Kentzler v. American Mutual Accident Ass'n of Oshkosh, 88 Wis. 589

Kentzler v. American Mutual Accident Ass'n of Oshkosh

88 Wis. 589 | Wis. | 1894

Cassoday, J.

It may be fairly inferred from the circumstances attending the disappearance of Mr. Kentzler on the evening of November 9, 1892, and the finding of his body .in the water of the bay, April 19, 1893, as mentioned in the foregoing statement, that as he went from the hotel to the tug for the purpose of retiring, and while in the act of ■stepping from the scow to the tug, he accidentally fell between the two into the water below, and was drowned. He was at the time about forty-six years of of age, in good health, and apparently sober, although he had taken a drink of whisky while at the hotel, and it is said that he was in the habit occasionally of having a “ spree.” By the express terms of the contract, it did “ not cover disappearances.” This being so, it is very manifest that had notice of his dis*594appearance been given to the defendant’s secretary November 10, 1892, and proofs of the circumstances under which he disappeared, with the suggestion that he had probably been drowned in the bay, been made out and sworn to and delivered to the secretary five months after Kentzler’s disappearance, yet the defendant in all probability would have answered, in the language of the contract: “ This insurance does not cover disappearances,” and hence you have no claim against the association. Such was the contract,— that the defendant was subject to no liability “unless positive proof of death ” was made within the time and in the manner prescribed in the certificate. But it was utterly impossible to make such proof or give such notice until the body was discovered and identified, April 19, 1893. That was nearly six months after Kentzler had, in all probability, lost his life. Up to the time of such discovery and identification, the beneficiary was in no default, and under no obligations to give such notice or furnish such proofs. But the contract expressly required notice to be given,. “ with full particulars of the accident and injury, immediately after the accident occurs.” It also expressly required that “ proof of death, in Him manner and Ume, shall be verified by the attending physician o.r some other person having personal knowledge of the fact; and unless positive proof of death . . . shall be furnished to the association within six months of the date of the accident, then all claims thereon shall be forfeited?

A contract should not be construed so as to forfeit or render nugatory the rights of one of the parties to it, unless the language employed imperatively requires such construction. In other words, an interpretation which gives effect is preferred to one which makes void. Besides, a contract should be interpreted in view of the conditións necessarily implied by law. It is a maxim in the law that “ all words, whether they be in deeds, or statutes, or other*595wise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and person.” Webster v. Morris, 66 Wis. 395; Lessee of Brewer v. Blougher, 14 Pet. 198. When the ordinary meaning of the words employed leads to a manifest absurdity or repugnance, they may, if the instrument as a whole will permit it, be varied or modified so as to avoid such inconvenience, but no further. Becke v. Smith, 2 Mees. & W. 195; Turner v. S. & R. R. Co. 10 Mees. & W. 434. In the case at bar the contract must have a reasonable construction, and in view of the conditions so implied by law.

What is the object of giving such notice of the accident, injury, or death? In case of an injury or disability not resulting in death, such notice affords the association an opportunity to ascertain the exact condition of the person and apply the most effectual remedy. But in case of death there can be no remedy, and the only object of the notice is to secure evidence óf identity. What is meant by giving notice “immediately after the accident occurs” ? Does it mean, in the language of Webster: “ In an immediate manner; without intervention of anything; . , . without interval of time; without delay; instantly ” ? If the contract is to be thus, literally construed, compliance by the beneficiary would seldom be possible. But courts, looking at the substance of contracts and statutes, have, during the last two centuries, repeatedly declared that: “ The word ‘ immediately,’ although in strictness it excludes all mean times, yet, to make good the deeds and intents of parties, it shall be construed such convenient time as is reasonably requisite for doing the thing.”. 9 Am. & Eng. Ency. of Law, 931, citing numerous English and American cases in support of the proposition. The same language is quoted approvingly by Eyan, O. J., speaking for the whole court, in construing the words “immediate delivery,” as used in sec. 2310, R. S., in Richardson v. End, 43 Wis. 318. *596Stevens v. Breen, 75 Wis. 599. Applying this rule to the case at bar, the word “immediately ” must be construed to mean such convenient time as was reasonably requisite for doing the thing required. That is to say, upon the discovery of the death notice thereof was to be given in such convenient time as was reasonably requisite for doing so under the circumstances mentioned; and the proofs were to be furnished within the six months specified after such discovery. Besides, it is a maxim that the law does not require impossibilities. Thus, in the language of Henhen, J., “ where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract'was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which after-wards happens.” Baily v. De Crespigny, L. R. 4 Q. B. Cas. 185. To the same effect, Taylor v. Caldwell, 3 Best & S. 826; Howell v. Coupland, L. R. 9 Q. B. Cas. 462; S. C. on appeal, 1 Q. B. Div. 258; Insurance Cos. v. Boykin, 12 Wall. 433.

In the light of reason as well as the authorities, we must hold that the action was not barred by the stipulation in the contract.

By the Court.— The judgment of the circuit court is affirmed.