or because a contract should not be so construed as to stipulate for the performance of an act which is impossible, or because an act of God excuses nonperformance of a contractual act. Parties may bind themselves by an agreement to perform an act without guarding against conditions rendering compliance therewith impossible, if they see fit, or bind themselves by harsh provisions in a contract. Again, the rule that an act of God excuses nonperformance of a contract does not apply to contracts of the nature of the one before us. The operation of the latter rule, universally, is limited to obligations arising by operation of law, and to liability of common carriers. It does not extend, generally, to express contracts. 1 Am. & Eng. Enc. Law (2d Ed.) p. 58, and cases cited. Subject to some exceptions which do not include, generally speaking, impossibility of performance, parties to an express contract must perform according to their agreement, or take the consequences implied by law or agreed upon. Cook v. McCabe, 53 Wis. 250, 10 N. W. 507, 40 Am. Rep. 765;Bacon v. Cobb, 45 Ill. 52;Dewey v. School Dist., 43 Mich. 480, 5 N. W. 646, 38 Am. Rep. 206; Doster v. Brown, 25 Ga. 24, 71 Am. Dec. 153; Ames v. Belden, 17 Barb. 515;Randall v. Johnson, 59 Miss. 317, 42 Am. Rep. 365;Superintendent v. Bennett, 27 N. J. Law, 513, 72 Am. Dec. 373. It will not do in a case like this to ground a decision on the doctrine that language will not be so construed as to effect a forfeiture if that can be avoided, without going further and showing that it can be avoided by ascribing some meaning to the words involved which is within the reasonable scope thereof under the circumstances, or by a legitimate application of some rule of law. It will not do to ground a decision on the rule that courts will not decree or permit or enforce a forfeiture if that can be avoided, without satisfying the last element of the proposition by some recognized principle of law. Courts can only enforce lawful contracts according to the contractual intent of the parties thereto so far as the same can be found expressed in their language taken in its literal sense or viewed in the light of established legal principles,...