On appeal from a judgment of the Supreme Court.
For the appellant, Samuel D. Lenox.
For the respondents, William Reich, Erwin E. Marshall and Linton S. Marshall.
The opinion of the court was delivered by
HEHER, J. The defendant corporation undertook, by its policy of insurance, to indemnify plaintiffs against damage by fire to a certain dwelling house and personal property therein contained. Title to the real estate was in Mary, but there was evidence tending to show that she held an undivided one-half interest therein in trust for her co-plaintiff. They were not lawfully married. Of this more hereafter.
On October 21st, 1930, there was a total destruction of the insured property by fire; and this action is predicated upon a breach of the indemnity undertaking. The challenged judgment was entered on a jury verdict in favor of plaintiffs.
Defendant was allowed a rule to show cause with a reservation of exceptions, including those taken to the denials of its motions for a nonsuit and the direction of a verdict in its favor. One of the reasons urged in support of the motion for a new trial was that the verdict was contrary to the weight of the evidence, but this was abandoned before argument of
the rule, and was specifically excised by the trial judge from the reasons considered by him. The rule was discharged.
Error is now predicated on the trial judge's denials of the motions to nonsuit and direct a verdict. The insistence is that it conclusively appeared that respondents were guilty of fraud and false swearing in the following particulars, viz.: (1) misrepresentation of the quantum of fire insurance coverage; (2) a deliberate and willful misrepresentation made to officers of the state constabulary, while they were engaged in an inquiry to determine the origin and cause of the fire, respecting the sum paid to a contractor for labor and material provided in the construction of the insured dwelling, and the amount of such insurance coverage; (3) "concealment or misrepresentation" of the facts that respondents were not lawfully married, and were living in a state of adultery; (4) an untrue statement of the interest of plaintiffs in the insured property; and (5) "fraud and false swearing" after the loss as to the source and cost of certain items of construction and personal property, and the relationship between plaintiffs.
The condition of the policy asserted to have been thus breached is in the following language:
"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property 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."
"Misrepresentation" or "concealment" of a fact material to the risk made the subject of insurance, within the intendment of this condition of the policy, must be fraudulent in character. While there is authority for the view that an intent to deceive is not requisite where the representation is made with knowledge of its falsity, it seems to be the settled rule in this jurisdiction that the misrepresentation, to avoid the policy, must be tainted with the fraudulent purpose to deceive. The accepted definition of misrepresentation is "the ...