Saveland v. Fid. & Cas. Co.

• Decision Date: 03 November 1886
• Citation: 67 Wis. 174,30 N.W. 237
• Parties: SAVELAND v. FIDELITY & CASUALTY CO.
• Court: Wisconsin Supreme Court

67 Wis. 174

30 N.W. 237

SAVELAND

v.FIDELITY & CASUALTY CO.

Supreme Court of Wisconsin.

November 3, 1886.

Appeal from county court, Milwaukee county.

March 14, 1884, the plaintiff, by occupation a merchant grocer in Milwaukee, in consideration of $15 by him paid, procured of the defendant a policy of insurance whereby it insured the plaintiff for the term of 12 months ending March 14, 1885, and issued to him its policy, wherein the defendant, among other things, agreed in effect, that “if the insured shall sustain bodily injuries, * * * effected through external, violent, and accidental means, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation, then, on satisfactory proof of such injuries, he shall be indemnified against loss of time thereby in a sum not exceeding $15 per week for such period of continuous total disability as shall immediately follow the accident and injuries aforesaid, not exceeding, however, 26 consecutive weeks from the time of the happening of said accident;” which policy was so issued to the plaintiff, “and accepted” by him, “subject to all the provisions, conditions, limitations, and exceptions” therein “contained or referred to,” among which were “that this insurance shall not extend to any bodily injury of which there shall be no external and visible sign upon the body of the insured;” that “this insurance shall not be held to extend to * * * any case of * * * personal injury, unless the claimant under this policy shall establish, by direct and positive proof, that the said * * * personal injury was caused by external violence and accidental means.” The policy contains a large number of exceptions of “bodily injuries happening directly or indirectly in consequence of” certain diseases, infirmities, actions, exposures, and employment of the assured, and numerous limitations and conditions; and among others, this: “The insured shall not be entitled to indemnity for disabling injuries beyond the amount of his ordinary wages, salary, or the money value of his time during the period of continuous total disability, not exceeding 26 weeks, as aforesaid.”

The breach alleged in the complaint in this action upon the policy was, in effect, that June 19, 1884, and while the plaintiff, in the exercise of ordinary care, was about his regular business and employment, and his earnings and time worth $100 per week, he was accidentally hit with great force upon his instep by a stick of wood thrown by some party, inflicting an outward and external mark, breaking through the flesh, and seriously injuring his foot, by reason of which he “was wholly disabled” and “unable to engage in any business” for the first week thereafter, and was, during that time, “confined to his home and under the doctor's charge;”“that afterwards, by means of great exertion, he was enabled to get to his buggy, and superintend a small part of his business, but was almost wholly disabled for the whole period of 26 weeks.” The answer alleged, in effect, that the proofs of loss from the accident, furnished by the plaintiff, stated a “total disability therefrom for four days, and no more;” that the defendant tendered to the plaintiff therefor $15, which he refused to receive, and which the defendant was still ready and willing to pay; and denied all other...