100 Wis. 378 | Wis. | 1898
The following opinion was filed June 23, 1898:
It appears from the record that during the times mentioned the plaintiff was engaged in the manufacture of veneering, and operating its veneer factory, in Wausau; that March 26, 1895, the defendant, for a valuable consideration, made, executed, and delivered to the plaintiff its policy of insurance, wherein and whereby the defendant insured the plaintiff from March 26, 1895, to March 26, 1896, against any and all liability of the plaintiff for damages, not exceeding the sum of §5,000, on account of any injuries sustained by any employee of the plaintiff, resulting from any accident which might befall such employee while actively engaged in the service of the plaintiff in connection with said business. Attached to such policy, and as a part thereof, was a rider to the effect that such insurance was against all liability of the assured for damages, not exceeding the sum stated, on account of fatal or nonfatal injuries sustained by any employee or employees of the assured resulting from any accident or accidents which might befall any of the employees while actively engaged in the service of the assured in connection with the establishment mentioned; that the company’s liability for an accident resulting in injuries to, or the death of, any one employee, was limited to §5,000,
It further appears from the record that August 24, 1895, one George A. Bishop, while in the employ of the plaintiff, was severely scalded, burned, and injured, so that he was unable to perform any manual labor; that May 23, 1896, Bishop, for the first time, made claim for damages from the plaintiff on account of the occurrence of such accident; and also, for the first time, the plaintiff notified the defendant that Bishop had made such claim for damages; that June 8,1896, the plaintiff further notified the defendant, on its blanks, of such occurrence of the accident, and of such claim having been made for damages; that September 7, 1896, Bishop sued the plaintiff, and the plaintiff on the next day tendered the defense to the defendant; that the defendant declined and refused to defend the action, and denied all liability; that January 28, 1897, Bishop recovered judgment against the plaintiff for $1,078.10 damages and costs; that January 29, 1897, the plaintiff notified the defendant of the rendition of such judgment, and that its expenses in defending the ac
On March 21, 1897, the plaintiff commenced this action to collect the amount stated, and alleged in its complaint, in effect, the facts stated. Issue being joined, the action was tried, and the court found, in effect, the facts stated, and rendered judgment thereon in favor of the plaintiff and against the' defendant for $1,405.61, with interest. From the judgment so entered the defendant brings this appeal.
After careful consideration, we are constrained to hold that the conditions indorsed upon the policy, and quoted above, were conditions precedent. The policy expressly states that it was “subject to the agreements and conditions indorsed ” thereon. Such conditions expressly required the plaintiff, “upon the occurrence of an accident,” to “give immediate notice in writing of such accident,” etc. The reason for requiring such notice is obvious. It was to enable the defendant to investigate the facts and circumstances of the accident while they were fresh in mind, with the view of settling the loss in case it should be so advised, and, in case of a contest, to be prepared to defend the same as stipulated in the policy. Accordingly the plaintiff was thereby expressly precluded from settling any claim or incurring any expense, without the consent of the defendant, except in case of absolute necessity. These things made it important for the defendant to be notified immediately, not only of the occurrence of the accident, but “ also ” that a claim for damages had been made by the injured person on account of the accident. The words “ and also,” in the conditions quoted, pretty clearly indicate that such notice of “ the occurrence of the accident ” was to be followed by a further or additional notice of any claim made for damages, and each such notice was to be given immediately as therein required. In the two cases relied upon by counsel for the plaintiff, the condition did not contain the word “ also,” and in that re
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.
Upon a motion for a rehearing counsel for the respondent contended, inter alia, that even though notice of the occurrence of the accident was a condition precedent, it will not prevent the plaintiff from maintaining this action, in the absence of any provision in the policy that such a result shall follow such failure. Vangindertaelen v. Phenix Ins. Co. 82 Wis. 112; Flatley v. Phenix Ins. Co. 95 id. 618; Blakeley v. Phœnix Ins. Co. 20 id. 205; Harriman v. Queen Ins. Co. 49 id. 71, 81; Engebretson v. Hekla F. Ins. Co. 58 id. 301; Bank of River Falls v. German Am. Ins. Co. 72 id. 537; Butternut Mfg. Co. v. Manufacturers' M. F. Ins. Co. 78 id. 208. Forfeitures will not be enforced except upon the clearest evidence that such is the meaning of the contract.
The motion was denied September 20, 1898,