210 Wis. 606 | Wis. | 1933
The following opinion was filed December 6, 1932:
One of the errors assigned is that the trial court denied the defendant Employers Mutual Indemnity Corporation’s motions for a directed verdict at the close of all the evidence. The fourth paragraph of the answer of the Employers Mutual Indemnity Corporation is as follows:
“4. Alleges that the said insurance policy contained the following express condition and stipulation, among others, to wit:-‘FI. No action, shall lie against the company to recover upon any claim or for any loss defined herein unless brought after the amount of such claim or loss shall have been fixed and rendered certain either by judgment against the insured after trial of the issue, or by agreement between the insured and claimant with the written consent of the company, nor in any event unless brought within one year thereafter.’”
The facts presented by this paragraph are those ordinarily set up by way of a plea in abatement. While the court was aware at the beginning of the trial that the allegations already quoted were in the answer, no question was raised with respect to the matters therein stated until after the close of all the evidence. Upon the trial the policy was offered
The policy also contained a provision to the following effect: “Any specific statutory provision in force in any state or province shall supersede any condition of this policy inconsistent therewith.” '
It- is argued that under this clause, ch. 375 of the Laws of 1931 was incorporated in the policy. It is quite apparent that the language of the contract refers to statutory provisions then in force and is inserted by the insurer for the purpose of avoiding conflict between its policy and the laws of any state in which the policy may be issued. The company does not consent that its contract may be thereafter modified by
II. The insurer set up in its answer facts which if true tend to show that the insured, Howard L. Watkins, failed to perform the contract with respect to co-operation. The co-operation clause is as follows:
“The insured, as often as required, shall exhibit to any person designated by the company all that remains of any property herein described, and shall submit to examinations ■under oath by any persons named by the company, and subscribe the same; and, as often as required, shall produce for examination all books of accounts, bills, invoices, and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by the company or its representative, and shall permit extracts and copies thereof to be made. . . .
“The insured when requested by the company shall aid in effecting settlements, securing evidence, the attendance of witnesses, and in prosecuting appeals. The insured shall not voluntarily assume any liability, settle any claim, or incur any expense other than for immediate surgical relief, except at his own cost, or interfere in any negotiation or legal procedure without the consent of the company previously given in writing.”
The answer alleges that Watkins did, without the consent of the company, assume liability to the plaintiff, his wife, for the accident, assisted the plaintiff in employing an attorney and in instigating the action, and in other respects failed to perform the agreements by him to be performed under the terms of the contract.
In view of the conclusion which we have reached in this case, we shall not determine whether or not there was such failure'on the part of Watkins as would defeat a right of recovery by the plaintiff upon the contract. Suffice it to say that the evidence raises a very serious and doubtful question. In ruling upon the matter the trial court said :
“It would seem that the doctrine of Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, and succeeding cases, should find some application here. That rule is that when,*612 by contract, rights are created in favor of a third person,' they may not be defeated by anything less than consent or misconduct of the third person.”
We think the quoted statement indicates a misconception with respect to the holding in Tweeddale v. Tweeddale. It was there held that contractual relations being established between two persons for the benefit of a third, neither one nor both of the immediate parties to the transaction can rescind the same or in any way interrupt or prejudice the rights of the third person without his consent. This holding like all others must be considered in the light of the facts to which if was applied. In that case there was an unconditional promise by one of the parties to the original contract to pay to the plaintiff, the third person, a certain sum of money. Thereafter the parties to the original contract attempted to satisfy it without the consent of the person for whose benefit payment was to be made and this was held to be beyond the power of the parties to the original contract. It has been repeatedly held by this court, however, that when a right has been created by contract, the third party claiming the benefit of the contract takes the right subject to all the terms and conditions of the contract creating the right.
The most familiar illustration of this is the right reserved by the insured in a life policy to change the beneficiary. See National Life Ins. Co. v. Brautigam, 163 Wis. 270, 154 N. W. 839, 157 N. W. 782. While in that case Tweeddale v. Tweeddale, supra, is not referred to, the whole theory of the case is that the statute there under consideration assured the beneficiary the continued benefit of the policy so long as it remained in force. It is there held that, although within the terms of the statute, nevertheless the right of the beneficiary was subject to the terms and conditions contained in the policy. Certainly the terms of a private contract cannot be more controlling than the terms of a contract regulated by statute, and if the contract right regulated by statute is subject to reservations contained in the contract, certainly an
Policies containing covenants the same as or similar to those contained in this policy have been so often sustained that the question should be considered at rest. Bergstein v. Popkin, 202 Wis. 625, 233 N. W. 572; Buckner v. General Casualty Co. 207 Wis. 303, 241 N. W. 342. See, also, Fulleylove v. Constitution Indemnity Ins. Co. 205 Wis. 463, 237 N. W. 95, 238 N. W. 289; Home Ins. Co. v. Dick, 281 U. S. 397, 50 Sup. Ct. 338; Pawlowski v. Eskofski, 209 Wis. 189, 244 N. W. 611.
If insurers may not contract for fair treatment and helpful co-operation by the insured, they are practically at the mercy of the participants in an automobile collision. One does not need to scrutinize very closely the testimony given by the insured, Howard L. Watkiñs, upon the trial of this case, to discover that he was at least sympathetic with the efforts of his wife to recover against the assured.
III. We come now to a consideration of the main contention of the defendant insurer, which is that conceding for purposes of argument that the defendant Watkins was guilty of negligence in failing to maintain a proper lookout and have his car under control and in failing to have the car equipped with efficient brakes, there is no evidence that his failure to exercise ordinary care in those respects was a natural cause of the accident. There is substantially no conflict in the evidence with respect to the happening of the accident. There are some undisputed and incontrovertible facts. According to measurements taken after the accident as shown by the testimony of the plaintiff, the accident happened less than one hundred feet north of the intersection, probably about ninety feet. The Snelling car was traveling
“At the time I hollered to Mr. Watkins the truck was coming right down on us. I couldn’t have done anything further. I just yelled at my husband and grabbed him. There wasn’t any time for me to do anything further. The accident happened almost instantaneous after I yelled. There wasn’t any time for me to do anything further. There wasn’t any time for Mr. Watkins to do anything further.” . . .
The defendant Watkins was unable to say whether he attempted to apply his brakes or not.
We have not attempted to set out all of the evidence, but from a careful consideration of the record it conclusively
It is considered that the evidence in this case wholly fails to sustain the finding that the negligence on the part of the defendant Watkins was a proximate cause of plaintiff’s injuries or of the injury to Krahn. Whether Krahn is guilty of negligence is undoubtedly a jury question. An emergency was created by Snelling unexpectedly coming upon highway 51. Whether or not Krahn thereafter failed to exercise ordinary care was, under the circumstances, a question for the jury. Why he did not go into the ditch on the east side of the road instead of trying to get into the ditch on the west side of the road does not appear. In any event neither the plaintiff Watkins nor the defendant Krahn can recover against the defendant Watkins.
By the Court. — Judgment appealed from is reversed, and cause remanded with directions to dismiss the plaintiff’s complaint as well as the cross-complaint of the defendant Krahn.
A motion for a rehearing was denied, with $25 costs, on March 7, 1933.