145 Wis. 450 | Wis. | 1911
There was a recovery of $480 on a policy of accident insurance whereby the appellant insured the respondent in the sum of $40 per month against nonfatal accidental injuries which solely and independently of all other causes should immediately and totally disable the insured and prevent him from attending to any of the duties pertaining to his occupation for a period of continued disability not to exceed fifty-two consecutive weeks for any one injury. Conditions incorporated into the policy by express reference were the following:
“Eraud, misstatement or concealment of any fact in the application for this insurance, or for any claim made under this policy, shall render this contract void.”
*452 “If the insured shall he injured while exposed to hazard greater than his occupation as classed by the company, its liability shall be only for such amount as is provided for the more hazardous class.”
No other conditions or forfeitures are provided. One defense was that in his application for this policy the respondent stated that he was by occupation a miller, but fraudulently misstated and concealed the fact that he owned and operated a sawmill equipped with a circular saw for cutting logs into lumber and personally operated said saw and the cutting of logs therewith, and while so doing received the injury in question. Another, that operating a circular saw was an occupation classed by the defendant as a prohibited risk and persons engaged therein were not insurable by the defendant.
The evidence was that at the time of making the application Denoyer was operating a flour mill and got his sawmill attachment at or about- or after that time. He therefore made no false representations. Eraud must be proven with some degree of certainty and cannot be inferred or presumed from ambiguous evidence. There is nothing in the policy which avoids the policy after its issue merely because the assured changed his occupation, and there is no covenant or condition therein that he shall continue in the occupation in which he was engaged at the time the policy issued. On the contrary, the policy itself recognizes the right of the assured to make some change, with the effect only of decreasing his indemnity.
There is a clear recognition of the liability of the company to respond in damages for loss of time resulting from injuries sustained by the assured while acting outside of the given occupation. The appellant meets this by saying that the occupation of operating a circular saw was not merely one of greater hazard but an entirely prohibited risk. This defense is unavailable, because this covenant or condition does not appear in the application, policy, or any other paper to have
In order to reduce this recovery the defendant must show by some stipulation or agreement that plaintiff was entitled to a less sum than that awarded by the jury. The evidence is silent on this subject.
By the Court. — Judgment affirmed.
