Merrill v. Travelers' Ins. Co. of Hartford, Conn.

• Decision Date: 08 November 1895
• Citation: 64 N.W. 1039,91 Wis. 329
• Parties: MERRILL v. TRAVELERS' INS. CO. OF HARTFORD, CONN.
• Court: Wisconsin Supreme Court

91 Wis. 329

64 N.W. 1039

MERRILL

v.TRAVELERS' INS. CO. OF HARTFORD, CONN.

Supreme Court of Wisconsin.

Nov. 8, 1895.

Appeal from superior court, Douglas county; Charles V. Bardeen, Judge.

Action by Frederick A. Merrill, by his guardian ad litem, against the Travelers' Insurance Company of Hartford, Conn., on an accident policy. From a judgment for defendant, plaintiff appeals. Affirmed.

This action was upon two certain policies of accident insurance of $650 each, issued by the defendant to the plaintiff, the material provisions of which are identical. It is alleged that the defendant insured the plaintiff, by occupation a railroad superintendent, October 21, 1890, for the term of 12 months from noon on that day, “in the sum of twenty-five dollars per week against loss of time not exceeding twenty-six consecutive weeks, resulting from bodily injury effected during the term of said insurance, through external, violent, and accidental means, which should, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his said occupation”; and it was alleged that this insurance was renewed and continued in force October 21, 1891, until October 21, 1892, when it was again renewed until October 21, 1893, and it was then renewed until October 21, 1894. It was alleged that, in consideration of the premiums paid by the plaintiff to it, the defendant would pay to the plaintiff the sum of $25 per week for each week, not exceeding 26 consecutive weeks, during which said plaintiff was immediately and wholly disabled from transacting any and every kind of business pertaining to his occupation, as in the contract stated, by means of bodily injury through external, violent, and accidental means, independent of all other causes; and that August 18, 1893, during the continuance of the said policy, the plaintiff met with an accident from which he received bodily injuries, through external, violent, and accidental means; that while walking on the marble floor of the office building of the Great Northern Railway Company the plaintiff accidentally slipped, and fell upon such floor, striking heavily on the same upon his hip and back, whereby his spinal column came violently in contact with the floor, and by reason thereof, and independently of all other causes, he was bruised, wounded, and crippled, and was thereby immediately and wholly disabled from transacting any and every kind of business pertaining to his said occupation; that at said time he was advised and informed that he would speedily recover from such injuries, and would not be wholly disabled from attending to his said work, or disabled for such a length of time as to render it beneficial or practicable to ask indemnity therefor from the defendant; that thereafter, and until October 20, 1893, he was not wholly disabled from performing his work, but able to be up and around, and attend to it a part of the time; that on the day last mentioned he suffered a stroke of paralysis which completely paralyzed the whole right side of his body, including the spinal cord, medulla oblongata, and brain, causing partial mental unconsciousness and total loss of muscular power in all the parts affected; that such paralysis, and effects thereof, were caused solely by the said accident of August 18, 1893, and independent of all other causes, and that from October 20, 1893, and during a period of 38 consecutive weeks, he was and had been immediately, wholly, and continuously disabled from performing any and every kind of business pertaining to his said occupation, and had been continuously confined to his bed. It was provided in the contract that “immediate notice, with full particulars, with full name and address of insured, should be given to the defendant at Hartford of any accident or injury for which claim was made,” and that such notice was given November 6, 1893, and matters in excuse of delay to furnish an earlier statement were set forth, and proofs of loss were furnished November 20, 1893. The defendant put in an answer contesting the claim, and at the trial the defendant objected to the introduction of any evidence upon the part of the plaintiff, on the ground that the plaintiff's complaint did not state facts sufficient to constitute a cause of action. The court sustained the objection, and gave judgment dismissing the complaint, with costs, from which the plaintiff appealed.Murphy & Remington, for appellant.

Knowles, Dickinson, Buchanan, Graham & Wilson, for respondent.

PINNEY, J. (after stating the facts).

The vital question for...