106 Mo. App. 476 | Mo. Ct. App. | 1904
Plaintiff held defendant’s policy of fire insurance whereby defendant insured him against loss in the destruction by fire of his stock of merchandise and the store fixtures. The verdict was for the defendant in the trial court; but on motion of plain*tiff a new trial was granted on the ground that the court erred in giving an instruction relative to the fraud charged against plaintiff. Defendant thereupon appealed.
The policy contained a provision that, “any fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after the loss,” should avoid the policy. Plaintiff’s sworn claim of loss set out, separately, the amount of loss on the stock and the fixtures and then made his claim in one total sum.
The stock of merchandise and the fixtures, though included in the one policy, were insured for separate and different amounts. The instruction given by the court at the request of the defendant, which the court afterwards thought erroneous, directed the jury to find for the defendant if they believed from the evidence that plaintiff had willfully and falsely stated his loss largely in excess of what he knew it to be, and that he made such statement willfully for the purpose of deceiving and defrauding defendant.
We are of the opinion that the trial court’s first conclusion was correct and that the instruction embodied a true statement of the law. Doloff v. Ins. Co., 82 Maine 266; Claflin v. Ins. Co., 110 U. S. 81; Linscott v. Ins. Co., 88 Maine 497; Sleeper v. Ins. Co., 56 N. H. 401; Sash & Door Co. v. Gough, 81 Mo. App. 440; Browne v. Ins. Co., 68 Mo. 133, 137.
The plaintiff, by the verdict, stands convicted of willful false swearing as to the amount of his loss with
But is urged that in this State, contracts of insurance, if on different articles of property, on different valuations, are severable, and that where the fraudulent claim is as to one of the articles, it may be separated from the claim for the other articles, though the whole claim is joined in one total sum. The cases of Trabue v. Ins. Co., 121 Mo. 75 and Koontz v. Ins. Co., 42 Mo. 126, are cited in support of that contention. Neither of the cases have application to the question in the case at bar. The Trabue case decides that where a building and its contents are insured separately in the same policy it is not avoided as to the contents by reason of a forfeiture as to a change of title of the realty. The Koontz case decides that a false warranty as to incumbrances on a building would not avoid a policy as to personal property therein, which was separately valued and insured, when it was not shown that the representation as to the incumbrances on the building formed an inducement to the issuance of the policy.
We do not understand how the fact that in this State different kinds of property, separately valued and insured in one policy, may be considered as severable in certain instances, can effect the consequences of plaintiff’s-violating the general law against fraud as well as his contract embraced in the policy.
The judgment will be reversed and the cause remanded with directions to reinstate the verdict and enter judgment for defendant.
