Vukmanovich v. State Assur. Co. of Liverpool, England
| Decision Date | 08 March 1928 |
| Docket Number | 6252. |
| Parties | VUKMANOVICH v. STATE ASSUR. CO. OF LIVERPOOL, ENGLAND. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; George Bourquin Judge.
Action by Mary Vukmanovich against the State Assurance Company of Liverpool, England. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
R. F Gaines, of Butte, for appellant.
C. S Wagner, of Butte, for respondent.
This is an action, based upon a fire insurance policy, for loss and damage by fire.
Defendant is a fire insurance company, doing business in this state. July 24, 1924, for a term of three years, and in consideration of a premium paid it, defendant insured plaintiff against loss or damage by fire, in an amount not in excess of $1,800, as to certain household furniture, family stores, and personal effects, by plaintiff owned and possessed. An insurance policy to that effect was issued by defendant and delivered to plaintiff. Plaintiff conducted a boarding house, and the insured property was kept therein. About 10:30 o'clock, p. m., September 19, 1926, while the insurance policy was in force and while plaintiff and family were absent, a fire occurred in the building rented and used by her as a boarding house.
The complaint alleges the foregoing stated facts, and, further, that the insured property was destroyed by the fire; alleges the cash value thereof at the time was, and the amount it would cost plaintiff to make replacement is, in excess of $1,800; alleges the sum of $1,800, on account thereof, is due and owing to plaintiff by defendant and unpaid; alleges notice to defendant of loss and that plaintiff has done and performed everything required of her; prays judgment for $1,800.
Answering, defendant admits plaintiff's ownership and possession of the property, the insurance, the fire, notice thereof; admits that, in and by the fire, the personal property owned by plaintiff "received some injury"; denies other matters alleged by plaintiff. Further answering, defendant sets up certain provisions of the insurance policy, one thereof being a provision that the policy will be voided by any misrepresentation, fraud, or false swearing by the insured, before or after loss, and alleges that, after the fire, plaintiff made, in writing, a purported statement of her loss, signed and sworn to by her, and, further, that thereafter, in accordance with the provisions of the policy, plaintiff was examined under oath about the fire and her alleged loss, and that such examination was reduced to writing and signed by plaintiff; and alleges that, in so doing, in both of such instances, plaintiff was guilty of misrepresentation of facts, fraud, and false swearing in the premises.
By reply, plaintiff denies the allegations of misrepresentation, fraud, and false swearing.
Trial with a jury was had. Evidence for plaintiff and defendant, respectively, was received. When all of the evidence was in, counsel for defendant moved for a directed verdict in its favor. The motion was denied, and the case was submitted to the jury. A verdict, in the sum of $1,200, for plaintiff was returned. Judgment in accordance therewith was rendered. Defendant moved for a new trial. The motion was denied, and defendant appealed from the judgment. Several specifications of error are assigned. The first thereof is that the court erred in denying defendant's motion for a directed verdict. We consider it first.
We do not see that the trial court erred in denying the motion for a directed verdict. It is beyond controversy that there was a fire; that thereby some of plaintiff's insured property was partly burned and was injured; that, to some extent, she was damaged thereby. The answer admits that, in and by the fire, plaintiff's property "received some injury." The property could not be injured without damage to plaintiff; injury to her property means damage to her. The question of fact involved was how much damage. Plaintiff testified a lot of her furniture was partly burned. Evidence in behalf of defendant tended to show the damage was slight. How much was a question for the jury.
The stated grounds of the motion for a directed verdict were (1) that the evidence failed to prove the amount of damage caused by the fire; and (2) that the evidence showed plaintiff had been guilty of fraud and false swearing with respect to the value of the property insured and the quantity thereof claimed to have been damaged. While the evidence as to the amount of damage is vague, inevitably, owing to defendant's admission of some injury to the property, plaintiff was entitled to at least nominal damages, unless it had been proven beyond dispute (for the purpose of the motion) that plaintiff had been guilty of false swearing in one or both of the respects charged.
If a recovery may be had on any competent theory, even for nominal damages, a motion for a directed verdict for a defendant should be denied. Long v. Davis, 68 Mont. 85, 217 P. 667. "Upon motion of defendant for a directed verdict, every fact will be deemed to be proved which the evidence offered by plaintiff tends to prove" (Koerner v. Northern P. Ry. Co., 56 Mont. 511, 186 P. 337), and, of course, every fact which is admitted by defendant, for what is admitted does not need to be proven. The first ground of the motion for a directed verdict was untenable, because of the evident liability for at least nominal damages.
The only possibility of escape from such liability, under the pleadings, lies in the affirmative defense that plaintiff was guilty of false swearing. Being an affirmative allegation, the burden was upon defendant to prove it, unless plaintiff's evidence established it. Misrepresentation or false swearing, to void a policy, must be willful and with intent to defraud. 26 C.J. 557. If there was or was not any such was a question of fact for the jury. 26 C.J. 557; Helbing v. Svea Ins. Co., 54 Cal. 156, 35 Am. Rep. 72; Walker v. Western Underwriters' Ass'n, 142 Mich. 162, 105 N.W. 597.
Turning to the record, it is apparent that plaintiff is an ignorant illiterate foreigner, unable to speak, read, write, understand the English language; she signs her name by mark. After the fire, as proof of loss, she delivered to defendant's agent a statement, prepared for her by another and sworn to by her, of the articles insured and in her house, at the time of the fire, and the value of each. The sum total of valuation was $4,247.30. In giving her testimony at the trial, she testified but vaguely about values; said her husband, some years deceased, when living, had bought the things, from time to time, and most thereof quite a number of years before, and that she got her information of values from what he had told her he paid for the articles. True, she testified, in one instance, that the articles were worth the value given them, but, in so doing, it seems inevitable she was not testifying of her own knowledge. In another instance, she testified there was no great difference in values between the time the list was made, some years before, and the time of the fire, "outside of the wear." She did not say what was the amount of depreciation from wear. She testified all of the articles listed were in the house at the time of the fire. She testified through an interpreter, and testified very brokenly and in a rambling way. Obviously, it was hard to make her understand and hard to get from her intelligible...
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