Rief v. Continental Casualty Co.

Wisconsin Supreme Court

Rief v. Continental Casualty Co.

111 N.W. 502, 131 Wis. 368, 1907 Wisc. LEXIS 218

DecidedApril 9, 1907

StatusPublished

This text of 111 N.W. 502 (Rief v. Continental Casualty Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rief v. Continental Casualty Co., 111 N.W. 502, 131 Wis. 368, 1907 Wisc. LEXIS 218 (Wis. 1907).

Pincite

Opinion

Kerwin, J.

The plaintiff’s claim for recovery is based upon clause 3 of the policy, set out in the foregoing statement of facts. This clause provides for an illness indemnity of $80 per month for the time after the first week the insured “is necessarily and continuously confined strictly in the house, and being regularly visited by a legally qualified physician, hy reason of acute illness.” .The errors assigned raise the question of the sufficiency of the evidence to support the findings under clause 3 of the policy. We have searched the record in vain for evidence to support the findings. There is absolutely no evidence that the plaintiff’s testator was necessarily and continuously confined strictly to his house by reason pf an acute illness, or that he was regularly visited by a qualified physician. The evidence shows that he had some trouble with his throat, and was operated upon October 17, 1904, at which time it was found that he had a cancerous growth in his throat; that it was a chronic condition; that it got worse towards the last; that cancer is never an acute disease. There is no evidence that cancer is an acute disease, or that illness produced from it is an acute illness, or that the operation produced an acute illness, or that the testator’s illness was an acute illness. In fact the third and fourth findings excepted to are wholly unsupported by the evidence. It may be that the idea of counsel for respondent was that, while cancer is not an acute disease, still an acute illnqss was caused in some way by the operation or otherwise. But the difficulty is that there is no proof that the testator was afflicted with an acute illness through any cause.

Evidence was offered on the trial, somewhat indefinite, but [371]*371as we understand it calculated to vary or contradict tbe terms of the policy. This evidence was duly objected to. There is no claim of fraud or mistake, and no foundation laid for a reformation of the policy. Hence evidence to vary or contradict its terms was inadmissible.

We think it very clear that findings 3 and 4 are not supported by the evidence, and therefore the judgment must be reversed.

By the Court. — Judgment of the court below is reversed and the cause remanded for a new trial.

Cassoday, C. J., took no part.

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Kerwin, J.

The plaintiff’s claim for recovery is based upon clause 3 of the policy, set out in the foregoing statement of facts. This clause provides for an illness indemnity of $80 per month for the time after the first week the insured “is necessarily and continuously confined strictly in the house, and being regularly visited by a legally qualified physician, hy reason of acute illness.” .The errors assigned raise the question of the sufficiency of the evidence to support the findings under clause 3 of the policy. We have searched the record in vain for evidence to support the findings. There is absolutely no evidence that the plaintiff’s testator was necessarily and continuously confined strictly to his house by reason pf an acute illness, or that he was regularly visited by a qualified physician. The evidence shows that he had some trouble with his throat, and was operated upon October 17, 1904, at which time it was found that he had a cancerous growth in his throat; that it was a chronic condition; that it got worse towards the last; that cancer is never an acute disease. There is no evidence that cancer is an acute disease, or that illness produced from it is an acute illness, or that the operation produced an acute illness, or that the testator’s illness was an acute illness. In fact the third and fourth findings excepted to are wholly unsupported by the evidence. It may be that the idea of counsel for respondent was that, while cancer is not an acute disease, still an acute illnqss was caused in some way by the operation or otherwise. But the difficulty is that there is no proof that the testator was afflicted with an acute illness through any cause.

Evidence was offered on the trial, somewhat indefinite, but [371]*371as we understand it calculated to vary or contradict tbe terms of the policy. This evidence was duly objected to. There is no claim of fraud or mistake, and no foundation laid for a reformation of the policy. Hence evidence to vary or contradict its terms was inadmissible.

We think it very clear that findings 3 and 4 are not supported by the evidence, and therefore the judgment must be reversed.

By the Court. — Judgment of the court below is reversed and the cause remanded for a new trial.

Cassoday, C. J., took no part.

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Bluebook (online)

111 N.W. 502, 131 Wis. 368, 1907 Wisc. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rief-v-continental-casualty-co-wis-1907.