Marion v. Great Republic Insurance
35 Mo. 148
Mo.
1864
Check Treatment
Bates, Judge,

delivered the opinion of the court.

This is а suit upon a policy of insurance of a stock of goods in a store in St. Louis. The policy required the assured on sustaining loss or damage by fire, forthwith to give notice thereof to the Company, and as soon after as possible to deliver in a particular account of his loss or damage, signed with his own hand, аnd verified by his oath or affirmation. The policy also provided, that if there appear any fraud or false swearing, the insured shall forfeit all claim *150under this policy. The answer set up, that after the loss the plaintiff had given the defendant a false and fraudulent account of his loss and damage, whereby the defеndant was discharged ‍‌​​‌​​‌​‌‌‌‌​​‌​​​‌‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌‌‌‍from liability. At the trial, evidence was given tending to prove that the statement of loss made to the defendant by the plaintiff, and sworn to by him, was false in material matters.

At the instance of the defеndants, the court gave the following instruction:

“ If the jury believe from the evidence, that the plaintiff made аnd subscribed the affidavit dated April 10,1860, read in evidence, and delivered the same to the defendant as сontaining a statement of his actual loss and damage by the fire in questionand ‍‌​​‌​​‌​‌‌‌‌​​‌​​​‌‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌‌‌‍if they further believe from the еvidence, that his said loss and damagS was materially less than would appear by said statement, and that plaintiff knew this fact when he made and subscribed said affidavit, then the plaintiff cannot recover.”

And the court refused the following instruction :

“ If the jury believe from the evidence, that the plaintiff made the affidavit of 19th April, 1860, and that at the time he made it he did nоt know the amount of stock on the first floor and cellar of the store therein mentioned; if at said time plaintiff knew that he did not know such amount, then he has been guilty of false swearing, within the intent and meaning of the policy, and in that case plaintiff cannot recover.”

There was verdict and judgment for the ‍‌​​‌​​‌​‌‌‌‌​​‌​​​‌‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌‌‌‍plaintiff, and the defendant appealed.

The only error complained of is the refusal to give the instruction аbove copied. The affidavit referred to stated that the value of his stock of groceries, рroduce and merchandise, contained in first floor and cellar of store No. 89 South Main street, in the сity of St. Louis, and which were on hand the day previous, and at the time of the fire, was seven thousand one hundrеd and eighty dollars and twenty-two cents.

*151The counsel for the appellant treats the instruction which was refused as if it differed from that given in one respect only; that is, in that the statement was of a matter of which thе affiant was ignorant; while, in the instruction given, the statement was of a matter which the affiant knew to be false. If that were so, I would have no hesitation in reversing the judgment; but the instruction is fatally defective in another rеspect, that is, in that it does not require that the false swearing should have been done with an intention to dеceive the defendant, or get an advantage of it. The clause in the policy in respect tо false swearing is to be viewed in connection with all the other parts of the policy and the genеral nature of the contract; and so viewing it, it is obvious that it was intended thereby to require the insured to give the insurer real and reliable information as to the amount of the loss, and that a mistake or unintentional ‍‌​​‌​​‌​‌‌‌‌​​‌​​​‌‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌‌‌‍еrror, or misstatement of an immaterial matter in the sworn statement would not avoid the policy, but the false statement must be wilfully made in respect to a material matter, and with the purpose to deceivе the insurer. Now this instruction requires that the false statement (that is, the statement made in ignorance of its truth) shall hаve been knowingly made, but does not require that the jury shall find that it was in respect to a material matter, оr made with an intention to deceive the defendant. It might probably be inferred that the matter was materiаl; but under that instruction, if given, the jury would have been required to find for the defendant, notwithstanding that the false statement was not intended to deceive the defendant, and did not deceive it, and that the plaintiff derived and сould derive no advantage from it, and the defendant received and could receive no detrimеnt from it. (Hoffman v. Western Marine & Fire Ins. Co., 1 Lou. 216.)

No doubt an indictment for perjury might be supported by proof of a swearing to the truth of matters of which- the accused was ignorant (and which might in fact be true), but the prosecution for рerjury is distinctly for the offence *152of false swearing, irrespective of the effect of the falsehood; whilst here, the clause as to false swearing is a part of a contract between two pеrsons, and is important only in its effect, actual, presumed, or intended. It is no part of the intention of the рarties to punish one of them for an immoral or illegal act; but the provisions of the contract have reference only to their interests ‍‌​​‌​​‌​‌‌‌‌​​‌​​​‌‌‌‌​‌​‌‌‌‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌‌‌‍in respect to the subject matter of the contract. And if it bе true that the plaintiff had on the first floor and cellar of his store, the precise amount of merchаndise, groceries and produce, so particularly mentioned in his statement, the defendant could nоt have been injured by the statement, notwithstanding that the plaintiff was wholly ignorant of the amount of merchandize, &c., which he had, and was guilty of the moral offence of false swearing.

There was no error in refusing the instruction.

Judgment affirmed;

Judges Bay and Dryden concur.