Spray v. Order of United Commercial Travelers of Am.

• Decision Date: 28 April 1936
• Parties: SPRAY v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.
• Court: Wisconsin Supreme Court

221 Wis. 329

267 N.W. 50

SPRAY

v.ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.

Supreme Court of Wisconsin.

April 28, 1936.

Appeal from a judgment of the Circuit Court for Sawyer County; James Wickham, Judge.

Affirmed.

Action brought by the plaintiff, Louis B. Spray, against the defendant, the Order of United Commercial Travelers of America, on an accident insurance certificate issued by it, to recover for partial disability. Defendant answered denying liability, and after a trial upon the merits, the court made findings upon which judgment was entered for plaintiff's recovery of $287.49 from the defendant. The latter appealed from that judgment.

Sanborn, Lamoreux & Pray, of Ashland, for appellant.

J. C. Davis, of Hayward, for respondent.

FRITZ, Justice.

So far as is material on this appeal, it appears without dispute, and the court found, that the plaintiff while on an automobile pleasure trip, on June 17, 1934, sustained injuries of such nature that he became entitled to recover $287.49 from the defendant as benefits under an insurance certificate, if that certificate was valid and in effect at the time of the accident. The certificate was issued to the plaintiff on May 16, 1934, by the defendant, a fraternal benefit society, pursuant to written application signed by the plaintiff on February 7, 1934, at Hayward, Wis., at the solicitation of Wayne Milward, a member of defendant order. Milward, who was acquainted with the plaintiff and his business activities, read the questions in the application blank to the plaintiff and inserted his answers. Among them were the following:

“8. Whom do you represent? Myself.

9. What business? Restaurant & tavern. * * *

12. In what capacity are you employed? Owner.

13. State specifically the duties performed by you: Manager.

14. Do you personally deliver? No Yes.”

In answer to question No. 14, Milward first wrote “No.” However, upon plaintiff's explanation that, in connection with his wholesale beer business, he sold beer to taverns, etc., and occasionally delivered beer to night clubs, or others needing beer, as a courtesy service when his truck driver was not available, Milward drew a line through the answer “No,” and in lieu thereof wrote “Yes.”

Defendant contends: (1) That the plaintiff, in failing to state in his application that he was a wholesaler of beer, made a misrepresentation, misstatement, and concealment therein as to his occupation; (2) that misrepresentation, concealment, or misstatement was made a warranty and increased the risk to the defendant, and rendered the policy void at its inception; and (3) that Milward was not an agent of the defendant so as to make his knowledge of plaintiff's wholesale beer business binding on it.

Upon the trial, the court found, and the evidence well warranted its finding, that at and between the time of plaintiff's application and the time of his injury, he conducted as owner and manager three kinds of business. He operated a restaurant and a tavern, and he was a wholesale dealer in beer. The restaurant and tavern were conducted in the same building at Hayward, Wis., which was also used to store beer intended for wholesale and retail trade. The beer was hauled from a nearby city, on a truck operated by a driver employed by the plaintiff, and he sometimes accompanied the driver. Deliveries of beer to customers were usually made by the driver, but sometimes the plaintiff personally delivered small quantities to his customers by automobile, and occasionally by truck. He spent about two hours a day in the wholesale business. The hazard incident to his duties as a wholesale dealer was similar to that of a merchant who made deliveries and that of a traveling salesman. Plaintiff's statement in the application that he personally made deliveries was intended to relate to deliveries in the wholesale business. No false or incorrect statement is contained in the application, except that the answer to question No. 9 is incomplete in omitting the words “wholesale dealer.” This omission was not made by the plaintiff with intent to deceive, and it did not increase the risk nor contribute to the loss.

The court further found that the mistake in omitting the occupation as a wholesaler of beer in the answer to question No. 9 was an innocent mistake of Milward's, who solicited the application upon blanks furnished him for that purpose by the officers of the Supreme Council of the defendant order, which paid him for such services at the rate of $1 for each new member secured; that Milward wrote the answers in the application on information furnished by plaintiff and was then informed that one of plaintiff's occupations was that of a wholesale dealer in beer; that the...