Opinion
October 31, 1967. —
November 28, 1967.
APPEAL from a judgment of the county court of Wood county: FREDERICK A. FINK, Judge. Affirmed.
For the appellant there was a brief by Chambers, Nash, Pierce Podvin of Wisconsin Rapids, and oral argument by Lloyd L. Chambers and Francis J. Podvin.
For the respondent there was a brief by Hosek, Zappen, Meissner Oestreicher of Marshfield, and oral argument by Carl L. Meissner.
On June 14, 1965, the plaintiff, James H. Southard, instituted this action against the defendant, Occidental Life Insurance Company of California (hereinafter Occidental). Plaintiff sought recovery of $15,000 as the beneficiary named in a policy of group life insurance issued to plaintiff's brother, Robert R. Southard, by Occidental. Occidental's motion for summary judgment was denied by an order of the trial court and, on appeal, that order was subsequently affirmed by this court. Most of the material facts in the case are set forth in the court's opinion on the summary judgment appeal. In summary, Occidental, by mail solicitation in the regular course of business, on October 25, 1963, offered Robert R. Southard (hereinafter Robert), a Wisconsin insurance agent, an opportunity to become a member of a group life insurance plan covering insurance agents and brokers. Robert filled out the application form naming his twin brother James as the beneficiary. Upon the application and without medical examination Occidental insured Robert's life for $15,000. On January 3, 1965, approximately fourteen months later, Robert died. Occidental, claiming that Robert made a material misrepresentation in the application which increased the risk and contributed to the loss, refused to pay the principal amount of the policy to James H. Southard and this action was initiated to force payment.
Southard v. Occidental Life Ins. Co. (1966), 31 Wis.2d 351, 142 N.W.2d 844.
The critical question in the abbreviated application asked:
"During the last two years have you had heart disease, diabetes, lung disease, cancer or any other serious illness, or received treatment or medication for blood pressure?"
To this inquiry Robert answered "No."
Robert severed his spine in a swimming accident in 1954. As a result of the accident he had a nonfunctioning nervous system and was partly paralyzed from the neck down. The paralysis affected both arms and legs, making Robert a quadriplegic and confining him to a wheel chair. The paralysis caused Robert to lose control of his normal bladder function and to correct this situation it was necessary to have a cystotomy tube inserted into his body. This tube caused a chronic cystitis condition which necessitated continual medical treatment for leakage and bleeding.
In spite of his condition, Robert was able to complete a college education at the University of Wisconsin and the Eau Claire State Teacher's College, to establish a successful insurance agency in Eau Claire, and to become the president of an organization designed to provide employment for people with disabilities. He was chosen as Wisconsin's handicapped man of the year in 1960.
In the first Southard case this court said:
"We hold the applicant [Robert R. Southard] did not have a serious illness at the time he made the application for group life insurance coverage."
Id. at page 356.
In explaining why Robert was not afflicted with a serious illness within the language of the application question, the court pointed out that the question did "not cover all illnesses but only serious illnesses of a limited classification," the "limited classification" being only such illnesses of the "same general seriousness and classification as cancer, or diabetes, or heart and lung disease," which were specifically alluded to in the application question.
Id.
Id.
On remand the case proceeded to a jury trial. The jury returned a special verdict which asked the following questions:
" Question 1. Was the deceased, Robert R. Southard suffering from a serious illness at any time during the two years next preceding the date of his application, dated October 25, 1963?"
" Question 2. Did the deceased, Robert R. Southard know, or should he have known, at the time of making the application for life insurance, that he had a serious illness during the two years immediately preceding the date of the application?"
The jury answered "Yes" to question 1, and "No" to question 2.
Before submission of the case to the jury, the plaintiff moved for a directed verdict. The court reserved its ruling on that motion. After return of the verdict, the court granted plaintiff's motion for a directed verdict. Judgment was entered on the verdict as directed and defendant appeals.
The sole issue on this appeal is whether the trial court erred in granting the plaintiff's motion for a directed verdict. Or to put it another way, contrary to the trial court's ruling was there credible evidence to support a jury finding that the applicant was suffering from a serious illness during the two-year period preceding the date of his application?
Milwaukee v. Bichel (1967), 35 Wis.2d 66, 68, 150 N.W.2d 419.
More specifically the question is whether the trial produced evidence which differed from the evidentiary facts presented in the affidavits before us in the first Southard case in which we ruled that, as a matter of law, Robert was not suffering from a serious illness at any time during the two-year period next preceding his application.
After examining the testimony at the trial here we are satisfied that the evidence which bore upon the condition of the deceased did not vary in any significant manner from the allegations contained in the summary judgment affidavits.
The death certificate admitted into evidence during the trial listed the immediate cause of death as "Pul. Atelectasis Pneumonia." Other significant conditions contributing to Robert's death, but not related to the terminal disease, were described as "Quadriplegia" and "Septicemia." This death certificate was before the court in the first case.
Dr. Donald R. Griffith, a specialist in internal medicine, testified that he made four or five housecalls at Robert Southard's home during the two-year period which preceded Robert's application for life insurance. The doctor testified that a swimming accident had left Robert partly paralyzed; Robert had no control of his bladder; a permanent cystotomy tube was inserted into his body; and there was occasional bleeding around the tube. None of this evidence is new.
Although Dr. Griffith could not recall whether or not he had treated Robert for any respiratory problems, he did testify that Robert's condition affected the muscles which enable the chest to expand and to that limited extent impaired his breathing. This evidence is not new. It shows only details associated with Robert's quadriplegic condition. The doctor also stated that Robert had an occasional urinary infection and that this was called a chronic condition. This condition, and the fact the associated urinary infection, were before the court in the former proceeding.
We conclude that the evidence on the trial was essentially the same as that before this court in the summary judgment proceeding so that our holding then that Southard was not suffering from a serious illness during the period next preceding the application is controlling.
True, Dr. Griffith testified that Robert's condition was a serious illness. But the answer called for by the question in the application was a layman's answer. The insurance company, soliciting the application by mail could not expect the applicant to give a doctor's expert medical opinion. As we said in the first case, "The inquiry in the application called for a layman's answer, not a medical opinion." In answering the first question affirmatively we think it obvious that the jury was heavily influenced by the doctor's expert testimony. His opinion was based on the very afflictions which, in the first appeal, this court held not to constitute a serious illness but a condition.
Southard, supra, footnote 1, at page 357.
Since Dr. Griffith merely testified as to certain detailed difficulties associated with Robert's breathing and the permanent installation of the cystotomy tube we conclude that there is no additional evidence on the applicant's afflictions which would enable the trial court on trial to reach any other conclusion but that reached on the first appeal. Dr. Griffith's contrary medical opinion was inadmissible. The trial court was entirely correct in directing a verdict.
Because of our position on this issue it is not necessary to consider any other matters raised on this appeal.
By the Court. — Judgment affirmed.