Weide v. Germania Ins. Co.

PER CURIAM (MILLER, Circuit Justice, and DILLON, Circuit Judge, concurring). It was held: 1. Under the above provisions of the policy, that a refusal on the part of the assured, to submit to an examination on oath, or his refusal, on such an examination, to answer material questions respecting the loss, would not have the effect to cause a “forfeiture,” by the assured, of all claim under the policy, but simply to cause the “loss not to be payable.” until such examination is submitted to, or such answer given. 2. That a defence under the clause that the assured had thus refused to be examined, or thus to answer questions, is in the nature of a plea in abatement, showing no' present cause of action, and should be pleaded separately from the defence of “fraud” or “false swearing” which, if established, is a complete bar to a recovery, at any time, on the policy. 3. Under a plea setting up the defence of “false swearing:” held by the court that false swearing by the assured, either in the preliminary proofs of loss, or in the examination on oath as required by the policy, in a matter material to the rights of the company, with intent to mislead the company, would work a forfeiture of the policy; and false statements by the assured, on such examination, with intent to deceive and mislead the company, relative to the terms of settlement by the assured with other companies which had insured the same property, are material, and will defeat any right to recover under the policy. 4. Under the defence of “fraud,” properly pleaded: held that if the assured, after the fire, with intent to deceive the company, exhibited to it books of accounts, in which there were false entries as to the value and amount of the goods insured and claimed to have been burned, this would be a fraud, or an attempt at fraud within the meaning of the policy, and would forfeit all rights thereunder.