Delaney v. Prudential Insurance Co. of America , 29 Wis. 2d 345 ( 1966 )

Gordon and Beilfuss, JJ.

(dissenting). We respectfully dissent. The agents of the Prudential Insurance Company of America persuaded Mrs. Delaney to forsake her pre-existing Blue Cross hospital policy and to “switch” to a policy with their company. One of the salesmen wrote out the application in which Mrs. Delaney disclosed two past hospitalizations. She was not told how far back she was to go in giving her medical history.

After the policy was issued in June, 1963, she incurred hospital expenses in May, 1964, for the removal of a cancerous lump from her left breast and the subsequent removal of her uterus because of a cancerous condition. The defendant declined payments of the expenses for these hospitalizations.

The jury specifically found that Mrs. Delaney did not make a “false application concerning her hospital records.” The jury also expressly found that no false statement was made by her which materially affected the risk of the insurance company. The trial court accepted the jury’s verdict which, in our opinion, reached a result that is supported by credible evidence. The majority opinion, however, concludes that her nondisclosures increased the insurance company’s risk as a matter of law.

The majority opinion acknowledges the familiar rule that if there is any credible evidence which under any reasonable view fairly admits of an inference supporting the jury’s verdict it may not be upset. Zweifel v. Milwaukee Automobile Mut. Ins. Co. (1965), 28 Wis. (2d) 249, 254, 137 N. W. (2d) 6; Ide v. Wamser (1964), 22 Wis. (2d) 325, 331, 126 N. W. (2d) 59.

The majority of the court is impressed by the fact that two employees of the defendant’s underwriting department and one employee of its medical department testified that the company would not have written this policy if they had been in possession of all the facts. In our opinion, the jury (knowing that the company was disputing the claim) may have considered that its employees were mistakenly using hindsight to describe what they previously might have done. Less charitably, the jury may even have believed that such witnesses were merely protecting their jobs and, thus, may have wholly rejected their testimony as self-serving and false. There is nothing inherently true or uncontrovertibly trustworthy about such testimony so as to warrant a finding that these interested witnesses were correct as a matter of law. In Martell v. Klingman (1960), 11 Wis. (2d) 296, 105 N. W. (2d) 446, this court declined to hold that the nondis-closures increased the risk as a matter of law.

In a case decided at this assignment, State ex rel. Stollberg v. Crittenden, post, p. 413, 139 N. W. (2d) 94, the court made the following observation about uncontra-dicted evidence in a paternity case:

“Counsel for relator stress the fact that her testimony, that she did not have intercourse with any men other than defendant during the conception period, was not directly controverted. However, the jury were the judges of her credibility and were not required to accept her testimony as true.”

A related view is expressed in two other recent decisions of this court. Estate of Staniszewski (1965), 28 Wis. (2d) 403, 409, 137 N. W. (2d) 57; Lazarus v. American Motors Corp. (1963), 21 Wis. (2d) 76, 84, 123 N. W. (2d) 548. In view of the interest in the lawsuit held by these witnesses for the defendant, the jury was not obligated to adopt their testimony.

The jury may have believed that if Mrs. Delaney had been out to cheat the company she would not have even disclosed the two hospitalizations which she did report. Platke v. John Hancock Mut. Life Ins. Co. (1965), 27 Wis. (2d) 1, 10, 133 N. W. (2d) 277. In addition, the jury may have weighed the fact that Mrs. Delaney already had a perfectly valid policy of insurance with Blue Cross and would have had no purpose in practicing deceit in order to obtain a policy from the defendant.

There is no apparent nexus between Mrs. Delaney’s past medical attention and her recent hospitalizations which concerned cancer; a full disclosure of such medical history would not have alerted the company to the prospective peril of her having hospitalization for cancerous conditions. At least, the jury was entitled to have reached such a conclusion upon the evidence in this case; this is especially true since Dr. Henske testified that Mrs. Delaney’s pre-existing ailments did not increase the probability that she would have cancer.

The failure to disclose the five-day hospitalization in 1961 for angina pectoris would appear to be a serious omission; however, the jury had before it credible evidence which would significantly diminish the weight to be given to this omission. Dr. Henske testified that he “certainly didn’t tell her that she had heart trouble. . . .” He explained that Mrs. Delaney had been under stress from marital difficulties and went on to state:

“I think at that time Mrs. Delaney was having family trouble and I think the worry of the family trouble and everything caused her pain around her heart and I thought it was serious enough to affect her heart because she had a pain there and I sent her to the hospital for that reason.”

The jury could have interpreted Dr. Henske’s testimony to mean that she did not in fact have anything more than a suspected heart condition. In Dr. Henske’s opinion, Mrs. Delaney’s general health at the time she applied for the policy with the defendant was “perfectly all right.”

The case would be a closer one if Mrs. Delaney’s claims against the defendant concerned hospitalizations which were for the treatment of a heart ailment; in such case, it would be more plausible to argue that her failure to have disclosed the previous episode was material as a matter of law. Upon this record, can it be said that her past hospitalizations for hemorrhoids, asthma, childbirth, or angina pectoris (let alone an infected toenail) had any relationship to breast-lump surgery? We think not.

In our opinion, there was a jury issue here, and the jury’s conclusions may not properly be upset. We would affirm the judgment of the trial court.