69 Va. 508 | Va. | 1877
delivered the opinion of the court. After stating the case, he proceeded:
The plaintiff in error, in his petition for a writ of error, assigns but two errors in the judgment, both of them being in the instructions given by the court to the jury. The chief of these assignments of error in the instructions is,
There is a provision in the policy that “all fraud, or •attempt at fraud, or false swearing on the part of the assured, or on the part of any person in his behalf, shall cause a forfeiture of all claim under this policy.”
On the trial of this cause the defendants, to sustain the issue on their part, proved that the claim of the plaintiff for his alleged loss on his stock of grain, &c., named in said policy, was fraudulent and false; and that the amount of loss designated in his proof of loss sworn to by him, was fraudulent and false, so far as the said stock of grain, &e., was concerned; but it was-not shown that the claim of the plaintiff or his proof of loss as aforesaid, as to the buildings, or machinery and fixtures named in said policy was fraudulent or false.
The argument before this court of the counsel for the plaintiff proceeded upon the concession that there was such fraud and falsehood, so far as the said stock of grain, &e., was concerned—a fact which is certified in the record as having been proved on the trial, and was in effect found by the jury, and which, therefore, could not be denied by said counsel; and he admitted that, by reason of such fraud and falsehood, the plaintiff' had forfeited all claim under the policy as to the said stock of grain, &c.; but he contended that as it was not shown that the claim of the plaintiff, or his proof of loss as aforesaid, as to the said buildings or said machinery and fixtures was fraudulent or false, the plaintiff had not forfeited his claim under the policy as to the said buildings or said machinery and fixtures. The said counsel also admitted that it was perfectly competent for the parties to argue that “ all
The question to be now considered and decided therefore is one of construction merely; that is, whether, according to the true construction of the provision aforesaid, it was thereby intended that for a fraud, or attempt at fraud, or false swearing on the part of the assured, in relation to one only of several subjects embraced in one policy of insurance, as is this-case, there should be a forfeiture of all claim under the policy, not only in regard to the particular subject aforesaid, but also in regard to all other subjects embraced in the policy, or only a forfeiture of all claim under the policy in regard to such particular subject.
The counsel for the plaintiff maintains the latter of' these alternative constructions; while the counsel for the defendants maintains the former. Which of them is correct is the question which this court has now to-solve.
We are all of opinion that the former is the correct construction, and that the forfeiture is total.
Supposing that to have been the true intention of' the parties, we know not how it could well have been expressed in plainer language. “All fraud,” &c.,. “shall cause a forfeiture of all claim under this policy.” A more comprehensive word than “all” cannot be found in the English language; and it certainly has in this case the comprehensive meaning contended for by the counsel of the defendants, instead of the-restricted meaning contended for by the counsel for
So far from seeing any such reasons, we think there are strong reasons for believing that the real intention of the parties in making the provision aforesaid corresponded with the literal terms in which it is expressed, and that it was intended to create a general forfeiture as to all the subjects embraced in the policy, and not a forfeiture only as to the particular subject to which the fraud or false swearing might relate.
A policy of insurance is a contract, in the making of which, peculiar and great confidence must, of necessity, be reposed by the insurer in the insured. Good faith and fair dealing are especially required by the former of the latter. The former must mainly depend on the oath of the latter, and the account he may render to show the fact of the loss of the property insured, and the amount of the damage incurred by him, for which he claims indemnity under the policy. Where there is no good reason to suspect fraud or false swearing on the part of the insured, in making out his preliminary proof of loss, the insurer generally requires no further evidence to sustain the ■claim of the insured than his own oath and account, unless it be “ the certificate under seal of a magistrate, notary public, or commissioner of deeds, nearest the place of the fire, and not concerned in the loss, or related to the assured, stating that he had examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured to such an amount as the said official shall certify.” Such a certificate is generally provided for in a policy of insurance, and is provided for by the policy in this case.
We therefore think the construction contended for by the counsel for the defendants is a reasonable one,, and that it is the true one, especially as it accords with, the literal terms of the provision in question.
The learned counsel for the plaintiff, in his argument in this case, referred to a great many decisions of other States and countries, for the purpose of sustaining his views of the case, and especially of the question we are now considering. He referred to no decision of this court, because there is none on the ques
“$2,000 on his new wooden flour and corn mill building, moved by water power, and wooden and graveled lumber house connected, &c.
“ $1,000 on machinery and fixtures of all kinds, including water wheel and mill stones in said mill building; and $2,000 on his stock of grain, flour, meal, offal and empty barrels and bags in said mill building and lumber house,” &c.
And he argues, that the provision of forfeiture in question must be construed precisely in the same way in this contract as a like provision would be construed in a several policy on each of the subjects insured. In other words, that this policy, though joint in form, is several in substance, and must be construed accord
The policy in this case is an entire contract, notwithstanding the separate valuation of the different parts of the subject insured. That separate valuation was intended for the benefit of the insurers, and not the insured. The latter would have been benefitted by letting the joint valuation of the whole subject insured remain at the sum of $5,000 fixed in the policy, in
There are cases, it is true, in which it has been held, and no doubt properly, that a policy may be avoided as to a part of the subject insured, and valid as to the rest, even though the language of the policy declaring it to be void in such a case may seem to be general, and apply to the whole policy. As, for instance, in a case in which a policy declares that it shall be void for any subsequent alienation by the insured. There, if only a part of the subject be aliened, and the risk as to the rest cannot be increased by such partial alienation, the policy as to the rest would not be thereby avoided, but would remain in full force, in
In regard to the first assignment of error, we are therefore of opinion, that the circuit court did not err “ in ruling that fraud and false swearing as to one independent subject of insurance avoided the whole-policy.”
The other of the two assignments of error in the instruction is,—
2d. That the court extended the penalty of forfeiture to any false representation or false swearing as to the amount and value of the property insured and destroyed, made either in the contract of insurance, or at any time thereafter, prior to any default on the part of the defendant in paying any loss incurred.
The cases referred to in support of this assignment of error, to wit: Ferris v. N. American Ins. Co., 1 Hill
We think there is no error in any of the instructions given by the coui’t to the jury. The propositions of law therein announced are undoubtedly true. Hor were any of them mere abstractions. But if it can be said that any of them were such abstractions, the court would not on that ground reverse the judgment, there being no error in law in the instruptions, and they could not have had the effect of misleading the jury.
Hpon the whole, we think there is no error in the judgment, and are therefore for affirming it.
Judgment affirmed.