Weidner v. Standard Life & Accident Insurance

Cassoday, C. T. 1. The trial court granted the nonsuit, in part upon the ground that the plaintiff received the $300 mentioned in the complaint with the advice and consent of her friend and agent and with knowledge of what was being settled .and the effect of the settlement, so that, if the defendant was liable for more than the $300, yet that settlement was based upon a sufficient consideration and disposed' of any further liability under the policy. In other words, the court held and counsel contend that the payment to the plaintiff of $300, for which she gave to the defendant a receipt “in full settlement of claim under policy,” was a complete accord and satisfaction. The answer admits that the $300 was due to the plaintiff under the tenth clause of the policy, and pleads the same as an accord and satisfaction. The difficulty with such contention is that it seeks to make the payment of what the defendant thus admitted to be due and payable a consideration for the alleged settlement of the' claim controverted by the defendant. It is well settled in this and other states that part payment of an admitted debt is no consideration for an agreement not to enforce the collection of the balance of such debt. Otto v. Klauber, 23 Wis. 471; Lathrop v. Knapp, 27 Wis. 214, 225; Lerdall v. Charter Oak L. Ins. Co. 51 Wis. 426, 429, 8 N. W. 280, and cases there cited; Continental Nat. Bank v. McGeoch, 92 Wis. 286, 310, 66 N. W. 606; Herman v. Schlesinger, 114 Wis. 382, 400, 90 N. W. 460; Prairie Grove C. Mfg. Co. v. Luder, 115 Wis. 20, 89 N. W. 138, 90 N. W. 1085. We must hold that the defense alleged of an accord and satisfaction has not been established; certainly not by the uncon-tradicted evidence, as held by the trial court. 2. But the trial court also reached the conclusion that under the evidence it was clear that “a dispute and a contro — 16 — versy had arisen between these parties upon the road, and that the sole purpose of that assault was not robbery.” In reaching such conclusion the trial judge made this statement: “In my opinion this raises a pretty close question. I think I must grant this motion. The evidence conclusively shows,. I think, that the assault upon the insured was not for the' sole purpose of robbery.” The circumstances under which the boots were taken by~ Tinger, and the blows he inflicted upon the insured when he demanded the boots, sufficiently appear in the summary of evidence contained in the foregoing statement. It is undisputed that the boots belonged to the insured and were at the time lying on the' floor of the wagon occupied by him and others. There is no pretense that Tinger had any right to or interest in the boots, and no excuse is suggested for his taking them from the wagon. The taking of the boots from the possession of the insured was without consent and obviously wrongful. They were so taken in the presence of the insured, and Tinger remained with the boots in the presence of the insured up to the time of striking the fatal blow. The provisions of the policy here applicable are set forth in the foregoing statement. The question recurs whether the assault so committed by Tinger was “for the sole purpose of . . . robbery,” within the meaning of the policy. As claimed by counsel for the defendant, robbery is usually defined as the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or by putting him in fear; citing numerous text-writers, including 24 Am. & Eng. Ency. of Law (2d ed.) 991. The same counsel cites Bishop, where it is said: .“Robbery is a violent larceny from the person (or from the immediate presence, which is termed in law the person) of one usually, not always, assaulted; or, in more apt legal phrase, it is larceny committed by violence from the person of one put in fear.” 1 Bishop, New Crim. Law, § 553. — 17 — In other words, it is a species of larceny which is aggravated by violence inflicted on the person of the one rightfully in possession of the property, or the putting him in fear of injury. 24 Am. & Eng. Ency. of Law (2d ed.) 994: Crews v. State, 3 Cold. 350. Robbery being a higher crime than larceny, it is necessary in the administration of criminal law to differentiate the one from the other. And so it is claimed that the violence or putting in fear must precede or accompany the tailing, and not be employed merely as a means of escape or to prevent a recaption of the property. Certainly there are adjudications to that effect. But what is meant by such taking through violence or fear ?' The adjudications on the subject are not in harmony, even in criminal cases. It is said by a recent text-writer of ability' that “the force necessary” to constitute robbery may “be either actual or, in a sense, constructive. Thus, robbery may be accomplished, in most jurisdictions, by threats or putting the person robbed in fear and overcoming his will.” It is “the felonious taking of personal property from the person or in the presence of another, against his will, by means of force or fear.” 4 Elliott, Ev. § 3129. See Shinn v. State, 64 Ind. 13, 17. In Ohio it has been held: “Where one, without threats or putting in fear, wrests from the possession of another anything of value, and immediately thereafter, for the purpose of retaining the possession of the property on making his escape, violently strikes the other, such violence is concomitant with the taking, and constitutes robbery.” Sherman v. State, 4 Ohio Cir. Ct. 531. In the supreme court ,of that state it has been held that “it is not necessary to show that the property taken was actually severed from” the person of the prosecuting witness, but that “it is enough if the property was in his presence and under his immediate control, and, he laboring under such fear, the property was taken by the accused with intent to steal or rob.” Turner v. State, 1 Ohio St. 422. To the same effect, — 18 — Hill v. State, 42 Neb. 503, 60 N. W. 916, In New York the captain of a schooner at anchor heard a noise on deck at midnight, and thereupon went above through the cabin, and found the accused, who pointed a pistol at him and ordered him to go below or he would blow his brains out. The captain then struck him and knocked him overboard, and, after stoning the captain, two other men, who were with the accused, jumped into a boat and rowed away. After they had departed the captain found that certain articles had been taken from the boat; and it was held that the evidence was sufficient to sustain a conviction for robbery. People v. Glynn, 54 Hun, 332, 7 N. Y. Supp. 555, affirmed 123 N. Y. 631, 25 N. E. 953. In Mississippi it has been held: “To constitute robbery it is not necessary that the person robbed must have been first in fear of his person or property. If the goods be taken either by violence or by putting the owner in fear, it is sufficient to render the felonious taking a robbery.” McDaniel v. State, 8 Sm. & M. 401, 402. Thus it appears that the question whether there has been a felonious taking of property from the person or in the presence of the owner by violence or putting him in fear, actual or constructive, has not always been regained by courts as free froffi. ambiguity, even in criminal cases. This is a civil action based upon an express contract; and the question presented is whether the trial court properly held, as a matter of law, that Tinger did not strike the insured for the sole purpose of robbery. Of course, in construing such contracts, the ordinary meaning of the words employed must be enforced. De Rothschild v. Royal Mail S. P. Co. 7 Exch. 734, 742; Behling v. N. W. Nat. L. Ins. Co. 117 Wis. 24, 93 N. W. 800. When the intent of an insurance contract is doubtful, this court has held that the “conditions providing for forfeitures are to be construed strictly against those for whose benefit they were inserted.” Morse v. Buffalo F. & — 19 — M. Ins. Co. 30 Wis. 534. In a later case it was said by Ryan, C. J.: “Forfeitures are not encouraged in the law. When forfeitures of insurance policies rest on substantial grounds, going to the risk, this court will uphold them. But when forfeitures are alleged on purely technical grounds, not going to the risk, the rule is universal that the contract of insurance is to be upheld, if it can be without violation of any principle of law.” Appleton I. Co. v. British Am. A. Co. 46 Wis. 23, 32, 1 N. W. 9, 50 N. W. 1100. In Shafer v. Phœnix Ins. Co. 53 Wis. 361, 10 N. W. 381, it was held that “conditions inserted in a policy by,the insurer, to work a forfeiture, should be plain,' easily understood, and free from ambiguity.” So it has been held that the question whether the stipulation in the policy as to the nse of the property “materially increased the risk was one of fact for the jury.” Kircher v. Milwaukee Mech. Mut. Ins. Co. 74 Wis. 470, 43 N. W. 487. Such liberal rules of •construing an insurance policy were applied in a case where the insured was accidentally shot in the back, producing immediate and total paralysis of the lower part of the body and entirely destroying the use of both feet. Sheanon v. Pac. Mut. L. Ins. Co. 77 Wis. 618, 46 N. W. 799; S. C. 83 Wis. 507, 53 N. W. 878. To the same effect, Lord v. Am. Mut. Acc. Asso. 89 Wis. 19, 61 N. W. 293. So it has been held by this court in relation to contracts generally: “When the terms of a contract are indefinite, uncertain, and susceptible of two constructions, and by giving them one construction one of the parties would he subjected.to a forfeiture, and by giving them the other no such forfeiture would be incurred and no injustice would be done to the other party, the contract should be so construed as not to create the forfeiture.” Jacobs v. Spalding, 71 Wis. 177, 190, 36 N. W. 608. In the case at bar it is quite obvious that Tinger intended to take the boots by force from the possession and against the — 20 — will of tbe insured. The blow inflicted upon the.insured was cruel and intentional. The purpose of Tinger was the question for determination. After careful consideration we are constrained to hold that the question whether it was committed for the sole purpose of robbery was one of fact for the jury. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.