Klieger v. Metropolitan Life Insurance

Vinje, C. J.

The evidence sustains the verdict, but it is claimed the trial court erred in admitting any evidence of statements made either to the agent or to the examining physician for the purpose of showing answers made by the insured at variance with statements appearing in the application, and that the beneficiary was bound by the contents of the application. The application consists of two parts. Part A contains twenty-two questipns with answers inserted. Part B contains what is denominated “Statements made to the medical examiner,” consisting of printed matter negativing a mass of diseases and other- matters not requiring an answer unless to the word “except,” with which the statements dose. Thus, defendant daims that statements numbered 6 and 10 are at variance with plaintiff’s proof and conclude her. Number 6 reads: “I have never been under treatment in any dispensary, hospital, or asylum nor been an inmate of any almshouse or other institution except.” Number 10 reads: “neither I or any member of my family (including grandparents, parents, brothers, sisters, husband, or wife) had ever had consumption or any pulmonary disease or scrofula except.” There was nothing written by the medical examiner under statements 6 or 10.

It is not deemed necessary to- discuss at length the claims of defendant. They have been adversely decided to it in two late cases. Fehrer v. Midland Cas. Co. 179 Wis. 431, 190 N. W. 910, and Arneberg v. Continental Cas. Co. 178 Wis. 428, 190 N. W. 97. The jury found that correct information was given the medical examiner and the agent of the company and that there was no concealment. . In such case the company’s medical examiner or agent filling out the application is tire agent of the companjr and not of the insured and his omissions or mistakes are those of the company and not of the insured. Arneberg v. Continental Cas. Co., supra.

There having been no- fraud or deceit on the part of the insured, and he having been accepted as a fit, risk by the company’s medical examiner, the company is by the provisions of sec. 1977 — 2, Stats. 1919, estopped to deny the validity of the policy. That section reads:

“In-any case where the medical examiner, or physician acting as such, of any life or disability insurance company or association doing business in this state, shall issue a certificate of health or declare the applicant a fit subject for insurance, or so report to the company or association or. its agent under the rules and regulations of such company or association, it shall thereby be estopped from setting up in defense of an action on such policy or certificate that the insured was not in the condition of health required by the policy at the time of the issue or delivery thereof, unless the same was procured by or through the fraud or deceit of the insured. The provisions of this section shall apply to fraternal or mutual benefit societies.”

It follows that there was no error in admitting the oral testimony, and that, since the verdict was supported by the evidence, the proper judgment was entered.

By the Court. — Judgment affirmed.