Linscott v. Orient Ins. Co.

• Decision Date: 18 February 1896
• Citation: 88 Me. 497,34 A. 405
• Parties: LINSCOTT v. ORIENT INS. CO.
• Court: Maine Supreme Court

34 A. 405

88 Me. 497

LINSCOTT

v. ORIENT INS. CO.

Supreme Judicial Court of Maine.

Feb. 18, 1896.

(Official.)

Exceptions from supreme judicial court, Knox county.

Action by Elbridge D. Linscott against the Orient Insurance Company. Verdict for plaintiff. Defendant excepts, and moves for a new trial. Exceptions and motion overruled.

Wm. H. Fogler, for plaintiff.

C. E. & A. S. Littlefleld, for defendant.

FOSTER, J. The plaintiff was insured in the defendant company to the amount of $500 upon his stock of goods contained in a frame store. This store, with all its contents, was wholly destroyed by fire. The policy of insurance contained the following clause: "This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance, or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing touching any matter relating to this insurance, or the subject thereof, whether before or after the loss."

The defendant claimed that the plaintiff had been guilty of false swearing, within the meaning of this provision in the contract, both in connection with his proofs of loss, and in his testimony as a witness on the stand, and was not, therefore, entitled to recover.

The verdict was for the plaintiff for $520, and the case comes before this court on exceptions, and motion for a new trial.

Exceptions: Among other things, the court instructed the jury, upon the question of fraud and false swearing, as follows: "And, if a man attempt to defraud the company by reason of false swearing, then by our statute, he has forfeited his whole claim. * * * If he is blameless in these particulars, but although inaccurate, although he has made misstatements that are not chargeable to his dishonesty, not chargeable to his falsehood, not chargeable to his desire and determination to cheat and defraud and deceive, but are mere mistakes of either judgment or memory, then, gentlemen, you will deal with the witness accordingly. Punish no man for mistake, but visit condemnation upon men who are false and fraudulent, and upon such only. * * * The whole matter is for you, and it is for you to say whether this man has met. with a loss by misfortune, and has not attempted, by false swearing, to defraud the insurance company. If a preponderance of the evidence in the case satisfies you that, having met with a loss by fire that occurred by misfortune, without fraud on his part, why, * * * then, gentlemen, he is entitled to recover in this case. * * * And, if you find his claim honest, untainted by fraud and false swearing, it is your duty to remunerate him."

These disconnected portions of the charge of the presiding Justice form the basis of the defendant's bill of exceptions, and the gravamen of the defendant's complaint is that "fraud and false swearing" are terms that the court used conjunctively, and not disjunctively; that the court should have discriminated between fraud and false swearing, by employing the disjunctive "or," instead of the conjunctive "and," and the language of the charge should have been that the duty of the jury was to remunerate the plaintiff if they found his claim honest untainted by fraud or false swearing, instead of "untainted by fraud and false swearing."

But this is a discrimination altogether too subtle and refined, in its application to the case under consideration. The fraud relied on by the defense, so far as it relates to these exceptions, is false swearing, and false swearing is fraud. False swearing consists in knowingly and intentionally stating upon oath what is not true. A false statement Intentionally and knowingly or fraudulently made certainly constitutes fraud, and the statement of a fact as true which a party does not know to be true, and which he has no reasonable ground for believing to be true is fraudulent. Leach v. Insurance Co., 58 N. H. 245; Harding v. Randall, 15 Me. 332; Hammatt v. Emerson, 27 Me. 308. It was immaterial, therefore, whether the language employed was...