Schafer v. Shelby Farmers Mutual Insurance ( 1945 )

Appellant, for the first time, calls attention to the legislative history of sec. 202.09, Stats., as conclusive that the court's construction of the section is erroneous. This memorandum is filed for the purpose of disposing of this contention.

Sec. 211.08 (1), Stats. 1929, provided as follows:

"(1) Every contract of insurance made under the provisions of this chapter shall be in writing and based wholly upon the written answers in the application over the signature of the applicant for such insurance and the survey and action of the company taken thereon, and no oral agreement or understanding with any person or made in any manner shall be binding upon the company, and the whole of such contract being contained in the policy of insurance as added to or modified only by the indorsements incorporated in or attached thereto as specifically authorized and so added to or modified by an officer of the company. No soliciting agent of any such registered town mutual insurance company shall have any other authority than to solicit. . . . A copy of the application containing the statements of the applicant shall be incorporated in or attached to the policy, and the failure of the insured to notify the company of any error or omission in such application or schedule of property to be covered by the policy and returning the policy for correction before any claim for loss or damage arises thereunder shall act as an estoppel to any claim of error, omission, understanding or agreement after claim under such policy arises. . . ."

In 1937, ch. 226, Laws of 1937, the provisions concerning town mutuals were consolidated and placed in ch. 202, Stats. Sec. 211.08, Stats., was repealed. The new enactment was numbered sec. 202.09, and of the very extensive provisions of sec. 211.08 the only one retained that bears on the question at issue in this appeal is the sentence "Every contract of insurance made under this chapter shall be based wholly upon the written answers in the application over the signature of the applicant."

We are of the view that the deleted portions of sec. 211.08, Stats., give no force to appellant's argument. Ch. 226, Laws of 1937, was not a revisor's bill but a bill introduced in the assembly by the committee on insurance and banking at the request of the insurance commissioner. We know of no reason why it should be treated as a revisor's bill or any presumption indulged that it was not intended to make any substantial change in the law. Further than this, however, we see no possibility of accommodating the language of sec. 202.09 to all the insertions theretofore contained in sec. 211.08. For example, provisions requiring a copy of the application to be attached to the policy and creating an estoppel to any claim of error, omission, understanding, etc., could hardly be imported into sec. 202.09 without seriously manhandling the language of that section. We are persuaded that the inference from deleting the material from sec. 211.08 is quite the contrary to that argued by appellant and that it lends force to the conclusion that sec. 202.09 was not intended to preclude actions to reform policies. We are fortified in our conclusion by a consideration of sec. 201.53 (1). This section states that "No insurance company shall make any agreement of insurance other than as plainly expressed in the policy." In spite of this provision which, by the way, is no more general than the provision contained in sec. 202.09, this court has always considered that it could reform an insurance policy for any of the reasons for which reformation is customarily given. See the authorities cited in Schmidt v. Prudential Ins. Co.235 Wis. 503, 292 N.W. 447.

Appellant finally directs the attention of the court to a statement in the opinion that the findings of the trial court are not against the great weight and clear preponderance of the evidence, whereas in cases of reformation the evidence should be clear, satisfactory, and convincing. The statement in the opinion was inadvertently made, and the writer accepts full responsibility in that regard. We have carefully reviewed the evidence, and are of the opinion that it is clear and convincing to the effect that there was a mutual mistake warranting reformation.

By the Court. — Motion for rehearing denied, with $25 costs.