Moore v. Virginia Fire & Marine Insurance Co.

Co., 7 Cush. 175; Lowell v. Middlesex Ins. Co., 8 id. 127; Jenkins v. Quincy Mut. Ins. Co., 7 Gray, 370; Jennings v. Chenango Ins. Co., 2 Denio, 75; Shelden v. Hartford Fire Ins. Co., 22 Conn. 235.

Columbia Ins. Co. v. Cooper, 50 Penn. St. 331, and Patten v. Ins. Co., 40 N. H. 375, sometimes cited on one side and sometimes on the other of this question, decide only that the doctrine of the principal case is applicable in cases of representation not amounting to warranty.

Rohrback v. Germania Ins. Co., 62 N. Y. 47; 20 Am. Rep. 451, sometimes cited as anthority for the contrary doctrine to that of the principal case, cannot justly be so deemed, for in that case the policy contained a provision that the agent should be deemed the agent of the insured as to all representations and warranties, and the court were unanimous, while the same court, two years later, in the Van Schoick case, were divided four to three. In Pindar v. Resolute Ins. Co., 47 N. Y. 114, the applicant wrote for one kind of policy and received an entirely different one, and it was held that parol evidence could not be received to vary it. The case of Insurance Co. v. Mowry, 96 U. S. 544, is not at all in point, for there the representation of the agent was not at the time of the writing of the policy, but previous, and was merely to the effect that the insured should have notice when his premiums should come due before being required to pay them; and the court held that the previous negotiations were merged in the written contract. These cases are cited and relied on in Franklin Fire Ins. Co. v. Martin, supra, and that decision loses much of its authority, in our judgment, from the exposure of the true character of those decisions.

The doctrine of the Rohrback case had in effect been previously announced in Chase v. Hamilton Ins. Co., 20 N. Y 52, where, although the agent knew the facts and filled up the application, yet the application stipulated that the insurer should not be bound by acts done by or statements communicated to an agent, unless contained in the application.

MOORE V. VIRGINIA FIRE & MARINE INSURANCE Co.

(28 Gratt. 508.)

Insurance on several subjects-fraud in respect only to one.

A policy of fire insurance provided that all fraud or attempt at fraud, or false swearing, on the part of the assured, should forfeit all claim under the policy; the policy insured $2,000 on buildings, $1,000 on machinery and fixtures, and $2,000 on stock of grain, etc. a loss having occurred, the insured, in his sworn proofs of loss, made a false and fraudulent statement as to the stock of grain, etc., but not as to the other subjects of insurance; held, that the entire policy was forfeited.

A policy of fire insurance procured by fraud is void without any provision to that effect, although it contains a provision that it shall be void for fraud or false swearing in connection with the proofs of loss.

A

CTION on policy of fire insurance. Verdict and judgment for defendant, and the plaintiff appealed.

Ould & Carrington, for appellant.

Crump, for appellee.

Moore v. Virginia Fire & Marine Insurance Co.

MONCURE, P. [After stating the case.] The plaintiff in error, in his petition for a writ of error, assigus but two errors in the judg ment, both of them being in the instructions given by the court to the jury. The chief of these assignments of error in the instructions is,

1st. In ruling that fraud and false swearing as to one independent subject of insurance avoided the whole policy.

There is a provision in the policy that "all fraud, or attempt at fraud, or false swearing on the part of the assured, or on the part of any person in his behalf, shall cause a forfeiture of all claim under this policy."

On trial of this cause the defendants, to sustain the issue on their part, proved that the claim of the plaintiff for his alleged loss on his stock of grain, etc., named in said policy, was fraudulent and false; and that the amount of loss, designated in his proof of loss sworn to by him, was fraudulent and false, so far as the said stock of grain, etc., was concerned; but it was not shown that the claim of the plaintiff or his proof of loss as aforesaid, as to the buildings, or machinery and fixtures named in said policy, was fraudulent or false.

The argument before this court of the counsel for the plaintiff proceeded upon the concession that there was such fraud and falsehood, so far as the said stock of grain, etc., was concerned-a fact which is certified in the record as having been proved on the trial, and was in effect found by the jury, and which, therefore, could not be denied by said counsel; and he admitted that, by reason of such fraud and falsehood, the plaintiff had forfeited all claim under the policy as to the said stock of grain, etc.; but he contended that as it was not shown that the claim of the plaintiff, or his proof of loss as aforesaid, as to the said buildings or said machinery and fixtures, was fraudulent or false, the plaintiff had not forfeited his claim under the policy as to the said buildings or said machinery and fixtures. The said counsel also admitted that it was perfectly competent for the parties to argue that "all fraud or attempt at fraud or false swearing on the part of the assured, or on the part of any person in his behalf, shall cause a forfeiture of all claim under the policy," not only as to the particular subject named in the policy to which the said fraud or false swearing relates, but also as to all other subjects therein named.

The question to be now considered and decided therefore is one

Moore v. Virginia Fire & Marine Insurance Co.

of construction merely; that is, whether, according to the true construction of the provision aforesaid, it was thereby intended that for a fraud, or attempt at fraud, or false swearing on the part of the assured, in relation to one only of several subjects embraced in one policy of insurance, as is this case, there should be a forfeiture of all claim under the policy, not only in regard to the particular subject aforesaid, but also in regard to all other subjects embraced in the policy, or only a forfeiture of all claim under the policy in regard to such particular subject.

The counsel for the plaintiff maintains the latter of these alternative constructions; while the counsel for the defendants maintains the former. Which of them is correct is the question which this court has now to solve.

We are all of opinion that the former is the correct construction, and that the forfeiture is total.

Supposing that to have been the true intention of the parties, we know not how it could well have been expressed in plainer language. "All fraud,” etc., "shall cause a forfeiture of all claim under this policy." A more comprehensive word than "all" cannot be found in the English language; and it certainly has in this case the comprehensive meaning contended for by the counsel of the defendants, instead of the restricted meaning contended for by the counsel for the plaintiff, unless very strong reasons can be furnished for construing it in the latter sense.

So far from seeing any such reasons, we think there are strong reasons for believing that the real intention of the parties in making the provision aforesaid corresponded with the literal terms in which it is expressed, and that it was intended to create a general forfeiture as to all the subjects embraced in the policy, and not a forfeiture only as to the particular subject to which the fraud or false swearing might relate.

A policy of insurance is a contract, in the making of which, peculiar and great confidence must, of necessity, be reposed by the insurer in the insured. Good faith and fair dealing are especially required by the former of the latter. The former must mainly depend on the oath of the latter, and the account he may render to show the fact of the loss of the property insured, and the amount of the damage incurred by him, for which he claims indemnity under the policy. Where there is no good reason to suspect fraud or false sweaing on the part of the insured, in making out his pre

Moore v. Virginia Fire & Marine Insurance Co.

liminary proof of loss, the insurer generally requires no further evidence to sustain the claim of the insured than his own oath and account, unless it be "the certificate under seal of a magistrate, notary public, or commissioner of deeds, nearest the place of the fire, and not concerned in the loss, or related to the assured, stating that he had examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured to such an amount as the said official shall certify." Such a certificate is generally provided for in a policy of insurance, and is provided for by the policy in this case.

Now where, instead of there being no good reason to suspect fraud or false swearing on the part of insured in making out his preliminary proofs, it is proved that his claim for his alleged loss on one of the subjects insured was fraudulent and false, and that the amount of loss designated in his said proof of loss, sworn to by him as aforesaid, was fraudulent and false, so far as the said subject was concerned, is it unreasonable for the policy to provide that in such a case the insured shall forfeit all claim under the policy, not only as to the said subject, but also as to all other subjects included in the policy? Having been proved to be guilty of fraud and falsehood in regard to one of the subjects included in the policy, it is not unreasonable to suppose that he may be guilty of the like wrongs in regard to the other subjects included therein. He be so guilty, and the insurer may have no means of proving such guilt. He may himself have been the author of the burning of which he complains, or he may have obtained the insurance for the very purpose of obtaining money by committing fraud and perjury in regard to one or more of the subjects insured. He was capable of either of these crimes, as he was capable of the crime which was proved upon him.

may

We therefore think the construction contended for by the counsel for the defendants is a reasonable one, and that it is the true one, especially as it accords with the literal terms of the provision in question.

The learned counsel for the plaintiff, in his argument in this case, referred to a great many decisions of other States and countries, for the purpose of sustaining his views of the case, and especially of the question we are now considering. He referred to no decision of this court, because there is none on the question; and

Moore v. Virginia Fire & Marine Insurance Co.

he admitted that he could find no decision of any other court upon the very question in issue; which is certainly very strong negative evidence that no such decision exists. We have referred to all these decisions, or at least all of them which, from the statement of the learned counsel in regard to them, seemed to be material to be referred to by us; and none of them seem to be in conflict with the views we have expressed. If any of them be so, we do not think they expound the law correctly, and we are therefore unwilling to be guided by them. The learned counsel argues, that though the policy in this case is a contract entire in form, being a contract by which "the Virginia Fire and Marine Insurance Company of Richmond, in consideration of the receipt of one hundred and twentyfive dollars, do insure (for one year) David W. Moore and his legal representatives five thousand dollars, to wit," etc. Yet he contends that it is a several contract in substance, because it proceeds to value severally the different parts of the subject insured as follows, to wit:

"$2,000 on his new wooden flour and corn mill building, moved by water power, and wooden and gravelled lumber house connected, etc.

"$1,000 on machinery and fixtures of all kinds, including water wheel and mill stones in said mill building; and $2,000 on his stock of grain, flour, meal, offal and empty barrels and bags in said mill building and lumber house," etc.

And he argues, that the provision of forfeiture in question must be construed precisely in the same way in this contract as a like provision would be construed in a several policy on each of the subjects insured. In other words, that this policy, though joint in form is several in substance, and must be construed accordingly, as well in regard to the clause of forfeiture in question as to every other part of the policy. He applies to the case the rule of construction reddendo singula singulis. That rule applies to many cases arising under policies of insurance as some of the cases cited by the learned counsel show; but it does not apply to this case for reasons already stated, it being the manifest intention of the parties, as it is the express declaration of their contract, that "all fraud," etc., "shall cause a forfeiture of all claim under this policy.” Where, in reason, is the difference between this case and a case in which the different parts of the same subject are included in one valuation in regard to the clause in question? Suppose here the VOL. XXVI — 48