Dolloff v. Phcenix Ins. Co.

• Decision Date: 20 January 1890
• Citation: 82 Me. 266,19 A. 396
• Parties: DOLLOFF v. PHCENIX INS. CO. SAME v. GERMAN-AMERICAN INS. CO.
• Court: Maine Supreme Court

19 A. 396

82 Me. 266

DOLLOFF

v. PHCENIX INS. CO.

SAME

v. GERMAN-AMERICAN INS. CO.

Supreme Judicial Court of Maine.

Jan. 20, 1890.

(Official.)

Exceptions from superior court, Kennebec county.

These were actions of assumpsit on two policies of lire insurance brought to recover the aggregate sum of $4,000. The plaintiff had one policy of insurance for $2,000 in each of the defendant companies; each policy covering both buildings and personal property.

Plea, general issue, with a brief statement of forfeiture of the policy through fraud, attempted fraud, and false swearing by the plaintiff in his proof of loss, and examination thereunder. This defense was relied on at the trial, in the superior court for Kennebec county, especially fraud and false swearing, as to the personal property set forth in the proof of loss. On this point the defendants offered evidence to prove (1) the false and fraudulent insertion of articles which the plaintiff knew were not in the house at the time of the fire; (2) false and fraudulent exaggeration of quantities of such classes of articles as were in the house; (3) false and fraudulent exaggeration of the value of the articles destroyed.

The plaintiff's proof of loss contained 564 distinct items or classes of items, and aggregating $6,800. He claimed the value of the buildings was $3,200, and that their contents—the household goods and farming implements—was $3,600.

Upon these issues of fraud, attempted fraud, and false swearing by the plaintiff, the presiding justice instructed the jury as follows:

"(1) That if the plaintiff knowingly put a false and excessive valuation on any single article, or put such false and excessive valuation on the whole as displays a reckless and dishonest disregard of the truth in regard to the extent of the loss, such knowing overvaluation is itself fraudulent, and the plaintiff cannot recover at all.

"(2) That if the plaintiff falsely and knowingly inserted in his sworn schedule of loss, as burned, any single article which in fact was not in the house, or was not burned, this would constitute a fraud on the company, and the plaintiff cannot recover anything on his policy.

"(3) That any willfully false or fraudulent statement in regard to the loss or its amount would avoid the policy, whether the actual loss was greater or less than the amount claimed by the insured.

"(4) That if the jury find that the plaintiff knowingly claimed in his sworn proof of loss more goods than were actually destroyed by fire, that would constitute the fraud—I should rather say, constitute the attempt at fraud—and false swearing mentioned in the contract.

"(5) That it is not necessary that the fraud should be to the full extent of the proof of loss, but that, if in any respect the plaintiff purposely and designedly made a false statement, in regard to the proof of loss, of what his loss was, although it might have been one of small amount, it defeats the policy for the full amount, both as to personal property and the buildings."

The jury returned a verdict for the defendants and the plaintiff excepted to these instructions.

Each policy of insurance contained the following provision:

"Any fraud, or attempt at fraud, or false swearing, on the part of the assured, shall cause a forfeiture of all claim under this policy."

E. W. Whitehouse, for plaintiff. Baker, Baker & Cornish, for defendants.

EMERY, J. The plaintiff procured of the defendant insurance company a policy of fire insurance for $2,000 upon his home buildings and contents, each building being separately valued, and the contents also having a separate valuation. The policy of insurance contained the following stipulation: "Any fraud, or attempt at fraud, or false swearing, on the part of the assured, shall cause a forfeiture of all claims under this policy." The buildings and contents were consumed by fire, and the plaintiff, as required by the policy, and also by statute, (Rev. St. c. 49, § 21.) notified the company of the loss, and delivered to them a written statement, on oath, purporting to be a particular account of the loss and damage. In this instrument, called "proof of loss," the plaintiff, as the jury have found, knowingly and purposely made false statements on oath of some pretended losses which he did not in fact sustain.

He contended, however, that his actual losses, throwing out his pretended losses, exceeded the whole amount of the policy, and that consequently the defendant company were not, and could not be, harmed by his false statement of additional losses, and should pay him his actual loss.

His argument was that these false statements of additional losses did not increase the risk or the liability of the company; that the true statements showed a loss of over $2,000; and hence the false statements did no fraud nor harm. The presiding justice overruled this contention, and instructed...