Weidner v. Standard Life and Accident Ins. Co. 130 Wis. 10.

nied other liability, and pleaded the payment of the admitted sum as an accord and satisfaction. Held, that the payment of what the defendant admitted to be due and payable was not a consideration for the alleged settlement of the claim controverted by the defendant.

3. In an action upon an insurance policy (insuring against loss of 'time resulting from bodily injury caused by external, violent, or accidental means which disabled the insured, but limiting the loss to one tenth of the amount otherwise payable in event of death due to injuries intentionally inflicted upon the insured by any other person, except assault committed for the sole purpose of burglary or robbery) it appeared, among other things, that the insured received a cruel and intentional blow from a third person, after such third person had taken from the possession and against the will of the insured certain personal property belonging to the insured, and that the insured's death was the result of such blow. Held, that the question whether the acts of the third person were for the sole purpose of robbery was one of fact for the jury. SIEBECKER and KERWIN, JJ., dissent. APPEAL from a judgment of the circuit court for Milwaukee county: ORREN T. WILLIAMS, Circuit Judge. Reversed. This is an action to recover $2,700, the balance alleged to be due upon an accident policy of insurance issued by the defendant upon the life of the plaintiff's husband, Gustav A. Weidner, September 17, 1902,

"against loss of time resulting from bodily injuries caused solely, during the term of this insurance, by external, violent, and accidental means, which shall, independently of all other causes, immediately and continuously disable the insured, as follows: ... (5) If death results solely from such injuries as the proximate cause thereof within ninety days, the said company will pay the principal sum of three thousand dollars to Emma Weidner, his wife, if living. . . (10) In event of death, loss of limb or sight, or disability due to injuries intentionally inflicted upon the insured by any other person (except assaults committed for the sole purposes of burglary or robbery), whether such other person be sane or insane or under the influence of intoxicants or not; or due to injuries received while fighting or in a riot; or due to injuries intentionally inflicted upon the insured by himself or received by him while insane; or inflicted by the in

Weidner v. Standard Life and Accident Ins. Co. 130 Wis. 10.

sured on himself while insane; or due to the taking of poison, voluntarily or involuntarily, consciously or unconsciously; or the inhaling of any gas or vapor; or due to injuries received while under the influence of intoxicants or narcotics, or due to an unexpected and accidental result of surgical operation or treatment, then in all such cases referred to in this paragraph, the limit of this company's liability shall be one tenth the amount otherwise payable under this policy, anything in the contrary in this policy notwithstanding."

Such policy was renewed from time to time, the last renewal being made and the last renewal receipt given May 20,

1903.

It is conceded that such policy was in force June 28, 1903. It is alleged in the complaint, in effect, that June 28, 1903, the said Gustav A. Weidner received bodily injuries caused solely by external, violent, and accidental means, which were the proximate cause of his death July 10, 1903; that on the afternoon of June 28, 1903, the said Gustav A. Weidner was riding in a wagon, in company with the plaintiff and several other persons, quietly and peaceably, upon the highway, returning from the village of Hales Corners toward the city of Milwaukee, and that two men, then unknown to the said Gus-, tav A. Weidner or to the plaintiff, approached the said wagon, and that one of them suddenly and violently, and against the will of the said Gustav A. Weidner, seized a pair of rubber boots belonging to him, and then and there in his possession, for the purpose of robbery, as the plaintiff verily believes; that the said Gustav A. Weidner thereupon immediately sprang from the wagon and demanded the return of said boots, and that the man having the boots in his hand thereupon struck the said Gustav A. Weidner, and knocked him down, and beat him upon the head and face with one of the said boots, inflicting injuries upon the face and head of the said Gustav A. Weidner from which he died July 10, 1903; that said injuries left visible marks upon the head and face and body of the said Gustav A. Weidner, and were the sole

Weidner v. Standard Life and Accident Ins. Co. 130 Wis. 10.

and proximate cause of his death; that the plaintiff demanded of the defendant, at the time of the proofs of death as aforesaid, payment of said sum of $3,000 under the policy, but that the defendant refused to pay said sum, or any sum except $300 paid July 30, 1903; and that there is now due and payable to the plaintiff by the defendant upon said policy the sum of $2,700, with interest thereon from July 10, 1903.

The defendant answered, by way of admissions, denials, and counter allegations, to the effect that such injuries were not the result of any assault committed for the sole purpose of burglary or robbery, and that under the tenth clause of the policy above set forth the plaintiff was only entitled to onetenth of the amount otherwise payable under the policy, and that the defendant had accordingly paid to the plaintiff on said claim $300 on July 30, 1903. As a second and separate defense the answer alleges that, in pursuance of an agreement between the plaintiff and the defendant, the plaintiff accepted and received said $300 in consideration and discharge of the plaintiff's claim and the surrender of said policy of insurance for cancellation.

At the close of the testimony on the part of the plaintiff the defendant moved for a nonsuit, which the court denied, and reserved its final decision until all the evidence was in. After the evidence on the part of the defendant was closed, and rebutting evidence on the part of the plaintiff, the court granted the defendant's motion for a nonsuit. From the judgment entered thereon the plaintiff appeals.

The evidence on the part of the plaintiff tended to prove: That the plaintiff and her husband and the plaintiff's parents and three friends, Mr. and Mrs. Wottashek and Mrs. Denzin, had spent the morning of June 28, 1903 (being Sunday), at Hales Corners. Mr. Wottashek had a piece of swamp land and wanted to cut the grass. The plaintiff's husband had accordingly taken his rubber boots along. In the afternoon they started to drive home to Milwaukee in an

Weidner v. Standard Life and Accident Ins. Co. 130 Wis. 10.

express wagon belonging to Wottashek, who drove the team, and with him on the front seat sat the plaintiff's father and her husband, the latter sitting on the left. In the next seat sat the plaintiff, her mother, and Mrs. Wottashek, and in the box of the wagon sat Mrs. Denzin. On the floor of the wagon box lay the rubber boots belonging to the plaintiff's husband. As they approached the tollgate they passed two men, one of whom asked for a ride and showed a blue ticket. Wottashek drove on, as there were seven then riding in the wagon. Then one of the men, whose name was afterwards found to be Tinger, demanded his ticket back. The ticket had then been returned by Mrs. Denzin to the other man, who said to Tinger: "Come on! come on! I got the ticket." Tinger then took the rubber boots belonging to the plaintiff's husband out of the wagon and started off. Mr. Wottashek then stopped the horse, and the plaintiff's husband got off on the left side and walked around the wagon toward Tinger, and said to him: "See here! those are my boots, and I want them back;" and he had hardly said so when Tinger struck the plaintiff's husband on the chest with his fist. The plaintiff's husband fell down from that blow, and while he was lying on the ground Tinger hit him in the face with the heel of the rubber boot, breaking his glasses and his nose, and thereupon Mr. Wottashek had a tussle with Tinger. The plaintiff's husband did not strike Tinger at all. Infection set in, and the plaintiff's husband died twelve days later from septic poisoning following the injury and originating at the wound. Immediately after taking Weidner's boots and upon his request to give them back, Tinger, while retaining possession of the boots, committed the fatal assault, for which he was subsequently convicted of manslaughter. Tinger's purpose in committing the assault can be judged only from his actions.

H. L. Kellogg, attorney, and Joseph B. Doe, of counsel, for the appellant.

Weidner v. Standard Life and Accident Ins. Co. 130 Wis. 10.

For the respondent there was a brief by Roemer & Aarons, and oral argument by J. H. Roemer.

CASSODAY, C. J. 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 uncontradicted 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