170 Wis. 370 | Wis. | 1920
Lead Opinion
The following opinion was filed November 4, 1919:
Appellant contends that the court erred in rendering judgment for full indemnity for the entire period of six months, because it .appears from the verdict that the plaintiff, was not confined within the house and therein regularly and personally visited by a legally qualified physician during the six-months period. While the jury found that he was necessarily and continuously confined within his house for a period of twenty-six weeks and three days, it also found that he visited his physician at the latter’s office at Polar, Wisconsin, for twenty-three weeks and three days, and that plaintiff’s physician visited him in his house for a period of only three weeks. There is, therefore, a direct finding that the period during which the plaintiff was treated by a physician in the house existed for only three weeks, and it is contended that from the further finding that plaintiff visited his physician’s ■ office at Polar, Wisconsin, for a period of twenty-three weeks and three days it necessarily follows that during such time he was not necessarily and
“I instruct you that the phrase ‘necessarily and continuously confined within the house’ means such time as plaintiff was confined within the house, and for such time as plaintiff was disabled by reason of his sickness from departing from his house for the purpose of attending to the ordinary -affairs of life and to resume the ordinary pleasures thereof, including the times he may be assisted to the porch of his house to enjoy the benefits of fresh air and sunshine as directed by his physician.”
It is a familiar rule that in case of doubt or ambiguity the language of an insurance policy should be construed most strongly against the insurer (Patterson v. Natural Premium M. L. Ins. Co. 100 Wis. 118, 75 N. W. 980), but it is also well settled that construction cannot be resorted to unless ambiguity exists. Under the terms of the policy the insured was entitled to full indemnity only for the period during which he was necessarily and continuously confined zvithin the house and therein regularly and personally 'visited by a legally qualified physician. It would seem that the company ex industria employed language which could leave no doubt as to the period during which the insured should be entitled to full indemnity. He must not only be confined zvithin the house but .he must be therein regularly and personally treated by a physician. Treatment at the physician’s office was excluded as plainly and as definitely as it well could be. We speculate in vain for language that would more surely limit the period during which the insured was entitled to full indemnity to that period during which he was confined within the four walls of his house and regularly and personally treated by a physician therein. To our minds the language employed is not capable of a double meaning. It cannot be reasonably construed to include time around the house, about the house, or when he
The purpose of the company to thus limit its liability for full indemnity is made more plain when we consider the immediately following provision in the policy for partial indemnity. Under that provision the insured is entitled to partial indemnity “for the period not exceeding two consecutive months immediately following said confinement, during which the insured shall be regularly and personally attended by such physician, and wholly and continuously disabled and prevented from performing any and every duty pertaining to any business or-occupation.” Now the question arises, If. the period during which the insured was necessarily and continuously confined within his house and therein regularly treated by a physician does not mark the limit of time during which he was entitled to full indemnity, then, under the terms of the policy, when did the term, during which he was entitled to full indemnity, end, and when did the partial indemnity period begin? It will be noticed that in order to entitle him to either full or partial indemnity he must have been wholly and continuously disabled and prevented from performing any and every duty pertaining to any business or occupation solely by reason of such illness. That condition must be present to entitle him either to full or partial indemnity. It was also necessary, in order for him to recover either full or partial indemnity, that he be regularly and personally attended by a physician. What, then, is the feature which distinguishes the full from the partial indemnity period? Manifestly it is the continuous and necessary confinement within the house and treatment therein by a physician.
The indemnity provisions of the policy recognize two degrees of illness: one, when the insured is so ill that he is confined within his house and is therein treated by his physician; the other, when he has so far recovered that he is
The policy also contains this provision: “Written notice of injury or of sickness on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury or within ten days after the commencement of disability from such sickness.” It is claimed by the company that written notice of sickness was not given. The plaintiff testified that about the 25th
It is contended that the bare testimony of Dr. Westphal to the effect that he mailed the notice to the company at Green Bay, Wisconsin, is not sufficient proof of mailing, and that in order to constitute proof of mailing it was essential on the part of the plaintiff to specifically show that the notice was inclosed in an envelope or wrapper, addressed to the defendant, and was deposited in the postoffice with the postage thereon duly paid. This contention -is no doubt supported by much authority, but it .seems tó us that this rule is too technical to be adopted by a court as an original proposition in this day. Such a rule dignifies form rather than substance. The term “mailing” or “mailed” has a well understood meaning. If it is said to a business man, “I mailed a letter,” he assumes that the letter was inclosed in an envelope, properly addressed, deposited in the post-office with the postage duly prepaid, and he will act upon that assumption in conducting the most important business transactions. When the same expression comes from the mouth of a witness in a court of justice, why should the
Another question arises as to whether the proof shows that the notice was sufficient to advise the company of plaintiff’s sickness. The policy does not require this notice to contain any specific information. It simply states that the written notice of injury or of sickness on which claim may be based must be given to the company within twenty days after the commencement of disability from such sickness. Dr. Westphal testified that the notice was made out on blanks furnished by the company, that the blanks were filled out by him, and that he signed such notice. We hold the evidence ample to warrant the jury in finding that the notice given complied with the requirements of the policy.
Judgment was ordered and rendered for $180 with inter-, est thereon from the 29th day of January, 1918, amounting to $189.40. This included full indemnity for the full six-months period. Plaintiff should have recovered full indemnity, or $30 per month, for the period of three weeks, or seven-tenths of a month, and half indemnity, or $15 per month, for the remainder of the six-months period, or for
By the Court. — The judgment is modified by substituting $105.50 for $189.49, and as so modified is affirmed.
Rehearing
The appellant moved for a rehearing, and the following opinion was filed January 13, 1920:
Per Curiam. Upon motion for rehearing appellant’s attorney calls our attention to material provisions of the policy which were overlooked in computing the amount for which plaintiff should have judgment, The policy provides that no indemnity for sickness disability shall be paid for the first five days of illness and that partial indemnity shall be paid for a period of not exceeding two consecutive months. Therefore, plaintiff was not entitled to indemnity for the first five days of his sickness, nor was he entitled to indemnity for a longer period than t*wo months. He is therefore entitled to full indemnity for the three-weeks period less five days, and partial indemnity for the remainder of the two-months period, amounting in the whole to $47.50.
The motion for rehearing is denied. The mandate herein is modified to read: The judgment appealed from is modified by substituting $47.50 for $189.49, and as so modified is affirmed. No costs allowed on motion for rehearing.