27 N.W.2d 775 | Wis. | 1947
This was an action by Thomas P. Jespersen and Oline M. Jespersen, plaintiffs, commenced on February 26, 1945, against Metropolitan Life Insurance Company, a corporation, defendant, on a policy of life insurance issued by defendant upon the life of Earl T. Jespersen, son of plaintiffs. The action was tried to the court and jury and a special verdict consisting of one question was submitted. In substance the question was whether the insured in stating in the course of his application that he had never had any ailment or disease of the lungs intended to deceive defendant. The jury answered this question "No," and upon motions after verdict the trial court granted plaintiffs' motion for judgment. Defendant appeals. The material facts will be stated in the opinion. Some time prior to January 22, 1943, insured, then about eighteen years of age, enlisted in the navy. Shortly thereafter he was examined by a naval medical examiner and his condition diagnosed as "Tuberculosis Pulmonary Chronic Active No. 1103, Incipient." The medical proceeding *3 was completed on January 26, 1943, and the determination made that insured was not physically qualified to remain in the service. A certificate of discharge was delivered to him stating as reasons for discharge physical disqualifications and certifying that insured was not physically qualified for enlistment. Assured arrived at his home about February 1st and on March 4th and March 11th signed parts "A" and "B," respectively, of the application for life insurance in defendant. On April 1st defendant issued a policy upon the life of insured. A copy of the application was attached to the policy and made a part thereof. In it insured represented that he had never had any ailment or disease of the lungs. In connection with his discharge from the navy insured signed a certificate to the effect that tuberculosis pre-existed his enlistment in the navy. After the application on March 11, 1943, insured was given a complete physical examination by defendant's medical examiner. He found no evidence of disease or impairment of the lungs and so reported. The medical director of defendant testified that the policy would not have been issued had the facts concerning insured's experience in the navy been disclosed. The trial court considered that sec. 209.07, Stats., was applicable to the situation. Sec. 209.07 provides:
"If the medical examiner of any life or disability insurance company shall issue a certificate of health, or declare the applicant a fit subject for insurance, or so report to the company or its agent under the rules and regulations of such company, it shall thereby be estopped from setting up in defense of an action on a policy issued thereon that the insured was not in the condition of health required by the policy at the time of the issue or delivery thereof, unless the same was procured by or through the fraud or deceit of the insured . . . ."
The trial court considered that all the conditions were present to bring sec. 209.07, Stats., into operation and therefore submitted to the jury a single question, whether the statement made by the insured in his application that he had never had *4
any ailment or disease of the lungs was made with intent to deceive defendant. We are of the view that the trial court was in error in this conclusion. The law applicable to the situation is stated in Frozena v. Metropolitan Life Ins. Co.
"It is said in Smith v. Poor Hand Maids of Jesus Christ,
From the foregoing it follows that judgment must be reversed, and cause remanded for a new trial.
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial.