300 N.W. 909 | Wis. | 1941
Action by Stanley Bobczyk, plaintiff, brought in August, 1939, against Integrity Mutual Insurance Company, defendant, to recover for a fire loss upon a policy of fire insurance issued by defendant.
The complaint was in the usual form. The answer admitted the insurance and the occurrence of the fire and set up the following defenses:
(1) False representations by plaintiff material to the risk and made in the written application for insurance.
(2) Increase of the hazard by operating an incubator in plaintiff's dwelling house: *198
(3) Premature commencement of the action prior to filing proofs of loss.
The action was tried to a court and jury and a special verdict rendered. The jury found that the plaintiff did not prior to the issuance of the policy state to defendant's agent:
(1) That he had never had any loss by fire;
(2) That he had never had a policy of insurance canceled by any insurance company;
(3) That he had never had a loss by fire.
That the plaintiff after the fire did not state in the presence of defendant's agent that the fire was probably caused by an incubator and that a sewing machine standing in his yard in a damaged condition was removed from the house during the fire.
Upon motions after verdict the court filed the following decision:
"The court, at the time of the trial was clearly of the opinion that plaintiff and several of his witnesses had committed the crime of perjury in testifying in this case; that there was conspiracy to defraud the insurance company; that it was so crudely performed and consummated that it would be a travesty on justice to allow a verdict for any amount to stand against the defendant company in this case. At the close of the trial the court gave instructions and so notified the parties that prosecution for the crime of perjury would be had against two witnesses in this case. What steps will be taken by the district attorney upon his investigation of the court's recommendation, this court is unable to say. The court realizes these people are poor and that they do not fully appreciate and understand the English language, but they have sufficient intelligence to plan and execute plans to defraud this insurance company."
Judgment was ordered for defendants notwithstanding the verdict. Upon the judgment so entered on January 30, 1941, plaintiff appeals.
There is no bill of exceptions in this case and under these circumstances the findings of the trial court cannot be challenged by the appellant. Fidelity Deposit Co.v. Madson,
The difficulties presented by this case arise principally from the absence of a bill of exceptions. In the absence of a bill of exceptions we are not permitted to speculate as to what happened during the course of the trial. We are not even in a position to get help out of the issues apparently made by the pleadings because, as pointed out in the Fidelity Deposit Co.Case, supra (p. 276):
"These may have been stricken out, amended, or otherwise dealt with in the course of the trial."
While the questions of the special verdict might lead to an inference that all of the issues went to the jury and were disposed of favorably to plaintiff there were several reasons why such an inference may not be drawn. The trial court in its memorandum states: *200
(1) That plaintiff and several of his witnesses committed the crime of perjury in testifying in this case.
(2) That there was conspiracy to defraud the insurance company.
The policy reads in part as follows:
"This entire policy shall be void if the assured has with intent to deceive concealed or misrepresented any material fact or circumstances concerning this insurance or the subject thereof; or of the matter misrepresented increased the risk or contributed to any loss; or in case of any fraud or falseswearing by the insured touching any matters relating to this insurance or the subject thereof, whether before or after a
Whether under this clause wilful false swearing upon the trial of the action would be a substantive defense under the policy is a matter not briefed by counsel and concerning which we are unable to locate any authority. All of the cases that come to our attention involve false swearing before the trial, although in Fink v. La Crosse Mut. Fire Ins. Co.
We have no means of knowing without a bill of exceptions whether the pleadings were amended to set up this issue or whether the trial court's findings are against the great weight and clear preponderance of the evidence. For all we know, in the absence of a bill of exceptions, there may have been *201 evidence in the record supporting the verdict as to the specific matters submitted to the jury and other evidence supporting the trial court's finding of conspiracy. That this was the situation is indicated rather strongly by the trial court's refusal to set aside the verdict. Under these circumstances we have no choice but to hold the judgment supported by the findings and the findings supported by the evidence. We are disabled from undertaking the review plaintiff desires.
By the Court. — Judgment affirmed.