Powalka v. State Mut. Life Assur. Co. of America, 263

Decision Date04 January 1972
Docket NumberNo. 263,263
Citation192 N.W.2d 852,53 Wis.2d 513
PartiesBernice R. POWALKA, Appellant, v. STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA, Respondent.
CourtWisconsin Supreme Court

This is an appeal from a judgment of the circuit court which dismissed the plaintiff's complaint on the merits and granted judgment on the defendant's counterclaim. Plaintiff also appeals from an order denying her motion to revise the judgment.

The facts upon which the present appeal is based were considered by the court in Powalka v. State Mut. Life Assurance Co. of America (1968), 41 Wis.2d 151, 163 N.W.2d 162. They are set forth in detail therein.

In the original proceedings the trial judge found that the insured, Stanley Powalka, made false representations to the agents of the insurance company, which increased the risk and contributed to the loss. On the basis of that finding, the trial court entered judgment for the defendant. On appeal the record showed that the insurance company's examiner had submitted a report to the company stating there was no 'doubt of health or vigor in the applicant's appearance.' We concluded this statement was a 'certificate of health.'

Under such circumstances the claim of the beneficiaries under the policy could be defeated only by a showing that the certificate of health was obtained by the fraud or deceit of the applicant.

The insurance company's answer to the complaint not only asserted a defense under sec. 209.06, Stats., 1 but also a defense under the provisions of sec. 209.07. 2

We held that under sec. 209.07, Stats., the insurance company was estopped by the issuance of the certificate of health from asserting a defense based on the false representations in regard to the insured's condition of health unless it was proved that the certificate was obtained by fraud.

We concluded from the examination of the original record that the trial judge in those proceedings had not dealt with the fraud question and had made no specific finding in that respect. Accordingly, the judgment was reversed and the case was returned to the trial court with the statement, Powalka, supra, 158a, 163 N.W.2d 166:

'Having here found that sec. 209.07 applies, we feel that this case must be remanded for further proceedings in the trial court, at its option, either to make findings on the record already made, or in a new trial. In these proceedings the insurance company must establish actual fraud or deceit required by sec. 209.07, as the only basis on which recovery on this policy can be defeated.'

Upon remand to the trial court, the plaintiff filed an affidavit of prejudice against Judge Raskin, the original trier of the fact, and asked that the case be placed on the jury calendar. Although the affidavit of prejudice was filed too late to be granted as a matter of course, it was nevertheless honored, and the case was transferred to the jury trial calendar of Judge Roller.

After the transfer, the plaintiff moved that summary judgment be granted to the plaintiff on the basis of the record without further testimony or affidavits. Thereafter the defendant filed a motion for summary judgment. Each motion indicated a willingness to rely on the record previously made.

Judge Roller granted defendant's motion for summary judgment after concluding that the facts of record were sufficient to show as a matter of law that the certification of health and the issuance of the policy were induced by the fraudulent representations of the insured, Stanley Powalka. In the order for judgment, which we deem additionally to constitute a finding of fact, Judge Roller stated, '. . . Stanley Powalka, procured the medical report and the insurance policy involved in this case through fraud and deceit . . ..'

The only significant fact appearing in the record considered by Judge Roller and not referred to in the first opinion of this court is the summary of Powalka's medical history taken at the time he was hospitalized on January 24, 1966, three days before he died of what was diagnosed as:

'Cardiac standstill--interval between onset and death, minutes; myocardial infarct- --interval between onset and death, minutes; arteriosclerotic heart disease,--interval between onset and death, years.'

The medical history shows the following entry:

'This 50 year old white male states that for about 2 or 3 years he has been short of breath on exertion, when climbing stairs or walking and develops with the shortness of breath a tightness in the throat and tightness in the chest which subsides within minutes of sitting down to rest following exercise. He works as an automobile mechanic, has very little difficulty with his present work but cannot climb one flight of stairs without experiencing the tight feeling and shortness of breath.'

On this appeal the plaintiff contends that, under the mandate of this court following the original appeal, she was entitled to judgment on the complaint, or that she was entitled to a new trial and a trial by jury, and that the court erred in granting summary judgment for the defendant.

Schober & Radtke, New Berlin (Maroney & Schiro, Milwaukee, of counsel), for appellant.

Foley & Lardner, Milwaukee, (Gilbert W. Church, Milwaukee, of counsel), for respondent.

HEFFERNAN, Justice.

Upon remand, the plaintiff moved for a trial by jury. That request was granted. On the next day, an affidavit of prejudice was filed, which was honored by Judge Raskin, and the case was transferred to the branch of the circuit court presided over by Judge Roller, to be placed on the jury calendar. The mandate of this court gave the option to the trial judge on remand to determine whether a new trial was to be had, and we are satisfied that it was within the discretion granted to the trial judge to make the election in respect to the necessity or mode of further trial. Despite plaintiff's request for a jury trial, the reciprocal motions for summary judgment by the defendant and by the plaintiff constituted a waiver of any right to jury trial that might have theretofore existed. A motion for summary judgment carries with it the explicit assertion that the movant is satisfied that the facts are undisputed and that on those facts he is entitled to judgment as a matter of law. We pointed out in Wiegand v. Gissal (1965), 28 Wis.2d 488, 495a, 495b, 137 N.W.2d 412, 138 N.W.2d 740, 741 (per curiam opinion on rehearing), '. . . the practical effect of the bilateral summary judgment motions was the equivalent of a stipulation as to the facts.'

Accordingly, the plaintiff's motion for summary judgment, coupled with the defendant's motion, constituted a waiver of her previous request for a jury trial.

Plaintiff chose to rely on the legal conclusions to be reached by the trial judge on what were, in effect, stipulated and undisputed facts. Plaintiff's later demand for a jury trial made after Judge Roller's decision to grant summary judgment for the defendant was a nullity.

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