Bobczyk v. Integrity Mut. Ins. Co. of Appleton

• Citation: 239 Wis. 196,300 N.W. 909
• Parties: BOBCZYK v. INTEGRITY MUT. INS. CO. OF APPLETON.
• Decision Date: 02 December 1941
• Court: Wisconsin Supreme Court

239 Wis. 196

300 N.W. 909

BOBCZYK

v.INTEGRITY MUT. INS. CO. OF APPLETON.

Supreme Court of Wisconsin.

Dec. 2, 1941.

Appeal from a Judgment of the Circuit Court for Clark County; Emery W. Crosby, Judge.

Affirmed.

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.

(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 cancelled 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, that 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.Herman Leicht, of Medford, for appellant.

Edward J. Byrne, of Appleton (Robert L. Spanagel, of Appleton, of counsel), for respondent.

WICKHEM, Justice.

[1] 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. of Maryland v. Madson et al., 202 Wis. 271, 232 N.W. 525. It is the appellant's position that a motion for judgment notwithstanding the verdict does not challenge the sufficiency of the evidence to support the verdict. Maxon v. Gates, 136 Wis. 270, 116 N.W. 758. The court having denied defendant's motion to change the answers of the special verdict, appellant concludes that this is only consistent with an opinion on the part of the trial judge that notwithstanding such perjury as the trial court found there was sufficient evidence to support the verdict. In this state of affairs, appellant contends that the only thing the trial court could do upon finding perjury was to set the verdict aside and order a new trial. Earl v. Napp, 218 Wis. 433, 261 N.W. 400. Having expressly refused to do this, appellant claims that the trial court must enter judgment upon the verdict.

[2][3][4] The difficulties presented by this case arise principally from the absence of a bill of...