Browne v. Clay Fire & Marine Ins. Co.

• Decision Date: 31 October 1878
• Citation: 68 Mo. 133
• Parties: BROWNE v. THE CLAY FIRE & MARINE INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

68 Mo. 133

BROWNE

v.THE CLAY FIRE & MARINE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

James Scammon for appellant, argued that instruction No. 9 should have been given, citing Newmark v. Liverpool & London Ins. Co., 30 Mo. 160; Howard v. City Fire Ins. Co., 4 Denio (N. Y.) 502; Phœnix Ins. Co. v. Lawrence, 4 Met. (Ky.) 9; Blackley's Ins. Dig., § 14, p. 264; Regnier v. Louisiana S. M. Ins. Co., 12 La. 336; also, that instruction No. 2, given for the plaintiff, should have been refused, citing Thomas v. Babb, 45 Mo. 384.

John K. Cravens for respondent, argued that the proofs were required by the conditions of the policy, and the affidavit was exacted by the defendant; neither of the documents was the voluntary production of the plaintiff, and unless disproved, are presumptively true. The defendant asserted that they were untrue, and the burden of proof was upon it to establish the truth of its assertion and the falsity of the statements contained in the documents. They were read to the jury by the defendant without any announcement being made that it was only for the purpose of maintaining the defense that plaintiff falsely and knowingly placed an over-valuation on the property with the intent to defraud defendant. It is the uniform rule that declarations of the adverse party, when introduced against him, may be considered by the jury in all aspects favorable to him. Greenl. on Ev., vol. 1, §§ 201, 202; Insurance Co. v. Newton, 22 Wall. 32; Howard v. Newsom, 5 Mo. 523; Reevs v. Hardy, 7 Mo. 348.

HENRY, J.

This was an action on a policy of insurance, issued by defendant, on a dwelling house and a lot of wine and vineger stored in the cellar of the dwelling house, to the amount of $2,100. The petition alleged the destruction of the property insured by fire on the 4th day of July, 1874, and a compliance, by plaintiff, with all the conditions of the policy.

The defenses relied upon were: First, That the plaintiff, at the time of procuring the policy, fraudulently placed an over-valuation upon the property insured by means whereof defendant was induced to issue to him the policy sued on; Second, That in his examination and statement furnished to defendant as his account and proof of loss, plaintiff fraudulently placed an over-valuation upon the property for the purpose of obtaining the amount sworn to in such statement. Either of these facts, if proven, constituted a defense to the action, because violative of express conditions of the policy. The evidence for plaintiff tended to prove the value of the property as was alleged by him before procuring the policy, and as placed upon it by him in his statement after the loss occurred. The evidence for defendant tended to prove the property of considerably less value than that placed upon it by plaintiff when the policy was procured, and that placed upon it by plaintiff after the loss occurred in his statement and proof of loss. The defendant introduced in evidence the statement and proofs of loss, made by plaintiff, to show that plaintiff over-valued the property, and this, in connection with the other evidence, tended to prove the defense of fraudulent over-valuation by plaintiff after the loss occurred.

For plaintiff the court instructed as follows:

No. 1. The court instructs the jury that the pleadings in this case admit that the defendant made the contract of insurance and policy sued upon, and that the plaintiff delivered to the defendant, as required by the conditions of the policy, notice and proofs of loss.

No. 2. If the jury believe from the evidence that the plaintiff was the owner of the property covered by the policy sued on at the date the policy was issued, and that he was the owner of the property covered by the policy at the date of its destruction by fire, you will find for the plaintiff not to exceed the amount covered by the policy on each kind of property insured, to which you will add interest at the rate of six per cent. per annum from October 17th, 1874, unless you further find from the evidence that plaintiff procured the policy by fraud practiced upon the defendant, or that the plaintiff, with the intent to defraud the defendant, falsely and knowingly over-rated and over valued the property destroyed.

The following instructions were asked by the defendant:

No. 1. The court instructs the jury that the burden of proof in this case is upon the plaintiff, and that he is bound to make out his case by a preponderance of the testimony.

No. 2. If the jury believe from the evidence that the plaintiff, in the affidavit and account of loss containing the preliminary proofs of loss furnished by him to this defendant, placed a false and fictitious valuation on the frame farm-house claimed to have been destroyed by fire, much higher than the actual cash value, and delivered the same to the defendant for the purpose and with the intent to deceive and defraud the defendant, and thereby induce it to pay more for the loss of said house than its actual cash value, then the court instructs the jury that such false swearing is a fraud, or an attempt at fraud within the meaning of the policy and contract of insurance sued on, and the plaintiff cannot recover.

No. 3. If the jury believe from the evidence that the plaintiff, in his affidavit and account of loss containing his proofs of loss furnished the defendant, made oath that the property claimed to have been lost was worth the sum of $2,100, when in fact, and the jury so find, said property was not worth near that sum, then the burden of explanation is upon the plaintiff, and if the discrepancy remain unexplained to the satisfaction of the jury upon a fair consideration of the whole evidence, it stands as evidence of fraud, or an attempt at fraud, and so unexplained imposes upon the plaintiff a forfeiture of all claims under the contract and policy sued on, and the plaintiff cannot recover.

No. 4. If the jury believe from the evidence that the plaintiff, in his affidavit and account of loss containing his proofs furnished to this defendant, made oath that the property claimed to have been lost, to-wit: The one-story frame farm-house was worth the sum of $1,000, when in fact, and the jury so find, the said one-story frame farmhouse was not worth to exceed the...