Phœnix Insurance v. Summerfield

Campbell, C. J., delivered the opinion of the court. Amid the diversity of views among the judges of the various courts of the United States, and in the absence of an — 834 — authoritative utterance by the supreme court of the United States as to the interpretation of the late legislation by congress as to the removal of cases from the state courts, we have determined, as matter of policy rather than conviction, to maintain the decision of the circuit court against the removal of the case to the court of the United States. It seems to us probable that it will be held, finally, that the right of removal is not confined to cases in which the action might have been instituted in the court of the United States, but, in doubt as to this federal question, which we cannot decide authoritatively, and because of the history of this case in the state court, we decline to reverse the judgment because of the removal proceedings. . The only other question worthy of serious consideration is as to the propriety of the third instruction for the plaintiff, and our conclusion is that, as applied to the facts of this case, it is unobjectionable. It is subject to the criticism of seeming to require the production by the defendant of independent evidence of an intention to defraud by false swearing in order to defeat a recovery on' this ground. If it means that, it is wrong, for the false swearing to-any material matter calculated to mislead or deceive the insurer, knowingly and intentionally done, would defeat a recovery, while false swearing as to a fact wholly foreign to the matter involved, or a mistake or unintentional misstatement, would not have such effect. We concur in the view held iu Claflin v. Insurance Co., 110 U. S., 81, but think the instruction mentioned, when applied to the matter in dispute here, is not inconsistent with the sound doctrine of that case. Its dominant thought is that false swearing must have been intentional to defraud, and that is true. The dispute was as to the quantity and value of the goods destroyed. The alleged false swearing had relation to that inquiry, and was, therefore, material, and, if it was intentionally false, it was sufficient to defeat recovery. The instruction, although iu a dangerous form, does not controvert this proposition, and, in view of the instruction on — 835 — the same subject obtained by the defendant, and the satisfactory evidence that' the goods destroyed by fire exceeded in value the amount of insurance, the judgment will be— Affirmed.