Schmidt v. American Mutual Accident Ass'n

71 N.W. 601, 96 Wis. 304, 1897 Wisc. LEXIS 305

• Court: Wisconsin Supreme Court
• Decided: May 30, 1897
• Status: Published

Opinion

WiNslow, J.

• Defendant’s counsel frankly state that they make no contention here as to the accidental nature of the injuries received by the deceased, and that such injuries were the sole cause of his death. They claim, however, that two questions should have been submitted to the jury, namely: (1) Whether or not the occupation of the deceased was that of a “ baker working ” at the time of his death; (2) whether his injuries occurred while he was engaged in a more hazardous occupation than that under which he was classified in his certificate.

Taking these questions in the inverse order, it is sufficient to say, as to the second contention, that there is absolutely no evidence in the case from which the jury could have found that the deceased was engaged in any act pertaining to the occupation of a working baker or confectioner when he received the fatal injuries. In what manner he received the injuries seems quite a matter of mystery, but certain it is that there was no evidence which would have justified the jury in saying that he was actually working as a baker or confectioner at the time.

Nor do we think there was error in declining to submit the first question above referred to. It is true that the manual of the defendant association classifies bakers in two classes, to wit: “ Baker, proprietor, not working ” in class AA, for which class the death indemnity is fixed at $5,000; and “baker, working shop or driving wagon,” in class C, for which class the death indemnity is fixed at $1,500. It affirmatively appears, however, from the defendant’s manual, that these classifications are not inflexible, but may be varied by the home office as circumstances indicate that the applicant is entitled to a more favorable rating than that usually given to the particular occupation. Just such a modification seems to have been made in the present case. The deceased stated in his application that he was a “ bakery and confectionery proprietor, supervising,” and that he was working for himself. The defendant insured him, as a “ bakery and confectionery proprietor,” under class AA. It did not classify him as a “ baker, proprietor, not working,” as its manual specifies, but apparently made an exceptional classification, and rated the risk as “AA.” Now, the defendant knew that the deceased was supervising his business. Supervising does not mean “ not working.” On the contrary it means, and would be naturally understood to mean, taking part in the work. Supervising indicates work, not idleness. It would be entirely consistent with supervising if the deceased not only indicated how work was to be done but actually took hold and assisted in the work when necessary or convenient. This seems to be just what the deceased was doing at the time the policy was issued, and what he continued to do. In our judgment the defendant made its classification with sufficient knowledge of the facts, and there has been no substantial change of such occupation.

No further questions are raised which require treatment. Some exceptions to the admission of evidence are referred to in the brief, but they are of no moment, especially in view of the fact that the bill of exceptions does not contain all of the evidence as to the cause of the accident.

By the Court.— Judgment affirmed.