1877. March Moore V. Va. Fire & Marine Ins. Co. tion; and he admitted that he could find no decision of any other court upon the very question in issue; Term. 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 twenty-five dollars, do insure (for one year) David W. Moore and his legal representatives five thousand dollars, to wit," &c. 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 graveled lumber house connected, &c. “$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," &c. 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 accord 1877 ingly, as well in regard to the clause of forfeiture in March Term. Moore V. Marine Ins. Co. 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 Va. Fire & 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," &c., "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 whole subject insured had been valued at $5,000, without any separate valuation of the different parts of the subject, and there had been fraud as to one of the parts only, would not all claim under the policy, as well to the other parts as to that part of the subject, have been forfeited? Certainly so, as all will admit. But where, in reason, is the difference between the two cases? What has the mode of valuation of the subject, whether it be joint or several, to do with the construction of the clause of forfeiture for fraud? Is not the evil of the fraud the same in either case? Is not the presumed intention of the parties in regard thereto the same in either case? And do not the literal terms of the clause apply alike to each case? The policy in this case is an entire contract, notwithstanding the separate valuation of the different parts of the subject insured. That separate valuation was intended for the benefit of the insurers, and not the insured. The latter would have been benefitted by letting the joint valuation of the whole subject insured remain at the sum of $5,000 fixed in the policy, in 1877Term. March Moore V. Marine stead of apportioning it among the different parts of the subject, as is afterwards done in the policy. By letting the joint valuation remain at the sum of $5,000, that would have been the only limit of the right to recover the actual value of any part of the subject Va. Fire & insured which might be lost by any cause insured Ins. Co. against. Whereas, by apportioning the amount of the joint valuation among the different parts of the subject, the valuation of each part is the limit of the right to recover for any loss sustained on account of such part. It cannot be supposed that either of the parties, much less the insurers for whose benefit alone the separate valuation was made, could have intended. that it should have the effect of taking from them the benefit of the provision of the policy in regard to fraud or false swearing as to every part of the subject insured, except as to that part to which such fraud or false swearing might directly and specially relate. We have seen both reason and the literal terms of the policy confirm the view, that in every such case of fraud or false swearing, the forfeiture extends to all claim under the policy on account of the subject insured or any part thereof. There are cases, it is true, in which it has been held, and no doubt properly, that a policy may be avoided as to a part of the subject insured, and valid as to the rest, even though the language of the policy declaring it to be void in such a case may seem to be general, and apply to the whole policy. As, for instance, in a case in which a policy declares that it shall be void for any subsequent alienation by the insured. There, if only a part of the subject be aliened, and the risk as to the rest cannot be increased by such partial alienation, the policy as to the rest would not be thereby avoided, but would remain in full force, in VOL. XXVIII-66 1877. March Term. pursuance of the presumed intention of the parties. But such a construction has never been applied, and can never be applied, to a case like this, of fraud and false swearing which pervades and avoids the whole Va. Fire & policy. To such a case the maxim, falsum in uno, falsum Ins. Co. in omnibus, applies. The insured, having been convicted Moore V. Marine of falsehood in regard to one of the subjects insured, will be considered as false in regard to all the rest. Suppose the parties had been asked when they entered into this contract, whether they intended that the forfeiture for fraud and falsehood of the assured as to one of the subjects insured, should be confined to that subject, or extend also to all the other subjects insured in the same policy, what would have been their answer? Can anybody doubt? Certainly the insurers would have answered, "the latter;" and surely the insured could not have answered otherwise; for that would have broken off the contract. The language of the policy, as already shown, literally accords with this obvious intention of the parties. In regard to the first assignment of error, we are therefore of opinion, that the circuit court did not err "in ruling that fraud and false swearing as to one independent subject of insurance avoided the whole policy." The other of the two assignments of error in the instruction is, 2d. That the court extended the penalty of forfeiture to any false representation or false swearing as to the amount and value of the property insured and destroyed, made either in the contract of insurance, or at any time thereafter, prior to any default on the part of the defendant in paying any loss incurred. The cases referred to in support of this assignment of error, to wit: Ferris v. N. American Ins. Co., 1 Hill R. 71; and Insurance Companies v. Weides, 14 Wall. U. S. R. 375; seem to decide that the fraud or false swearing referred to in such a provision as the one now in question, standing in the same connection and location in the policy as does the provision here, is such fraud or false swearing only as relates to the preliminary proofs. Without deciding, but conceding (for the purposes of this case) that to be true, there can be no doubt but that fraud on the part of the insured in making the contract of insurance, would render it void without any express provision to that effect in the policy, and even though there might be such a provision therein relating only to fraud or false swearing in connection with the preliminary proofs. In delivering the opinion of the court in the case cited from 1 Hill 71, supra, Cowen, J., takes occasion to say, expressly, that a policy "is always avoided by the common law for the least want of good faith on the part of the assured." We think there is no error in any of the instructions given by the court to the jury. The propositions of law therein announced are undoubtedly true. Nor were any of them mere abstractions. But if it can be said that any of them were such abstractions, the court would not on that ground reverse the judg ment, there being no error in law in the instructions, and they could not have had the effect of misleading the jury. Upon the whole, we think there is no error in the judgment, and are therefore for affirming it. JUDGMENT AFFIRMED. 1877. March Term. Moore V. Va. Fire & Marine Ins. Co. |