Futopolus v. Midland Casualty Co.
Futopolus v. Midland Casualty Co.
Opinion of the Court
Upon this appeal the defendant raises three questions: (1) Was notice of the accident given defendant in accordance with the statutory provisions of the policy? (2) What was the plaintiff’s occupation at the time he was injured? Was it that of baker or. baker’s helper? (3) If the defendant is liable, is the amount of its liability fixed by sec. (a) or (b) of Part IV of the policy?
It is contended that the evidence shows plaintiff failed to comply with the policy provision requiring that written notice of injury or sickness must be given within twenty days after the date of the accident causing the injury. Admittedly notice was not given within such twenty days. But the jury found that notice was given as soon as possible under all of the circumstánces of the case. An examination of the evidence shows an uncertainty upon the point of fact whether or not plaintiff was disabled or knowingly injured by the accident within twenty days after the date of the accident. True, he testifies that he stopped work for the baking company for ten days succeeding the second day after the accident, but it was not clear that he was disabled or. sick during this period, and the evidence likewise fails to show as a matter of law that he was disabled or sick any part of the twenty-day period immediately succeeding the date of injury, which required him to give notice of the accident within that period. We think the state of the evidence properly called for a determination by the jury of'the
Under the terms of the policy indemnity was provided for plaintiff as a “finisher” in a furniture shop. At the time of accident he was employed by the Atlas Baking Company in the city of Milwaukee. He testified that he was engaged at the time of the accident in handling bread boxes, putting loaves of bread in them, and loading them on trucks, and while so engaged a box fell and struck him about the knee. The service thus described is baker’s-shop service and of the kind within the class designated in the company’s manual as “B.” This service is classified the same as plaintiff was classified in the policy by insuring him as a “finisher” in the furniture business'. The jury’s finding that plaintiff’s occupation at the time of accident was that of a “baker” must be intérpreted to mean that he was employed in a bakery, doing shop service. The word “baker” in its ordinary use respecting a bakery business has a generic meaning and',includes in its scope different services connected with the bakery business. It is considered that the'jury’s finding of plaintiff’s occupation as a baker is sustained in the sense above indicated and that such employment is within the same class of hazards as the one for which plaintiff was insured.
By sec. (b) of paragraph IV of the policy it is provided that:
“If such injury shall not from date óf accident wholly disable the injured, but shall within thirty days thereafter wholly and continuously disable him, . . . the company will pay for the period of such disability, not exceeding six consecutive months, one half of said monthly accident indemnity.”
Since plaintiff’s disability started within thirty days after the accident,but not from its date, recovery is limited to not exceed six months at one half of the monthly indemnity.
By the Court. — The judgment appealed from is reversed, and the cause is remanded to the circuit court with directions to award judgment in plaintiff’s favor for the amount of the damages, interest, and costs as indicated in the foregoing opinion.
Reference
- Full Case Name
- Futopolus v. Midland Casualty Company
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- Published