State v. Fraylon , 240 N.C. 365 ( 1954 )

82 S.E.2d 400 (1954) 240 N.C. 365

STATE
v.
FRAYLON.

No. 653.

Supreme Court of North Carolina.

June 4, 1954.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. Claude L. Love, Gerald F. White, Raleigh, member of staff, for the State.

Brock Barkley, Charlotte, for defendant-appellant.

DENNY, Justice.

The defendant has brought forward twenty-five assignments of error based on exceptions duly taken in the course of the trial below, among them being his assignment of error based upon exceptions to the failure of the trial judge to sustain his motion for judgment as of nonsuit made at the close of the State's evidence and renewed at the close of all the evidence. If this assignment of error is sustained it will be unnecessary to consider or discuss the remaining ones.

The pertinent parts of the statute which the defendant is charged with having violated read as follows: "Any person who shall willfully and knowingly present or cause to be presented a false or fraudulent claim, or any proof in support of such claim, for the payment of a loss, or other benefits, upon a contract of insurance; * * shall be punishable by imprisonment for not more than five years or by a fine of not more than five hundred ($500.00) dollars, or by both * * * within the discretion of the court." G.S. § 14-214.

It follows, therefore, that the real question to be determined in considering the defendant's motion for judgment as of nonsuit is whether the evidence in the trial below, when considered in the light most favorable to the State, tended to prove that defendant "willfully and knowingly" presented "a false and fraudulent claim" and presented "proof in support of such claim," or did it merely raise a suspicion or conjecture as to his guilt of the charge contained in the bill of indictment. State v. Stephenson, 218 N.C. 258, 10 S.E.2d 819; State v. Johnson, 199 N.C. 429, 154 S.E. 730.

The above question is so vital to the disposition of this assignment of error, we think it is proper to analyze the evidence adduced in the trial below.

The testimony of the State's witnesses tended to show that the defendant purchased the property in question, known as 1303 Willow Road, in 1946 or 1947 for $2,500. At that time a house consisting of four rooms and a shed and an additional small building were located on the lot. Before making any improvements on the property, W. D. Seawell, rental agent for the defendant, was renting the property in 1951 at the time it was condemned, for an average monthly rental of $97.88. That thereafter, on 21st August, 1951, the defendant applied for and obtained a permit from the City of Greensboro to remove the small house on the lot and to repair the other house. That the defendant rebuilt and enlarged the house to contain fourteen or sixteen rooms; that he claimed to have spent several thousand dollars for materials, and to have paid one L. H. Smith $8,000 for labor on the building; that in addition thereto one J. A. Bigelow had also done some work on the property; that the majority of the materials used in the building had been purchased from the New Home Building Supply in Greensboro; and that the agent of one of the insurance companies involved requested the defendant to obtain estimates on what it would cost to "reproduce" the property; that in January 1953 the property was rented to a tenant who had entered into a written contract to purchase it for $25,000 on or before 1st February, 1954, and that the defendant said he valued the house at $25,000.

The defendant offered evidence tending to show that certain carpenters from Charlotte were employed for some time in remodeling and enlarging the building involved, and that they brought five or six loads of lumber on a two and a half ton truck from Charlotte consisting of framing, sheeting, and roofing, and that this lumber went into the building. The defendant also offered three witnesses who had made and submitted estimates on behalf of two local contractors as to the cost of rebuilding the damaged property. These witnesses testified that the workmanship on the damaged building was inferior; that the carpenters who constructed it were inexperienced; that their estimates were based on a new building, similar in size, but completed in a first-class workmanlike manner. One estimate was $16,128, and the estimate made and submitted on behalf of the other contractor was $19,600. The letter containing this latter proposal reads as follows: "We propose and agree to rebuild the apartment house at 1303 Willow Road as it existed before it was destroyed by fire for the sum of Nineteen Thousand, Six Hundred Dollars ($19,600)."

The first policy of insurance was written on the defendant's various properties for a total of $15,500 and included the sum of $8,500 on the damaged building. This policy was written without an inspection of the property as required by law, G.S. § 58-175.1, and carried an endorsement thereon to the effect that other insurance was permitted. The second policy for $10,000 was not applied for by the defendant but was solicited by the insurance agent, who knowingly wrote it, according to his testimony, for more than the value of the property. This same agent prepared the lease and sale agreement. He testified that he inspected the property and wrote the policy for what he thought the house was going to be worth. It appears he made no inquiry about other insurance, testifying that he knew it made no difference what amount it was insured for, that the insured could only recover the value of the loss or damage sustained. In this connection, it is not clear as to how much work, if any, was done on the damaged building after the insurance policies were written.

The State points out that when the first policy was written the defendant stated there were no mortgages outstanding against the property, but he informed the agent otherwise when the second policy was written. Be that as it may, the State offered no evidence tending to show that there were any liens outstanding against the property on 8th January, 1953, the date of the first policy. Even so, the fact that certain liens were set out in the proofs of claim filed with the respective insurance companies does not tend to show criminal intent in connection with the filing of proofs of claim. Moreover, the effect unreported liens or other insurance will have as to the validity of a fire insurance policy, in the event of a loss, is a civil matter governed by statute. G.S. §§ 58-178 and 58-180.

The State introduced no evidence tending to contradict the statements of the defendant in respect to the cost of labor in constructing the house, or to show the actual cost of the various materials purchased from the New Home Building Supply of Greensboro, which materials were used in the construction of the building. It contented itself in this respect by introducing witnesses who gave their opinion as to the value of the house at the time of the fire. None of these witnesses fixed the value in excess of $7,000. However, the State offered no evidence bearing on the cost of rebuilding the damaged building except opinion evidence by witnesses who were not contractors or experienced builders, some of whom frankly admitted that they were not qualified to testify as to the cost of the labor and materials necessary to construct the damaged building.

It must be conceded, we think, that the evidence disclosed raises a serious doubt or suspicion as to the good faith of the defendant in fixing the value of the damaged building at the time of the fire at $23,000 in his proofs of claim for loss. But, in light of the following facts, we do not think the filing of the proofs of claim for the full amount of the insurance sufficient to show that the defendant "willfully and knowingly" violated the statute involved for the purpose of collecting a false claim: (1) That while the building was damaged by fire beyond repair, its outer walls were still intact and the character of its construction and kind of materials used therein were available for all to see, (2) the insurance adjuster had made his inspection of the damaged property, arrived at his final determination of the value of the building at the time of the fire, and was in serious disagreement with the defendant as to its value before he furnished him the forms upon which to file his proofs of claim, (3) all the evidence relied upon by the State had been obtained before the proofs of claim were filed, and (4) the proofs of claim contain no information that conflicts with the defendant's contention with respect to the value of his property at the time of the fire, except he listed the value of the damaged building as being $23,000 instead of $25,000 as he had theretofore contended. Where the facts are available to all parties, the question as to the value of a damaged building at the time of a fire resolves itself largely into a matter of opinion by qualified witnesses. "Value is necessarily a matter of judgment, and, furthermore, a matter of judgment in which each person is prone to err in overestimating his own. Of course, overvaluation is an evidence of fraud, but it does not amount to fraud where it expresses the bona fide opinion of the insured." Cooley's Briefs on Insurance, 2nd Edition, Volume 7, page 5851.

It is true that in this case, as in the case of State v. Stephenson, supra [218 N.C. 258, 10 S.E.2d 823], the defendant made various contradictory statements as to the value of his property. But the question is: Did the defendant willfully and knowingly intend to violate the statute for the purpose of collecting a false claim? As to the meaning of "wilfully and knowingly", Winborne, J., in speaking for the Court in the last cited case, said: "The word ``wilfully' as used in this statute means something more than an intention to commit the offense. It implies committing the offense purposely and designedly in violation of law. State v. Whitener, 93 N.C. 590; Foster v. Hyman, 197 N.C. 189, 148 S.E. 36. The word ``knowingly', as so used, means that defendant knew what he was about to do, and, with such knowledge, proceeded to do the act charged. These words combined in the phrase ``wilfully and knowingly' in reference to violation of the statute, mean intentionally and consciously."

It is not a crime to procure overinsurance; it may be under certain circumstances a civil wrong. Appleman on Insurance Law and Practice, Volume 19, Section 10534, page 238; 44 C.J.S., Insurance, § 90, page 604, et seq. Neither does one "willfully and knowingly" violate a statute when he does that which he believes he has a bona fide right to do. State v. Whitener, supra; State v. Crosset, 81 N.C. 579; State v. Ellen, 68 N.C. 281; State v. Hanks, 66 N.C. 612.

The defendant is not charged with a conspiracy to procure excessive insurance on his property and with having burned it or causing it to be burned in order to collect the insurance. Neither is he charged with burning the property, but only with willfully and knowingly filing a false claim for the purpose of collecting upon the policies of insurance issued to him.

In view of the conclusion we have reached, the judgment of the court below is

Reversed.