Foster v. Fid. & Cas. Co. of New York

• Decision Date: 03 May 1898
• Citation: 75 N.W. 69,99 Wis. 447
• Parties: FOSTER v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

99 Wis. 447

75 N.W. 69

FOSTER

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Court of Wisconsin.

May 3, 1898.

Appeal from circuit court, Portage county; Charles M. Webb, Judge.

Action by Mary J. Foster against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action to recover upon an accident insurance policy issued by the defendant. The policy was in the principal sum of $1,600, and was issued June 29, 1895, to one Thomas F. Foster, a car repairer by occupation, in favor of his mother, the plaintiff, Mary J. Foster, in case of his death resulting from bodily injuries sustained through external, violent, and accidental means. The policy also contained a provision for the payment of weekly indemnity to the assured himself, resulting from injuries not producing death. The clauses of the policy which are material upon this appeal are as follows: “Against bodily injuries sustained through external, violent, and accidental means, as follows: If death shall result within ninety days from such injuries, independently of all other causes, this company shall pay the principal sum of this policy to Mrs. Mary J. Foster, his mother, if surviving, or, in event of her prior death, to the legal representatives of the assured; (a) or, if the loss by actual separation at or above the wrist or ankle of both hands or both feet, or of one hand and one foot, or the irrecoverable loss of the sight of both eyes shall so result within ninety days, the company shall pay the assured the principal sum before named, which payment shall terminate the policy; (b) or if the loss by actual separation at or above the wrist or ankle of one hand or of one foot shall so result within ninety days, the company shall pay the assured one-half the principal sum before named, which payment shall terminate the policy.”“This insurance does not cover disappearances, nor war risks, nor voluntary exposure to unnecessary danger, nor injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled; nor injuries, fatal or otherwise, received while or in consequence of having been under the influence of, or affected by, nor resulting, directly or indirectly, from, intoxicants, anæsthetics, narcotics, sunstroke, freezing, vertigo, sleepwalking, fits, hernia, or any other disease or bodily infirmity.” Among the conditions to which the policy was made subject were the following: “(4) Any medical adviser of the company shall be allowed to examine the person or body of the assured in respect to any alleged injury as often as he requires. (5) Immediate written notice must be given said company at New York City of any accident and injury for which a claim is to be made, with full particulars thereof, and full name and address of the insured. Affirmative proof of death, or loss of limb or of sight, or of duration of disability must also be furnished the said company within two months from the time of death, or of loss of limb or of sight, or of the termination of disability. Legal proceedings for recovery hereunder may not be brought till three months from date of filing proof at this company's home office, nor brought at all unless begun within six months from time of the death, loss of limb or sight, or the termination of disability. Claims not brought in accordance with the provisions of this clause shall be forfeited to the company.” The insured died on the 5th of September, 1895, at Hurley, in this state, being then in the employ of the Wisconsin Central Railway Company as car repairer. The complaint alleged that he died by reason of injuries received by him by an accidental fall from a freight car at Hoyt's station, on or about August 31, 1895; and, further, that the said insured in his lifetime, and the plaintiff after his death, each fulfilled all the conditions of the policy; and that the plaintiff, on the 15th of October, 1895, and more than three months before the commencement of this action, gave the defendant notice in writing of the said injury to and death of Thomas F. Foster. The answer admitted that Foster died at Hurley, September 5, 1895, and that the defendant received from the plaintiff notice of such death on October 17, 1895, and not before, and further alleges that Foster died of disease and infirmities, and not by accident, and that no affirmative proof that his death was caused by accident has ever been furnished. At the time of the death of the insured, the plaintiff lived at Stevens Point, Wis., and was not present when her son died. His death took place at an hotel in Hurley, and apparently as a result of a severe attack of cholera morbus. There was no direct evidence that the insured had met with an accident, but bruises were found upon his back, and certain testimony was given by the physician who attended him which, it was claimed, was sufficient to entitle a jury to find that his death was caused by an accident or fall which produced the bruises. A motion for nonsuit was made at the close of the plaintiff's evidence, which was denied, and a motion to direct a verdict for the defendant at the close of the entire evidence was also denied. A verdict was returned for the plaintiff for the full amount of the policy, and a motion to set the same aside upon exceptions, and because contrary to the law and the evidence, was denied. From judgment for the plaintiff upon the verdict the defendant appeals.

Curtis & Reid, for appellant.

Cate, Sanborn, Lamoreux & Park, for respondent.

WINSLOW, J. ...