O. C. Vaughan & Co v. Va. Fire & Marine Ins. Co

• Decision Date: 10 March 1904
• Citation: O. C. Vaughan & Co v. Va. Fire & Marine Ins. Co, 46 S.E. 692, 102 Va. 541 (1904)
• Court: Virginia Supreme Court
• Parties: O. C. VAUGHAN & CO. v. VIRGINIA FIRE & MARINE INS. CO.

46 S.E. 692

102 Va. 541

O. C. VAUGHAN & CO.

v.VIRGINIA FIRE & MARINE INS. CO.

Supreme Court of Appeals of Virginia.

March 10, 1904.

INSURANCE—FRAUD—EVIDENCE.

1.Evidence in an action on a fire policy held insufficient to furnish an explanation, required of insured, of the presence of false invoices in the proofs of loss.

2.The unexplained presence of false invoices in the proofs of loss avoids the policy for fraud, though enough goods actually covered by the policy are burned to have authorized recovery of the full amount of insurance.

¶ 2.SeeInsurance, vol. 28, CentDig. § 1362.

Error to Circuit Court, Greensville County.

Action by C. C. Vaughan & Co. against the Virginia Fire & Marine Insurance Company.Judgment for defendantPlaintiffs bring error.Affirmed.

See14 S. E. 754.

Davis & Davis, for plaintiffs in error.

Leake & Carter, for defendant in error.

BUCHANAN, J.This is the second time this case has been before this court.Upon the former writ of error, all questions of law involved in the case were settled, the verdict of the jury set aside because not sustained by the facts, and the cause remanded for a new trial.The proceedings had in the cause prior to that time are fully set out in the opinion of the court, and reported in 88 Va. 832-842. 14 S. E. 754.

After the case was remanded, a new trial was had, in which there was a verdict for the plaintiff.That verdict was set aside by the circuit court, and a new trial granted.Upon the new trial precisely the same evidence was introduced by the parties as was before the jury upon the last preceding trial.To that evidence the defendant demurred, which demurrer was sustained by the court, and a judgment rendered in favor of the defendant.To that judgment this writ of error was awarded.

As stated by the plaintiff in error in his petition, the only question for our determination is whether or not, under the rules applicable to a demurrer to evidence, it appears from the record that the plaintiff's claim has been forfeited under the provision of the policy that the company should not be liable thereunder for loss or damage, if there be "any false swearing or fraud, or attempt at fraud, before or after loss or damage by him [the assured] in support of his claim for loss or in proofs of loss hereinafter mentioned."

One of the defendant company's defenses was that Lassiter, the assured, and the assignor of the plaintiff, was guilty of false swearing and of an attempt at fraud, in furnishing preliminary proofs of loss.

A day or two after the fire, the adjuster of the company went to Franklin, Va., to adjust the loss.When he reached there, he was informed by Lassiter that all his books and papers, except an inventory taken about a month before, were lost.Lassiter made a statement of his loss, and was then requested to furnish the company duplicate invoices for the bills which had been burned.This he agreed to do.Duplicate invoices were furnished, aggregating the sum of $3,028.51, which were listed and afterwards sworn to by Lassiter.The evidence as to the circumstances under which and by whom the list was made out is conflicting, but, on a demurrer to the evidence, it must be treated as made out by the adjuster of the defendant company.It was forwarded to the solicitor of the company at Franklin, with the request that he get Lassiter to sign and swear to it, and return it to the company.This was done.The certificate appended to the list which Lassiter signed, and to which he made oath, is as follows:

"I hereby certify that the duplicate invoices furnished as per above statement, amounting to three thousand and twenty-eight 51/100 dollars said invoices being in the names of M. L. Beale & Co., D. Lassiter & Co., and D. Lassiter, all of which form a part of my loss, are correct and were received by me at Franklin Va. and constituted the goods burned on the morning of December 6th, 1888."

Among the duplicate invoices furnished, listed, and sworn to, are several bills for goods and items in other bills which the evidence conclusively shows did not constitute any part of the goods burned, but which had been so charged as to make it appear that they were a part thereof.One of these was a bill of goods sold to M. L. Beale, August 13, 1888, for $328.50.It was changed so as to make it appear that it was sold to "M. L. Beale & Co." on October 13, 1888.The members of the firm of M. L. Beale & Co. were M. L. Beale and D. Lassiter, and they did not go into business together until September 27, 1888.Their firm name was soon afterwards changed to D. Lassiter & Co., and on the 27th of October following the policy of insurance sued on was taken out in the name of D. Lassiter & Co.On the 12th of November, Beale withdrew from the firm, and on the 5th of December he assigned his interest in the policy to...