101 Tenn. 628 | Tenn. | 1899
This consolidated record embraces four separate actions against different fire insurance companies, but, as they involve substantially the same questions, they have been tried together.
Mrs. Grace C. Scales and Medora Waller, partners, are the parties insured, and the subject is a stock of goods, wheeled vehicles, etc., contained in a house on Cherry street, Nashville, Tenn. There was a trial before the Court and a jury in the Court below, and a verdict and judgment against the insurance companies, and they have appealed to this Court and assigned errors. The title to the property insured was in Mrs. Scales and Mrs. Wal
The fire occurred on the 27th of June, 1897. On the 15th of July thereafter there was an agreement to arbitrate, which was only partially executed, and no award was made. Afterwards proofs of loss were filed with the company. These were prepared by the husbands, and, it appears, principally by Scales, and were sworn to by both husbands and wives. These proofs purport to contain itemized schedules of the property damaged and destroyed, and are sworn to as correct by the married women, and separately by the husbands, to the best of their knowledge, information, and belief, in each affidavit. After examining these proofs, the companies, on the 14th of September, 1897, notified the assured and their husbands that they denied all liability on the
It is insisted that the Court erred in overruling the objection of the companies to the evidence of D. C. Scales and W. H. Allen as to the character, value, and quantity of goods damaged and destroyed, The specific objection made in this Court to this evidence is that it is based largely, if not entirely, upon an itemized statement made out by other parties, principally R. W. Waller, and hence it was hearsay and secondary evidence, and showed on its face that it was not the best evidence obtainable.
We are precluded from passing upon this assignment upon its merits, as we fail to find from the record that any proper exception was made and acted upon in the Court below. We are not cited in the assignment to any page of the transcript where such exception may be found, and it is asserted by opposing counsel that no such exception appears, and we have been able to find none. It is said that the attention of the Court was called to the fact that the evidence offered was not the best that could be obtained, and he was requested to charge upon this feature of the case that the evidence must, therefore, be rejected. But the question cannot be raised in the charge only, and no objection having been made to the evidence when offered, it must stand as not excepted to.
In the reply to appellee’s brief, it is said a
It is said the Court erred in refusing to allow counsel for the insurance companies to ask Mr. Waller to explain the difference in items contained in the proofs of loss made to the adjusters, and other statements afterward made. No exception appears to have been taken to this refusal and ruling of the Court at the time, and it does not appear what the witness would have stated, or that the explanation was within his knowledge or material to the issues involved, and we are precluded from considering it. In the reply brief it is said that a proper exception will be found on page 185, but we find that the exception on page 185 was not to any statements made by Mr. Waller to, but statements made by, Mr. Wrightman and about a distinctly separate matter, which the Court thought was not pertinent.
It is objected that the Court refused to let count sel for the companies ask W. R. Waller whether he obtained some blank billheads from Carpenter Bros. It does not appear what the witness would have stated in response to the question, so that this objection is not in shape for our consideration.
The fourth, fifth, and sixth assignments may be considered together. It is said that the Court erred in charging the jury that, if there were any fraudulent and wrongful items. embraced in the proofs of loss, it must be shown that they were included with the knowledge and by the consent of the ladies insured, and that the fraudulent acts and intent of R. W. Waller, as their agent, could not defeat their right of recovery, unless they knew of the fraud or ratified it after it came to their knowledge; and that the Court should have charged the jury that, if Mrs. Scales and Mrs. Waller adopted any false statements made by their agents, without investigating the facts, they thereby became guilty of fraud themselves, and the jury should find against them;
These assignments present the merits of the controversy. As bearing upon them, it is insisted that the terms of the policy are important. It is provided in the policy that, in case of any fraud or false swearing by the assured touching any matter relating to this insurance or the subject thereof, either before or after the loss, the policy shall be voided; and, again, the policy provides that, whenever, in this policy, the .term “insured” is found, it will be held to include the legal representatives of the assured. We are of opinion that the contention of appellants derives no strength from the use of the term, “legal representative of the assured.” Used in this connection and in regard to the subject-matter, this term means parties beneficially interested by law or contract in the policy, such as an assignee, or the executors, administrators, and heirs of the assured, and not to persons who are merely agents of the insured. Metzger v. Manchester Fire Ins. Co., 102 Mich., 334.
The brief filed with the assignment of errors states that the insurance companies repeatedly introduced proof showing fraud and false swearing on the part of Waller, the agent of the insured, which the Court excluded on the ground that his false
It appears that much depends upon the facts of each case, and when there is from the record very strong evidence of negligence it will be taken as presumptive evidence of fraud, and in a number of cases the rule has been applied as contended for by appellant’s counsel, with more or less of strictness. We are of opinion, however, that the weight of authority is that statements must be willfully false in some material matter, and made with intent to deceive the insurer, in order that they shall have the effect to defeat the policy, and if this is true as Regards the false swearing of the assured, it is true when applied to the false swearing of an agent when the falsity is- not known to or acquiesced in by the assured. Joyce on Insurance, Sec. 3339; Phœnix Ins. Co. v. Munday, 5 Cold., 547; Phœnix Ins. Co. v. Swan, 41 S. W. Rep., 519; Lion Ins. Co. v. Stan, 12 S. W. Rep., 42; Runkle v. Hartford Ins. Co., 68 N. W. Rep., 712; 99 Iowa, 414; Tubb v. Ins. Co., 84 Mich., 646; Maion v. Ins. Co., 35 Mo., 148; Williams v. Phœnix Ins. Co., 61 Md., 67; Merrill v. Ins. Co., 23 Fed. Rep., 247; Beach on Insurance, Secs. 808-809; May on Insurance, Sec. 477. The case of Metzger v. Manchester Fire Ins. Co., 102 Mich., 334; 63 (N. W. Rep., 650), is a case almost identical in its facts, and in the provisions of the policy sued on, with this case. There the fraud of the husband was
When the false swearing is in the application it forms the basis upon which the contract rests, and if fraud enters into it the policy would be voided even though the policy does not so provide. But after the loss occurs then voiding the policy is in the nature of a penalty or forfeiture; in other words, in such cases the holding is virtually that, although the insured has had a loss, and may be entitled to recover from it, yet, as he has been guilty of fraud in the proofs, he must have his policy vacated and set aside as a punishment for such fraud, or attempted fraud. In the latter case, as in all cases of forfeiture, a strict construction should be adopted, and the forfeiture not enforced except on the plainest grounds, if at all. Without going into detail, we state that we have been able to find no such evidence of false swearing and fraud as appellant insists upon, and he has not cited us to the pages of the transcript where it may be found.
It is said the Court erred in not charging that the plaintiff must prove to the satisfaction of the jury that the goods were destroyed, otherwise they could not recover. This request is not strictly correct, inasmuch as it leaves out of view damage to goods not destroyed. The Court correctly instructed the jury on this point. The real point of this objection is that the Court did not tell the jury to disregard the testimony of witnesses who, it was claimed, made their statements from hearsay, and this feature of the case has already been disposed of.
One of the policies provided that no action should be brought after the expiration of six months from date of the fire. The fire occurred June 27, 1897, and the action was commenced January 8, 1898, or about six months and eleven days after the fire. The Court below held that this was a valid provision, but that the limitation was suspended during the period consumed in the attempt .to arbitrate. The time consumed in this attempt does not appear further than that suit was delayed four months after the absolute refusal of the companies to pay.
The judgment of the Court below is affirmed with costs.