State ex rel. Arel v. Farrington

ROY, C. This is a proceeding by certiorari originating in this court, having for its object the quashing of the judgment of the Springfield Court of Appeals in the case of N. A. Arel and the Drovers Bank of Springfield v. First National Fire Insurance Company, reported in 195 Mo. App. 165, and in 190 S. W. 78. This proceeding does not in any way affect the rights of said Bank. The suit above mentioned was brought on' a policy of fire insurance issued to Arel on the machinery and other personal property of a laundry owned and operated by him in the city of Springfield, subject to a chattel mortgage to said bank. That policy contained the usual provisions avoiding it in case the insured had concealed or misrepresented any material fact' concerning said insurance or the subject thereof, or in case of any fraud or false swearing by the insured touching any matter relating to said insurance or the subject thereof, whether before or after a loss. The answer contained a general denial, set. out the above provisions of the policy, and alleged that Arel had been guilty of making false and fraudulent misrepresentations to the defendant wherein he exaggerated the value of said insured property at the time that said policy was issued, and that Arel in his proofs of said loss made to the defendant false and fraudulent misrepresentations as to the extent of the injury done by the fire to said property, and as to the amount of Arel’s loss by reason of said fire. There was a trial before a jury.- At the close of plaintiff’s evidence, the court, at the instance of the defendant, gave a peremptory instruction .to find for the defendant, and a verdict was rendered accordingly. In due time the trial court, on the motion of the plaintiff,' set aside said verdict and granted the plaintiff á new trial. Thereupon, in proper time, the defendant filed its motion to set aside the order granting the plaintiff a new trial, which motion was overruled, and the de [162] fendant prosecuted its appeal to the Springfield Court of Appeals, where the order of the trial court setting aside the verdict and granting a new trial to the plaintiff was held to be erroneous and the cause was remanded with instructions to the trial court to set aside its order granting the plaintiff a new trial and to reinstate the judgment previously rendered. Then followed this proceeding in which it is contended that the opinion of the Court of Appeals above mentioned is in conflict with the case of Marion v. Great Republic Ins. Co., 35 Mo. 148, and with the case of Schulter v. Merchants’ Mutual Ins. Co., 62 Mo. 236, which hold that a mistake or an unintentional error or a misstatement as to an immaterial matter, or a statement of opinion as to matters concerning which opinions may reasonably differ, or a statement not made with intent to deceive, will not avoid the policy. We deem it unnecessary to set out the evidence on which the trial court gave the peremptory instruction to find for the defendant. We can discover no conflict whatever between the opinion of the Court of Appeals and the prior decisions of this court cited by the relator. The Marion case, supra, is not cited in the opinion of the Court of Appeals, but that opinion very clearly holds that to avoid the policy such false statement must be fraudulent (that means intentional) and must not be>a mere mistake or unintentional error, or a misstatement of an immaterial fact, or a mere statement of opinion concerning matters as to which opinions may reasonably differ.' We fully recognize the rule laid down by Faris, J., in State ex rel. Hays v. Robertson, 271 Mo. 475, l. c. 481, decided by this court In Banc, where, in speaking of, the power of this court in such certiorari cases, it was said: “If this decision be opposed to what we said, or the conclusion which we reached upon similar facts (if the facts are similar) in the Ramlose case, we ought to quash the judgment of the Court of Appeals.” Undoubtedly, where the facts in a case before one of the Courts of Appeals are so similar to the facts in a [163] case previously decided by this court as to require that the same rule of law should be applied to the facts in both cases, this court will on certiorari quash the judgment of the Court of Appeals when its opinion conflicts with a previous opinion of this court on that point. But this court has not in its prior opinions cited by the relator declared the law on facts similar to the facts in this case. The relator’s brief contends that the Marion and Schulter cases hold that the question as to the fraudulent intent of the insured in making any misrepresentation must be submitted to the jury. Those cases do not hold that such question must always be submitted to the jury. Where the evidence is such that the triers of fact may reach a conclusion one way or the other on that point, the case must go to the jury; but where the evidence for the plaintiff conclusively shows a fraudulent intent in making the misrepresentation a demurrer to that evidence should be sustained. Whether the Court of Appeals was right or wrong in holding that plaintiff’s evidence conclusively showed fraudulent misrepresentations by the plaintiff as to material facts, its ruling in that respect is not in conflict with any prior ruling of this court, and is, for that reason, beyond our reach. The preliminary writ of certiorari herein should be quashed, and it is so ordered. White, Co., not sitting. PER CURIAM: The foregoing opinion of Roy, C., is adopted as the opinion of the court. All of the judges concur.