Clark v. Prudential Ins. Co. of Am.
| Decision Date | 05 November 1935 |
| Citation | 219 Wis. 422,263 N.W. 364 |
| Parties | CLARK v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; Walter Schinz, Circuit Judge.
Reversed, with directions.
This action was begun on July 6, 1933, in the civil court of Milwaukee county, by Harriet Clark, as administratrix of the estate of Kate Clark, deceased, against the Prudential Insurance Company of America, upon a policy of life insurance issued by defendant upon the life of William Clark in the sum of $500; plaintiff's intestate, Kate Clark, being the named beneficiary. The case was tried to the court and a jury. At the conclusion of the testimony, the trial court granted defendant's motion for a directed verdict. Thereafter, upon motion, the court reconsidered the matter, set the original order aside, and ordered judgment for plaintiff in the amount of the policy, with interest and costs. Upon appeal the circuit court entered judgment on April 17, 1935, affirming the judgment of the civil court. The material facts will be set forth in the opinion.
Lines, Spooner & Quarles, of Milwaukee (L. S. Clemons, of Milwaukee, of counsel), for appellant.
Cornelius T. Young and J. E. McCarty, both of Milwaukee (William G. Cavanaugh, Jr., of Milwaukee, of counsel), for respondent.
The insurance policy upon which this action was brought is dated October 28, 1932, at the home office of defendant, and was delivered to the insured in Milwaukee a few days thereafter. The policy was issued without a medical examination, but contained the following clause: “Preliminary Provision--This policy shall not take effect if on the date hereof the insured be not in sound health, but in such event the premium or premiums paid hereon, if any, shall be returned.”
The insured died on November 4, 1932, six days after the date of the policy. The principal cause of death was hypertension malignant, otherwise known as serious high blood pressure. The contributory causes were myocardial degeneration and acute decompensation (heart disease). The trial court found that the insured was not in sound health on the 28th day of October, 1932, but was on that date afflicted with the diseases which caused his death. No attack is made upon this finding, and the question is solely one of law as to the validity and scope of the preliminary provision, heretofore set out.
It is the contention of defendant that the preliminary provision is valid and enforceable, and constitutes a condition precedent to any liability under the policy; that it has no relation to, nor is it affected by, any statutes or rules of law dealing with warranties or misrepresentations.
The first question has to do with the validity of the preliminary provision, and assumes that if valid, it constitutes a condition precedent to liability under the policy. The trial court was of the opinion that it was repugnant to section 209.06, Stats. Section 209.06 provides as follows: “(1) No oral or written statement, representation, or warranty made by the insured or in his behalf in the negotiation of a contract of insurance shall be deemed material or defeat or avoid the policy, or prevent its attaching unless such statement, representation, or warranty was false and made with actual intent to deceive or unless the matter misrepresented or made a warranty, increased the risk or contributed to the loss.”
[1] This section deals only with representations and warranties, and has nothing to do with the conditions or coverage of insurance policies. It contains no prohibition, express or implied, against such a condition or limitation of coverage as is here involved. There is no standard policy law with respect to life insurance, and no prohibition anywhere in the statutes against accepting a risk without medical examination but upon condition that an insurable state of health...
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