209 N.W. 490 | Minn. | 1926
Lead Opinion
It is not in dispute that a fire occurred in an apartment building occupied by plaintiff which damaged his household goods; that defendant had insured the same against loss from fire; that arbitrators were duly selected pursuant to the terms of the policy; and that an award of $800 for the loss was made and signed by two of the three arbitrators. The original answer challenged the award in this fashion: "That said appraisal was so erroneous and incorrect as to be fraudulent as a matter of law, and further that said appraisal was entered into under a specific agreement between plaintiff and defendant, whereby the making of the same waived no defense to the above action on behalf of the defendant." So far as the award is concerned, the defense pleaded was entirely inadequate under the decision of McQuaid M.H. Co. v. Home Ins. Co.
There was also in the original answer a defense of misrepresentations by the insured as to the use of the building in which the insured property was located, but no claim is now made that this defense was established. However, after plaintiff's evidence was in and he had given some testimony which indicated that other defenses might exist, defendant was permitted to amend its answer. As amended it still failed to allege facts sufficient to constitute a defense against the award due to any misconduct or irregularity of the arbitrators, but there were averments of fraud committed by plaintiff to the effect that he had furnished the arbitrators a list purporting to enumerate the goods exposed to the fire with the cost price of each article noted thereon, that such prices were misstated, and that at this trial plaintiff testified falsely as to when and how the list was made and as to the prices paid for certain oil paintings, all with an intent to defraud defendant.
The answer as amended took the place of the original answer and the action must be determined upon the defenses raised by the amended pleading. After the findings were made holding the award, upon which the action was brought, in all things valid, defendant moved for many additional findings, amongst others, findings substantially in accord with the above noted charges of fraud and false swearing made in the amended answer. The motion was denied. Did the trial court commit reversible error in so doing presents really the only question upon this appeal.
The policy, under which the award was made, was the standard fire insurance policy containing this provision: "The policy shall be void * * * if the insured shall make any attempt to defraud the company, either before or after the loss." The provision does not relate to representations inducing the issuing of the policy. But, after the insurance is effected, any attempt to defraud the insurer by the insured voids the policy, even though the attempt be abortive, or did not influence either the arbitrators or the insurer because they knew the truth and were aware of the fact that the assured was attempting to defraud. The authorities are fully collated in the annotation to Judge Sanborn's opinion in Columbian Ins. Co. v. Modern Laundry, 20 A.L.R. 1159-1179. This court in Hodge v. Franklin Ins. Co.
"A discrepancy, even of very considerable proportions, between the amount stated by the insured in the proofs of loss and the value found by the jury does not conclusively establish fraud or false swearing, but it remains a question of fact whether the overvaluation was intentionally fraudulent or merely an error of judgment."
Unless the court could conclude that plaintiff purposely attempted to defraud defendant by furnishing the arbitrators with a list which he knew did not truly express what it purported to represent, or intentionally falsified in his testimony at the trial, no defense was made out.
Where as here a motion for additional findings upon material issues is made, it only "is error to refuse them if they rest upon undisputed evidence, or the evidence to the contrary is so slight that a contrary finding could not stand." Turner v. Fryberger,
It may be conceded that there are discrepancies in plaintiff's testimony in respect to cost of the various articles of the insured property; however, it is to be remembered that these articles were acquired several years back and at different times, and not lightly should perjury be inferred. It is also to be noted that the evidence defendant adduced to establish the alleged attempts to defraud was *483 contradicted by plaintiff's testimony. So there is witness against witness, and it was a fair question for the trial court whether or not there was on plaintiff's part a wilful attempt to defraud. The only matter which gives some concern is the memorandum of the learned trial court. It may be possible to draw an inference therefrom that plaintiff prevailed on the ground that he was entitled to judgment upon the original pleadings, and therefore it was not necessary to determine the issue raised by the amended answer that plaintiff after loss attempted to defraud defendant. If such inference be clearly warranted the case should be remanded for specific findings upon the issues of the charged attempt to defraud. But we think the memorandum indicates that the court concluded that upon all the evidence plaintiff was entitled to recover, and that means that defendant had not proven the attempts to defraud which were alleged in the amended answer.
The court was right in not setting aside the award as excessive simply because he deemed $500 more clearly expressed the loss than $800. The court did not examine the articles damaged. The arbitrators did, one of whom, the umpire, was an experienced furniture dealer whose fairness and competency are not questioned.
The error in the findings stating the sound value of the property insured to be $3,000 in the award, instead of $3,500, is so clearly a mere clerical mistake or inadvertence as to merit no attention. Nor do we see any ground upon which to attack the award finding the sound value $3,500. The testimony of the arbitrators was practically unanimous that to fix that amount they valued the property in view; that the list the insured had furnished was merely used to check off the property they found, but that the amounts therein stated as the cost were not considered, except to note whether it corresponded with their ideas of value, and the umpire stated that the alleged stolen articles were not included at all.
The order is affirmed.
Dissenting Opinion
Thinking that the case should go back for findings on the issue of wilfully false swearing resorted to in support of the claim, I dissent. *484