Western Assur. Co. v. Bronstein

• Decision Date: 01 June 1925
• Docket Number: 11062.
• Citation: 236 P. 1013,77 Colo. 408
• Parties: WESTERN ASSUR. CO. v. BRONSTEIN.
• Court: Colorado Supreme Court

236 P. 1013

77 Colo. 408

WESTERN ASSUR. CO. v. BRONSTEIN.

No. 11062.

Supreme Court of Colorado

June 1, 1925

Rehearing Denied June 22, 1925.

Department 3.

Error to District Court, City and County of Denver; Henry J Hersey, Judge.

Action by Ida Bronstein against the Western Assurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Sylvester G. Williams, of Denver, for plaintiff in error.

Philip Hornbein and I. L. Quiat, both of Denver for defendant in error.

CAMPBELL J.

This is an action by the insured against the insurer on a single policy of fire insurance for damages for fire loss. The policy was for $2,500 upon a stock of merchandise consisting of groceries, and $1,650 upon store and office furniture and fixtures, a total of $4,150. The jury returned a verdict upon which judgment was rendered, of $1,854.45 as the damages for the groceries destroyed, and for $923.40, the loss on the furniture and fixtures, a total of $2,777.85. The insurer is here with this writ. There are only thirty-nine assignments of error. Of these only two are argued by plaintiff in error. The first is that plaintiff was guilty of false swearing in her proof of loss, which rendered the policy void; the second, that a chattel mortgage was placed against a part of the furniture and fixtures insured, which invalidated the contract of insurance in its entirety. Though other defenses were interposed, they are disregarded because not argued.

1. The instructions given and refused are not discussed by counsel on either side. We have read them, and find them full and fair. The one given on the question of false swearing was prepared by insurer's counsel. It specifically instructs the jury that, if the insured willfully or knowingly swore falsely to a material matter in her written statement or proof of loss made to the insurer, either as to the quantity, or value, of the merchandise or as to the loss thereon, or as to the value of the fixtures and furniture or the value thereon, for the purpose of deceiving the defendant, and of inducing it to pay more insurance than the amount of the loss sustained, the verdict must be for the defendant. The insurer has not complained, and of course cannot complain, of its own instruction. The finding on the issue of false swearing, assuming the evidence to be conflicting, was in favor of the plaintiff. That the issue was one for the jury to determine is not denied. In view of the serious charges against the attorneys for insured contained in the briefs of the insurer's counsel, we have given attentive consideration to the record. It shows first that the jury's finding rests upon sufficient legal evidence, and we cannot interfere with it on the ground of failure of proof.

The basis for the charge of false swearing is that the insured in her proof of loss, exaggerated the sound value of the insured property, and overestimated or exaggerated the value of certain items of the insured property that were saved. When it is considered that such exaggeration would redound to the benefit of the insurer and not the insured, it would seem to be a wholly unsubstantial ground upon which to predicate prejudicial error to the insurer, because the insured, in estimating the value of the saved property, placed it higher than it really was. This error occurred as the result of a mistake in the computation of a row of figures set opposite a number of such items as the value thereof. The error was apparent on the face of the sheet itself, and was readily detected by the adjuster of the insurance company when the written statement or proof of loss was handed to him, and he made a notation to that effect on the paper. This of itself tends to show that such error as was made by the insured in the proof of loss was the result of a mistake in addition. The error was against the insured, and could not have prejudiced the insurer. But, if it was calculated to deceive the insurer, it did not accomplish that result, because the adjuster readily detected it, and such attempted adjustment thereafter as may have been made by him was made with full knowledge of the mistake. But if this computation, made by the insured in her proof of loss, had not been detected, and if the insured had made an excessive estimate of the value of the insured property and verified the statement, or exaggerated the loss that she sustained, this of itself would not make the policy void and release the insurer from the obligation of its contract. To accomplish that result, there must also be proof, among other things, that the insured swore falsely to some material matter in her statement, for the purpose and with the intention of deceiving the insurer and inducing it to pay more insurance than the amount of the loss sustained. The verdict of the jury cannot be disturbed upon...