Bostwick v. Mut. Life Ins. Co. of N.Y.

• Decision Date: 11 March 1902
• Citation: 89 N.W. 538,116 Wis. 392
• Parties: BOSTWICK v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

116 Wis. 392

89 N.W. 538

BOSTWICK

v.MUTUAL LIFE INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

March 11, 1902.

Appeal from circuit court, Rock county; B. F. Dunwiddie, Judge.

Action by Joseph M. Bostwick against the Mutual Life Insurance Company of New York. Judgment for plaintiff. Defendant appeals. Reversed.

Action to recover money paid to defendant for three insurance policies. Plaintiff claimed that George S. Parker, Arthur H. Barrington and himself were each fraudulently induced to sign an application for an insurance policy of a different character than he intended; that each, as soon as he discovered the fraud, repudiated the transaction; and that Parker and Barrington thereafter, and before the commencement of this action, assigned to plaintiff their claims for the return of the money paid to the defendant. The answer put in issue all the allegations constituting the alleged fraud. There was evidence tending to show that defendant's agent and plaintiff negotiated, from time to time for several days, in respect to the latter taking a $10,000 policy of life insurance in the defendant company; that the agent strongly recommended what he called a “five per cent. debenture policy”; that plaintiff, from first to last, insisted that he did not want a policy that could not be paid up in 10 years; that he would take a 10-payment policy and no other--one that would be fully paid in 10 years; that the agent, from first to last, continued to recommend a 5 per cent. debenture policy, but did not say that such policy would require annual payments for life; that finally the agent said he would obtain for plaintiff what the latter wanted, and made out an application, representing that it was in accordance with the latter's wishes; that plaintiff had the paper in his possession for a considerable length of time and had ample opportunity to read and understand it, but did not do so, relying entirely upon the belief that the agent had written it in accordance with the understanding which had been reached; that the policy was received about April 1, 1897, accompanied by a letter, the opening lines of which were to the effect that it was a 5 per cent. debenture annual premium payment policy, such as the agent had urged plaintiff to take; that the letter further explained that the payment upon the policy would be $2 less per year than had been talked, and that $2 had been credited to plaintiff because he had given his paper for $1,064 when $1,062 was the proper amount; that when plaintiff received the policy he threw it into his drawer and did not examine it or pay any attention to it to discover whether it was according to his understanding or not; that circumstances led him to examine the policy some time thereafter, and that about August 22, 1897, he discovered that it was entirely different from the policy he was to obtain; that he thereupon notified defendant's agent of such fact and demanded an explanation; that considerable correspondence was subsequently had between plaintiff and the agent, resulting in an absolute repudiation of the policy by plaintiff on March 19, 1898. The evidence tended to show that Parker desired the agent to obtain for him a 20-payment policy; that he signed an application without reading it, supposing the agent had written it according to his request; that when his policy came he put it away without reading it and did not examine the paper or discover that it was not in accordance with his understanding, till about five months after it was received; that he then rescinded the insurance contract as far as it was possible for him to do so. The testimony as to Barrington was substantially the same. The evidence on the part of defendant was to the effect that the several applications for insurance were made in accordance with the understanding between the applicants and the agent and that the policies were issued accordingly. The court decided that the application made by plaintiff was written by the agent and signed by plaintiff without his reading it, though he was perfectly competent to do so and to understand it, and that he had ample opportunity therefor; that the reason why he did not do so was because he relied upon the agent to write it in accordance with his request; that plaintiff desired the agent to write the application for a 10 year annual payment policy, which he agreed to do; that he received the policy about April 1, 1897; that it was an annual premium policy, but that he did not discover that fact till August 22, 1897; that within a reasonable length of time thereafter he tendered the policy back to defendant and demanded a restoration of his money and notes. The circumstances as to Parker and Barrington are of the same character. Before the commencement of this action they assigned their claims for restitution to plaintiff. The conclusion of law reached was that plaintiff was entitled to recover of the defendant the money paid on the several policies, aggregating $1,401.50, with interest upon each such payment from the time it was made with costs. Judgment was rendered accordingly.Fethers, Jeffris & Mouat, for appellant.

Ruger & Ruger, for respondent.

MARSHALL, J. (after stating the facts).

Two propositions are presented for consideration: First, were the applicants for insurance bound by their applications because of their failure to know what they signed? Second, did the retention of the policies by the applicants for several months, without objection, constitute an acceptance thereof and waive the fraud, if there was fraud, in securing the applications? The learned counsel for respondent devoted nearly all their printed argument, as they did nearly all their oral argument, to the first proposition. As we do not think it is necessarily decisive of the case, we shall assume that in deciding it the trial court did not err. On the second proposition the court held that the applicants did not accept the policies because they repudiated them within a reasonable time after knowing that the instruments were not what they supposed their applications called for; that the mere retention of the policies without such knowledge did not constitute an acceptance. Appellant's counsel contend that when the policies were received the applicants were, as ordinarily prudent persons, put upon inquiry as to the character thereof, that they should have examined the policies, and that their failure to do so, and retention thereof for several months before making any complaint, was an acceptance of them as fulfilling the applications as they supposed such applications were made, and a waiver of fraud, if there was fraud, in obtaining the same.

As we view the turning question above suggested, the law has been firmly settled in favor of appellant, and has been applied by this court in many cases. It does not militate, as counsel for respondent seem to think, against the maxim that a person cannot take advantage of his own wrong, but enforces that other one, which is quite as well established, that the court will not constitute itself the guardian of persons of mature age and ordinary intelligence, protecting them against the results of their own negligence; that it will not furnish a person a remedy for a wrong where he cannot prove a legal claim for damages without showing that his own negligence intervened between the act of the alleged wrongdoer and the result complained of, and was the real, efficient, producing cause of his injury; that in such a case it will be conclusively presumed that he voluntarily accepted the situation, because, if he had used ordinary care, the injury complained of would have been prevented. Applying that in the decision of the cases, it has been repeatedly held that if a person contracts for an article to be delivered, and delivery is made ostensibly in fulfillment of the contract, under such circumstances that he has ample opportunity to test the thing delivered by the contract, he is put upon inquiry as to all departures therefrom which are open and obvious to ordinary...