Germania Fire Ins. Co., Appellant, vs. Phineas Stone, Appellee, 21 Fla. 555

Mr.

Justice Raney delivered the opinion of the court: The first error assigned is the action of the Judge of the Circuit Court in permitting the plaintiff “ to give his opinion as to his right to deduct the amount of his indebtedness from the return of his personal property handed in by him to the Assessor of Escambia county..” The plaintiff testifying in his own behalf had stated on the cross-examination that he did not intend to defraud the Statethat he considered the value of his merchant’s stock there returned, viz: $1,400, was a true and correct statement of its value,, and continuing, he says: “ I do not give in my stock to the Tax Assessor at its actual value, but what I think it worth to me.

I considered that I had the right to deduct therefrom my indebtedness.” Here the counsel conducting such cross-examination for the insurance company objected “ because plaintiff’s opinion in the matter had nothing to do with this case.” The objection was overruled and there was an exception. The plaintiff then stated his indebtedness, at the time of the statement, amounted to $3,500 on his stock, and $2,800 borrowed wherewith to buy goods, thus aggregating $6,300.

That on March 1st, 1884, the time to which the statement had reference, it was in value about $8,000 ; was not able to say exactly what its value was as he had taken no inventory at that time. The question for the jury to decide was whether the plaintiff had made a false representation touching the value of the property with an intent to defraud the public revenue. If the plaintiff honestly believed that he had the right to make such a deduction and he acted, in making it, on such belief, then he did not have an intent to defraud the revenue. The intent to defraud is essential to the plea, and must he proved.

It was, in our opinion, the right of the plaintiff to explain the discrepancy between the valuation in the tax returns, and that in the policy, and to show the absence of the alleged intent to defraud, and to this end to state whether he considered that he had the right to deduct his indebtedness from the real value. What he may say is of course not controlling with the jury. They would decide whether the}7 believe him or not, and circumstances developed by the testimony in the case may lead to a conclusion entirely different from the absence of fraudulent intent claimed by him.

In Hew York, where we get our statute permitting parties to testify, it is held that “ a party, when charged with an intent to deceive, or cheat, or defraud, or with fraud and deceit, has a right to testify as a witness in his own behalf that he did not intend to cheat, deceive or defraud, or to practice any fraud or deceit in the transaction wherein he is charged with having had such motive, leaving the weight due to his evidence to be-determined by the jury.” Pope vs. Hart, 35 Bar., 630; Matthews vs. Poultney, 33 Bar., 127; Seymour vs. Wilson, 14 N. Y., 567 ; Griffin vs. Marguardt, 21 N. Y., 121; Forbes vs.

Waller, 25 N. Y., 430; Bidwell vs. Chase, 34 N. Y., 386; Thurston vs. Cornell, 38 N. Y., 281; Thorn vs. Helner, 41 N. Y, 26, (Keys); Hubbell vs. Alden, 4 Lansing, 214. In Thurston vs. Cornell, it is laid down that “ under the law admitting parties to testify in their own behalf it is well settled that where the character of the transaction depends upon the interest of the party, it is competent when that party is a witness to inquire of him what his intention was.” 2d.

The second assignment of error is upon the Circuit Judge refusing to admit the appellant “to read in evidence the statement made by appellee and taken down in the presence of the Rains and Eggleston adjusters.” The attorney for appellant argues that the “appellee’s reason for not signing that statement may be an excuse for not complying in that respect with the terms of the policy,, but it is no reason why the admissions therein made against his interest should not have been submitted to the jury.” The plaintiff testifies that he asked, when requested to-sign this phper, for a copy of it, that they had taken down figures from his books and he wanted to verify them.

That they refused to give him a copy. They told him to-meet them again next day at ten o’clock. He met them,, and they again asked him to sign it, when he said he was not satisfied with it, and wanted a copy, and that he was unwilling to sign and swear to it without knowing what it contained, he not knowing whether Rains had read it rightly. He says he had not read the policy and said to Rains, “what do you want me to sign this for, what is it all about,” and Rains replied that it was none of plaintiff’& business. "White testifies he heard plaintiff ask “ what is all this for anyway,” and‘Mr.

Rains answered, “ it is none of your business.” Rains is not introduced as a witness. Eggleston says Stone refused on the first day to sign, claiming that he wanted time to look into it, and that he refused on the second day to sign it, and although he states “ positively ” that he did not hear Rains make the reply attributed to him, he does not deny Stone’s having requested a copy of the statement, nor the refusal to give it, nor the above questions of Stone. It is not claimed that the paper sought to be introduced is admissible as an examination taken under the policy.

Even if the plaintiff knew of the provision in the policy it is not apparent that when the conversation took place at the Continental Hotel, on April 7th, with one of the adjusters, and the other wrote down what the plaintiff said, that the plaintiff was aware that an examination under the policy was being made. Moreover there does not appear to have been any magistrate or notary present at the examination to administer an oath, or suggest the real character or purpose of the proceeding.

The provisions of the policy contemplate the presence of a magistrate or notary, and also that of the assured, and the representative of the insurer. The magistrate or notary is presumed to be impartial, but two representatives of the insurer, in the absence of such officer,, are hardly to be so considered, particularly in the light of the record before us. To permit the paper to be read in evidence under the policy would be to ignore the plain provisions of the clause providing for the examination, and would be placing the assured at a disadvantage not contemplated by his contract.

We do not see under what principle of law it can be admitted as of itself evidence against the plaintiff. It is not his writing ; he has not signed it, nor has he acknowledged its contents to be true. It cannot be treated as itself evidence of admissions made by him. It is the creature of Rains, and not of the plaintiff. It has not been attempted to use it to refresh the memory of Eggleston, and, therefore, it is not neces-' sary to discuss it in this light. 3d.

The third error alleged is the refusal of a new trial moved for on the grounds disposed of above, and on the further grounds that the verdict was contrary to the evidence, the law and the instructions of the Judge. It is contended that there was no evidence whatever in the case to qualify the legal presumption that the appellee, in making the false statement of his personal property, and its value to the assessor, intended to do that which was the natural consequence of his act, i. e., defraud the State of .Florida and the.

County of Escambia; his statement that he did not intend to do so, being under the circumstances not sufficient to negative the presumption arising from his act,

an act which he did deliberately, which the law requires every citizen to perform, and of whose purpose and object no one can plead ignorance. The intent of the plaintiff in making the return was a question of fact for the jury to pass upon, and not one of law. In deciding this question of fact, it was the duty of the jury to consider all the testimony including the plaintiff’s statement as to what he did, and that he considered he had the right to do it. Such questions of fraudulent intent are peculiarly within the province of a jury to decide.

For this court to say that there was no evidence in the case to qualify the legal presumption arising from the false statement in the return would be to ignore the plaintiff’s testimony. If the jury believed his statement that he did not intend to defraud the State, and that he considered he had a right to deduct the amount of his indebtedness, they could not have found a verdict against him.- They must have believed it, and consequently they found as a fact that he did not intend a fraud.

We cannot reverse the verdict without usurping their functions and inferring as a legal conclusion from the fact that he made a false affidavit, that he intended fraud. The fact that we are not willing to admit that we should have come to the same conclusion as the jury have, had it been our province to pass originally upon the question of intent, does not change the law as to our duty in reviewing the questions on appeal. Considering the whole testimony, we think the verdict is sustained by the evidence, in view of the established hesitation with which appellate courts interfere with verdicts in such cases.

Wakeman vs. Dailley, 44 Bar., 498 ; Weed vs. Case, 56 Bar., 534, 549; Matthews vs. Poultney, 33 Bar., 127: Oliver vs. Chapman, 15 Texas, 400; Briscoe vs. Bronaugh, 1 Texas, 326; Carter vs. Carter, 5 Texas, 93 ; Louchein vs. Henezey, 77 Penn. St., 305 ; Sherwood vs. Marwick, 5 Me., 295 ; Winter vs. Norton, 1 Oregon, 43; Keller vs. Niagara Co., 16 Wis., 569, 568 ; Williams vs. Hartshorne, 30 Ala., 212 ; Hilliard on New Trials, 349, 352, note A; Marsh vs. Falker, 40 N. Y., (1st Hand,) 562 ; Starr vs. Peck, 1 Hill, 270. This is not a case in which the intention is to be judged of by a written instrument alone.

We do not think the Circuit • Judge intended to take from the jury a consideration of the plaintiff’s statement as to his interest, or that the verdict can be reversed as contrary to the charge of the court. The judgment is affirmed.