State ex rel. Arel v. Farrington

1. CERTIORARI TO COURT OF APPEALS: Conflict of Opinions: Different Conclusions from Similar Facts. Where the facts in a case before the Court of Appeals are so similar to the facts in a case previously decided by the Supreme Court as to require that the same rule of law should be applied to the facts of both cases, the Supreme Court will on certiorari quash the judgment of the Court of Appeals if the two opinions conflict. 2. -: -: -: Action on Insurance Policy: Fraudulent Representations: Question for Jury. The Supreme Court has not ruled 'that the fraudulent intent of -the insured in making misrepresentations as to the value of the goods insured or the extent of the injury must always he submitted to the jury. The rule is that where the evidence is such that the jury may reach a conclusion one way or the other on the question of fraudulent intent, the case must go to the jury; but where the evidence conclusively shows a fraudulent intent in making the misrepresentations a demurrer to the evidence should be sustained. And whether the Court of Appeals was right or wrong in holding that the insured’s evidence conclusively showed fraudulent misrepresentations as to material facts by him, their ruling in that respect was not in conflict with any prior ruling of the Supreme Court, and for that reason cannot be quashed by' certiorari.

Certiorari. (1) The statement, claiming damage of $750 on account of the iron boiler because the laundry plant was rendered useless by the. fire, is a mere conclusion from facts known by the insurer through personal inspection by its agents in company with the insured, before the proofs of loss were executed, and did not and could not deceive the insurer. Arel derived and could derive no advantage from it, and the insurance company received and could receive no detriment from-it. In any.event it is the province of the jury to say whether the statement was the honest assertion of an erroneous claim, or whether it was wilfully made with the purpose to deceive the insurer. The Court of Appeals erred in not so holding, and failed to follow the last controlling decision of this court. Marion v. Ins. Co., 35 Mo. 14-8; Schulter v. Ins. Co., 62 Mo. 236. The doctrine in Missouri is sustained by the overwhelming weight of authority. The cases are collated in 39 Am. & Eng. Annotated Cases, p. 453. (2) In disposing of a demurrer to the evidence, plaintiff’s evidence and his explanation must he taken as true and he is entitled to every legitimate inference therefrom. Thorp v. Met. St. Ry. Co., 177 S. W. 851; Peak v. Taubman, 251 Mo. 390. (3) Counsel in advising Arel in preparing his proofs of loss relative to the big iron boiler, relied on the.doetrine of the following cases, holding that if the destruction by fire be such as would render the property insured of no value for the purpose for which it was used, then the loss would be regarded total, although there might not be a total extinction of all the parts. Havens v. Fire Ins. Co., 123 Mo. 423; Clase v. Templeton, 184 Mo. App. 532. Plaintiff’s evidence conclusively established the fact that Arel swore falsely in the proofs of the loss, which false swearing as a matter of law barred his recovery. (1) False swearing as to one item of loss avoids the entire policy. Hall v. Ins. Co., 106 Mo. App. 476; Hamburg v. Ins. .Go., 68 Minn. 335; Fowler v. Ins. Co., 35 Ore. 559; Ins. Co. v. Connelly, 104 Tenn. 93; Richards on Insurance (3 Ed.), p. 316. (2) The testimony of Arel himself conclu: 'sively and without contradiction proves that he intentionally swore the boiler was a total loss when he positively knew it had suffered no damage whatever. (3) False swearing consists-in knowingly and intentionally stating upon oath what is not true, or the statement of a fact as true which the party does not know to be true and which he has no reasonable ground for believing to be true. 19 Cyc. 855; Atherton v. Assurance Co., 92 Me. 289; Linscott v. Ins. Co., -88 Me. 497, 51 Am. St. 435. (4) Arel swore ho had sustained a total loss on the boiler, which was not true, and he knew it was not true, and he had no reasonable ground for believing it to be true. (5) The question of fraud or no fraud is a matter of law for the court, not a question for the jury, when the facts relating thereto are conceded and uncontroverted and show a case so plain that reasonable minds could not differ concerning it. Gee v. Drug Co., 105 Mo. App. 34; Marble Co. v. Achuff, 83 Mo. App. 47; Mathews v. Loth, 45 Mo. App. 459; Frankenthal v. Goldstein, 44 Mo. App. 191. (6) It is not only the right, but the positive duty of the trial court, to direct a verdict for the defendant where the undisputed facts show no liability. Gilmore v. M. B. A., 186 Mo. App. 455; May v. Crawford, 150 Mo! 83; Powell v. Railway, 76 Mo. 83; Gee v. Drug Co., 105 Mo. App. 27; Carter-Montgomerie Co. v. Steele, 83 Mo. App. 215. - (7) When fraud is once established, and the necessary consequence of such fraud is to deceive and defraud someone else, the law will conclusively presume a fraudulent intent. This on the ground that a party must he presumed to have foreseen and intended the necessary consequences of his own act. Snyder v. Free, 114 Mo. 376; Bank v. Meyers, 139 Mo. 653; Richards on Insurance (3 Ed.), p. 314. (8) The evidence in the original case established the existence of false swearing as a matter of law, operating as a complete bar to all recovery by Arel. Ha'll v. Western Underwriters’ Assn., 106 Mo. App. 476; Cloak & Suit Co. v. Ins. Co., 141 N. Y. Supp. 553; Richard D ’Aigle Co. v. Ins. Co., 136 La. 777; Claflin v. Ins. Co., 110 U. S. 97 ;-Kavooras v. Ins. Co., 167 111. App. 220; Rovinsky v. Assurance Co., 100 Me. 112; Sternfield v. Ins. Co., 50 Hun, 262; Ins. Co. v. Vaughn, 88 Va. 832; Vaughn v. Ins. Co., 102 Va. 541; Dohmen v. Ins. Co.', 97 Wis. 38; Anibal v. Ins. Co., 82 N. Y. Supp. 600; 4 Cooley’s Briefs on Insurance, pp. 3423, 3431; Boynton v. Andrews, 63 N. Y. 93; Moore v. Ins. Co., 28 Graft. (Va.) 508, 26 Am. Rep. 373; Home Ins. Co. v. Connelly, 104 Tenn. 93. (9) The Court of Appeals’ opinion is not in conflict with the decision in Marion v. Great Republic Ins. Co., 35 Mo. 148. The Marion case- simply holds that the false statement by the insured, in order to operate as a defense must be (1) an intentional misstatement of a material matter (2) made with the purpose to deceive the insurer. Marion v. Great Republic Ins. Co., 35 Mo. 151. The Court of Appeals’ opinion affirmatively finds in the plaintiff’s testimony both of these elements. Arel v. Fire Ins. Co., 190 S. W. 78. Arel’s own testimony shows that he inserted the false statement of loss in the proof of loss with the intention that the insurance companies should rely thereon, and pay him the insurance money in reliance thereon. Therefore, his own testimony < shows that he had am intention to deceive.