Weiss v. Mutual Indem. Co.

• Decision Date: 04 October 1966
• Citation: 145 N.W.2d 171,32 Wis.2d 182
• Parties: Jennings W. WEISS, Respondent, v. MUTUAL INDEMNITY CO., a Wis. corporation of Madison, Wis., Appellant.
• Court: Wisconsin Supreme Court

Page 171

145 N.W.2d 171

32 Wis.2d 182

Jennings W. WEISS, Respondent, v. MUTUAL INDEMNITY CO., a Wis. corporation of Madison, Wis., Appellant.

Supreme Court of Wisconsin.

Oct. 4, 1966.

Geffs, Geffs, Block & Geffs, Janesville, for appellant.

Sidney J. Thronson, Janesville, for respondent.

GORDON, Justice.

If there are any substantial issues of fact for trial, summary judgment should not be granted. Thompson v. Dairyland Mut. Ins. Co. (1966), 30 Wis.2d 187, 140 N.W.2d 200; Hein v. State Farm Mut. Auto. Ins. Co. (1966), 29 Wis.2d 702, 139 N.W.2d 611.

There appear to be misstatements on each of the three insurance applications. The appellant urges that these errors voided the policy as a matter of law, as in Delaney v. Prudential Ins. Co. (1966), 29, Wis.2d 345, 139 N.W.2d 48. The plaintiff, on the other hand, denies that the false statements were made by him and attributes them to the defendant's agents who he says prepared the applications.

Is the Insurer Estopped?

The 1960 application, which the plaintiff signed, asserted that he had never had diabetes; the application also failed to disclose his consultation with a medical doctor about such disease within the preceding five years. Mr. Weiss contends that the agent prepared such application by copying the 1958 application. It appears to be Mr. Weiss' position that although he signed the application he did not supply the misinformation and did not subsequently examine the document.

If Mr. Weiss' claim is believed by the trier of fact, it could result in an estoppel of the defendant's right to assert the misrepresentations. Emmco Ins. Co. v. Palatine Ins. Co. (1953), 263 Wis. 558, 58 N.W.2d 525; Taluc v. Fall Creek Farmers Mut. F. Ins. Co. (1931), 203 Wis. 319, 234 N.W. 364. In the Taluc Case, this court stated, at page 321, 234 N.W. at page 365:

'Everyday experience underlies the rule that it is not necessarily negligence for the applicant for insurance to fail to read the application or the policy, and that misstatements inserted in the application by the agent without the knowledge of the assured do not become misrepresentations of the insured by reason of the fact that he signed the application. Ordinarily persons making contract of insurance do not read carefully the application, and a very small per cent, in all probability, of those securing insurance, ever read or understand the contents of the policy. Because of this fact the law has placed restrictions of an unusual nature, considering contracts as they are generally treated, upon the parties seeking to avoid the terms of a policy of insurance.'

In the Emmco Case, the court commented as follows, 263 Wis. at page 571, 58 N.W.2d at page 532:

'The instant case is one in which a false answer was inserted in the policy through the sole fault of the defendant insurance company's agent. The principles of equity and fair dealing require that the company be not permitted to take advantage of the wrongful act of its own agent by showing that the fact as to incumbrances was other than as written into the policy by the agent.'

Emmco and Taluc were somewhat limited in breadth by Stockinger v. Central National Ins. Co. (1964), 24 Wis.2d 245, 128 N.W.2d 433. In the Stockinger Case, the insured looked at the application before signing it, but this may not be true in the caseat at bar. Normally, one is deemed to understand what he has signed, but even the strong presumption to that effect may be overcome by evidence. The trier of fact in the insant case will be able to consider all the circumstances in determining whether the missatements were the unilateral work of the agent; if they were, the defendant could be estopped from asserting its defense under the policy.

The defendant is not entitled to summary judgment in view of the existence of the factual dispute relating to estoppel. Nevertheless, we believe it will be useful to comment briefly on the insurer's defenses under sec. 209.06(1), Stats.

The Insured's Intent to Deceive.

Sec. 209.06(1), Stats., contemplates that a misrepresentation made with an intent to deceive may be utilized by an insurer to defeat a policy claim. Much of what was said in the first section of this opinion relates to Mr. Weiss' understanding of what was written on the document he signed, and we believe that his intentions were not so clear that on...