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eration of the application to the first ion that the Statute of Limitations apcompany, and was made a part of the plied to actions, and not to defenses. new policy, and also providing that

VIII. Death uithin the death by suicide within two years

"period of

graceprovided for paying premiums. from its date was not a risk assumed, the court held that, considering the

In Young v. Union L. Ins. Co. (1916) application and the second policy to

202 Ill. App. 321, where a life insurgether, the period of incontestability

ance policy provided that it would was rendered uncertain, and in view

remain in force for one month after of the rule that in case of ambiguity

the expiration of one year from its the policy should receive a liberal con

date, even though the second year's struction in favor of the assured, the

premiums should not be paid, and period of incontestability ran from

further provided that after one year the date of the first policy. In two

from date it should be incontestable subsequent appeals in (1913) 181 Ill.

except for the nonpayment of premiApp. 163, and (1914) 190 Ill. App.

ums, the court held that at the death 460, the instant case was held res

of the insured in the thirteenth month judicata upon this question.

after the date of the policy, the second

year's premium not having been paid, VII. Difference between policy and stat

the policy was incontestable on the ute as to time.

ground of fraudulent representations Under a policy providing that it in the application. See also Fairfield should be incontestable one year from v. Union L. Ins. Co. (1915) 196 Ill. date, except for nonpayment of pre- App. 7, for a holding to the effect that miums, the insurer, after the expira- the exercise by the insured of the tion of that time, cannot maintain a privilege of paying the premium due suit to cancel the policy for fraud, within the thirty "days of grace" even though a state statute gave in- after the premium was due would not surance companies the right to insti- extend the period of incontestability tute suits to cancel policies, or to de- a corresponding period. fend against them, two years from the date of the policy. Philadelphia L.

IX. Miscellaneous, Ins. Co. v. Arnold (1913) 97 S. C. 418, The case of HUMPSTON V. STATE 81 S. E. 964, Ann. Cas. 1916C, 706. MUT. L. ASSUR. Co. (reported hereThe court was of the opinion that the with) ante, 78, is authority for a statute above referred to did not pro- holding that the bringing of a suit by hibit shorter periods, such as the beneficiary within the period of made in the instant case; the statute, contestability does not suspend the according to the court, merely fixed running of the period within which a maximum time within which such the insurer might contest, and by the actions might be brought.

failure of the latter to file its defense Where a policy of life insurance within the period of contestability provided that it should be incontesta- limited by the incontestable clause, ble if renewed beyond the first year it is precluded from making a defense and the premiums paid as required, on the policy except for defenses exthe court held in Citizens L. Ins. Co. cepted from the incontestable clause. v. McClure (1910) 138 Ky. 138, 27 To the same effect, see MISSOURI STATE L.R.A.(N.S.) 1026, 127 S. W. 749, that L. INS. Co. v. CRANFORD (reported hereas the second premium had been paid with) ante, 93. by the insured, and the policy renewed An insurance company which, after beyond the first year, the policy was the death of the insured and within incontestable and the insurer could the period of contestability, filed cernot defend on the ground of false rep- tain pleas in an action on the insurresentations in the application, al- ance policy, alleging oral misreprethough a statute prescribed a period sentations by the insured, which were of five years within which relief could not a good defense, will be allowed, be obtained from contracts procured after the period of incontestability, to by fraud, the court being of the opin- file pleas showing that the misrepre


sentations of the insured were contained in the written application for insurance. Joseph v. New York L. Ins. Co. (1920) 219 Ill. App. 452, affirmed in (1923) 308 Ill. 93, 139 N. E. 32.

In People's Mut. Ben. Soc. v. Templeton (1896) 16 Ind. App. 126, 44 N. E. 809, a policy providing that it should be “incontestable after one year from date, as provided in the bylaws," was held not to be rendered incontestable upon the death of the insured seven years after its date, where the by-laws provided that "all

deaths which occur within three years from the date of approval upon which the certificate is issued, or from the date of the last revival of said certificate, shall be incontestable.” The court says:

“There is no provision that where death occurs after three years the certificate shall be incontestable. What the effect of the stipulation may be in cases where death occurs after one year and within three years from the approval of the application or revival of the certificate, we need not further consider." R. P. D.


P. W. KRIER, Admr., etc., of John Frieders, Deceased, Appt.

Wisconsin Supreme Court - March 6, 1923.


(Frieders v. Frieders, 180 Wis. 430, 193 N. W. 77.) Damages - breach of contract to will property.

1. The measure of damages for breach of a parol promise to will property to an injured employee if he will give no trouble because of the injury is not the amount of property promised, but what will compensate the employee for the injury under the terms of the Workmen's Compensation Act, with interest from the date when, in ordinary course, compensation should have been made.

[See note on this question beginning on page 129.] Contract to provide by will

Release effect - inadequacy of con. forceability.

sideration. 2. A promise by an employer to leave

4. A release executed without fraud, his injured employee an amount by

coercion, or undue influence, even will sufficient to keep him for life with

though it may be an improvident settle

ment, cannot be ignored merely beout working, if he will cause no trouble

cause the consideration was inadebecause of the injury, is unenforceable

quate. for lack of consideration, beyond the

[See 23 R. C. L. 383.] amount which would compensate for

scope what covered. the injury.

5. A release given by an injured Evidence parol — to establish prom

employee to the insurance carrier, disise to will.

charging it and the employer from

any claims or demands for, upon, or 3. A contract to will property to an

by reason of the accident, does not reinjured employee if the latter will

lease liability for breach of a contract make him no trouble cannot, in view

to will property, in consideration of of the Statute of Wills, be established failure to make trouble because of the by parol.

(Crownheart and Eschweiler, JJ., dissent.)

APPEAL by defendant from a judgment of the Circuit Court for Waupaca County (Park, J.) in favor of claimant in an action brought to recover damages for alleged breach of a parol promise to will property io him. Reversed.

(Frieders v. Frieder8, 180 Wis. 430, 193 N. W. 77.) Statement by Owen, J.:

rendered against the estate in the During the month of February, sum of $30,000, from which judg1914, Tony Frieders was an em- ment the estate brings this appeal. ployee of his uncle, John Frieders,

Mr. Llewellyn Cole, for appellant now deceased, working in a logging Decedent's legal liability in respect camp near Elmhurst. While in the to the personal injuries to plaintiff was performance of duties incident to clearly the liability imposed by the his employment, he sustained per- Compensation Act. sonal injuries and was removed to Anderson v. Miller Scrap Iron Co. a hospital at Clintonville. The evi- 169 Wis. 106, 170 N. W. 275, 171 N. W. dence tends to show that, while he

935; Milwaukee v. Althoff, 156 Wis. 68,

L.R.A.1916A, 327, 145 N. W. 238, 4 N. C. was in the hospital, his uncle called

C. A. 110; Vennen v. New Dells Lumon him and told him that if he

ber Co. 161 Wis. 370, L.R.A.1916A, 273, would not make any trouble because 154 N. W. 640, Ann. Cas. 1918B, 293, 10 of the injury, he would leave him N. C. C. A. 729. enough money in his will so that he Claimant cannot legally maintain would not have to work the rest of that the formal written contract of his life, and promised to take care of settlement through the insurance comthe doctor and hospital bill and care

pany is void and of no effect, as against for him in every way. Within a few

the verbal agreement for the settleweeks the Travelers' Insurance Com

ment of the same claim. The written

contract cannot be contradicted or pany, in which decedent carried

varied by the verbal agreement. compensation insurance, commenced

Jackowski v. Illinois Steel Co. 103 paying to the plaintiff, and he ac

Wis. 448, 79 N. W. 757; Schultz v. Coon, cepted, weekly allowances in the 51 Wis. 416, 37 Am. Rep. 839, 8 N. W. manner provided by the Workmen's 285; Conant v. Kimball, 95 Wis. 550, 70 Compensation Act, and such pay

N. W. 74; 10 R. C. L. 1026; Jones, Ev. ments were continued, and regu

1 502; 22 C. J. 1129. larly accepted, by plaintiff, until

The verbal agreement, so far as it July 8, 1914, when the final payment

was a promise to pay more than the

amount of the statutory liability for was made to him, and he executed

the personal injury together with a a paper in the nature of a final re

reasonable amount for services renlease of the insurance company and dered, if any, is void. of John Frieders, his uncle. The Merrick v. Giddings, 1 Mackey, 394; uncle died intestate.

Wehnes v. Marsh, 103 Neb. 120, 170 N. This action was brought against W.606; 1 Beach, Constr. $ 161; Murtha the estate to recover for the breach

v. Donohoo, 149 Wis. 481, 41 L.R.A.(N. of the agreement made by the uncle

S.) 246, 134 N. W. 406, 136 N. W. 158;

Wald's Pollock, Contr. 3d ed. pp. 199, to provide for Tony in the will, so that he would not be required to

200; Ryan v. Dockery, 134 Wis. 431,

15 L.R.A.(N.S.) 491, 126 Am. St. Rep. work during the rest of his life.

1025, 114 N. W. 820; 13 C. J. 351; Fifty thousand dollars was


Armstrong v. Prentice, 86 Wis. 210, 56 manded. The case was tried before N. W. 742; Padden v. Tronson, 45 Wis. a jury, and the following special 126; 1 Elliott, Contr. § 235. verdict returned :

The verbal agreement is void for un

certainty. Q. (1) What sum will compen- Freeman v. Morris, 131 Wis, 216, 120 sate Tony Frieders for the injuries

Am. St. Rep. 1038, 109 N. W. 983, 11 he received February 17, 1914? Ann. Cas. 481; 40 Cyc. 1064, note 59; A. $4,000.

Winke v. Olson, 164 Wis. 427, 160 N. Q. (2) What sum will compen

W. 164; Dilger v. McQuade, 158 Wis. sate Tony Frieders for the failure

328, 148 N. W. 1085; 40 Cyc. 1072;

Heath v. Cuppel, 163 Wis. 62, 157 N. of John Frieders to keep his agree- W. 527; Bayliss v. Picture, 24 Wis. 651. ment to provide for Tony Frieders The release of July 8, 1914, executed in his will?

by plaintiff, is a bar to any recovery by A. $38,000.

him on the verbal agreement.

10 R. C. L. 1026; Conant v. Kimball, Upon this verdict, judgment was 95 Wis. 550, 70 N. W. 74; Twohy Mer


cantile Co. v. McDonald, 108 Wis. 21, ger, 116 Wis. 549, 93 N. W. 459; W. G. 83 N. W. 1107; Steffen v. Supreme Taylor Co. v. Bannerman, 120 Wis. Assembly, 130 Wis. 485, 110 N. W. 401; 189, 97 N. W.918. Richtman v. Watson, 150 Wis. 385, 136 N. W. 797; Schultz v. Coon, 51 Wis. 416,

Owen, J., delivered the opinion of

the court: 37 Am. Rep. 839, 8 N. W. 285; Jones, Ev. 502; 22 C. J. 1129; Jackowski v.

At the time of the injury to the Illinois Steel Co. 103 Wis. 448, 79 N. plaintiff, he and his employer, the W. 757.

deceased uncle, were concededly subThe proper measure of damages for ject to the provisions of the Workthe breach of a contract to provide by men's Compensation Act. Stat. will is the reasonable value of the con

1921, $8 2394–1 et seq. Immediately sideration upon which the promise so

upon the injury, therefore, a liabilto compensate is based. Murtha v. Donohoo, 41 L.R.A.(N.S.)

ity was imposed by law upon the 246 and note, 149 Wis. 481, 134 N. W.

uncle, now deceased, to make com406, 136 N. W. 158; 3 Elliott, Contr. pensation for such injuries accord( 2220; Bayliss v. Pricture, supra.

ing to the rates and schedules proThe verbal agreement should not be vided in that act. The amount of regarded with favor by the court. It the liability thus imposed could have is contrary to the spirit and policy of been quite easily and definitely dethe Compensation Act.

termined. For the present purposes Holmes v. Connable, 111 Iowa, 298,

it is quite safe to say that it would 82 N. W. 781; Dilger v. McQuade, 158 Wis. 328, 148 N. W. 1085.

not have exceeded $5,000. The jury Messrs. Brunner & Brunner and P.

found that $4,000 was reasonable H. Martin, for respondent:

compensation for the injury susThere was a contractual relation be- tained. At a time, therefore, when tween decedent and claimant; and un- the deceased uncle was under a legal less the obligation growing out of this obligation to the plaintiff in an contractual relation

released, amount not to exceed $5,000, he there was, concededly, a breach there

agreed with the plaintiff that if he of, and most serious damage, by the

would make him no trouble because failure of decedent to provide by will

of the injuries sustained, he would as agreed. McNaughton v. McClure, 169 Wis.

make provision for him in his will 288, 171 N. W. 936; Murtha v. Dono

so that he (the plaintiff) would hoo, 149 Wis. 481, 41 L.R.A.(N.S.) 246, never have to work. He died with134 N. W. 406, 136 N. W. 158; Dilger out making such a provision, and v. McQuade, 158 Wis. 328, 148 N. W. the question is, What is the measure 1085; Jilson v. Gilbert, 26 Wis. 637, 7 of plaintiff's damages for the breach Am. Rep. 100; Hawes v. Woolcock, 26

of the contract? Wis. 629; Silverthorn v. Wylie, 96 Wis.

In Murtha v. Donohoo, 149 Wis. 69, 71 N. W. 107; Olson v. Olson, 149

481, 41 L.R.A.(N.S.) 246, 136 N. W. Wis. 248, 135 N. W. 836; Sixta v. Ontonagon Valley Land Co. 148 Wis. 186,

158, it appeared that the claimant 134 N. W. 341; Hewett v. Currier, 63

had supplied the deceased, during a Wis. 386, 23 N. W. 884; 1 Elliott, period of six years, with food, Contr. 88 219-221; Second Nat. Bank shelter, clothing, and money, the agv. Merrill, 81 Wis. 142, 29 Am. St.

gregate amount of which does not Rep. 870, 50 N. W. 503; Holz v. Han

appear. This was all furnished prior son, 115 Wis. 236, 91 N. W. 663; Buechel v. Buechel, 65 Wis. 532, 27 N.

to 1898. During the spring of 1901 W. 318; Young v. French, 35 Wis. 111; the deceased promised claimant that Sax v. Detroit, G. H. & M. R. Co. 125 he would give him, by his last will, Mich. 252, 84 Am. St. Rep. 572. 84 N. the sum of $1,000 for what he had W. 314; 13 C. J. 342, notes 10 and 10a. done for him. He died leaving no The agreement was not void for un

such provision in his will. Claimant certainty.

sought to recover the $1,000 so Eastern R. Co. v. Tuteur, 127 Wis. 382, 105 N. W. 1067; McCall Co. v.

promised. The court held that the Icks, 107 Wis. 232, 83 N. W. 300; Wood- agreement was valid and binding, ward v. Smith, 109 Wis. 607, 85 N. W.

but that the measure of damages 424; Excelsior Wrapper Co. v. Messin- was the value of the executed con(Frieders v. Frieder8, 180 Wi8. 430, 193 N.: W. 77.) sideration for the agreement, and to stand would open up an alluring not the amount of the promised field for frauds and perjuries, and legacy, the court saying: “In a case neutralize to a great degree the like the present, where the promise safeguards which the statute throws to compensate by. legacy is based about the estates of deceased perupon a past or executed considera- sons. It would permit anyone havtion, the recovery must be limited to ing a claim against an estate of a the amount of the demand so to be deceased person, and being frauducompensated, or the reasonable value lently disposed, to manufacture evithereof, where the amount is not dence to show that the enforcement fixed and definite."

of the claim was postponed because We can see no substantial, if in- of an oral promise made by the tesdeed there be any shadow of, dis- tator that he would liquidate the tinction between this and the Murtha claim by a provision in his will, and Case. In both cases that which the estate of a testator would not gave rise to a liability on the part of go according to his written directhe deceased to the claimant had oc- tion, executed in accordance with curred before the promise was made. the solemnities required by the statIn the Murtha Case the courtesies, ute, but according to parol testiconsisting of food, shelter, clothing, mony, produced at a time when the and money, which founded the con- testator cannot be

Evidence-parol sideration for the promise, had all present to refute it. -to establish been contributed prior to the prom

While justice might promise to win. ise to compensate in the form of be done in the instant case, a recoga legacy. Here the injury, which nition of such a rule would point the formed the consideration and con- way for the contravention of a statstituted the reason and motive for ute designed by the legislature to the promise, had occurred, and li- prevent the distribution of estates ability had already attached. In

except in accordance with the will neither case, however, was there of the testator. It would be a most any consideration for the promise to dangerous rule, subversive of public compensate beyond the amount of policy and destructive of the legislegal liability, except the implied lative will. As was said of the rule, or perhaps express promise to for

embodied in § 4069, by Mr. Justice bear enforcement of an existing le- Barnes in Dilger v. McQuade, 158 gal right. In the instant case that Wis. 328, 148 N. W. 1085: "Mericonsideration was out of all rea- torious claims may occasionally be sonable proportion to the amount lost by the enforcement of such a promised over and above the ac- rule, but the trumped-up claims that tual legal liability, and to permit may be defeated by it will

, in all Contract-to

a recovery of $30,- probability, form a much more nuprovide by win 000 is practically -enforceability.

merous class." tantamount to the

The rule of the Murtha Case reenforcement of a naked promise to make a bequest.

sponds to every call of justice. It The statute prescribing the man

recognizes the validity of the conner in which wills shall be executed tract; it postpones the running of is in the nature of a statute of

the Statute of Limitations until the frauds.

Perhaps no other legal death of the testator; it allows, as document requires such solemnity damages for the breach, the full in the manner of its execution. This value of the services rendered, or is for the purpose of securing the any other consideration passing highest degree of assurance that the from the claimant to the testator, testator's property will go as he upon which the original claim rests. wills it, and to make it correspond- To allow more is to enforce a promingly difficult to divert it into other ised legacy, which should be recogchannels. To permit this judgment nized only when created in the

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