88 Me. 497 | Me. | 1896
The plaiutiff was insured in the defendant company to the amout of five hundred dollars upon .his stock of goods contained in a frame store. This store with all its contents was wholly destroyed by fire. The policy of insurance contained the following clause: "This entire policy shall be
The defendant claimed that the plaintiff had been guilty of false swearing within the meaning of this provision in the contract, both in connection with his proofs of loss and in his testimony as a witness on the stand, and was not therefore entitled to recover.
The verdict was for the plaintiff for $520, and the case comes before this court on exceptions, and motion for a new trial. Exceptions. Among other things the court instructed the jury, upon the question of fraud and false swearing, as follows : ''And if a man attempt to defraud the company by reason of false swearing, then by our statute he has forfeited his whole claim.....If he is blameless in these particulars, but although inaccurate, although he has made misstatements that are not chargeable to his dishonesty, not chargeable to his falsehood, not chargeable to his desire and determination to cheat and defraud, and deceive, but are mere mistakes of either judgment or memory, then gentlemen you will deal with the witness accordingly. Punish no man for mistake, but visit condemnation upon men who are false and fraudulent, and upon such only......The whole matter is for you, and it is for you to say whether this man has met with a loss bjr misfortune and has not attempted by false swearing to defraud the insurance company. If a preponderance of the evidence in the case satisfies you that, having met with a loss by fire that occurred by misfortune, without fraud on his part, why,.....then, gentlemen, he is entitled to recover in this case......And if you find his claim honest, untainted by fraud and false swearing, it is your duty to remunerate him.”
These disconnected portions of the charge of the presiding justice form the basis of the defendant’s bill of exceptions; and the gravamen of the defendant’s complaint is that " fraud
But this is a discrimination altogether too subtle and refined in its application to the case under, consideration. The fraud relied on by the defense, so far as it relates to these exceptions, is false swearing, and false swearing is fraud. False swearing consists in knowingly and intentionally stating upon oath what is not true. A false statement intentionally and knowingly, or fraudulently made, certainly constitutes fraud ; and the statement of a fact as true which a party does not know to be true, and which he has no reasonable ground for believing to be true,, is fraudulent. Leach v. Insurance Co. 58 N. H. 245; Harding v. Randall, 15 Maine, 332; Hammatt v. Emerson, 27 Maine, 308. It was immaterial, therefore, whether the language employed was "fraud and false swearing,” or "fraud or false swearing-.’’' The significance of these expressions is the same when taken in connection with the issue before the jury, and the subject matter to which they related.
There is no contention but that the court gave the jury-instructions that if the plaintiff had knowingly made a false statement upon oath in reference to some material matter, it would avoid the policy7. But it is insisted that these portions of the charge excepted to really modify that proposition by requiring the jury to find, as a requisite to fraud and false swearing, that the statement or testimony must not only be false, but made with an intent to defraud the company.
We do not so understand the instructions. The court defined the difference between a misstatement honestly made, a mistake either of judgment or memory, and statements that were knowingly and intentionally false. Upon examination of the charge in connection with the fragmentary portions about which com
The exceptions, therefore, must be overruled.
Motion. We have examined the evidence with care, and that which is set forth in support of the motion as newly-discovered. It is unnecessary and would be unprofitable to epitomize the testimony in an opinion. From an examination of that upon which the verdict wras’ based, we by no means can say that the verdict was clearly wrong, or that the jury must have been influenced by any improper bias or prejudice in arriving at their conclusion. In reference to the newly-discovered evidence, we are not so strongly impressed as to feel warranted in granting a new trial. It has long been the settled doctrine of this court that a new trial will not be granted on the ground of newly-discovered evidence unless it seems to the court probable that it might alter the verdict. Snowman v. Wardwell, 32 Maine, 275; Handly v. Call, 30 Maine, 9; Todd v. Chipman, 62 Maine, 189. The court very pertinently remarked in State v. Carr, 21 N. H. 166, that "in deciding motions for new trials on account of newly-discovered evidence, courts have found it necessary to apply somewhat stringent rules, to prevent the endless mischief which a different course would produce.” And this court, in the recent case.of State v. Stain, 82 Maine, 472, 490, had occasion to consider the question and state the doctrine somewhat fully, applicable to cases of this nature, and the decisions .are there referred to, which hold that the rule is applicable alike in civil and criminal cases. "Notwithstanding the discretion of the court in such cases,” remark the court, "is very broad, and will be exercised by the court in granting a new trial wdienever a proper case is presented, yet- there are well-settled rules by which the court in this as well as all other cases should be governed. In
In considering the motion we are not to inquire whether taking the newly-discovered evidence in connection with that given on the former trial, a jury might be induced to give a different verdict, but whether the legitimate effect of such evidence would require a different verdict. Com. v. Flanagan, 7 Watts & Serg. 423; State v. Stain, 82 Maine, 472, 491.
Exceptions and motion overruled.