Marion v. Great Republic Ins. Co. of St. Louis

• Decision Date: 31 March 1864
• Citation: 35 Mo. 148
• Parties: JOSEPH MARION, Respondent, v. THE GREAT REPUBLIC INSURANCE COMPANY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

35 Mo. 148

JOSEPH MARION, Respondent,

v.THE GREAT REPUBLIC INSURANCE COMPANY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Circuit Court.

Krum & Harding, for appellant.

I. False swearing in respect to said loss or damage, by the terms of the policy, discharged defendant. False swearing in the premises could occur in two ways: 1. By plaintiff making the affidavit knowing its contents to be false. 2. By plaintiff swearing to material statements as being facts, without knowing whether they were facts or not.

Under the first head, we do not complain of the action of the court below; the proper instruction was given. Under the second head, we maintain that the court erred in refusing to give the instruction asked by defendant in relation thereto. It became the more material that this instruction should be given, inasmuch as plaintiff introduced testimony designed to produce the impression, that he made the affidavit without understanding its contents.

As the plaintiff swore positively to the amount of his loss, if he did not know and was aware that he did not know what that amount was, he was guilty of perjury as well as of false swearing; (2d Russ. C. & M. 518;) and as such false swearing could only be with the intent to induce the defendant to pay the amount of the policy without further inquiry, the jury should have had the point placed before them for their consideration.

A. J. P. Garesché, for respondent.

The instruction refused is the repetition, in confused and incoherent language, of the perspicuous one given at defendant's instance. It was then properly refused; and even if not properly refused, the refusal is not a reason for reversal, because, substantially, the same instruction was given.

BATES, Judge, delivered the opinion of the court.

This is a suit upon a policy of insurance of a stock of goods in a store in St. Louis. The policy required the assured on sustaining loss or damage by fire, forthwith to give notice thereof to the company, and as soon after as possible to deliver in a particular account of his loss or damage, signed with his own hand, and verified by his oath or affirmation. The policy also provided, that if there appear any fraud or false swearing, the insured shall forfeit all claim under this policy. The answer set up, that after the loss the plaintiff had given the defendant a false and fraudulent account of his loss and damage, whereby the defendant was discharged from liability. At the trial evidence was given tending to prove that the statement of loss made to the defendant by the plaintiff, and sworn to by him, was false in material matters.

At the instance of the defendants, the court gave the following instruction:

“If the jury believe from the evidence, that the plaintiff made and subscribed the affidavit dated April 10, 1860, read in evidence, and delivered the same to the defendant as containing a statement of his actual loss and damage by the fire in question; and if they further believe from the evidence, that his said loss and damage was materially less than would appear by said statement, and that plaintiff knew this fact when he made and subscribed said affidavit, then the plaintiff cannot recover.”

And the court refused the following instruction:

“If the jury believe from the evidence, that the plaintiff made the affidavit of 19th April, 1860, and that at the time he made it he did not know the amount of...