*1 Mutual Hancock Respondent, Platke, John Company, Appellant.* Insurance 2, 1965. February 5 March * denied, costs, rehearing on April Motion for with 1965. *4 For the there Quarles, were briefs by Herriott & Clemons, Hammond, and L. Jr., C. attorneys, John and S. Holbrook, Jr., counsel, of all of Milwaukee, and oral argu- ment Mr. Hammond. by
For the there was a Frisch, brief respondent Dudek & by Banholser, and Robert A. attorneys, counsel, of Slattery all Milwaukee, of and oral Mr. argument by Slattery. The of the underlying purpose
Gordon, legislature J. 209.07, Stats., can be learned from enacting declarations of the Iowa court. This is supreme statute, true because our statute, was derived from the adopted Iowa enacted in 1897. In Weimer Economic Asso. 108 Iowa 451, 453, 79 N. W. that court set out the purposes the statute: “The evident is very purpose statute to prevent
defeat on recovery has, where any policy company its skilled agent, examined and passed fitness of the upon for insurance. The directed to estoppel inquiry health, as to the сondition of it is and immaterial what quite representations have been made or warranties given. company, and for itself having investigated, ascertained and declared the condition of the assured to be such as required its rules will regulations, not be permitted interpose as a defense the infirmities physical deceased, of knew, it or known, have might as the result of its examina- ; tion and the fraud or deceit referred to is that of procuring certificate the physician, policy, and not the *5 made it clear that if sec. decisions have
Our own 209.06; thus, an over sec. Stats., it takes applies, precedence examiner has had its medical insuranсe company the statute the kind of examination contemplated by conduct the favorable procured will be unless estopped or deceit. examiner fraud This was by of the medical report Ins. in Frozena Metropolitan the conclusion reached 247 N. 333: Co. 211 Wis. W. from the that
“There seems tо be no conclusion escape examination is had and a made where a medical report insurance, for an arises is a fit subject estoppel in the absence of fraud or deceit company prac- against ticed the insured the medical examiner order to by upon induce a favorable and that of sec. report, provisions 209.06 where an innocent avoiding policy misrepresenta- risk, tion increases the must be limited to situations where there has been no certificate of health or recommendation of the risk the examiner.” by instant jury case determined that Wallаce
Platke made a false relative to his representation not having consulted or been treated a doctor during previous five but that years such was not made with representation an intent to deceive. The contends that his mis- appellant be should held this court as representation an disclosing intent to deceive as a matter of law. If the is cor- rect in that and such induced the position deception doctor’s then, event, 209.07, Stats., favorable such report, would not insurer would be apply, entitled to prevail on its defense under sec. 209.06. We will examine the ques- tion as to whether there was deceit as a matter of law after first whether the resolving medical con- stituted a certificate of health or a declaration that the ap- a fit plicant was for insurance subject under sec. 209.07. *6 the Medical Examiner's Report. Effect of health In order to as a certificate оf or a declaration qualify the fitness, of medical examiner not be need couched in those terms. That this is is demon true precise strated v. Prudential Ins. Co. by Gibson 274 (1956), Wis. 277, 233, Case, 80 N. and the Frozena In W. (2d) supra. Case, 287, the Gibson at the court made this clear page amply stating following: “In the case at bar arewe to conclude that the obliged statements of medical examiner that the con- applicant’s dition of hydrocele ‘should not affect insurable risk’ and that ‘in his the risk not opinion was questionable because any factor, such as or of . . . presence history de- physical fect, etc.,’ amounted tо a declaration that the was a applicant fit for subject insurance. areWe unable to sub- perceive stantial distinction in the and effect of the purpose question here to one which compared have ‘In may inquired: your is the a fit opinion for applicant subject insurance because ” of a presence history defect, etc. ?’ physical
This same was out in the point Case, brought Frozena as discussed in Jespersen Metropolitan Ins. Co. 1, 4, 775, Wis. 27 N. W. where the (2d) court said: Case,
“In the Frozena the medical supra, examiner was asked to characterize the risk as class, ‘first doubt average, ful or and he poor’ characterized it as ‘first class.’ This amounted to a declaration was a fit subject for insurance and sec. brought 209.07 into operation.”
Based on the it foregoing, becomes clear that no special verbiage to required constitute the certificate оr declara- tion contemplated Stats., and we must deter- mine whether the medical report, of the two consisting pages of Exhibit is such a certificate or declaration under the statute. trial court made the determination following ex- the medical 20 appearing-in reference with aminer’s rеport: the insurance com- so that was phrased “This question answer, examiner’s would the medical reading when
pany, examiner, effect, declared the medical know for insurance.” subject a fit hand, relies upon Jesper on the other
The appellant, observed case, at court Casе, In that page supra. sen ex a medical does not where apply . . sec. 209.07 that “. to the his with findings physi enters respect aminer merely without them to the company and forwards cal examination *7 : note the following 4) The court went on to (p. comment.” certified weight, “The examiner simply height, medical that he blood and had measurements, and pressure pulse, stomach, heart, brain, of the no evidence of found impairment all in to These answers were response specific etc. lungs, examiner to be answered the medical questions required and there is nowhere record, discover, in so far as we can health that the is a a certification of or declaration fit for insurance.” subject
Our examination of the second of Exhibit con- page in its us that the sidered trial court was entirety, persuades in that the a correct constituted “declaration deciding report of fitness for insurance.” The medical consists of two report On first records pages. physician page, applicant’s most of answers numerous which relate to questions, medical On second of the applicant’s history. page report, however, the doctor is asked which are questions significant- different from those on the first ly page.
Unlike the first the second page, not page report to be While a signed by few of the applicant. questions on the contained second call for the recitation of page merely measurements, the answers to other thereon must questions involve the doctor’s neсessarily professional For appraisal. the doctor is example, asked to evaluate the age.” Ques- “apparent appearance” “general applicant’s 16 reads as follows: tion disease or ab- or present find evidence past
“Do you ? normality following im- Ears, Nоse, Throat. Measure markedly Eyes,
“(a) if vision, and uncorrected. State corrected paired aid used. hearing Skin: or other Endocrine Glands. Thyroid
“(b) or Pleurae. “(c) Lungs Abdominal Organs Hernia).
“(d) (including Musculoskeletal System. (Any deformity?) “(e) Veins?) Varicose System. Vascular “(f) (Any tremor or abnormal re- Nervous System. (Any “(g) flexes?)” 20 reads as follows:
Question “In is there detrimentаl in the your opinion anything habits, insured?” surroundings occupation proposed to the on foregoing questions responses appearing 2 of the medical reflect the doctor’s evaluation page health. For the as to the purposes applicant’s Stats., examiner, effect, an as to the medical gave opinion fitness for insurance. the applicant’s conclusion is directed the statement of The foregoing v. John Hancock Mut. Ins. Co. this court Ludwig *8 case, In 74 N. W. 201. that 271 Wis. (2d) of the of the which were asked examining two questions as follows: were physician
“In is there detrimental to the risk your opinion, аnything habits, in the occupation surroundings proposed ?” insured
“Do have other information any which affect you might decision?” the company’s that the
It is first recited above from apparent question Case Ludwig same as 20 in substantially question bar; said, at the court in that the case case at 554: page 10
“The indicates that the insured was examined a record 24, 1953, examiner of the defendant on and that medical July in effect a fit for the examiner declared subject insurance.”
The seeks to avoid the impact Ludwig Case on the that the ground portion quoted immediately above was obiter dicta. The of sec. only applicability Stats., in relation to the contained on the medical questions raised in the brief in the was respondent’s Ludwig Case and was to the court’s decision. In our pertinent the trial court was correct in opinion, regarding Ludwig Case as the case at bar. controlling There Deceit Was as а Matter Law? found Platke’s false jury Wallace representation not was made an intent to with deceive. believe that the We record discloses two grounds which to this upon support finding.
There is an contained ambiguity re- applicant’s to sponses and 9 In questions (a) to (b). response 9 (a), stated that hе had not consulted a physi- cian during five previous but years; he question (b), stated that he had been treated in a hospital during past five Even if years. the disclosure in 9 is deemed to be (b) erroneous, the was jury entitled interpret this disclosure in the applicant’s favor. When issue was whether there deceive, was an intent to the jury have may considered whether a man would disclose a recent hospitalization at the same time that he was allegedly to conceal attempting his recent medical treatment.
A second basis upon the jury could have determined that there was an absence of an intеnt to deceive the medical examiner results from the testimony Dr. Halser that Wallaee Platke “did not appear to be very bright.” Dr.
11 Platke “didn’t have that testified Wallace Halser further or him in of him” needed by wanted into what was insight Dr. have interpreted The jury may the of treatment. way a as justifying of applicant Halser’s characterization to have entertained he not likely that was conclusion ascribes to him. intentions which deceitful affirmed. Judgment By Court.— I dissent from respectfully C. (dissenting). Currie, J. the instant exam- medical of the majority the holding of health a a certificate or declara- constituted iner’s report 209.07, of sec. Stats. tion of fitness within meaning life insurance consist of companies Most medical reports consists of the first of which which questions of two parts, to the and is examiner applicant signed the medical puts of, consists of the asked the second questions applicant; the medical examiner based on his exam- and answered by, of these latter of types questions ination applicant. Typical in are the subdivisions question quoted majority The court’s comes close to hold- opinion perilously opinion. examiner that all of these medical which reports ing made him of certifies to thе his findings physical physician a of the constitute certificate of health examination I of fitness. cannot conceive how or declaration questions examiner, that his asked of the medical state- merely require examination ment of his made findings upon applicant, health or declaration of a certificate of fitness with- constitute of sec. Stats. only the meaning question II of instant medical examiner’s which varies Part from this of the medical inquires pattern “habits, examiner as to his opinion regarding surroundings, insured.” The or occupation proposed opinion request- not relate to the fitness of the so ed does as general Rather, a certificate of health. it is constitute restricted habits, to the surroundings, occupation applicant. *10 form the difference between no significant I can of perceive a merely is question 20 worded in which question asks, information with respect аnything “Have any you habits, surroundings, occupation detrimental the Insured ?” proposed a that the test to be as to whether applied
It seems to me medical examiner’s comes within sec. report provisions 209.07, Stats., is: Do the statements medical examiner his his merely stating objective findings, report go beyond as to as to health or fitness for so an express opinion general The mere fact that one statement insurance? may express whole, an to one element of the as with such opinion respect 20, should be con- does held to be insufficient to stitute an as to total health or fit- expression opinion ness of the for insurance.
The writer is the member of the who only present court v. John in the decision of Mut. Ludwig Hancock participated Ins. Co. 271 Wis. 74 N. W. 201. (2d) In in that sentence of concurring which reads opinion “The record (at p. 554), indicates that the ex insured was amined a medical examiner of thе defendant on July 1953, and that examiner in effect declared the insurance,” a fit subject for I must confess I was remiss in not back going and again the briefs when reviewing I joined However, an opinion. examination of the briefs af a fords for excuse this partial failure on my part. insurance brief stated compаny’s four ques- tions involved on none appeal, of which referred to sec. 209.07, Stats., or raised any issue with respect thereto. The respondent’s brief did make the assertion that the medical report constituted a declaration of fitness and estopped ap- from pellant contesting Then policy. appellant came back a with brief which reply took the position that secs. 209.06 and 209.07 were entirely beside the point on the issues of raised coverage by appellant based on events which occurred after medical examiner’s did not chal- report. Appellant assertion that the medical re- examiner’s lenge respondent’s a constituted declaration of fitness. port
Thus because of taken the insurance com- position in the Case we had no pany Ludwig contest of the issue whether medical examiner’s constituted a declara- tion of fitness within the meaning Stаts. Therefore, I not do consider that the Case one Ludwig that this court should consider controls the result Per- here. *11 it is haps poetic justice this particular insurance com- be should now pany decision, Case impaled by Ludwig but I feel the we are precedent for future setting cases instant decision is a bad one.
I am authorized to state that Mr. joins Hallows Justice in this dissenting opinion. Appellant,
Moritz, Allied American Mutual Fire Company another, Respondents. Insurance
February 2, 1965. 5 March