Chamberlain v. Prudential Insurance Co. of America

109 Wis. 4 | Wis. | 1901

"WiNslow, J.

"While this was in form an action to establish and enforce an oral contract of life insurance, it was in fact an attempt to alter the terms of a written contract by parol evidence. That the application of Chamberlain, and the receipt given by the agent of the defendant, constituted a written contract which was certain in its terms, cannot be doubted. This contract, in substance, was that, if the company accepted the application and issued a policy theréon, Chamberlain was to be insured in the sum of $500 thereby, and the thirty-five cents would constitute the first week’s premium; but, if the application was not accepted, then the company incurred no obligation. There was no fraud claimed or proven. The most that was claimed was that Chamberlain did not read either the application or the receipt, and. that the agent said that the insurance would go into effect at once. But parties cannot thus escape the effect of written contracts. Chamberlain could read, and he was clearly guilty of negligence in not ascertaining what agreements the written papers contained, and neither he nor those claiming under-him can escape the effects of that negligence. The written contract is binding and must control. If, under the circumstances disclosed here, written contracts could be set aside, they would be of little value. Dowagiac Mfg. Co. v. Schroeder, 108 Wis. 109. Nor is there room to say that the evidence tended to prove an oral contract of present insurance in consideration of thirty-five cents paid, in addition to the application for a written policy of insurance. There was but one amount of thirty-five cents paid, and that, as the receipt states, was paid on account of the application for the written policy of insurance. Being so paid and applied by the parties, it manifestly could not serve as a consideration for the separate oral contract; so the oral contract, even if made, would be without consideration to support it.

The case of Mathers v. Union M. A. Asso. 78 Wis. 588, was relied on by respondent as supporting the recovery in this case, and it seems probable that the direction of the verdict in this case was based upon that decision. The facts in that case were somewhat different from those now before us, yet it must, in fairness, be admitted that some things said in the opinion tend to justify the ruling of the trial court in this case. Careful consideration, however, brings us to the conclusion that, so far as the decision in that case conflicts with the conclusions now reached, it must be considered as overruled.

The plaintiff was allowed to testify, against objection and exception, to the .conversation between her husband an‘d the agent of the defendant, and this ruling is now assigned as error. The objection made was that the testimony was inadmissible under sec. 4069, Stats. 1898, which excludes testimony of a party as to transactions personally had with a deceased person when the opposite party “sustains his liability ” from, through, or under such deceased person. The question is, Does the insurance company, in any sense, sustain its liability “from, through, or under” Chamberlain? We do not see how the question can be answered in the affirmative. It is true that the insurance company was dealing with Chamberlain in the transaction, but it was the opposite party in the deal. It sustained its liability, if any, through its contract with Chamberlain, but in no reasonable meaning of words through or under Chamberlain. We perceive no error in the ruling.

By the Court.— Judgment reversed, and action remanded for a new trial.