Fjeseth v. New York Life Ins. Co.

• Decision Date: 03 October 1961
• Citation: 14 Wis.2d 230,111 N.W.2d 85
• Parties: Martha S. FJESETH, Appellant, v. NEW YORK LIFE INSURANCE CO., a foreign corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 85

111 N.W.2d 85

14 Wis.2d 230

Martha S. FJESETH, Appellant, v. NEW YORK LIFE INSURANCE CO., a foreign corporation, Respondent.

Supreme Court of Wisconsin.

Oct. 3, 1961.

N. George De Dakis, La Crosse, for appellant.

Johns, Roraff, Pappas & Flaherty, La Crosse, for respondent.

BROADFOOT, Justice.

This court has often stated that summary judgment should not be granted when there are substantial issues of fact to be determined, when the evidence on a material issue is in conflict, and there are permissible inferences from undisputed facts that would permit a different result.

In several respects the record on the motion for summary judgment is uncertain so that inferences must be drawn, and there are substantial issues of fact that are not established. It is not clear from the record whether or not Mr. Fjeseth read the supplemental application for insurance and the amendment to the original application that were presented to him for signature by the defendant's agent. We find nothing in the record that indicates he did read them. The supplemental application for insurance provides that the applicant reiterates and confirms the statements, representations, answers and agreements contained in the previous application and agrees that the previous application may be a part of the policy for additional insurance. The form further states that the applicant declares that, to the best of his knowledge and belief, no change has occurred in his health or insurability since the date of his previous application. It is admitted that the answers contained in the application, one part of which is dated May 26 and the other part May 27, were true when made.

One issue of fact to be resolved, if the applicant is to be bound by all statements in the supplemental application, a point upon which we express no opinion, would be whether or not any change had occurred in the health of the applicant to the best of his knowledge and belief since the date of the first application. The issue of fact is not what the doctor knew or believed, but what the applicant knew and believed.

The defendant relies upon a printed statement in the amendment to the application which was signed onJune 18, which reads as follows:

'I Declare That: to the best of my knowledge and belief, the answers made in the application for the policy referred to herein represent, without material change, true and complete answers to the same questions if asked at the time this amendment was signed, subject to any modification requested in this amendment.'

This declaration, if read, was made upon information and belief. The questions contained in the original application were not again read to the applicant. In fact, it is clear from the record that no questions concerning his health were asked by the agent. Again there is an issue of fact as to what the applicant knew and believed.

The defendant relies in particular upon three cases decided by this court, viz.: Gibson v. Prudential Ins. Co., 274 Wis. 277, 80 N.W.2d 233; Bradach v. New York Life Ins. Co., 260 Wis. 451, 51 N.W.2d 13; and Demirgian v. New York Life Ins. Co., 205 Wis. 71, 236 N.W. 566. In each of those cases false statements were contained in the original application. They are not controlling here.

The plaintiff cites Schneider v. Wisconsin Life Ins. Co., 273 Wis. 105, 76 N.W.2d 586. The Schneider case...