Alfred Hiller Co., Limited v. Insurance Company of North America

• Decision Date: 14 March 1910
• Docket Number: 17,681
• Citation: 52 So. 104,125 La. 938
• Court: Louisiana Supreme Court
• Parties: ALFRED HILLER CO., Limited, v. INSURANCE COMPANY OF NORTH AMERICA

52 So. 104

125 La. 938

ALFRED HILLER CO., Limited, v. INSURANCE COMPANY OF NORTH AMERICA

No. 17,681

Supreme Court of Louisiana

March 14, 1910

Rehearing Denied April 11, 1910.

Appeal from Civil District Court, Parish of Orleans; John St. Paul Judge.

Action by the Alfred Hiller Company, Limited, against the Insurance Company of North America. Judgment for plaintiff, and defendant appeals. Reversed, and suit dismissed.

Clegg &amp Quintero & Gidiere and McLaurin, Armstead & Brien, for appellant.

T. M. &amp J. D. Miller and Dart, Kernan & Dart, for appellee.

OPINION

LAND, J.

This is a suit on two policies of fire insurance for $ 2,500 each, issued by the defendant on plaintiff's stock of merchandise in a certain storehouse on Magazine street in the city of New Orleans. There was other insurance on the same stock. Plaintiff sued for $ 4,120.29 as representing defendant's proportion of liability for the loss.

The petition represents that the plaintiff's stock of merchandise was directly damaged and destroyed by fire to the full amount and value of $ 30,969.19, after deducting all salvage, and that the amount of insurance then held by the plaintiff on said property aggregated $ 37,250.

The petition represents that the defendant refused, and still refuses, to pay its proportion of the aforesaid loss or any part thereof, and has denied, and continues to deny, liability in the premises upon the utterly false pretense that petitioner has exaggerated its loss by making fraudulent entries in its inventories, books, and records, and submitting fraudulent proofs from its books.

The gist of defendant's answer is that the two policies were forfeited through fraud and false swearing -- fraud in the padding of the inventory, and false swearing on the part of the officers of the company in the attempt to perpetrate the fraud.

Besides this issue of fraud, there is the secondary question as to what was the actual amount of the loss by fire, which, however, is immaterial, if the policies have been forfeited.

After a protracted trial before a jury, there was a judgment for the plaintiff in the sum of $ 2,115, based on a verdict as follows, to wit:

"We, the jury, * * * find for plaintiff in the sum of fifteen thousand seven hundred and fifty-seven dollars and twelve cents ($ 15,757.12), to be prorated on $ 37,250.00 of insurance."

Defendant has appealed from the judgment. Plaintiff has not prayed for an increase of the amount awarded by the jury.

According to the statement of defendant's expert accountant, the actual total loss of the plaintiff amounted to $ 15,767.12. The jury fixed said loss at $ 15,757.12, and therefore must have adopted said statement as correct.

The amount of loss, according to plaintiff's proof of loss, was $ 31,718.82, and, according to the petition, was $ 30,968.19. This claim of loss based on the inventory and books of the plaintiff exceeds the actual loss by nearly 100 per cent.

Besides errors in bookkeeping, the jury must have found, as contended by the defendant, that three certain items of cement, aggregating $ 6,050, appearing on the inventory of January 31, 1908, did not truly represent stock on hand at the time.

These three items on the inventory read as follows:

1000

(Bbls.)

German Alsen 2.35

$ 2,350 00

718

"

Old Stock Lafargue 2.80

2,010 40

4214

(Sacks)

Atlas 1053 1/2 bbls

2,159 69

These entries exhibit marks of erasure and substitution of words and figures, and the footing at bottom of the page has been changed.

The president and the secretary-treasurer of the plaintiff company, when examined under oath in the office of the Adjustment Company, testified that these three items were correct to the best of their knowledge and belief. The president stated that he had no personal knowledge of the items. The secretary, however, testified specifically that the 1,000 barrels of German Alsen cement were on hand when the inventory was taken, and, being asked if he was positive, replied:

"I am more positive of that than I am of anything in that book."

A few days thereafter the insurance companies denied all liability.

The item of German Alsen was written by the secretary over an erased entry of a small amount of another kind of cement.

The second item, as originally entered, read:

"118 (bbls.) Old Stock Lafargue."

And afterwards the figure "7" was written over the first figure "1." A corresponding change was made in the extensions.

The third item, as originally entered, read, "214 (Sacks) Atlas," and afterwards the figure "4" was inserted before the figure "2," and the extension figures were altered to correspond.

A photographic copy of page 147 of the inventory, on which the three entries appear, is in the record before us, and it is apparent to the naked eye that the original entries and extensions were changed.

It was conceded on the trial that the entry of "German Alsen" was erroneous, and the evidence shows that this item was included in the sworn proofs of loss, but was excluded in the account of loss sued on in this case. It was proven that the plaintiff had on hand only two barrels of German Alsen cement at the date of the inventory, and none at the date of the fire.

It is also shown by the evidence that the item of Old Lafargue cement was raised by 600 barrels, and the item of Atlas cement by 1,000 barrels. This conclusion necessarily results from the fact that there is a deficit of 605 barrels of Lafargue and 1,004 1/4 of Atlas cement, which cannot be accounted for on any reasonable hypothesis.

...