Sheanon v. Pac. Mut. Life Ins. Co.

• Decision Date: 06 December 1892
• Citation: 53 N.W. 878,83 Wis. 507
• Parties: SHEANON v. PACIFIC MUT. LIFE INS. CO.
• Court: Wisconsin Supreme Court

83 Wis. 507

53 N.W. 878

SHEANON

v.PACIFIC MUT. LIFE INS. CO.

Supreme Court of Wisconsin.

Dec. 6, 1892.

Appeal from circuit court, Dane county; ROBERT G. SIEBECKER, Judge.

Action by Robert Sheanon, executor of James Sheanon, deceased, against the Pacific Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

Action upon an accident insurance policy for $3,000, issued to the plaintiff's testator, by which he was insured for the term of 12 months, to be paid, etc., after due notice and satisfactory proof (1) “that the insured, during the continuance of the policy, has sustained such violent and accidental injuries as shall be externally visible on his person, and which alone shall have caused his death within ninety days from the date of such accident, or, if this policy be issued for both death and indemnity, [as was the case,] the company will pay the insured the principal sum; (2) if he, within such ninety days, and from such accidental means, suffers the loss of the entire sight of both eyes, or the loss of two entire hands or two entire feet, or one entire hand and one entire foot, and survives said ninety days; or (3) the sum of $15 per week, not exceeding thirty consecutive weeks, for the immediate, continuous, and total loss of such business time as may result necessarily from such injuries.” One of the conditions of the policy was that, “unless affirmative proof of death, loss of sight or limb, or duration of disability be furnished within seven months, * * * all claims on the policy shall be forfeited to the company.” The complaint of the assured (the action having been commenced in his lifetime) alleged, and the proof showed, that at Burke, Idaho T., November 12, 1888, without fault or negligence on his part, a ball, shot from one of the weapons of two persons quarreling, struck a little to the right of the middle line of the spine, about the level of the lower dorsal vertebra, penetrating it, and caused him immediately to fall upon the ground, helpless and paralyzed, so that he lost the use of all the lower portion of his body, both of his limbs and both of his feet, leaving upon his body a visible and external mark of his injury, and he thereby lost both entire feet, and was thereby and thereafter permanently and forever deprived of the use of both of his feet, so that they would not ever be able in any way to perform their proper functions, or any function whatever, although neither of said limbs or said feet had been amputated. That on the 13th of November, 1888, he caused notice thereof to be given to one Davis, the agent of the defendant residing at the place where said accident occurred. That within two weeks thereafter the defendant sent one Dr. Harvey, as its physician and medical examiner, to examine the assured, which he did, and he was there fully advised of the condition and extent of the injuries which he had so suffered solely by reason of said accident. That about the 23d of December, 1888, the assured was removed from Burke to Spokane Falls, Wash. T., and he there sent notice of said injuries and of said accident to the general manager of the defendant company, living at that place, who sent another physician, who, shortly after the 23d day of December, 1888, visited the assured, and examined him carefully, and was made fully a ware of the extent of his injury and its nature, and of the manner in which the accident occurred; and he then and there well knew that the accident had caused such condition of the plaintiff's lower limbs and feet that he would not improve, and that he had suffered, by reason of said accident, the loss of both of his feet and lower limbs, permanently and forever. That he remained at the place aforesaid 30 days, and during that time demanded of the defendant the payment of the said sum of $3,000, as the sum to which he was entitled under the said policy; but that the defendant refused to pay him the said sum, solely on the ground that he had not suffered the loss of both or either of his said feet, in that they had not been amputated. That the company was fully apprised of the facts and circumstances of said injury, and refused to pay him said sum, except the sum of $450, paid him in the month of September, 1889. The complaint alleged general performance on the part of the assured of all and singular the conditions of the said policy. Upon demurrer to the complaint it was held that the assured had suffered the loss of two entire feet, within the meaning of the policy. Sheanon v. Insurance Co., 77 Wis. 618, 46 N. W. Rep. 799. The defense, in substance, was a denial of loss permanently of both the feet of the assured, or notice thereof, and a denial that proofs of such loss were furnished as required by the policy; that the assured, January 21, 1889, made and presented his claim under the policy by reason of his injury to the weekly indemnity of $15 per week for 30 weeks, amounting to $450, which the defendant paid him September 24, 1889, in full satisfaction and discharge of all losses and liabilities growing out of the injury in question, which was so received and accepted, whether the result of the injuries might be fatal or otherwise. Evidence was given to the effect that an agent of the defendant at Burke was immediately notified of the injury, and that he visited the assured, and had the physician of the company call and examine him. The case was reported to the company on the 18th of the same month by the agents at Burke. About the middle of December the assured was taken by his brother, Robert, who was with him, to Spokane Falls, to the Mercy Hospital, where he staid about a month. While there, his brother, Robert, took care of him, and, having been informed that the company had a general agent and office at Spokane, he called at the place as he had been directed, and asked the man that was there if that was the Pacific Mutual Life Insurance Company, to which he responded it was, and asked what he could do for him. The company's sign was up on the outside of the building. That he told him he had his brother in the hospital; he was shot. That he was insured in the company. That he wanted to see if it was not going to pay. That he wanted to go home. “He said he could not pay, but would write to the company. I told him he had better telegraph; writing would take too long. So he telegraphed, as I supposed.” That the only reason he had for supposing the man at Spokane Falls to be Donald Ross was that he told him all letters he sent there to address to Donald Ross, Spokane Falls. Defendant's counsel asked that the testimony concerning the interviews with this man be stricken out, but this was refused. Witnessfurther testified that he told the man in the bank he had his brother up in the hospital, and wanted him to write to the company, or dispatch to them, to see if they would settle the claim. That they afterwards heard from the company, through this gentleman, whom he thought was Donald Ross, and he told them at the hospital he had a letter from the company, and that, unless the assured died, or his limbs were taken off in 90 days, they would not pay the full amount. That he went to see him again, and this man said he would come up and see the assured, and get up a proof; and he did come, and he made out a paper of some kind, which the assured signed. That the assured did not read it, nor was it read to him. This man Ross took the paper away with him. That he asked certain questions of his brother; what doctor attended him; told Robert he had notified the company, and got a letter from them, and read the letter to Robert. That the company would not pay the assured unless his limbs were taken off within 90 days, or the accident caused his death. That Ross told them where there was a doctor; to get him, and tell him that he (Ross) sent him; and he went and saw the doctor, who came and examined him, and said the assured would not recover the use of his limbs. That neither Robert nor the assured requested that the paper in question should be gotten up. That the assured answered all the questions that were asked by the gentlemen who made it out. That their doctor's name was McLean, and he answered all questions put by the doctor. The same night this paper was made the assured and his brother started for Ridgeway, Wis. The assured was never able to walk or to use his feet any of the time until his death, which occurred July 6, 1890, and was not any better between the time he was hurt and the time he died.

It was admitted that no part of the policy had been paid except $450. It appeared that while the assured was in the hospital at Spokane Falls, January 16, 1889, the man Ross telegraphed to the company that the assured was shot November 12th, in the spine, “causing permanent paralysis of legs. Doctors say will ultimately die. Does limb clause cover permanent paralysis? Wants to return home east now. Will settle for thirty weeks.” That the secretary of the company on the same day answered: “Clause does not cover. Must have full proofs. See letter.” On the same day Ross wrote to the company, quoting his telegram to it, in which he gave the particulars of the injury, saying: “Doctor attending him says there may be three ways in which it is done, [paralysis produced:] There may be a portion of the vertebra pressing on the spinal cord, or the bullet may have lodged against it, producing paralysis, or it may have cut a portion of the cord. If it is pressure, a cure can be affected by removing the pressure; but an operation is almost sure to result fatally, so the party does not wish to undergo it, at least until he goes home. Doctor says there is a chance he may linger even for years as he is, but the chances are against him. Dr. McLean says that the muscles that control the legs are severed. My reason for telegraphing you as I did was...