Avery v. Ward , 1889 Mass. LEXIS 41 ( 1889 )

Knowlton, J.

The principal question in this case is whether .the oath taken by a policy holder to the truth of a statement in writing, setting forth the particulars of a loss under his policy of insurance against fire, is an oath “ required by law,” within the meaning of the Pub. Sts. c. 205, § 2. This section is as follows: “ Whoever, being required by law to take an oath or affirmation, wilfully swears or affirms falsely in regard to any matter or thing respecting which such oath or affirmation is required, shall be deemed guilty of perjury.”

The St. of 1887, c. 214, § 60, which follows closely the Pub. Sts. c. 119, § 139, prescribes the form of policy to be used by all fire insurance companies doing business in this Commonwealth, and requires a provision in the policy that in case of loss “ a statement in writing, signed and sworn to by the insured, shall be forthwith rendered to the company, setting forth the value of the property insured,” etc. In the absence of any modification of this provision by the parties, or waiver of it by the company, a policy holder whose property has been, burned is “ required by law ” to make such a statement under oath before he can maintain a suit to recover for his loss. The policy referred to in the present case contained this provision, and, under the instructions of the judge, the jury must have found that there was no waiver of it.

What interpretation should be given to the words “ required by law,” in the statute first quoted, is a question by no means free from difficulty. It has been said that the provision “ might seem from its very general language to embrace all cases'where an oath had been lawfully administered in the execution of official duty.” Jones v. Daniels, 15 Gray, 438. But in the same case it is suggested that the language of the original statute from which it is derived (St. 1829, c. 56) seems to have had reference to oaths required by special provisions of statute. Both of these remarks were entirely outside of the question involved in the case then decided, and we are not aware that the statute has ever been before the court for construction. The fact that in so general a revision of our laws as that of 1835 the language was considerably changed, and the further fact that the law has been twice re-enacted in substantially the form in which it was put in that revision, make the original statute of less importance than might otherwise be attached to it. Rev. Sts. c. 128, § 2.' Gen. Sts. c. 163, § 2. Pub. Sts. c. 205, § 2.

The oath referred to in the plaintiff’s declaration was essential to the preservation of the legal rights of the assured. Although not taken “ in any proceeding in a course of justice,” so that if false it would have subjected the affiant to punishment for perjury at the common law, or under section 1 of chapter 205 of the Public Statutes, it was within the reason of the rule of the common law, for it was taken in a preliminary proceeding which lay at the foundation of proceedings in court, and which would be subject to review in those proceedings. It was required under a contract which embodied the requirement in conformity to an express provision of the law. We think the spirit and purpose of the statute will best be conserved by so construing it that the requirement in the present case shall be deemed to have been a requirement “by law,” such that it would have subjected the assured to punishment for perjury if he had wilfully sworn falsely.

The words alleged to have been spoken of the plaintiff were sufficient to impute to him the crime of attempting to induce and incite Borlin to commit the crime of perjury. Such a crime could be committed by the use of words alone.

Exceptions overruled.