Willis v. Horticultural Fire Relief of Oregon

• Citation: 69 Or. 293,137 P. 761
• Parties: WILLIS ET AL. v. HORTICULTURAL FIRE RELIEF OF OREGON. [d]
• Decision Date: 13 January 1914
• Court: Supreme Court of Oregon

137 P. 761

69 Or. 293

WILLIS ET AL. v. HORTICULTURAL FIRE RELIEF OF OREGON. ^[d]

Supreme Court of Oregon

January 13, 1914

Department 2.

Appeal from Circuit Court, Lake County; Henry L. Benson, Judge.

Action by Richard Willis and another, partners under the firm name of the Willis Furniture Company, against the Horticultural Fire Relief of Oregon, a corporation. From a judgment for plaintiff for $6,000, defendant appeals. Reversed and remanded.

This is an action to recover upon two fire insurance policies covering the same stock of goods, one for the sum of $2,000 and the other for $4,000, for loss sustained by a fire which occurred on February 5, 1912; plaintiffs alleging total loss of $7,200. The insurance company as a defense alleges, among other things, that plaintiffs' loss by the fire was only $3,000; that the proof of loss sustained by plaintiff shows the stock of goods insured in total as of the value of $9,968.97, when in fact plaintiff Richard Willis, who made affidavit as to the amount of the loss, himself saved from the fire five pieces of furniture of the value of $70, and stated in his proof that at the time of the fire there were 81 iron and brass bedsteads of the stock destroyed, of the value of $451, when in fact there were but 32, making other false statements as to the amount or value of the loss. The case was tried before a jury, and judgment rendered in favor of plaintiff for $6,000, from which judgment defendant appeals.

John Bayne, of Salem (L. F. Conn, of Lakeview, on the brief), for appellant. J. C. Rutenic, of Klamath Falls (W. Lair Thompson of Lakeview, and J. S. Kent, of Klamath Falls, on the brief) for respondents.

EAKIN J. (after stating the facts as above).

In the record we find what is certified as the bill of exceptions which includes only a copy of the instructions to the jury given by the court with a note of exceptions to four of them, containing no statement of "so much of the evidence or other matter as is necessary to explain it," as provided by section 171, L. O. L. See Hahn v. Mackay, 63 Or. 100, 126 P. 12, 991. Some attorneys seem to have concluded that because by the amendment of the Constitution either party to the appeal may bring up the transcript of all the evidence, exhibits, and instructions, they may rely on that record to supplement the bill of exceptions, or even to take the place of it. In this case there are over 400 typewritten pages of the evidence and instructions, and we cannot recognize that as a bill of exceptions. This question was discussed and decided by Mr. Justice Burnett in the case just cited, where it holds that the transcript of evidence will not take the place of a bill of exceptions.

This court will not review the evidence on the appeal of a law case at the suggestion of the appellant to determine what verdict should have been rendered. The purpose of that provision of the Constitution was that, if the appellate court finds that the trial court committed error, then it may examine the evidence, and if the verdict was such as should have been rendered, notwithstanding the error, it may affirm it, or if the judgment appealed from should be changed, and it can determine what judgment should be entered, it may direct such judgment to be entered; but unless the appellate court determines that the trial court committed error, which it will ascertain exclusively from the pleadings and bill of exceptions, except in case of a motion for nonsuit or a directed verdict, it will have no occasion to examine the transcript of evidence, which in this case would be a tedious undertaking.

However, if any of the instructions objected to appear, in the light of the pleadings, to be erroneous, such instruction may be reviewed and the propriety of exceptions 1, 2, and 4 in this case may be examined upon the facts as admitted in the pleadings.

These three involve the same point, that the false swearing charged in the answer to avoid the policy must have been willful intentional, deliberately false, and fraudulent. The language of the policy involved on this question, as set out in the answer and admitted in the reply, provides: "This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material facts or circumstances concerning this insurance or the subject thereof; or if the interests of the insured * * * be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss." This provision of the policy is provided for by section 4666, L. O. L. The terms "fraud" and "false swearing," being used together, must have the same application, and the false swearing must have been knowingly and willfully false; its effect being to deceive or mislead. Franklin Insurance Company v. Culver, 6 Ind. 137; Claflin v. Commonwealth Insurance...