De Bonville v. Travelers Ins. Co.
| Decision Date | 05 May 1959 |
| Citation | 7 Wis.2d 255,96 N.W.2d 509 |
| Parties | Anthony A. DE BONVILLE, Appellant, v. TRAVELERS INSURANCE CO., Respondent. |
| Court | Wisconsin Supreme Court |
Riley & Wahl, Eau Claire, for appellant.
Ramsdell, King, Carroll & Barland, Eau Claire, for respondent.
The power of the courts under the summary judgment statute (sec. 270.635, Stats.) is drastic and should be applied only when it is perfectly plain that there is no substantial issue to be tried. Ryan v. Berger, 1949, 256 Wis. 281, 40 N.W.2d 501. Summary judgment should be granted only when there is no substantial issue of fact or of permissible inference from undisputed facts to be tried. Braun v. Jewett, 1957, 1 Wis.2d 531, 539, 85 N.W.2d 364. But disputed issues of fact which are immaterial to the questions of law presented do not afford a basis for denying the application for summary judgment. Carney-Rutter Agency v. Central Office Buildings, 1953, 263 Wis. 244, 248, 57 N.W.2d 348.
The defendant insurance company places its principal reliance upon the undisputed fact that De Bonville's application to convert his group policy into an ordinary life policy contained a surrender of all his rights and privileges under the group policy.
We consider that if the surrender of his accrued rights be so interpreted their surrender is without consideration and is void. The conditions upon which a converted policy must be issued are set forth in the foregoing statement of facts. All these conditions were met by De Bonville when he applied to exercise his conversion privilege. Nowhere among those conditions appears a requirement that De Bonville or any other employe, as the price of obtaining a policy by conversion, must give up the protection which had already accrued against losses or risks alleged to have been already incurred. Without a surrender of such existing protection against risks which had already attached or losses incurred De Bonville had met all the specified conditions of the group policy and was absolutely entitled to the converted policy of his own choice. The additional requirement of giving up a vested right was imposed upon him without consideration and in that respect his agreement to relinquish this right was void.
That conclusion, however, does no more than to restore to De Bonville the original protection of his group policy subject, of course, to that policy's terms. To be entitled to total disability benefits a condition precedent requires the policyholder to '* * * furnish the Company with due proof that * * * he has become wholly disabled * * *, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, * * *.'
Plaintiff's heart attack occurred on November 6, 1951. About May 1, 1952 he filed a claim for total permanent disability, and as proof gave the insurance company a statement so certifying...
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