102 Wis. 546 | Wis. | 1899
Appellant’s assignments of error requiring notice, though five in number and several of them subdivided, may be properly stated as two: (1) Did the court err in granting the amendment to the complaint, alleging other causes for plaintiff’s disability than paralysis ? and (2) Is the finding of fact, on the subject of permanent disability incapacitating plaintiff from performing any manual labor, contrary to the clear preponderance of the evidence ?
The ground of objection to the amendment was that the articles of organization of 'the company barred all claims for benefits not filed in writing with the secretary of the company within sis months after maturity of the certificate other than maturity by limitation. That was also a part of the rules and regulations attached to and made a part of the insurance contract. We fail to see how that affected the question of the propriety of the amendment alleging additional facts in support of a claim seasonably filed. The filing of the claim in writing was admitted. The foundation of the claim was total disability to perform manual labor. The amendment broadened out the alleged cause of the disability. That was all. It was not a new claim, but additional facts in support of the old claim. The material thing was total incapacity to perform manual labor because of an iri curable disability. A mistake in the real cause of the disability was by no means fatal to the claim, there being nothing in the insurance contract indicat
It will be noted that in the insurance contract in this case there is no requirement except that due proof of the claim shall be filed, and no language forfeiting the right of recovery for failure to comply with the requirement as to such proof, and in fact no requirement on the subject of proof except that giving the company the right toAemand reasonable proof of the maturity of the claim, which, of course, as before indicated, required plaintiff to conform to the reasonable rules of the company by stating in good faith the true situation. So far as the evidence goes in this case, all those requirements seem to have been complied with. It does not appear that plaintiff knew anything about the real cause of his disability at the time he made his proofs, other than that he was suffering from paralysis.
It follows that, on reason and authority, the trial court correctly ruled that the additional facts in respect to plaintiff’s disability might be pleaded by way of amendment on the trial, subject to the right of defendant to call witnesses as to such facts and to a continuance for the purpose if necessary. It follows also that evidence in regard to the additional reasons for plaintiff’s disability was properly received, and that tfie facts in that regard were properly considered in determining whether plaintiff was totally disabled from performing manual labor within the meaning of the contract of insurance at the time his claim against the defendant was filed and down to the time of the trial.
On the question of whether the finding of the trial judge, as to whether plaintiff was incurably disabled from performing manual labor as alleged, is contrary to the clear preponderance of the evidence, the conclusion must be in the negative. A careful consideration of the evidence satisfies us that it
By the Court.— The judgment of the circuit court is affirmed.