Bostwick v. Mutual Life Insurance

SiebeciceR, J. On tbe former appeal of tbis case to tbis court, it was said that, upon tbe record as it then stood, it did “not appear, as matter of law, that Bostwick was chargeable with knowledge of tbe fraud found to have been practiced upon him till be obtained actual knowledge thereof. That leaves tbe question whether be ought to have read bis policy when be received it, notwithstanding tbe assurances accompanying it, one of tbe facts not covered by tbe finding. It must be solved before a complete disposition of tbe case can be made.” It was furthermore held that respondent’s responsibility in tbe matter must be tested by what persons of brdinary care generally do under like or similar circumstances. Tbe court particularly specifies tbe material and necessary question of fact which then remained unsolved and undetermined upon tbe trial in tbe lower court. Tbis conclusion was reached after a painstaking study of tbe issues, in view of tbe evidence, which is tbe same as tbe evidence now before us. Tbe fact that some of respondent’s testimony has been re-examined by tbe trial court, and is now returned as a supplemental bill of exceptions, in tbe form of questions and answers, taken from tbe minutes of tbe official court reporter, can in no way present a different record or state of facts from that upon which tbe former decision was based. Upon that appeal it was held that since it appeared that “tbe unsolved issue of fact might go either way,” leaving tbe situation of such doubtful character that, if resolved by this court, an injustice might be done the parties, no judgment would be directed to- be entered by tbe trial court, but tbe trial court would be required to pass upon such issue, and then render judgment accordingly, under tbe law as indicated* [326] in tbe opinion. The case upon this appeal therefore rests upon the same evidence and record, except the additional finding and the modification of the judgment, as that of the-former. The contention, therefore, that the judgment now appealed from, is predicated upon a question not determined, is not well founded. All questions involved in this appeal were presented and necessarily involved in the judgment rendered in the former appeal, and must be held final and binding upon this court as well as upon the trial court. “Whether the decision was rightly or erroneously pronounced is no-longer debatable,” and for the purposes of this case all questions involved within it are irrevocably settled. The finding” of the trial court that respondent was free from negligence'in delaying the examination of his policy established his right to a judgment as awarded by the trial court, under the former decision of this court. Noonan v. Orton, 4 Wis. 335 Case v. Hoffman, 100 Wis. 314, 75 N. W. 945; Keystone L. Co. v. Kolman, 103 Wis. 300, 79 N. W. 224; Hill v. Am. Surety Co. 112 Wis. 627, 88 N. W. 642; Van Fleet, Former-Adjudication, § 664. No other questions arise for determination. By the Gourt. — Judgment affirmed.