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

• Citation: 135 Wis. 259,115 N.W. 869
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 31 March 1908
• Parties: FRENCH v. FIDELITY & CASUALTY CO. OF NEW YORK.

135 Wis. 259

115 N.W. 869

FRENCH

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Court of Wisconsin.

March 31, 1908.

Appeal from Circuit Court, Portage County; Charles M. Webb, Judge.

Action by Eliza J. French against the Fidelity & Casualty Company of New York. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

This is an action brought to recover $5,000 on an accident insurance policy for the death of George G. French, the insured, by Eliza J. French, his sister, the beneficiary. The insured, who was a passenger conductor, accidentally struck the lower part of his right leg on a small iron safe in the baggage car January 13, 1905, causing an abrasion of the skin. Septic poison set in, and he died January 28, 1905, as a result of the injury. The policy, which is attached to the complaint as a part thereof, was issued by the defendant September 30, 1904, and, upon the consideration therein stated, insured George G. French for one year “against bodily injuries sustained through external, violent and accidental means,” and stipulated that, “if death shall result from such injuries within ninety days, independently of all other causes, the company will pay the principal sum of five thousand dollars.” There were other provisions with respect to disabilities and to the payment of indemnity. The policy required immediate written notice to be given to the company at New York or Chicago of any accident and injury for which a claim was to be made, and affirmative proof of death to be furnished to the company within two months thereafter; and provided that legal proceedings to recover thereunder should not be brought before the expiry of three months from date of filing proofs at the company's home office, nor brought at all unless begun within six months from the time of death. The policy was issued in consideration of the payment of the premium, and of the statements of the schedule therein contained, “which statements the assured makes on the acceptance of this policy and warrants to be true.” The “schedule of warranties,” purporting to be made by the insured, began at the top of the third page after the signatures of the officers and the agent of the company to the policy, and was not signed by the insured or by the company. There were 17 separate statements, numbered alphabetically, from A to T. Those from A to L stated the age and personal characteristics of the insured, his occupation and wages, the amount of the premium, and the name and address of the beneficiary. The other statements, from M to P, were not answered, but after each, except O, which was left blank, there was a V-shaped check mark in the middle of a blank line. Statement P, which was one of those challenged, will indicate the form of the others. It is as follows: “P. I have never had fits or disorders of the brain, or any bodily or mental infirmity, except as herein stated”--followed by a blank line in which a check mark was placed. After the death of the insured on January 28th notice by telegram was given the company January 31st, and particulars by letter were forwarded the next day. A formal statement on a printed blank furnished by the company was forwarded and received at the Chicago office February 1, and at the New York office March 8, 1905. On April 19, 1905, Eliza J. French, the beneficiary, filled out a further proof of death at Cornwall, Canada, presumably upon a blank furnished her by the company, which was forwarded to the home office. In the meantime, and on February 8th, an autopsy had been held at the instance of the defendant to ascertain the cause of the death of the insured. On June 5, 1905, the defendant notified the beneficiary that it had decided to reject the claim. Thereafter, and on July 18, 1905, this action was commenced.

The complaint is in the usual form, and the policy, containing the schedule of warranties, is attached as a part thereof. The answer admits the issue of the policy, the death of the insured, and the demand and refusal of payment. It denies that the insured sustained any bodily injury through external, violent, and accidental means, and denies other averments of the complaint not specifically admitted. It alleges that affirmative proof of death was not forwarded within two months thereafter, as required by the policy, and that the action was brought before the expiration of three months from the date of filing proofs at the company's home office. It then refers to the warranties contained in the schedule, and alleges the falsity of statements P and Q, and avers that the insured at the time of the acceptance of the policy was and for a long time theretofore had been suffering from chronic asthma and bronchitis. Statement P has already been referred to. Statement Q was treated as a warranty that the defendant was in sound condition physically when the policy was issued. Upon the trial Dr. Lathrop, who was called as a witness by the plaintiff, testified on cross-examination, without objection, that he attended the insured the winter before the policy was issued as his physician when he was laid up with bronchitis; that he had the old-man chronic bronchitis; that he promptly recovered from the acute condition; and that he did not have any bronchitis during the summer. “I did not doubt but what he had a little old chronic bronchitis, as all old men have, but nothing that called for any attention.” Mrs. Sinclair, at whose house the insured had lodged 20 months before his death, testified that his general health was good; that he had a hard cold the winter before, from which he had recovered; that she had not known that it was bronchitis that he had. The brakeman who served on the train with the insured the year before his death testified that he was a strong, robust man, and that his health was excellent up to the time of his injury. Upon the close of plaintiff's testimony, at defendant's request, the court granted a nonsuit, upon the ground that the policy was avoided by the falsity of the statements with respect to the physical soundness and condition of the insured “as to the deceased having had bronchitis at some time in his life.” Thereupon judgment was entered in favor of the defendant, from which this appeal is taken.

W. M. Bowe and J. A. Anderson (George B. Nelson, of counsel), for appellant.

Bundy & Wilcox, for respondent.

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

The first question presented for determination relates to the alleged warranties found in statements P and Q, referred to in the statement of facts. Respondent claims that a breach of warranty S is sufficiently alleged in the answer; but we do not so construe the pleading. S embodies the statement that the insured had not had, and did not have, bronchitis. The answer sets out warranties P and Q, and alleges that the same are false, in that the insured at the time of the acceptance of the policy, and for a long time prior thereto, had been suffering from chronic asthma and bronchitis. The rule is well settled in this state that, in an action upon an insurance policy, a breach of warranty is not available as a defense unless expressly pleaded. Goldman v. Fidelity & Deposit Company, 125 Wis. 390, 104 N. W. 80. The proof admitted with respect to the ailments mentioned was competent in support of the breaches alleged, and could not therefore be considered as raising a new and distinct issue. A policy of insurance should be construed the same as any other contract in order to ascertain the intention of the parties from the language employed. Merrill v. Travelers' Ins. Co., 91 Wis. 329, 64 N. W. 1039. All provisions, conditions, or exceptions which in any way tend to work a forfeiture should be construed most strongly against the party preparing the contract, and for whose benefit they are inserted. Appleton Iron Co. v. British-American Assurance Co., 46 Wis. 23, 1 N. W. 9, 50 N. W. 1100;Weidner v. Standard L. & A. Ins. Co., 130 Wis. 10, 110 N. W. 246. Any provision or exception which is uncertain or ambiguous in its meaning or is capable of two interpretations should receive that construction most favorable to the insured. Cook v. Benefit League of Minn., 76 Minn. 282, 79 N. W. 320;Travelers' Ins. Co. v. Murray, 16 Colo. 296, 26 Pac. 774, 25 Am. St. Rep. 267. These familiar rules of construction will serve as a general guide for the consideration of the construction of the provisions here in question. The statements in this policy with respect to the physical condition of the insured are declared to be warranties, and if they have been answered, and the answers are false, then there can be no recovery. McGowan v. Sup. Ct. of Independent Foresters, 107 Wis. 462, 83 N. W. 775. Whether or not the answers are false is a question for the jury, if there is any conflict in the evidence. Are the statements here challenged to be construed as having been answered by the insertion of a check mark in the blank space where an exception should have been inserted, if any was to be made? Or is it reasonable to infer that the check mark in the blank space was understood by the insured as a waiver of any response to the statement? It is to be noted that the policy contains no warranty that the statements are fully and truly answered, a provision not infrequently found in such contracts. The statements having been prepared by the insurer for its own protection and the spaces check-marked apparently by its own agent, the paper must be construed in the most favorable light permissible for the benefit of the plaintiff. If the statement was in the form of a question and not answered, or if the answer was ambiguous, then the question itself would be treated as having been waived. First Nat. Bank v. Hartford Ins. Co., 95 U. S. 678, 24 L. Ed. 563;Daniels v. Hudson River Fire Ins. Co., 12 Cush. (Mass.) 416, 59 Am. Dec. 192;Phœnix Ins. Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644. In the case...