162 Wis. 474 | Wis. | 1916
Appellant argues that the court err.ed (1) in refusing to receive expert evidence tending to show that the eye-witness provision of .the policy in question was not printed in bold-face type; (2) in holding that such provision was printed in bold-face type and with greater prominence than any other portion^of the text of the policy; (3) in holding that the eye-witness clause was not contrary to public policy; and (4) in holding that the plaintiff’s evidence was insufficient to meet the requirements of this clause. In order to get our true bearings in the case it is necessary to refer to a number of statutory provisions that were in force when the policy was issued.
Sub. 1 of sec. 1960, Stats. 1913, reads:
“On and after the first day of January, 1914, no policy of insurance against loss or damage, from the sickness, or the bodily injury or death of the insured by accident shall be issued or delivered to any person in this state until a copy of the form thereof and of the classification of risks and the premium rates pertaining thereto have been filed with the commissioner of insurance; nor shall it be so- issued or deliv-•erod until the expiration of thirty days after it has been so filed unless the said commissioner shall sooner give his written approval thereto. If the said commissioner shall notify, in writing, the company, corporation, association, society or other insurer which has filed such form that it does not comply with the requirements of law, specifying the reasons for his opinion, it shall be unlawful thereafter for any such insurer to issue any policy in such form.”
“unless the exceptions of the policy he 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.”
This subsection also provides for the style of type that must he used in printing certain portions of a policy. Sub. 3 contains a list of provisions which must be incorporated in an accident policy.
Sub. 14 of said sec. 1960 (p. 1486, Stats. 1913) provides:
“Any policy covered by this act, the form of which has received the approval of the commissioner of insurance may be issued or delivered in this state on and after the first day of October, 1913.”
Sub. 13 of the same section provides:
“Any company, corporation, association, society or other insurer or any officer or agent thereof, which or who issues or delivers to any person in this state any policy in wilful violation of the provisions of this act shall be punished by a fine of not more than one hundred dollars for each offense, and the commissioner of insurance may revoke the license of, any company, corporation, association, society or other insurer of another state or country, or of the agent thereof, which or who wilfully violates any provision of this act.”
Suh. 9 of said sec. 1960 (p. 1486, Stats. 1913) reads:
“A policy issued in violation of this act shall he held valid but shall be construed as provided in this act and when any provision in such policy is in conflict with any provision of this act the rights, duties and obligations of the insurer, the policy-holder and the beneficiary shall he governed by the provisions of this act.”
It was stipulated in the case that prior to the issuance of the policy sued on the defendant had been duly authorized to-transact its appropriate business in Wisconsin. This was-equivalent to stipulating that the defendant had filed its policy form with the commissioner and that it had been approved by that officer. It is not to be assumed or presumed, 'in the absence of proof, that a license would have been issued to the defendant if it had failed to comply -with this important provision of law.
Of course there is the very remote possibility that the defendant, after filing a satisfactory form of policy, proceeded to violate the law by issuing policies in a different form. The stipulation is incomplete, in that it fails to cover this contingency. The real question was whether the form of the policy in suit was a facsimile of the one that had been approved.. An affirmative answer to this question would end the attack made on its form. But the plaintiff was entitled to show that the policy sued on was not. of the form approved by the-commissioner, or that no form had ever been submitted for approval. Whether evidence such as was offered here would, be sufficient to throw the burden on the defendant of proving’ that there-was no departure from the approved form, we do-not find it necessary to decide. The trial court held that the-policy on its face showed that it complied with the statute and refused to receive expert evidence to contradict this patent fact. This court concurs in the conclusion reached in this regard by the lower court.
It seems too plain to justify argument that on the facts stipulated the claimant failed to establish the accidental character of the injury by the testimony of “an eye-witness of all the circumstances of the casualty,” as the policy required where death resulted from a gunshot wound.
By the Court. — Judgment affirmed.