Murphey v. American Mutual Accident Ass'n

90 Wis. 206 | Wis. | 1895

Cassoday, J.

The plaintiff stated in his written application for insurance that his occupation then was that of a carpenter and millwright, that the duties required of him were framing and building, and that he received four dollars per day as wages. The contract of insurance was conditioned upon the truthfulness of such statements. The third finding of the jury to the effect that at the time of making the application for the insurance the plaintiff was a carpenter must be regarded as a finding that he was not at that time a millwright, since the question submitted was whether he was then “ a carpenter and millwright.” There is no evidence that he was a millwright. The nearest approach to any evidence that he was a carpenter at the time of making the application is his own testimony to the effect that he was then “ cutting cordwood,” and that in March, 1891, he was “framing timbers, — framing sets and caps.” He was flatly impeached by several of his neighbors, and one of them, a merchant living opposite to him, testified that the plaintiff was “ not a carpenter and millwright.” That testimony was not contradicted by any witness. The plaintiff was thereafter on the stand in rebuttal, but made no reference to his occupation. We must hold that such finding that he was a carpenter is contrary to the undisputed evidence. The plaintiff’s occupation was very material to the risk, and such false representation in regard to it operated, under the provisions of the contract mentioned in the foregoing statement, as a forfeiture of any such claims for indemnity.

"While the jury sustained the claim for indemnity for loss of time by reason of the alleged burned hand, yet they expressly found that such claim by reason of the alleged sprained ankle was without any merit. There is much evidence in the case tending to prove that the same was true in respect to the hand.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.