Moore v. Virginia Fire & Marine Ins. Co.

• Decision Date: 26 April 1877
• Citation: 69 Va. 508
• Court: Virginia Supreme Court
• Parties: MOORE v. VA. FIRE & MARINE INS. CO.

69 Va. 508

MOORE v. VA. FIRE & MARINE INS. CO.

Supreme Court of Appeals of Virginia.

April 26, 1877

Absent, Anderson, J.

1. A policy of insurance is for $5,000--to wit, $2,000 on buildings, describing them, $1,000 on machinery and fixtures $2,000 on stock of grain, flour, meal, & c. And after prescribing what the insured shall do in case of loss, says All fraud or attempt at fraud, or false swearing, on the part of the assured, or on the part of any person on his behalf shall cause a forfeiture of all claim under this policy. And it concludes,--and this policy is made and accepted on the above express conditions. In an action by the insured on this policy it is proved that the claim of the plaintiff for his alleged loss on his stock of grain, & c., was fraudulent and false, and that the amount of loss designated in said proof sworn to by him, was fraudulent and false so far as the said stock of grain, & c., was concerned. But it was not shown that his claim or his proof of loss as to the said buildings or machinery and fixtures was fraudulent and false--HELD: The forfeiture for fraud and false-swearing is incurred by the fraud and false swearing as to the grain & c., and the insured cannot recover for any part of his loss.

2. Fraud on the part of the insured in making the contract of insurance will render it void without any express provision to that effect in the policy, and even though there may be such a provision therein relating only to fraud or false swearing in connection with the preliminary proof.

This is a writ of error to a judgment rendered on the 3d day of February, 1873, by the circuit court of the city of Richmond in an action of assumpsit brought in said court by David W. Moore against the Virginia Fire and Marine Insurance company of Richmond, on a policy of insurance. Issue was joined on the plea of non assumpsit, and leave was given to introduce any evidence under that plea that could be introduced under any special plea. The jury found a verdict for the defendants on the issue joined; and thereupon the plaintiff moved the court to set aside the verdict and grant a new trial, which motion was overruled, and judgment was rendered for the defendants.

The plaintiff excepted to an opinion of the court given against him on the trial of the cause. It is stated in the bill of exceptions, that on the trial of the cause, the plaintiff, to sustain the issue on his part, offered the policy of insurance, which is set out in haec verba in the bill--

" By this policy of insurance," it proceeds to state " the Virginia Fire and Marine Insurance company of Richmond, in consideration of the receipt of $125, do insure David W. Moore and his legal representatives, $5,000 to wit:

$2,000 on his new wooden, flour and corn mill building moved by water power, and wooden and gravelled lumber house connected and communicating, situate near the mouth of Shockoe Creek, Richmond, Virginia, and adjoined by his wooden plaster mill.

$1,000 on machinery and fixtures of all kinds, including water wheel and mill-stones in said mill building; and

$2,000 on his stock of grain, flour, meal, offal and empty barrels and bags in said mill building and lumber house; the same being on leased ground.

Other insurance on mill, $2,000; m'ch'y $2,000; stock $1,000. Against all such immediate loss or damage as may occur by fire to the property specified, not exceeding the sum insured, nor the interest of the assured in the property, except as hereinafter provided, during one year to wit: from the 26th day of August, 1870, at 12 o'clock noon, to the 26th day of August, 1871, at 12 o'clock noon, to be paid in sixty days after the proofs required by this company shall have been received at the office of the company in Richmond, and the loss shall have been satisfactorily ascertained and proved, as required by the provisions of this policy."

Then follow various other provisions of the policy, which it is unnecessary here to repeat, until we get to that which directs what is to be done in the matter in case of loss, which is in these words:

" In case of loss the assured shall give immediate notice thereof, and shall render to the company a particular account in writing of said loss under oath, stating the time, origin and circumstances of the fire, the occupancy of the building insured, or containing the property insured, other insurance if any, and copies of all policies, the whole value and ownership of the property, and the amount of loss or damage, and shall also declare truly on oath that the fire and consequent loss and damage was occasioned without fraud or evil practice on his part, and that he has not done, or caused to be done, any act in violation of the provisions of this policy, whereby it would become void, and shall produce the certificate under seal of a magistrate, notary public, or commissioner of deeds, nearest the place of the fire, and not concerned in the loss, or related to the assured, stating that he had examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured to such an amount as the said official shall certify. In no case shall the company be liable, or the claim be for a greater sum than the actual damage to or cash value of the property at the time of the fire, or beyond such sum as will enable the assured to replace or restore the property lost or damaged; a suitable allowance will be required in settlement of any loss for depreciation from use or otherwise," & c. " If required the assured shall produce books of accounts and other proper vouchers, and all property saved and hereby insured, whether damaged or not damaged, and be examined under oath by any person appointed by the company touching all persons relating to the loss, or, if deemed necessary by the company, shall produce said vouchers and property, and submit to a second examination, and subscribe such examination when reduced to writing," & c.; " and until such proofs and certificates are produced, and examination and appraisal permitted, the loss shall not be deemed proved or payable. All fraud, or attempt at fraud, or false swearing on the part of the assured, or on the part of any person in his behalf, shall cause a forfeiture of all claim under this policy." Then follow various other provisions, not necessary to be here repeated until we get down to the concluding one in these words: " And this policy is made and accepted on the above express conditions."

And the renewal thereof, which is in the words and figures following, to wit:

" RENEWAL.

Premium $125.

VIRGINIA FIRE AND MARINE INSURANCE CO.,

Office Company's Building, No. 1015, Main St.,

RICHMOND, August 26th, 1871.

Received from David W. Moore $125, being the premium on $5,000 insured under the policy No. 19,526, which is hereby continued in force for one year, to-wit, from the 26th day of August, 1871, until the 26th day of August, 1872, at noon.

WILLIAM WILLIS, JR., Secretary.

No. 34,812. W. L. COWARDIN, President."

And proved the loss and destruction of the wooden flour and corn mill building and the machinery and fixtures and stock of grain, & c., named in said policy, on the night of the 24th December, 1871, by fire; also proved the value of the said building to be $2,791.89 at the time of the fire, and the value of machinery and fixtures to be $5,250 at the time of the fire; and also offered testimony tending to show that the value of the stock of grain, & c., at the time of the fire was $4,025, the plaintiff himself testifying on the trial to the truth and correctness of said valuations; also proved that he was the owner of the said property both at the time of the insurance and after its loss and destruction by fire; also proved that he had paid the premiums mentioned in said policy and renewal; and also that he had given notice of his said loss to the defendants on or about the 10th day of January 1872, rendering a particular account in writing of said loss as aforesaid, under oath, as required by said policy.

And thereupon the defendants, to sustain the issue on their part, proved that the claim of the plaintiff for his alleged loss on his said stock of grain, & c., was fraudulent and false; and that the amount of loss designated in said proof, sworn to by him as aforesaid, was fraudulent and false so far as the said stock of grain, & c., was concerned; but it was not shown that the claim of the plaintiff, or his proof of loss as aforesaid, as to the said buildings or said machinery and fixtures, was fraudulent or false; and thereupon the defendants asked the following instruction:

INSTRUCTION REFUSED.

" If the jury shall believe from the evidence that the plaintiff attempted and intended a fraud upon the defendant by altering his books of accounts, or that he swore falsely and fraudulently to more or greater loss upon his stock than he had actually sustained in the account of loss rendered by him, then the said fraud or false swearing avoided and annulled his whole policy, and he can recover nothing in this action."

Which the court declined to give; but gave the following instructions:

INSTRUCTIONS GIVEN.

" If the jury believe from the evidence that the plaintiff either in the making of his contract of insurance with the defendants or at any time thereafter prior to any default upon the part of the defendants in paying any loss incurred by fire upon the policy sued upon, attempted and intended a fraud, by false representations or false swearing, as to the amount and value of the property insured and destroyed, with a view to enhance his demand upon the defendants, they are instructed that such fraud...