Claflin v. Commonwealth Insurance Company of Boston Massachusetts

[Syllabus from pages 81-82 intentionally omitted]

[Statement of Case from page 82 intentionally omitted]

'These causes, having been duly ordered to be tried before     the same jury by the court, came on for trial before the Hon. Samuel F. MILLER and the Hon. Rensselaer R. NELSON, judges of     said court, presiding at said trial, at a general term      thereof begun and held at St. Paul, Minnesota, on the third      Monday in June, A. D. 1880.

'The respective causes were brought by the plaintiffs on     certain policies of insurance bearing date as follows: That      of the Commonwealth Insurance Company of Boston bearing date of      eleventh of January, 1877; that of the Western Assurance      Company of Toronto, Canada, bearing date of twenty-seventh of      December, 1876; and that of the Franklin Insurance Company of      St. Louis, bearing date of twenty-ninth of December, 1876,      the two latter being for $5,000 each, and the former for      $2,500, insuring one Frances E. Barritt against loss or      damage by fire on her stock of dry goods or other merchandise      pertaining to her business, contained in the three-storied      store, metal-roofed building, situated No. 37 East Third      street, St. Paul, Minnesota, for a period of three months      after their respective dates, with the condition that $35,000      other insurance shall be allowed. The respective policies     were assigned by Frances E. Barritt, the assured, to one      William Murphy on the seventh day of February, 1877, with the      consent and approval of the respective companies.

'On the twenty-fifth day of February, 1877, said stock of     goods was damaged by fire to the amount of $11,804.72, as      found and determined by the arbitrators appointed by the      assured and the respective companies. The policy of the     Western Assurance Company of Toronto, Canada, contained,      among other things, the following provision: 'The assured      shall, if required, submit to an examination or examinations      under oath by any person appointed by the company, and      subscribe thereto when the same is reduced to writing;' and      also 'all fraud or attempt at fraud, by false swearing or      otherwise, shall forfeit all claim on this company, and be a      perpetual bar to any recovery under this policy.'

'That of the Franklin Insurance Company of St. Louis     contained, among others, the following provision, viz.: 'And      the insured shall, if required, submit to an examination      under oath, by the agent or attorney of this company, and      answer all questions touching his, her, or their knowledge of      anything relating to such loss or damage, or to their claim      thereupon, and subscribe such examination, the same being      reduced to writing;' and the further provision, to-wit: 'All      fraud or false swearing shall cause a forfeiture of all      claims on the insurers, and shall be a full bar to all      remedies against the insurer on the policy.' That of the      defendant, the Commonwealth Insurance Company of Boston,      contained, among others, the following provision, to-wit:      'All fraud or attempt at fraud, by false swearing or      otherwise, shall cause a forfeiture of all claims on this      company under this policy;' and the further provision, viz., 'The assured shall,      if required, submit to an examination or examinations, under      oath, by any person appointed by the company, and subscribe      to such examinations when reduced to writing.'

'Upon the trial of said causes there was evidence tending to     show that the respective defendants required the assured,      William Murphy, to appear before their appointed agent and      submit to an examination under oath, and answer all questions      touching his knowledge of anything relating to such loss or      damage and his claim thereupon, and to subscribe such      examination, the same being reduced to writing, which the      said Murphy did, as required, and that upon said examination      the question of the ownership of said goods by said Murphy      was made by the defendants, and said Murphy examined at      length upon the same, and he answered certain questions      relating to the manner in which he paid on Frances E. Barritt      for said stock at the time of his alleged purchase thereof      falsely, and there was evidence tending to show that he      answered thus with no purpose to deceive and defraud the      insurance companies, but for the purpose of showing himself,      upon the examination consistent with a statement that he had      made about it a day or two subsequent to the purchase of said      stock, to R. G. Dunn & Co.'s commercial agency at St. Paul,      Minnesota, with a view of obtaining a large commercial credit      in eastern cities. There was evidence tending to show that on     the ninth day of February, 1877, said William Murphy went to      said agency and reported that he had bought the stock of      Frances E. Barritt for $35,484.20; that he had paid for the      same in cash and securities, and plaintiffs claimed that if      the false statements were made to the agents of the insurance      company upon examination, even though made upon a material      question without intent to deceive or defraud the insurance      companies, it would not prevent a recovery upon the policies,      and requested the court upon that point to charge as follows:      'If you find, from the evidence, that any incorrect      statements made by William Murphy upon his examination were      made for the purpose of protecting himself against the      statements made by him to the commercial agency for the      purpose of obtaining more credit than he was actually      entitled to, and not for the purpose of deceiving and      defrauding the defendants, then such statements constitute no      defense to this action;' and also, 'No false statements made by Murphy on his examination, under oath or      otherwise, constitute a defense to this action, unless the      same were made upon material issues between him and the      defendants, and unless you are satisfied, from the evidence,      that Mr. Murphy made them knowingly and willfully, with      intent thereby to deceive and defraud the defendants.'

'The court (his honor Judge MILLER addressing the jury)     refused to give said instructions, but told the jury in its      charge that the said questions relating to the manner in      which Mr. Murphy paid said Frances E. Barrit  for said stock      at the time of his alleged purchase thereof were upon a      material point, upon which the defendants had a right to      interrogate Mr. Murphy, and were material questions, to which      they had a right to true answers from Murphy in said      examinations, and upon the point in controversy upon which      the said instructions were asked, charged the jury as      follows, to-wit: 'It is said here, and the point is urged      with a good deal of force, that unless Mr. Murphy made these      false statements, if they were false, and it is conceded that      they were false, with the intent to deceive and defraud these      corporations, and if he made them with the intent to deceive      and defraud some one else, that is is immaterial to this      issue. I do not think that is the law. I do not think it was     necessary in order to avoid the policy that the statements      made by Mr. Murphy should have been solely, or even partly,      with a view to get money wrongfully out of the companies;      however, that is a point I wish to draw your attention to. If     these statements had been wholly immaterial, that doctrine      may be right; if it was a matter that the company had no      right to inquire into or interrogate him about, if he did      swear falsely and intend to deceive some one else, that does      not interfere with the policy; but these companies had a      right to have from him the truth about every matter that was      material as evidence to show whether he owned these goods or      not; they had a right to have the truth from him whatever his      intentions might have been,-that is, as far as the truth was      material; and so far as his testimony before the notary had a      tendency to mislead the companies on an important matter, it      was false swearing and false testimony within the meaning of      the policy, and would avoid the policy. If he stated that     which was intended for their action, and which would probably      influence their action, and these statements were false, then      he swore falsely within the meaning of the policy, though he did not intend to cheat them, but intended      to cheat somebody else; for, without looking to his motives,      the company had a right to an honest statement from him to      all questions that went to show whether he was the owner of      these goods or not.'

'To which refusals to charge as requested, and to said charge     as given. plaintiff's counsel thereupon duly excepted, and,     after the rendition of the verdict for the defendants, moved      for a new trial on account thereof, and said motion was duly      argued by John B. Sanborn, Esq., counsel for the plaintiff,      and Cushman K. Davis, Esq., counsel for the defendant, and      after due consideration thereof the court denied the motion,      and upon the question as to whether said instructions should      be given to the jury as requested, or the jury instructed as      in the said charge of the court, the opinions of the said      judges were opposed.

'Whereupon, on motion of the plaintiffs, H. B. Claflin & Co.,     by counsel, that the points on which the disagreement hath      happened may, during the term, be stated under the direction      of the judges, and certified under the seal of the court to      the supreme court, to be finally decided.

'It is ordered that the foregoing state of the evidence and     cases, and the questions on which the disagreement of opinion      hath happened, which is made under the direction of the      judges, be certified according to the request of the      plaintiffs, by their counsel, and the law in that case made      and provided.' John B. Sanborn, for plaintiffs in error.

George B. Young, for defendants in error.

MATTHEWS, J.