Ichthys, Inc. v. Guarantee Ins. Co.

[556]

LAZAR, J. pro tem.

*

The plaintiff corporation operated a restaurant and bar business with respect to which fire insurance policies totaling some $100,000 on building and equipment were in effect. A fire occurred; one of the three insurers involved settled with the plaintiff prior to trial; the two other companies refused payment on plaintiff’s proofs of loss and this litigation resulted. Judgment was rendered against the two defendants, Fireman’s Insurance Company of Newark and Guarantee Insurance Company, but only the latter has appealed.

The answers of the defendants raised the affirmative defenses of arson and wilful misrepresentation and false swearing. Contrary to the statement of respondent that the affirmative defense of fraud and false swearing was eliminated at pretrial conference the record indicates no pretrial conference was held. Before the trial concluded defendants sought and were granted permission to amend their answers to allege that plaintiff ‘

‘

through its authorized agents, knowingly and intentionally gave false testimony during the course of the trial” as to the extent and amount of damages sustained by plaintiff. In raising the stated defense the defendants based their position upon the standard form provision found in section 2071 of the California Insurance Code, to-wit: “This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in ease of any fraud or false swearing by the insured relating thereto. ’ ’

The determination of the jury was limited to certain special findings of fact, i.e., that no arson had been committed, the amount of loss suffered by plaintiff and that plaintiff’s manager “knowingly and intentionally gave false testimony during the course of the trial concerning the extent or amount of damages sustained by plaintiff as a result of the fire.” (The record indicates no issue of fraud or false swearing in procuring the policies or as to proofs of loss was submitted to the jury.)

The question of the propriety of the interrogatory as to false testimony during trial having been reserved, a motion to strike that.special finding from the jury’s verdict was granted and judgment on the verdict as modified was made and entered for plaintiffs.