Berry v. Merchants Life & Casualty Co.

181 Wis. 487 | Wis. | 1923

Rosenberry, J.

We are not called upon in this case to deal with a situation resembling that presented by the facts in Arneberg v. Continental Cas. Co. 178 Wis. 428, 190 N. W. 97. While the insured was incorrectly classified to the knowledge of the agent who wrote the policy, he was not at the time of his death engaged in a class of work which entitled him to the benefits of the classification given him by the agent. In this case there was an entire change of occupation and it is not shown that the agent, at the time of the writing of the insurance, had any knowledge or information touching the change. Under the repeated decisions of the court, therefore, the defendant- is liable to the plaintiff for no more than the amount it would be liable for if the occupation of the deceased had been described as a logger or worker in the woods, and it is conceded that its liability in that event would be $100; provided, however, that the provision of the policy reducing the amount of the loss by change of occupation was available to it under the law.

Sub. 2, sec. 1960, Stats., is as follows:

“No such policy shall be issued or delivered . . . (6) unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply, provided, however, that any portion of such policy which purports, by reason of the circumstances under which a loss is incurred, to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances, shall be printed in bold-face type and with greater prominence than any other portion of the text of the policy.”

The policy in this case was printed in the fisual form; the name of the company appeared at the top of the first page in very large type; throughout the policy there were marginal notations, titles, and subheads. Those provisions of the policy upon which the defendant relied were printed in bold-face type, but it is claimed by the plaintiff that although printed in'bold-face type they were not printed with “greater prominence” than any other portion of the text of the policy.

It should be borne in mind that under the ruling in Lundberg v. Interstate B. M. Acc. Asso. 162 Wis. 474, 156 N. W. 482, it must be presumed under the circumstances, the defendant having a license to transact business in this state, that its policy form had been approved by the insurance commissioner. This is not a case where, as was said in Williams v. Travelers Ins. Co. 168 Wis. 456, 169 N. W. 609, 959, “There is no question of fact to be determined but simply a plain violation of the command of the statute.” The insurance commissioner apparently interpreted the word “text” as having its ordinary meaning or signification, which is as defined in Webster’s International Dictionary:

“The main body of matter on a printed or written page, as distinguished from notes, etc.; the letterpress, as distinguished from illustrations and the margins.”

Reference to the text of a document is not ordinarily intended to refer either to its titles, subtitles, headings, or marginal notes. Certainly it cannot be said that, the provision in question having been printed in bold-face type, the plain command of the statute was violated. The contention of the plaintiff would require that the provision limiting or diminishing the liability of the insurer should be printed in larger type than any other portion of the policy, including its titles, subtitles, and headings. The construction given by the insurance commissioner is certainly a permissible one and under the Lundberg Case is conclusive. The plaintiff is entitled to recover no more than the amount specified in Class X, being the indemnity due for death of a person engaged as a loggerJor worker or laborer in the woods.

By the Court. — Judgment reversed, with directions to enter judgment- in accordance with this opinion.