127 Wis. 293 | Wis. | 1906
1. Error is assigned because the court refused to direct a verdict for defendants and in not amending the verdict and ordering judgment upon it as amended in favor of defendants. This assignment involves the question whether the evidence sustains the findings of the jury that the plaintiffs did not knowingly, and with intent to defraud, include in their proofs of loss property which, prior to the fire, had been removed from the factory or disposed of, and that the value of the property included in the proofs of loss was not wilfully overstated with intent to defraud the defendants. It is strenuously insisted by appellants that a large quantity of cigars and tobacco had been removed from the stock, disposed of, and included in the proofs of loss, and that the jury by their finding that the value of the tobacco and cigars destroyed and damaged was $3,340 less than claimed in the proofs of loss, in effect found that cigars had been taken out of stock and disposed of prior to the fire and included in the inventory and proofs of loss. There is considerable evidence on the part of the defendants which tends to support this contention, while on the part of the plaintiffs there is evidence tending to contradict it. Under the proof submitted the jury might well have found that the property damaged- and destroyed was much less than the amount stated in the proofs of loss and yet
2. Error is assigned because of the following instruction:
“If you find that the plaintiffs wilfully included in the proofs of loss property removed by them, and such removal or disposition would secure no advantage to the plaintiffs in the •adjustment and payment of the loss under the policy of insurance, to the prejudice or injury of the defendants, and would not be liable to have that effect, then there was no legal fraud as referred to in this question, unless you find that such acts -on the part of the plaintiffs were liable to deceive the defendants and cause them to pay more than they in justice ought to •pay.”
Each policy contained the following provision:
“This entire policy shall be void ... in case of any fraud or false swearing by the assured touching any matter relating to this insurance or the subject thereof, whether before or '■■after a loss.”
“Did the plaintiffs, prior to the fire, remove from their factory or dispose of any tobacco or cigars which they afterwards, knowingly, wilfully, and with intent to defraud the defendants included in the proofs of loss ?”
Upon the issue thus raised by this question there was a-sharp contest, and the question arises whether the instruction under consideration was a proper statement of the law under the circumstances disclosed by the evidence. It is claimed on the part of the defendants that the plaintiffs were guilty of fraud in representing the amount of property destroyed and false swearing in making their proofs of loss, and there was-evidence sufficient to go to the jury upon this question. The evidence properly raised the question submitted; hence it was necessary that th£ jury be clearly instructed upon the law respecting these controverted facts. The question submitted to the jury embraced a clear statement of the facts necessary to-
“No authority can be found, we may safely say, to sustain-the contention that fraud which will avoid a policy under such-a clause must have the elements necessary to constitute a cause of action based on fraud. Where the deception or artifice practiced results in payment of the loss, in an action brought to recover back the money all the conditions which the learned judge held requisite to make out fraud would be essential to-sustain the cause of action. His difficulty grew out of a failure to distinguish between deception and artifice constituting; fraud liable to do harm, which avoids a policy of insurance under a contract which so provides, and a cause of action based' on fraud.”
We think the case at bar is ruled by F. Dohmen Co. v. Niagara F. Ins. Co. and Bannon v. Ins. Co. of N. A., supra, and that the reasoning of these eases is particularly applieable-to the facts here. In the Bannon Case, at page 260 (91 N. W. 669), the court said:
“The intentional falsification of books or statements showing a greater amount of property on hand than the fact was, and submission of such books or statements to the adjusters as-correct, fulfils every requirement of the condition avoiding the-policy, regardless of the fact whether damages actually resulted to the insurance company. Such an act is manifestly liable to deceive the insurer and cause him to pay more than-he in justice ought to pay, and the only questions left for the jury are whether it was done, and, if so, whether it was intentionally and wilfully done.”
Commercial Bank v. Firemen’s Ins. Co. 87 Wis. 297, 58 N. W. 391; Maher v. Hibernia Ins. Co. 67 N. Y. 283; Shaw v. Scottish Comm. Ins. Co. 1 Fed. 761; and Claflin v. Comm. Ins. Co. 110 U. S. 81, 3 Sup. Ct. 507, relied upon by counsel for respondents, are considered in the Dohmen Gase, and further discussion of them would seem unnecessary. Some of the other cases cited by counsel for respondents are where the action was based on fraud and where all the elements of an action for deceit were necessary to be proved; others are where-
3. Error is assigned because tbe court charged tbe jury as follows:
“As to tbe third, fourth, and fifth questions, tbe burden of proof is upon the affirmative of the question, and, inasmuch as such affirmative answer will prove fraud, you will not answer,” etc.
4. Error is assigned because of tbe exclusion of testimony of one W. J. Greer, who was called to testify respecting tbe government, books kept in tbe internal revenue department in Milwaukee, showing tbe transactions of plaintiffs with tbe government before tbe fire. Before Greer was sworn one Saveland, deputy internal revenue collector, was called as a witness and requested to produce tbe books of tbe department showing plaintiffs’ returns to tbe government of tbe amount and kind of tobacco destroyed. Tbe witness testified that un- ' der tbe rules of tbe department be was not permitted to dis
5. Error is assigned because tbe court erred in not bolding tbat tbe action was prematurely brought. It is claimed by appellants tbat under tbe provision of tbe policy — “tbe insured, as often as required, shall exhibit to any person designated by tbis company all tbat remains of any property herein described, and submit to examinations, all under oath, by any person named by tbis company, and subscribe tbe same,” etc.— one of tbe plaintiffs, Myrtle S. Meyer, upon examination-before a court commissioner, under advice of counsel refused' to ascertain or furnish information relating to tbe subject matter of insurance, and tbat no action could be maintained’ until tbe insured bad complied with tbis provision. It appears from tbe record tbat tbe witness was summoned before a court commissioner and submitted to an examination of considerable length, apparently answering so far as she bad knowledge. But in many instances she answered to tbe effect tbat she bad no knowledge, and referred tbe defendants to her manager and tbe books of the concern. It does not appear tbat tbe witness bad much personal knowledge of tbe facte about which she was interrogated and frankly admitted tbat she did not know, but proffered examination of her manager, whom she said knew tbe facts, and also offered all books and information under her control. Erom a careful examination of tbe record we are unable to see tbat there was any violation of tbe provision of tbe policy referred to under tbis assignment of error. We are of tbe opinion tbat no error was committed in not bolding tbat tbe action was prematurely brought.
It does not seem necessary to consider other errors assigned.
By the Oourt. — The judgment of the court below is reversed, and the cause remanded for a new trial.