Barrett v. Connecticut Fire Ins. , 195 Mich. 209 ( 1917 )

Ostrander, J.

(after stating the facts). The Michigan standard policy limits the liability of the insurer to the actual cash value of the property at the time loss or damage occurs, in no event to exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. It requires, in case a loss occurs, that the insured make a complete inventory, stating the quantity and cost of each article and amount claimed thereon, and within 60 days, unless the time.is extended, a statement to the insurer, signed and sworn to by. said insured, stating the cash value of each item, and the amount of loss thereon, and the interest of the insured, and of all others in the property. That plaintiff and whoever made up her proofs of loss had these provisions of her contract in mind is fairly established by the fact that she made an itemized statement, made two schedules, and as to the goods described in one of them stated that another had an interest in them. The apparent compliance with the provisions of her contract was particularly calculated to deceive. It is singular, if it is true, that she should have innocently listed the piano, upon which she had paid but $5, in the other schedule, valuing it therein at more than double the sum she had agreed to pay for it.

With respect to the forfeiture clause of the policy which is relied upon by defendant, it was held in Tiefenthal v. Insurance Co., 53 Mich. 306, 309, 310 (19 N. W. 9, 10), that it was properly construed in the following charge to a jury:

“That to defeat the plaintiff’s right to recover upon the basis of false swearing, you must not only find that he swore to that which was false, but that he did so with fraudulent intent; and in weighing the question of false swearing with fraudulent intent, it is your duty to take into consideration the knowledge that the affiant, Mr. Tiefenthal, had of the facts that he is alleged to have sworn to, and it is for you to determine what statements in that paper or items he understood he was swearing to. If you should come to the conclusion from the evidence that any of the items that he understood he was swearing to were false, you will then inquire whether he made it with a fraudulent intent; that is to say, with an intent knowingly to get a greater price for an article than’ he knew it to be worth, or to get pay for articles that he knew he had not lost.”

See, also, Knop v. Insurance Co., 107 Mich. 323 165 N. W. 228).

In Brunswick-Balke-Collender Co. v. Assurance Co., 142 Mich. 29, 36 (105 N. W. 76, 79), the following rule from 1 Clement on Fire Insurance (p. 273) is cited with approval:

“Fraud or false swearing implies something more than mistake of fact or honest misstatements on part of assured. They may consist in knowingly and intentionally stating upon oath what is not true, or a statement of a fact as true which the party does not know to be true, and which he has no reasonable ground of believing to be true.”

And it was said by this court:

“We think that the fraud referred to in this clause must be held to be actual fraud, and that the same rule applies which, in case the charge is fálse swearing, as we have heretofore held, requires proof of a fraudulent intent.”

This rule and view of the law requires usually that the question of the intent with which, as here, false swearing is done and false representation is made be inquired into by the jury, and it cannot be held error for the court in this case to submit the question to the jury. No error being assigned upon the refusal of the court to grant a new trial, the question of the weight of evidence upon this point is not before us.

As the question of the cash value of the property destroyed or injured was material, it was not error to permit plaintiff to testify to what she was informed the piano was worth when she bought it.

This disposes of the fifth, fourth, and second assignments of error. The third assignment is overruled, the question propounded to which an answer was refused calling for immaterial testimony. It was plainly not competent to lay before the jury what it was that prompted the witness to inquire into plaintiff’s history.

The first assignment of error presents the serious question; more serious because the evidence of plaintiff’s fraudulent intent is so convincing. It surely was an inadvertence when the court, after laying down proper rules for the guidance of the jury, concluded the charge by indicating that “the fraud or intention of fraud” with which plaintiff was charged must be proved “by overwhelming evidence,” having immediately before then said that:

“If you find , the plaintiff has proven her case by that preponderance of the evidence which I have defined, you will find a verdict in her favor. * * *”

Can it be assumed that no harm to defendant followed this erroneous, if inadvertent, instruction? I feel constrained to conclude that, in view of the evidence and the verdict returned, such a presumption cannot be indulged, and that the case should be submitted to another jury.

The judgment is reversed, and a new trial granted.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.