Redlin v. Union Mut. Life Ins. Co., 162

• Decision Date: 31 October 1972
• Docket Number: No. 162,162
• Citation: 56 Wis.2d 215,201 N.W.2d 497
• Parties: Alfred W. REDLIN, Sr., Respondent, v. UNION MUTUAL LIFE INSURANCE COMPANY, a foreign corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 497

201 N.W.2d 497

56 Wis.2d 215

Alfred W. REDLIN, Sr., Respondent, v. UNION MUTUAL LIFE INSURANCE COMPANY, a foreign corporation, Appellant.

No. 162.

Supreme Court of Wisconsin.

Oct. 31, 1972.

Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Richard C. Ninneman, and Michael T. Hart, Milwaukee, of counsel, for appellant.

Robert J. Urban, Milwaukee, Grodin & Strnad, Milwaukee, of counsel, for respondent.

HANLEY, Justice.

Three issues are raised on appeal:

(1) Was it error for the trial court to find the deposition testimony of appellant's only witness, Travers, to be incredible;

(2) Was the deceased covered for insurance purposes, even if it is found that notice of termination was given to him; and

(3) Is the defendant, Union, entitled to a new trial in the interest of justice by order of this court, pursuant to sec. 251.09, Stats.?

Credibility of Witness.

Mr. Travers, the defendant's only witness, testified that close to within three days of July 17th he saw deceased at his office, took his briefcase and orally notified him of his termination. But, at the time of making Exhibit 2, a termination card, Travers noted he had not seen deceased for over two weeks and had not received the briefcase. Exhibit 2 was written July 17th. He further testified that it is probably safe to say that he met with deceased before July 25, 1967. When advised that the deceased was hospitalized through the month of July, 1967, the witness testified that he might well have spoken to deceased in August, 1967. Travers also testified that he terminated deceased's employment at a time when he had not notified him, although the employment contract required notice.

Appellant contends that it was error for the trial court to find the testimony of Travers to be incredible. The basis of his contention is that Travers' testimony is clear, positive and direct, and not in itself contradictory or improbable; and therefore the trial court was bound as a matter of law to believe him when he testified that he had orally given notice of termination to the deceased.

Appellant's contention is no more than a restatement of the rule which has long guided the court in determining whether or not the finder of fact in a particular case had reasonable grounds for disbelieving a witness' testimony. In Estate of Bradbury (1957), 275 Wis. 564, 567, 568, 82 N.W.2d 804, 806, the court adopted the language of the Minnesota Supreme Court as the rule to be followed in Wisconsin:

'. . . As stated in Caballero v. Litchfield Wood-Working Co. (1956), 246 Minn. 124, 129, 74 N.W.2d 404, 408:

"Clear, positive, direct, and undisputed testimony by an unimpeached witness, which is not in itself contradictory or improbable, cannot be rejected or disregarded by either court or jury, unless the evidence discloses facts and circumstances which furnish a reasonable ground for so doing. Such testimony can be rejected only when doubt is cast upon its truthfulness by contradictory or discrediting facts or circumstances. The testimony of a witness may be disregarded if it contains inherent improbabilities or contradictions which, alone or in connection with other circumstances in evidence, furnish a reasonable ground for concluding that the testimony is not true."

This statement of the rule was reaffirmed in Davies v. J. D. Wilson Co. (1957), 1 Wis.2d 443, 479, 85 N.W.2d 459.

The finding of incredibility by the trial court was based on alleged conflicts or inconsistencies between Travers' testimony and admitted facts.

The trial court noted the fact that Travers was willing to concede that the alleged conversation with the deceased could have occurred in August, only after he learned that the deceased was in the hospital almost the entire month of July and the first two days of August.

Appellant contends that at no time did Travers profess to recall the exact date of the conversation with the deceased concerning his termination; and only after repeated attempts by respondent's counsel to pin him down was he finally willing to allow that it was probably safe to say that he met with the deceased before July 25th. It is true the witness did not testify as to an exact date; however, it is obvious he was attempting to establish a date close to the date of execution of the Employee's Final Pay Information on July 17, 1967. Admittedly the witness violated...