Pagel v. U.S. Cas. Co.

• Decision Date: 06 October 1914
• Parties: PAGEL v. UNITED STATES CASUALTY CO.
• Court: Wisconsin Supreme Court

158 Wis. 278

148 N.W. 878

PAGEL

v.UNITED STATES CASUALTY CO.

Supreme Court of Wisconsin.

Oct. 6, 1914.

Appeal from Circuit Court, Marathon County; Wm. B. Quinlan, Judge.

Action by Johanna K. Pagel against the United States Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Marshall, J., dissenting.

This is an action upon an accident indemnity policy to recover the death benefit provided in a policy issued to Arthur A. Pagel, deceased, payable to Johanna K. Pagel, mother of said Arthur A. Pagel, the beneficiary named in said policy.

The answer admits the issuance of the policy, but sets up a breach of warranty in the application alleged to be part of the policy; that the weekly wages of the insured were in excess of the weekly indemnity provided in said policy, whereby the policy was avoided and made of no effect; also that the policy was without force by its terms because the injury, which resulted in the death of the insured, was not accidental, but intentional and self-inflicted; also that, before the commencement of the action, defendant offered to return the premium paid, which offer was not accepted, and had, since the action was commenced, made a tender of the premium and interest, which was refused.

The jury found that the wound which caused the death of said Arthur A. Pagel was not self-inflicted with the intention on his part of taking his life. Motions were made to change the answer of the jury to the question submitted, for judgment for defendant, and also for a new trial, which motions were overruled and judgment ordered for plaintiff on the verdict. Judgment was entered accordingly, from which this appeal was taken.Brown, Pradt & Genrich, of Wausau, for appellant.

Kreutzer, Bird, Rosenberry & Okoneski, of Wausau, for respondent.

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

The policy in suit was executed on the 1st day of May, 1912, to the deceased, Arthur A. Pagel, son of the plaintiff, for one year, and provided a death benefit of $3,750, payable to the plaintiff. The insured, Arthur A. Pagel, was 20 years of age March 12, 1912, and was on August 19, 1912, the time of his death, living with plaintiff. Sunday afternoon, August 18, 1912, the deceased complained of not feeling well, and consulted a physician. Monday morning following, he told his mother he was not feeling well, whereupon she advised him to remain in bed and not go to work. He ate some breakfast, and remained about the house during the morning, went with his sister into the garden during the forenoon to pick corn for the noon meal, and later his sister informed him that a friend, who had borrowed one of his guns, had returned it, and suggested whether he had looked at the gun since its return to ascertain whether it was clean. Arthur then went upstairs where his guns, of which he had several, were kept. After he had been upstairs, where his guns were, for some little time, his sister heard a noise, and informed her mother of the fact, and her mother went up to the apartment and discovered Arthur lying on the floor with a bullet wound back of his left temple, unconscious, and an automatic revolver lying five or six inches distant from his hand. He never regained consciousness, and died from the effect of the wound.

The policy contained the following provision:

“Provision D. * * * This policy does not extend to nor cover any * * * loss resulting from any means or act which, if used or done by the insured while in possession of all mental faculties, would be deemed intentional or self-inflicted. * * *”

The application contains the following:

“(k) My weekly earnings from the occupation stated above are in excess of the weekly indemnity named in all the accident and health and sickness and benefit polices and certificates carried and applied for by me, except as follows: No exceptions.

(1) I have no accident or health or sickness or benefit insurance, and I have no application for accident or health or benefit or life insurance pending, except as follows: No exceptions. * * *

(v) I agree that this insurance shall not take effect until this application is accepted by the company at its home office in the city of New York and policy issued.”

[1][2] 1. It is insisted by appellant that the policy was void because of false warranty in the application respecting the weekly earnings of the deceased, Arthur A. Pagel. It is undisputed that such weekly earnings were, at the time application was made, only $8 per week. Whether there was false representation turns on whether deceased represented that his weekly earnings were more than $8. It is argued that under provision “k” in the application, above quoted, he did so falsely represent. We do not think the contention is tenable. We think it clear, upon the undisputed evidence, that no breach of the provision “k” was established.

While contracts of insurance should be construed as other contracts with a view of arriving at the intention of the parties from the language used, still all provisions, conditions or exceptions which tend to work a forfeiture should be construed most strongly against the party preparing the contract, and for whose benefit they were inserted. French v. Fidelity & S. Co., 135 Wis. 259, 115 N. W. 869, 17 L. R. A. (N. S.) 1011;United A. F. Ins. Co. v. American B. Co., 146 Wis. 573, 131 N. W. 994, 40 L. R. A. (N. S.) 661.

It is quite clear that the provision “k” was intended to refer to all other accident, health, sickness, and benefit policies and certificates, but was not intended to include the application for the instant policy, and that the deceased did not intend to represent that his weekly earnings were in excess of the indemnity stated in the policy then applied for. The answer following “k” tends to show that the applicant did not intend to include the instant application and policy in his answer, because he answered under “l” that he had no insurance and no application pending. This answer plainly shows and must have so informed the agent of defendant, who took the application that deceased did not include the pending application in his answer.

The testimony of the agent as to...