David v. Fidelity-Phenix Fire Insurance Co. of New York

Citations

• 83 Wash. 242
• 145 P. 199
• 1915 Wash. LEXIS 673

Syllabus

<p>Stipulations — Pleadings and Issues — Insurance. In an action upon a fire insurance policy, in which the value of the property destroyed was placed in issue by a general denial, and an affirmative defense set up false swearing in the proofs of loss, in that the articles enumerated as destroyed were not in the house at the time of the fire, the question of the value of the property under the general issue is not eliminated by a colloquy between court and counsel in respect to the issues, particularly with reference to the matter pleaded in the affirmative defense, in which counsel for plaintiff stated that under the general issue plaintiff would have to prove that he sustained the loss alleged, but there was no charge of false swearing in the proofs of loss as to the value of the articles, and counsel for defendant acceded thereto, stating that if the property was in there, he was not going to state it “was not worth that amount;” the intention evidently being to limit the issue on the affirmative defense, and not eliminate the question of value on the general issue.</p> <p>Insurance — Pleadings—Denials and Deeenses. Such a denial is not a “special denial” which would limit the general denial to the issues raised by the former; but is an affirmative defense in complete avoidance of the contract.</p> <p>Same — Actions—Issues—Instructions. In an action upon a fire insurance policy, upon an issue as to false statements in the proofs of loss, it is proper to instruct that an innocent misrepresentation in the proofs of loss would not avoid the policy, but that a fraudulent misrepresentation would avoid it.</p> <p>Same — Actions—Instructions—Requests. Upon an issue as to false statements in the proofs of loss in an action on a fire insurance policy, an instruction that the jury must find that plaintiff knowingly and wilfully swore that the articles were in the house and destroyed by fire, when he knew they were not, with intent to defraud, is more comprehensive than a r