Opinion
May Term, 1903.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.
There was sufficient evidence to support a finding that the building was burned by the procurement of the insured, but the learned trial justice did not give credit to that evidence, and found against the contention of the appellant in that respect. The evidence against the conclusion reached, however, is not so preponderating that we should disturb the judgment on that account. But we think the conclusion reached by the trial court with respect to the other defense cannot be sustained. The policy contained a provision that it should be void "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," and one requiring him to furnish proofs of loss to the company, signed and sworn to by him, stating the cash value of each item of property and the amount of loss thereon. At the time of the fire McClellan had four policies on the property, amounting in the aggregate to $3,200. In his proofs of loss he swore that the property insured was injured or destroyed to the amount of $6,780.30, and that that was its cash value immediately preceding the fire. The court found that the damage by the fire was $1,857. He swore that the value of the hotel was $3,800, and that it was a total loss; the court found the value of the hotel to be $1,200, excluding the foundations. He swore that the barn, carriage house and sheds were damaged $50; the court found they were damaged only $1. He swore that the value of the ales, wines, liquors and cigars destroyed was $436.50; the court found their value to be $156. He swore that the value of the hotel bar room and kitchen furniture was $2,493.80; the court found that their value exceeded $500, but fixed the damages upon them only at that sum. These facts of themselves are sufficient to arouse suspicious as to McClellan's honesty in making these proofs. But when we examine some of the other evidence in the case in the light of the circumstances existing at the time of the fire and appearing in the proofs it cannot be that the great discrepancy between the values placed by him upon the destroyed property and the values shown by the proofs and the findings of the court was the result of an honest mistake of judgment on his part as to such values. The hotel had been built by him in 1895 and he knew what it cost. He and his tenants had kept it as a road house and a house of prostitution. It had depreciated in value because of the use to which it had been put and because of the failure of a large manufacturing establishment near where it was located. The highest estimate of value placed upon the buildings and lot by any witness, other than McClellan, was $1,500 before the fire and $300 afterwards. The lowest estimate was $800, or $900 before and $200 after the fire. It was shown that the hotel cost about $1,300 when it was built, exclusive of the paint, the cellar and a piazza which cost $150, and that it would cost to rebuild during the spring and summer after the fire about $1,700. The barn, carriage house and sheds which McClellan swore were damaged $50 were situated some distance from the hotel and the only damage to them was that the paint on the shed was roughed up and blistered some by the heat. The cost to repair this damage was slight and was shown to be only from 75 cents to $1. There was testimony that some of the furnishings of the hotel of considerable value, included in the proofs of loss, had been removed before the fire. Among these was a back and front bar and cupboards valued in the proofs at $250, and for which cheaper ones, worth only $30 or $40, were substituted. It is very doubtful on the evidence whether there were any liquors in the place at the time of the fire even to the extent found by the court, except a few quarts of whisky and wine, as no license had been granted for the place, and applicants for drinks at the bar had been refused the afternoon before the fire. After the fire and before the trial McClellan was sentenced to Auburn prison for abduction. He had been a convict before that and had served a term of imprisonment. His testimony taken in prison was read on the trial. He was impeached by several witnesses. In his testimony he swore that he did not owe the plaintiffs anything and that he never gave them a lien upon the moneys payable under the policy sued upon or under any of the other policies on his hotel and that they did not hold those policies by his permission. The plaintiffs each expressly contradicted him as to these statements and the court found with the plaintiffs on that issue. This involved the finding that McClellan had sworn falsely upon the trial as to a material matter. The purpose of McClellan in denying plaintiffs' interest in the policies and in grossly inflating the values stated in his proofs of loss was apparent and that was to enhance his damages as nearly as possible to the aggregate of his entire insurance so that when the loss was apportioned among the four companies each would be compelled to pay him practically the entire amount of their respective policies. Upon the evidence in this case I cannot resist the conclusion that McClellan was guilty of intentional and willful false swearing in his proofs of loss; that he so swore for the purpose of defrauding the company, and that, therefore, the policy was by its terms rendered void, and the finding that he duly performed all the conditions of the policy cannot be sustained. The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred, except Kellogg, J., not voting.