Ludwig v. John Hancock Mut. Life Ins. Co.

• Decision Date: 10 January 1956
• Citation: 271 Wis. 549,74 N.W.2d 201
• Parties: Juanita O. LUDWIG, as Trustee, etc., Respondent, v. JOHN HANCOCK MUTUAL LIFE INS. CO., a foreign corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 201

74 N.W.2d 201

271 Wis. 549

Juanita O. LUDWIG, as Trustee, etc., Respondent, v. JOHN HANCOCK MUTUAL LIFE INS. CO., a foreign corporation, Appellant.

Supreme Court of Wisconsin.

Jan. 10, 1956.

Rehearing Denied March 6, 1956.

Bloodgood & Passmore, John P. Roemer and Charles H. Galin, Milwaukee, for appellant.

Henry S. Reuss and Carl J. Ludwig, Milwaukee, for respondent.

BROADFOOT, Justice.

Prior to the trial before Judge Neelen the defendant, upon three occasions, moved for leave to file an amended answer to set up as an additional defense an allegation that between the date of the application and the date of the delivery of the policy the insured had consulted two physicians in Milwaukee; that as a result of said consultations the insured knew on the date of the delivery of the policy that his health had changed for the worse and that he failed to disclose said information to the defendant. The motions were denied in each instance. The motions were grounded on the provisions of sec. 269.44, Stats., the defendant claiming that in furtherance of justice the amendment should be permitted. It further contended that at the time Judge Gehrz withdrew the case from the jury he directed that amendments be made to the pleadings. Judge Gehrz did indicate that the pleadings should be amended, and on November 17, 1954, he allowed each side ten days within which to file additional pleadings and amendments. This was some time before the mistrial was ordered. No amendments were tendered to Judge Gehrz, the first motion for leave to amend being made before Judge Neelen in January, 1955, after the case had been assigned to his court for trial.

In support of the motions, the defendant at no time claimed that it was ignorant of the facts sought to be pleaded by the amendment when the original answer was drafted and served. An application for leave to amend a pleading in furtherance of justice without any showing of newly discovered facts or excusable neglect is addressed to the discretion of the trial court.

A careful review of the record indicates that under the circumstances here present the trial court did not abuse its discretion.

There are references in the record to a visit by the insured to his physician on July 30, 1953, and a visit to another physician on August 20, 1953; also that the insured was admitted to Columbia Hospital on the evening of August 25, 1953; that he was discharged therefrom on August 26, 1953, and on the same day went to the Mayo Clinic at Rochester, Minnesota. The defendant made offers of proof, through the two physicians and by way of the hospital records at Columbia Hospital, that would tend to prove the facts alleged in the proposed amended answer. The trial court ruled that under the issues raised by the pleadings, evidence of occurrences after July 24, 1953, was immaterial. The defendant cites the following provision appearing in Part A of the application:

'A. The foregoing statements and answers are complete, true and correctly recorded, and with Part B of this application, shall form the basis for and be a part of any contract of insurance. B. If the full first premium at the Company's published rates, according to the interval of premium payment selected, was not paid when this application was signed, the contract of insurance shall take effect as of the date of issue of the policy, but only upon the delivery to and receipt by me of the policy and the payment of the said first premium and only if at the time of such delivery and payment all statements set forth in Parts A and B of this application are then true. * * *'

This provision was inserted in the proposed amended answer but did not appear in the original answer. The application, however, was made a part of the record. The defendant, therefore, contends...