170 Wis. 600 | Wis. | 1920
It is the contention of the defendant upon this appeal, first, that the insured was a demonstrator at the time of the making of the change-of-occupation rider, and also continuously up to and at the time of his death; second, the statement of occupation of the insured was a warranty, and under the law of Illinois a breach of it voids the contract; third, the insured failed to properly state and fully disclose his occupation to the insurance company; fourth, where a policy is obtained through the insufficient disclosure of his occupation on the part of the insured, the insurance company is not estopped from questioning its validity; fifth, the insured should have been classified as a class 3 risk, either as (a) “Automobile dealer demonstrating,” or (b) “Salesman traveling, selling or oper
The main controversy in this case turns upon whether or not the insured made a full and fair disclosure to the agents, of the defendant company on June 28, 1916, at the time the change-of-occupation rider was prepared and signed. It is claimed by the defendant that the insured fraudulently concealed and misrepresented the facts material to the risk regarding his occupation and duties as an employee of the Cutler-Hammer Manufacturing Company. ’ Upon this the trial court found:
“(8) That subsequent to entering into said employment and on the 28th day of June, 1916, the said Charles Walter Warren, at the office which the defendant maintained in the city of Chicago, conferred with W. F. Lockwood, who was an agent and representative of the defendant and employed at its said office, and said H. V. Burrows; that on said occasion said Charles Walter Warren stated to said W. F. Lockwood and H. 'V. Burrows that he was employed as assistant to the president of the Cutler-Hammer Manufacturing Company, and-that he. was engaged in selling or exploiting a new electric gear shift manufactured by his employer; that he was in the office when in Milwaukee, and the rest of the time he was traveling; that he was trying to interest the large automobile manufacturers in the device; to get contracts with them to equip their cars; that he was given a car by his employer for his own personal use, which was equipped with the device, and that he used the car in driving around to visit automobile manufacturers; that if their engineers desired, they could take the car apart and do whatever they wanted to do with it; that said W. F. Lockwood then stated that he would prepare an indorsement*604 reading ‘Office duties and traveling/ and that thereupon said Charles Walter Warren said, ‘Well, I will have to leave it to your judgment. .You are insurance men. I do not know anything about insurance matters . . . and whatever you say I ought to sign, after explaining my business, I will sign.’ That at said time and place W. F. Lockwood, in the presence of said H. V. Burrows and with his knowledge and approval, prepared, an indorsement in which Charles Walter Warren’s employment is stated ‘Assistant to President, Cutler-Hammer Mfg. Co. Office duties and traveling/ and that said indorsement was then signed by said Charles Walter Warren and attached to his policy of insurance.”
A careful review of the evidence convinces us that the finding is in accordance with the great preponderance of the evidence. There is no classification set out in the manual of rates and classifications which accurately describes the work in which the insured was engaged. He certainly was not a dealer in automobiles. Neither was he a “salesman traveling, selling or operating, exhibiting or setting up machinery or implements or automobiles,” in the sense in which those terms are generally and ordinarily used. The classification in which he was placed by the defendant’s agents more nearly and more accurately describes the deceased’s occupation than any other classification appearing in the manual of rates and classification. An electric gear shift is not an automobile; and the insured was something more than a mere salesman. While of course a part of his duties was to make contracts for the manufacture and sale of the electric gear shift, he was also to introduce it to manufacturers, engineers, and others having to do with the manufacture of automobiles. He was not a mechanic, and at times at least had with him a man who understood the construction and mechanism of the device which he was'introducing. He was paid a salary of $12,000 per year. While some salesmen receive very large salaries, the amount paid him is somewhat indicative of the nature and importance of his
The conclusion we have reached disposes of the other questions raised by the appellant. If he correctly stated his occupation and was correctly classified, there was no breach of the warranty, nor is there any basis for the claim that the prorate clause should be applied in this case, and the double-liability rider was properly attached.
While the trial court concluded as a matter of law from the facts found that the defendant was estopped from insisting that the classification made by its agents was not binding upon it, and that the defendant was likewise es-topped from insisting that at the time of his death the insured was engaged in an occupation more hazardous than that stated in the indorsement, we do not reach and do not determine the question of whether or not, if the insured was classified by the agents of the defendant in a less hazardous occupation than that in which he was in fact engaged, the company would be estopped from claiming that the prorate clause, so called, should apply. We think upon all the evidence he correctly stated his occupation and was correctly classified.
J9y the Court. — Judgment affirmed.
