Schulter v. Merchants' Mut. Ins. Co.

• Decision Date: 31 January 1876
• Parties: MATHIAS SCHULTER, et al., Trustees of MRS. MARY E. SCHROEDER, Respondents, v. THE MERCHANTS' MUTUAL INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

62 Mo. 236

MATHIAS SCHULTER, et al., Trustees of MRS. MARY E. SCHROEDER, Respondents,

v.THE MERCHANTS' MUTUAL INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

E. T. Farish, for Appellant, cited Hoffman vs. The Western M. & F. Ins. Co., 1 La. An., 216.

Cline, Jamison & Day, with Peacock & Cornwell, for Respondents.

HOUGH, Judge, delivered the opinion of the court.

This was an action on a policy of insurance issued by the defendant, insuring the plaintiffs' stock of wines and liquors against loss and damage by fire, to the amount of three thousand dollars

Plaintiffs had other insurance on the same property, to the amount of six thousand dollars, which was permitted by the policy.

It was alleged in the petition, that the property insured had been lost and damaged by fire to the amount of $7,657.75, and judgment was prayed against the defendant for the sum of $2,552.18, that being the proportion of the entire loss for which, it was alleged, the defendant was liable under the terms of the policy.

The defendant pleaded specially, that by the terms of the policy, all fraud, or attempt at fraud, by false swearing or otherwise, should cause a forfeiture of all claim upon the company under said policy, and that plaintiffs had forfeited all right and claim thereunder, by reason of fraud and false swearing in making the proofs of loss after the fire.

In the proof of loss made by the plaintiffs they claimed to have been damaged in the sum set out in the petition, and the testimony introduced by them at the trial tended to show that their loss was about that sum.

The testimony introduced by the defendant tended to show that plaintiffs' loss was about twenty-seven hundred dollars.

There was a verdict and judgment for the plaintiffs for the sum of $2,692.88, which was affirmed at General Term.

The following instruction was given, among others, for the defendant:

“The jury are instructed, that if they believe from the evidence that the policy sued on contained a provision that all fraud, or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claims under the policy, and that, if they further believe from the evidence that plaintiffs have fraudulently offered to defendant proofs of loss under the policy, containing material statements in regard to their loss under said policy, which the plaintiffs knew to be false at the time the same were offered, they will find for defendant.”

The defendant assigns as error the refusal of the trial court to give the following additional instruction on this subject:

“If the jury believe from the evidence that there is a difference between the amount of loss sworn to in plaintiffs' proof of loss and the amount of loss proven at the trial, such difference is presumptive evidence of fraud and false swearing; and in the absence of satisfactory explanation, showing that such difference is the result of error, and not of an intention to defraud, the jury are instructed that such false swearing was a forfeiture of all claims by the assured under the policy sued on, and they will find for the defendant.”

The only authority, to which we have been referred in support of this instruction, is the case of Hoffman vs. The Western Marine and Fire Ins. Co. (1 La. An., 216.) The judge delivering the opinion of the court in that case, in affirming the charge given at the trial, used the following...