Martell v. Klingman

• Decision Date: 04 October 1960
• Citation: 11 Wis.2d 296,105 N.W.2d 446
• Parties: Lawrence MARTELL, Plaintiff-Respondent, v. John KLINGMAN et al., Appellants, Delima Mondor et al., Defendants-Respondents (Two notices of appeal). Delima MONDOR et al., Respondents, v. John KLINGMAN et al., Appellants (Two notices of appeal).
• Court: Wisconsin Supreme Court

Page 446

105 N.W.2d 446

11 Wis.2d 296

Lawrence MARTELL, Plaintiff-Respondent, v. John KLINGMAN et al., Appellants,

Delima Mondor et al., Defendants-Respondents (Two notices of

appeal).

Delima MONDOR et al., Respondents, v. John KLINGMAN et al., Appellants (Two notices of appeal).

Supreme Court of Wisconsin.

Oct. 4, 1960.

Robert R. Gavic, Spring Valley, for Klingman.

Arnold, Philipp & Murray, Milwaukee, Crocker, Herrick, Sigl & Goethel, Eau Claire, for National Indemnity Co. of Omaha, Neb.

Doar & Knowles, New Richmond, for plaintiff-respondent.

Gwin & Fetzner, Hudson, for defendants-respondents.

FAIRCHILD, Justice.

1. Policy defense. Klingman applied to National Indemnity Company for collision and liability insurance on March 15, 1958. He signed an application form in which the insurance agent wrote the information in the spaces provided. One of the spaces in the form was designated: 'Describe all driving violations or convictions below' and in that space, the agent wrote 'None.' In fact in May, 1952, Klingman had been fined $8.95 for speeding, apparently in violation of a city ordinance, and in August, 1952, had been fined $13 for reckless driving in violation of a county ordinance. The agent did not recall asking Klingman the particular question. Klingman testified that he did not believe he was asked about prior convictions although in a written statement before trial he had said he may have been asked but did not recall. They agreed that the completed application was not read to, or by Klingman. The court found that there was no proof that the false statement was made by Klingman, or that if made, it was made with intent to deceive, and that it did not increase the risk. The company challenges the court's finding.

The statement was made by Klingman in the sense that he signed an application which contained it. Under sec. 209.06(1), Stats., no statement or representation made by the insured in the negotiation of a contract of insurance shall avoid the policy unless such statement or representation was false and made with intent to deceive or unless the matter misrepresented or made a warranty increased the risk or contributed to the loss. The circuit court concluded that the company had not produced sufficient proof to justify a finding that Klingman had told the agent that there had been no convictions, or that when he signed the application containing that incorrect statement, he did so with intent to deceive. We cannot say, as a matter of law, that the company sustained its burden of proof.

In Polar Mfg. Co. v. Integrity Mut. Ins. Co., 1960, 11 Wis.2d 105, 110, 104 N.W.2d 164, 167, we approved an instruction to the jury that 'You are to determine this question [whether the risk was increased] from all the testimony received upon this trial as to what those engaged in the fire insurance business, acting reasonably and naturally in accordance with the practice usual in the insurance industry, under such facts and circumstances, would have done.' The National Indemnity Company specializes in the insurance of substandard risks, and on its rate card for insuring substandard private passenger cars, appears the following statement:

'Any risk with more than one traffic violation and/or accident during the last three years shall be subject [to] a demerit charge for each additional violation and/or accident.'

The application disclosed that Klingman's insurance with another company had been cancelled because of a bad collision loss about one month before.

The amount of the fines do not indicate that the violations were serious, and under the provision quoted from the rate card, they, having occurred five or six years before, would not have required the addition of demerit charges. The company made offers of testimony of members of the underwriting firm who passed upon the risk for the company. These offers were rejected by the court. In one instance, the testimony offered was that had the witness known of the two traffic violations, she would have consulted with her superior about the issuance of the policy, and that she is unable to state definitely as to whether or not the policy would have been issued, but was rather of the impression that she would not have issued the policy. In the other instance, the offer was to show that in the event the witness had known of these violations it is possible that he might then have disapproved of the issuance of the policy. There was no error in rejecting these offers of testimony. They were in indefinite terms and did not purport to establish a probability that an insurer, acting reasonably and naturally in accordance with the usual practice in the industry, would have rejected the risk if it had knowledge of the convictions. With respect to whether the misrepresentation increased the risk, we cannot say, as a matter of law, that the company sustained its burden of proof.

2. Amendment of pleadings. The complaints and cross complaints against Klingman and his insurance company did not expressly allege gross negligence. In each it was alleged that Klingman was negligent in a number of respects, such as lookout, management and control, and the like. In each an additional specification of negligence was that he operated his vehicle under the influence of intoxicating liquor. Some weeks before trial, there was a motion by the Mondors for amendment of pleadings, and just before the trial there was some discussion of whether the allegations as to operating the vehicle under the influence of intoxicating liquor would have the force and effect of a statement of a cause of action for gross negligence. The court ruled that the specification of operation under the influence of intoxicating liquor as an element of simple negligence was not a sufficient allegation of gross negligence. In this discussion, there was mention of the possibility that a motion might be made upon the trial to amend the pleadings so as to allege gross negligence, and thus to conform to the proof. After the close of the evidence, such motions were made and were granted. The issue of gross negligence was then submitted to the jury.

National Indemnity Company argues that it was an abuse of discretion to allow the amendments. Sec. 269.44, Stats., provides that the court may at any stage in furtherance of justice amend any pleading provided that the amended pleading states the cause of action arising out of the transaction upon which the original pleading is based.

The only prejudice claimed to have resulted from the late amendment was that as long as only simple negligence was alleged, National Indemnity Company could hope that Mrs. Mondor would also be found negligent, and that it could then obtain contribution in the Martell action, and a reduction in the Mondor claims by reason of contributory negligence, and that Klingman could expect that any judgment against him would be dischargeable in bankruptcy; that both might have been more likely to settle if gross negligence had been pleaded earlier. No surprise was claimed, either as to any item of evidence, or as to the desires of Mr. Martell and the Mondors to plead gross negligence. Proof that a plaintiff's injuries were caused by improper driving of a defendant by reason of defendant's being under the influence of liquor is sufficient to sustain a finding of gross negligence. Ayala v. Farmers Mut. Automobile Ins. Co., 1956, 272 Wis. 629, 640, 76 N.W.2d 563. In the pleadings before us, the claim with respect to the operation under the influence of liquor was not separately stated from the cause of action in simple negligence. There was no express characterization of the conduct as gross negligence, and in some of them no reference to wilfulness, recklessness and wantonness. The evidence, however, sustained the jury answers on gross negligence. Under all the circumstances, we find no abuse of discretion in the court's permitting the amendments.

3. The urine specimen. An expert testified to the percentage of alcohol in Klingman's blood determined by analysis of a specimen of urine. The origin of the specimen was as follows: Klingman, who had been injured and was semiconscious, was taken to the hospital after the accident, and was waiting in the hall on a cart in the presence of a nurse and two officers. This was within two hours after the collision. Klingman recalled that one officer asked him if he wanted to go to the bathroom. Klingman said he would try if he could get up, and the officers got him up off the stretcher. He then urinated in a bottle held by one of the officers. He was not under arrest.

National Indemnity Company claims that the specimen and testimony as to the analysis were inadmissible because the taking of the specimen was an unreasonable search and seizure in violation of sec. 11, Art. I, Wis.Const. The company relies, in part, upon State v. Kroening, 1956, 274 Wis. 266, 79 N.W.2d 810, 80 N.W.2d 816. In that case, a sample of blood had been taken from defendant's body when defendant was in a semiconscious state, and without requesting or obtaining the consent of the defendant. Defendant was not under arrest. This court held that the taking of blood from within the body without consent and without arrest was a violation of the security protected by sec. 11, Art. I. The instant case is materially different. The worst that can be said is that Klingman may have urinated under the impression that the officers were helping him to make himself comfortable and in ignorance of the possibility that they were intent on obtaining evidence. In State v. Resler, 1952, 262 Wis. 285, 290, 55 N.W.2d 35, this court held that procurement of a specimen of urine did not constitute unreasonable search and seizure. It is true that in the opinion the court pointed out that there the defendant knew the purpose for which the sample was to be used, and voluntarily submitted. While knowledge and consent would make the constitutional claim even...