225 Wis. 281 | Wis. | 1937
The defendant contends, (1) that at the time the releases were obtained and the policies surrendered for cancellation and reissue it did not conceal any material information from the plaintiff; (2) that it made no affirmative misrepresentations; (3) that the plaintiff did not rely upon any alleged misrepresentations or concealment by the defendant; (4) that the plaintiff, by his conduct, ratified the releases and the settlement made; and (5) that the plaintiff did not establish that he is disabled within the meaning of the disability provision of the policies. The contentions of the defendant necessarily require a full statement of the relevant facts.
At the time of the trial the plaintiff was forty-nine years old. From January 18, 1926, up to June 4, 1932, he was employed by the defendant, first as a soliciting agent and later on as an assistant superintendent, having a crew of nine men under his supervision. While so employed he was apparently successful. His work was favorably commented upon in letters directed to him by his superiors in the home office. At the time he quit work on June 4, 1932, he had four life insurance policies issued by the defendant. The first policy, dated June 28, 1917, insured the plaintiff’s life 'for $2,000. It contained a deductible disability clause and waiver of premiums in the event of total and permanent disability. The second policy, dated July 2, 1928, insured the plaintiff’s life for $5,000. It provided for disability payments of $50 per month to the plaintiff in case of disability, without reduction of the face amount of the policy. The other two policies were group insurance policies-issued to him as an employee and evidenced by two certificates, each in the amount of $6,000. These two policies provided for the payment of disability income with reduction of the face amount of the cer
“If the insured shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his lifetime . . . the company . . . will grant the following benefits : . . . ”
In November, 1931, the defendant informed its employees that after January 1, 1932, it would cease writing disability insurance. The plaintiff thereafter applied for a $5,000 policy with a disability provision, and was examined by a company doctor who sent in a confidential report to the company which was not shown to the plaintiff. The application was rejected, but the defendant offered the plaintiff a policy without disability benefits and rated at the highest rate which it wrote. The plaintiff refused the policy. Later on, Mr. Zimmer, the defendant’s superintendent in Milwaukee, advised the plaintiff to have a thorough medical examination. Accordingly on May 16, 1932, the plaintiff was examined by his family physician, Dr. Roberts, and by Dr. Bockhorst, a company doctor. Both doctors gave plaintiff and the company copies of their reports and findings and, on the instructions of his doctor, plaintiff quit work on June 4, 1932. The plaintiff testified that for months before he quit work he had constant pains across his chest every day, which sometimes were sharp, that he had pains in the back of his throat, the, side of his head, and down his left arm, and that his feet would swell, that he felt very tired, that rest would do him no good, that he slept very poorly, some nights not at all, that his voice changed and became hoarse, that he perspired a great deal nights for several hours at a time, his body seeming as if it were burning up, to such an extent that he could
In this letter it was further stated:
“We realize that your first reaction after having been informed of the termination of disability instalments might be*288 one of disappointment and we would be inclined to regret this outcome of your request were it not for the conviction that upon further reflection you will agree with us, the assurance that the original alleged disabling condition does not exist and that you are again able to take up some profitable employment, more than compensates for the monthly disability income.”
Dr. Thompson’s report was in the possession of the defendant at the time it rvrote the letter of December 20th. Dr. Thompson reported at length and said:
“I think we are perfectly safe in the assumption that this man has no aneurysm.”
In answer to the question as to the future possibilities of the condition’s causing disability, Dr. Thompson stated:
“It is rather difficult to say, but I judge that the condition will not progress rapidly beyond what he has now.”
Dr. Thompson expressed the opinion that the insured was wholly incapable of performing all parts of his usual work. As to whether the insured was incapable of performing all other gainful work, Dr. Thompson said:
“I am somewhat in doubt here, but I am inclined to believe that this man could do some small things.”
In answer to the question:
“If totally disabled, from what date had the insured been continuously wholly incapable of engaging in any gainful work?” Dr. Thompson stated: “From the fourth day of June, 1933.” (Obviously an error as to the year.)
In answer to the question:
“Is the disability in your opinion of such a nature that the insured will never for the remainder of his or her lifetime be able to engage in profitable employment of any kind ?” Dr. Thompson answered: “As I stated above, I believe this man is capable of doing some slight work at this time.”
“It depends upon whether or not this man has a definite angina or not.”
On December 20, 1933, the defendant also had in its possession a report of an examination of the plaintiff by Dr. Rogers, cardiologist. The report dealt with present complaints, habits, family history, past illness, physical examination of the cardiovascular system, and the revelations of the electrocardiograms. In forwarding the report Dr. Rogers summarized his conclusions.
“From the physical examination and the electrocardiograms I could find no evidence which would warrant a diagnosis of ‘organic heart disease with permanent total disability’ at this time. . . . There is no suggestion, from the electro-cardiographic evidence at hand, that this man is suffering from coronary artery changes.”
Mrs. Van Dale, writing for the plaintiff, acknowledged the receipt of the defendant’s letter of December 20th, in which she took issue with the statement of the defendant that it deemed the plaintiff capable of engaging in a gainful occupation, and in which she offered to have her husband undertake a trip to Newark (the home office), at his own expense, that the company’s physicians might thoroughly examine him and see for themselves just exactly what condition he was in. Apparently no reply was made to this letter. On January 3d, a Mr. Garrigle, an experienced adjuster from the home office, appeared in Milwaukee without notifying the plaintiff or his wife of his coming. The first notice that they had was a telephone message from the Milwaukee office asking them to come to that office and to bring with them their insurance policies. The plaintiff and his wife testified that they arrived at the office at about 12 o’clock; that they met
“There is no evidence you are totally and permanently disabled. You can see for’yourself from the reading. I told him that the medical findings from the examination of these doctors disclosed no evidence that he was totally and permanently disabled.”
Mr. Garrigle further testified that Van Dale did not take kindly to the findings at first and said that he was still disabled. Garrigle testified that he said: “You can’t be when the medical men have examined you and shown to our home office that you are not,” and further, “there is no use of us
“As you know, Mr. Van Dale was for some time in the receipt of disability benefits which were payable only if he was totally and permanently disabled; that is, so disabled that it was not expected he would ever again be able to do any gainful work. ... A report was consequently obtained from our medical referee, Dr. Thompson, from which it appeared that Mr. Van Dale could no longer be considered disabled*292 and could no longer be considered entitled to the payment of disability benefits.”
The plaintiff, after signing the releases on January 3d, was again examined by his family physician and by another physician and was X-rayed by another. Upon the trial the medical testimony was conflicting as to whether the plaintiff was so disabled as to be unable to perform any gainful work in the future.
Taking up the several contentions of the defendant, we shall treat them in their order : (1) Did the defendant, at the time it obtained the releases, conceal material information from the plaintiff? As to this contention, there was clearly an issue of fact. The plaintiff denied that any of the medical reports in the possession of the defendant were exhibited to him or read to him. So there is clearly evidence that whatever the reports contained they were concealed from him, and it seems clear that the reports of Dr. Stranberg and Dr. Thompson contained information which was material on the question of obtaining the releases. Even though pressed for money to save his home from threatened foreclosure, it seems clear that the plaintiff would have hesitated long in signing the releases had he known of the opinions expressed by some of the defendant’s medical specialists. We think the trial court committed no error in refusing to change the answer to question 1.
Did the defendant make affirmative misrepresentations? We think it clear that the jury was warranted in finding that the company, in its letter of December 20th, and through its agent Mr. Garrigle, did make representations which were not warranted or supported by the information which had been given to it by its medical specialists. Mr. Garrigle told the plaintiff that the medical findings disclosed no- evidence that the latter was totally and permanently disabled, and when the
“How can you be when the medical men have examined you and shown to our home office that you are not.”
In its letter of December 20th, the company, after stating that the plaintiff w'as not afflicted with aneurysm of the aorta, said:
“As it was on the basis of such a diagnosis that your claim was approved and as we now deem you capable of engaging in a gainful occupation, we must inform you that disability payments are being discontinued and your policies are being restored to a premium paying basis.”
We think that the jury -was warranted in concluding that affirmative misrepresentations were made to the plaintiff not only in the interview with Mr. Garrigle on January 3d, but also in defendant’s letter of December 20th. The trial court, in our opinion, did not err in refusing to change the answer to question 3.
Did the plaintiff rely upon any misrepresentations as to the medical reports or the concealment thereof by the defendant ?
There is, in our view, ample support in the evidence for the finding of the jury that the plaintiff relied upon the representations made in signing the releases. It is true that at that time the plaintiff knew exactly how he felt and what his symptoms were, but he did not know the medical meaning thereof. He knew that his family physician considered him totally disabled. He must have knpwn or realized that Dr. Stranberg, who had examined him for the company some eighteen months before, was at that time in substantial accord with Dr. Roberts, his own physician. But the plaintiff was a layman who, in weighing' the representations of the defendant as to the opinions and findings of its specialists, and comparing them with the findings and opinions of his own
“ ‘The company’s doctors say I am not disabled, my doctors say I am. With such opposite opinions, particularly when the company’s doctors are eminent specialists, while mine are general practitioners, I will settle.’ But if he knew that the company’s doctors said he was disabled, even though stating that they had doubt but what he might not be able to do some slight work, his reaction would then be, ‘If my own doctors say I am disabled and I feel sick and disabled, and the company’s doctors admit almost as much, I will rely upon how I feel and what my own doctors say and refuse to settle.’ ”
Whether a party relied upon representations made to him ordinarily presents a question of fact for the jury. Barndt v. Frederick, 78 Wis. 1, 11, 47 N. W. 6; Ripon Knitting Works v. Railway Express Agency, 207 Wis. 452, 461, 240 N. W. 840; Madison Trust Co. v. Helleckson, 216 Wis. 443, 450, 451, 257 N. W. 691. We think that, under the evidence, it was permissible for the jury to find that the plaintiff relied upon the misrepresentations made by the defendant to him.
Did the plaintiff, by his conduct, ratify the releases and settlement made on January 3d? It is argued that the plaintiff ratified the releases and settlement as a matter of law, (1) by signing the revised release as to one of the policies which was sent him some eight days after January 3d; (2) by holding the two checks until March 14th, and then depositing them; (3) by signing the joint release with the Wau-watosa State Bank on July 19, 1934; and (4) by consulting between January 3d and February 21st, his own physician and two others who told him that he was unable to do any kind of work. While these occurrences afford a basis for an argument on the facts, they do not show ratification as a
Did the plaintiff establish by the evidence adduced at the trial that he was disabled within the meaning of the disability provision of the policies ? As hereinbefore stated, there was a sharp dispute between the doctors as to' that issue. The jury found that he was so disabled. That finding was approved by the trial court. It is. our opinion that such finding, approved as it was by the trial court, may not be disturbed.
But one other point argued by the defendant need be considered. The trial court was of the opinion that a confidential
By the Court. — Judgment affirmed.