102 Va. 541 | Va. | 1904
delivered the opinion of the court.
This is the second time this case has been before this court. Upon the former writ of error, all questions of law involved in the case were settled, the verdict of the jury set aside because not sustained by the facts, and the cause remanded for a new trial. The proceedings had in the cause prior to that time are fully set out in the opinion of the court, and reported in 88 Va. 832 to 842.
After the case was remanded a new trial was had, in which there was a verdict for the plaintiff. That verdict was set aside by the Circuit Court, and a new trial granted. Upon the new trial precisely the same evidence was introduced by the parties as was before the jury upon the last preceding trial. To that evidence the defendant demurred, which demurrer was sustained by the court, and a judgment rendered in favor of the defendant. To that judgment this writ of error was awarded.
As stated by the plaintiff in error in his petition, the only question for our determination is, whether or not, under the rules applicable to a demurrer to evidence, it appears from the record that the plaintiff’s claim has been forfeited under the provision of the policy that the company should not be liable thereunder for loss or damage, if there be “any false swearing or fraud, or attempt at fraud, before or after loss or damage by him (the assured) in support of his claim for loss, or in proofs of loss hereinafter mentioned.”
One of the defendant company’s defences was that Lassiter, the assured and the assignor of the plaintiff, was guilty of false swearing, and of an attempt at fraud in furnishing preliminary proofs of loss.
A day or two after the fire the adjuster of the company went to Franklin, Va., to adjust the loss. When he reached there,
“I hereby certify that the duplicate invoices furnished as per above statement, amounting to three thousand and twenty-eight 51/100 dollars—said invoices being in the names of M. L. Beale & Co., D. Lassiter & Co., and D. Lassiter, all of which form a part of my loss—are correct, and were received by me at Franklin, Ya., and constituted the goods burned on the morning of December 6, 1888.”
Among the duplicate invoices furnished, listed, and sworn to are several bills for goods and items in other bills which the evidence conclusively shows did not constitute any part of the goods burned, but which had been so changed as to make it appear that they were a part thereof. One of these was a bill of goods sold to M. L. Beale August 13, 1888, for $328.50. It was changed so as to make it appear that it was sold to M. L. Beale & Co. on October 13, 1888. The members of the firm of M. L. Beale & Co. were M. L. Beale and D. Lassiter, and they did not go into business together until September 21, 1888. Their firm name was soon afterwards changed to D. Lassiter & Co., and on the 27th of October following, the policy of insur
Another of the invoices listed and sworn to was a bill for $171.39, for goods sold to D. Lassiter by Adelsdorf Bros, on the 18th day of September, 1888. This bill was so changed as to make it appear that the goods were sold to D. Lassiter & Co. on the 28th of September, 1888.
Another of the charged invoices was a bill of $14.40 for goods sold by the Norfolk Bottling Company in October and November, 1888. The goods were sold and shipped to M. L. Beale, Courtland, Ya., and the bill which was made out against Mr. M. L. Beale was changed to Messrs. M. L. Beale & Co. It further appeared that the Norfolk Bottling Oo. never had any account with M. L. Beale & Co.
Another of the invoices was for a bill of $134.93 for goods sold and shipped to if. L. Beale, Courtland, Ya., on the 29th day of August, 1888, and which was so charged on the books of the seller, yet the bill was made out in the name of M. L. Beale & Co. by the bookkeeper at the request of some one—whom he does not remember—and the date changed after the bill was made out and delivered, from August 29, to October 2.1, 1888.
A business house in Petersburg had sold M. L. Beale & Co., on Oct. 3, 1888, a bill of goods of the value of $59.40. Among the invoices listed and sworn to there is a bill of the same date for $304.06, for goods sold to that concern. The evidence is clear that no such bill of goods was sold to that firm, or ever became a part of the stock of goods insured.
In another of the invoices, a small purchase made by Lassiter
It further appears that the day after the list of duplicate invoices was signed and sworn to by Lassiter, he assigned the policy of insurance for eleven hundred dollars, four hundred dollars less than its full amount.
Under these circumstances, as was said by this court upon the former writ of error, “it was undoubtedly incumbent upon the plaintiff to entitle him to recover, to remove the suspicion which the facts proved in connection with the invoices in question justly excite; for nothing is better settled than that the assured must observe, in dealing with the insurer, the utmost good faith, without which there can be no recovery. Moore v. Va. Fire & Marine Ins. Co., 28 Gratt. 508, 523, 26 Am. Rep. 373. Because there was no such explanation offered on the first trial touching the false statements made under oath in furnishing the preliminary proofs of loss, the verdict of the jury was set aside and a new trial ordered.
An effort was made on the last trial to furnish such explanation by the examination of the solicitor of the company, who forwarded some or perhaps all of the duplicate invoices to the defendant company as they were furnished him by Lassiter, by showing that such invoices were not changed when he forwarded them to the company. But it is clear from the solicitor’s evidence that he paid very little attention to those papers when they were handed him, and that he did not examine them with any such care as would enable him to say whether or not they were changed when he forwarded them to the company. Lassiter died before the last trial, but he was living at the date of the first trial, and did not testify or attempt to explain at that time why or how the false and fraudulent duplicate invoices were furnished to the company. It is argued that Lassiter was not guilty of fraud or an attempt at fraud in furnishing proofs
We are of opinion that the conclusion reached by the Circuit Court upon the demurrer to the evidence was plainly right, and its judgment should be affirmed.
Affirmed.