Saveland v. Fidelity & Casualty Co. of New York

30 N.W. 237, 67 Wis. 174, 1886 Wisc. LEXIS 118

• Court: Wisconsin Supreme Court
• Decided: November 3, 1886
• Status: Published

Opinion

Cassoday, J.

The cause was submitted to the jury on the theory that it was the object of the policy to insure the plaintiff against accident, and to pay the plaintiff what the company had agreed to pay for the accident he had received, if by that accident he had been disabled in any way from prosecuting the business in which he was engaged; that it was to indemnify the plaintiff “ for his want of capacity to prosecute the business in which he was engaged;” that the plaintiff was “ entitled to recover, at the rate agreed on in the policy, for such time as by reason of such accident he ” was “rendered wholly unable to do his accustomed labor; that is, to do substantially all kinds of his accustomed labor to some extent.” The learned trial judge was supported in such theory by the language of the court in Sawyer v. U. S. Casualty Co. 8 Am. Law Reg. (N. S.), 233. The clause of the policy there involved was, “ totally disable him from the prosecution of bis usual employment.” The case was in the superior court of Worcester, Massachusetts, but never reached the supreme court of that state, nor do we find it referred to in any subsequent case in any court. That case apparently followed Hooper v. Accidental D. Ins. Co. 5 Hurl. & N. 546, where the clause of the policy relied upon, was, “ any bodily injury to the said insured of so serious a nature as wholly to disable him from following his usual business, occupation, or pursuitsand it was held, in effect, that a disability which incapacitated the assured from “ following his usual occupation, business, or pursuits ” was a breach. In neither of those cases was. the language of the policy so broad .and sweeping as in the case at bar. The language of this policy is even more sweeping than in Rhodes v. Railway Pass. Ins. Co. 5 Lans. 77, where it was held that there could be no recovery because it was not shown that there was a “ total disability to labor.” In that case the language of the policy was, “ accident and injury which totally disabled and prevented from all kinds of business.” The same is true with respect to Lyon v. Railway Pass. Assur. Co. 46 Iowa, 631, where the language of the policy was, “ while totally disabled and prevented from the transaction of all kinds of business;” and it was held that such language could not be construed to mean “ partially disabled from some kinds of business.”

Here the plaintiff was only entitled to recover in case the injury was such, as to “ wholly disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation,” and then only “for such period of continuous total disability,” not exceeding the amount stipulated, nor “ the money value of his time during the period of continuous total disability, not exceeding twenty-six weeks.” The ordinary object of a policy of insurance may be such as stated by the learned trial judge, but the manifest purpose of this policy was to obtain premiums by incurring as little risk as possible. But there was no law to prevent the parties from making their own contract. The plaintiff consented to and made this one. He cannot repudiate or alter its conditions in the day of his calamity. The courts are powerless to make a new contract for him or to strike some words from the contract he made for himself, and insert others, and thus enlarge the risk, in order to meet the expectation of the plaintiff in obtaining the policy. This we should be compelled to do, in order to sanction the charge to the jury. The plaintiff’s right to recover is necessarily restricted to the time he was wholly disabled and prevented “ from the prosecution of any and every kind of business pertaining to his occupation.”

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