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should not be heard to adopt the agent's others takes the risk of his dishonesty in acts where they make for him, and disclaim such dealings. And it should not be forthem where they are to his prejudice. It is gotten that if these fraudulent bills had he, and not the insurance company, who not been discovered, the companies would reposes the confidence in the agent; and probably if not certainly have been mulcted when that confidence is abused, especially in some $5,000 in excess of the real liability. by acts of fraud that if successful will be It will not do to say that plaintiff should greatly to his pecuniary advantage at the recover the real loss and lose the false claim; expense of the company, he that reposes the for this would throw wide open a door to confidence should pay the penalty. We do wholesale fraud, and deprive the provisions not overlook the wording of the forfeiture under consideration of much of their pracclause, nor the rule, relied on by plaintiff, tical value. The forfeiture provision should that forfeitures are not favored, and will not be regarded as based on the maxim falsus be enforced unless they come within the in uno, falsus in omnibus; and amounts to strict words of the policy. That rule has a declaration that where there is any fraud been more than once enunciated by this court or false swearing, the whole claim is tainted as well as by the Supreme Court. Carson v. thereby. The justice of so regarding it in Insurance Co., 43 N. J. Law, 300, 39 Am. Rep. cases where the insured personally commits 584; Snyder v. Insurance Co., 59 N. J. Law, the fraud is manifest; and a fair interpre544, 37 Atl. 1022, 59 Am. St. Rep. 625; Hamp- tation of the clause in the light of its recogton v. Hartford Fire Insurance Co., 65 N. J. nition by the state as a matter of public Law, 265, 47 Atl. 433, 52 L. R. A. 344. We policy requires its application also to cases do not deem our present decision to be a de- where the responsible party undertakes to parture from that rule. The question is shift the entire responsibility to an agent as whether in a case where forfeiture is invoked his alter ego. for the most meritorious cause on which it We hold therefore that there was error in can be rested, viz., fraud, which the law refusing the eighteenth and nineteenth reabhors, and that fraud has been committed quests to charge, although in view of the by an agent vested with the most complete outside authorities cited, and of the absence and ample powers by a principal who is en-of controlling decisions in this state on the tirely passive and looks to the agent for the precise point, the trial judge acted judiciously performance of every act relating to settle in ruling as he did. Our consideration of the ment of the loss, the fundamental maxim, case after full argument leading us to a “Qui facit per alium facit per se,” shall be different result, the judgment below will be applied, or the court shall declare the clause reversed, to the end that a venire de novo be futile for not having added to the phrase, awarded. "fraud or false swearing by the insured" the words “or his agent.” Of the two al.
GARRISON, J. (dissenting). My vote for ternatives, we consider that justice requires the affirmance of these judgments is based the adoption of the former, and that no vio- upon two fundamental propositions of law, lence is done thereby to the terms of the the soundness of neither of which has ever policy.
been questioned. The first of these is that This is not a case of agency ex necessitate. a verdict upon a material issue made by the It is not the case of an insured relying nec-pleadings and submitted to the jury estabessarily upon a subordinate or agent for the lishes the fact in the appellate court; and information required to make up a proof of the other is that language in a contract imloss, revising and supervising it as best he posing a forfeiture will be construed in a may. Where the insured, though exercising manner as favorable to the party whose due care, is himself deceived by his own property is to be forfeited as is consistent agent, and in good faith presents a statement with fair principles of interpretation. Citawhich turns out to be untrue in respect to tion of authority for these common-law maxmatters which could not reasonably have ims is surely unnecessary. been discovered by the insured in the exer Applying the first of these propositions to cise of due care, there is no fraud, for he the question whether the respondent was has been himself deceived. But where he guilty of fraud in the production of the undertakes to wash his hands of the entire vouchers or had conspired or attempted to matter, and without question or supervision conspire with any one for their fraudulent of any kind delegates to an agent the con- production, we find that these material facts tractual duty of making a true statement, he were directly placed in issue by two of the cannot be heard to say, where fraud is com- defendant's pleas, and that such issues were mitted by the agent in the exercise of his submitted to the jury, whose verdict was that general powers, the consequences of that the respondent was not guilty of fraud in fraud should not be visited on him.
either respect. We do not overlook the fact that an honest Assuming that this verdict is binding upon loss may be thus defeated by a dishonest this court, it follows that, if false vouchers agent. The answer is that he who employs were produced without the respondent's and relies entirely on an agent to deal with fraud, the most he can be charged with is
negligence (which is not made a ground of my inability to concur in the reversal of forfeiture in the policy) unless such for these judgments. feiture clause properly construed penalizes I am requested by Mr. Justice KALISCH him for the fraud of another. This brings us and by Judge WHITE to say that they conto the established canon for the construction cur in the foregoing views and vote to afirm. of forfeiture clauses in contracts. Such clause in the contract before us is in these words:
(83 N. J. Eq. 257)
MCCOMB v. McCOMB. "This entire policy shall be void in case of fraud or false swearing by the insured touching (Court of Chancery of New Jersey. May 19, any matter relating to this insurance or the
1914.) subject thereof whether before or after the loss.”
DIVORCE (8 133*)-DESERTION-EVIDENCE.
In a suit for divorce, evidence held insufiThe natural construction of the words cient to establish defendant's desertion of com"fraud or false swearing by the insured.” plainant for two years prior to the filing of the
bill. under the maxim noscitur a sociis, is that, as
[Ed. Note. For other cases, see Divorce, false swearing must be the act of the insured, Cent. Dig. 88 446-448; Dec. Dig. 133.*] so the fraud referred to must also be his
Bill by Aimee Greene McComb against Wilact, i. e., a fraud perpetrated by him or with his consent or to his knowledge. Carson v.
liam McComb for divorce. Bill dismissed. Jersey City Ins. Co., 43 N. J. Law, 300, 39 Am. Thomas G. Haight, of Jersey City, for peRep. 584.
titioner. Marshall Van Winkle, of Jersey This, if it be not the necessary construc-City, for defendant. tion, is at least a permissible construction, which is all that is required by the canon GRIFFIN, V. C. The petition in above stated, viz., that the language of a forfeiture cause is filed for a divorce on the ground of is to be construed as favorably to the party desertion. The parties, who were acquainted whose property is to be forfeited as is con- from childhood, were married October 15, sistent with the fair principles of interpreta- | 1907. One child, a son named Galen, now tion, and surely no one will contend that the aged about five years, was born of the marinterpretation of associated words according riage. At the time of the marriage the deto the maxim a sociis is not a fair principle fendant was deputy city collector of Jersey of interpretation. The notion that this es-City, receiving a salary of $1,500 a year. He tablished canon of construction does not ap- was in receipt of no other income, had subply to a contract of insurance because the stantially no property, and relied wholly uppolicy is in standard form has no foundation on his salary for the maintenance and supin law or reason. As was said by this court, port of his family. Prior to the marriage the in Hampton v. Hartford Fire Ins. Co., 65 N. mother of the petitioner (a widow) very propJ. Law, 267, 47 Atl. 434, 52 L. R. A. 344: erly questioned the defendant as to his abil
“The court will never seek for a construction ity to support her daughter, and was informof a forfeiture clause in a policy which will ed by the defendant of his position and insustain it, if one which will defeat it is reason-come; he said there was likely to be a ably deducible from the terms or words used to change in the Jersey City administration; express it."
that he would probably lose his position; Yet it is only by ignoring such established but had secured a better one in the health canon that the forfeiture of this policy can board. The petitioner was also advised of be visited upon the insured, for the verdict this situation. of the jury effectively negatived the only After returning from their wedding trip, fraud that under the proper interpretation they occupied a house at Hackensack, the of the contract would work a forfeiture. rent of which was $40 a month. The petiThe failure to observe and apply this famil- tioner's mother, and son, aged about 13 years, iar canon results, therefore, in the present also resided with them and paid board. The case, in a forfeiture by the insured of over defendant paid the first two months' rent, $25,000 of actual fire losses, for no other lost his position on the 1st of January, 1908, fault than his possible negligence in intrust did not secure the position in the health ing to a professional insurance adjuster the board, and, after being for some time out of duty of collecting and transmitting to the employment, secured a position in the Union insurance companies the mass of bills called Trust Company as a clerk on a salary of for by their notice to him, a fault, if such it first $60 and later $75 a month. be, by which not a penny's worth of harm In the course of his employment with the came to the insurer and not a penny's worth Union Trust Company he became acquainted of benefit inured to the insured.
with a business called the "wet wash busiThe fact that this harsh result can be ness," and conceived the idea that it was reached only by ignoring the firmly establish- very profitable. He told his wife that he ed canon evolved by the law for the express was going to engage in it, and here his lack purpose of preventing just such unconscion- of judgment and discretion is made to apable consequences is the plenary ground of pear. He borrowed $600 from the Union
*For other cases soe same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
Trust Company and invested it in the busi-, ham, N. C.; then came back to New Jersey ness, without making a reasonable investi- from Rockingham. He says that from all gation. His wife advised against this course these places, down to the time he left Rockuntil he made a proper examination of the ingham and returned to Hackensack, he business and consulted a lawyer on the sub- sent his wife from $10 to $15 a week. He ject. This advice he did not heed, with the returned to Hackensack in March, 1910. He result that within a very short time the found that during his absence the dining wet wash business became a failure, the mon- room had been closed up and was used for ey embarked in the enterprise was lost, and boarders; and he says that his wife said to he was driven to seek other employment. him during the night, “You can stay here, if
His next venture was in a corporation you want, but you can have the room in the which, with Mr. Mason, they formed for l'attic; that is the best I can do for you ;" conducting the laundry business, called the and he said, "What is the matter with our M. & M. Laundry. He represented to his room?” “Oh,” she said, “Mother sleeps with mother-in-law that it was a very good busi- me." He did not stay there that night, but ness; that ample money could be made in it; left somewhat offended; he does not recall and borrowed from her $1,200. Afterwards, when he returned to Hackensack. He lived in the summer of 1909, and while he knew in Jersey City for two weeks after his rethe business was running down and was vir- turn, but did not visit at her home during. tually a failure, he borrowed from her an ad- that time but telephoned that he wanted to ditional $1,000, on the representation that see her. They met by appointment on Montthey were doing a splendid business; that gomery street, Jersey City. He did not fur: the money was necessary to enable them to ther communicate with her unless, perhaps, properly handle the same; and that he would by letter. He says that when he came back repay her in a short time. On these repre- from Rockingham, N. C., this time in March, sentations the money was loaned. At the his wife met him, that he looked very shabby. same time he borrowed $350 from his wife. They went to Rogers, Peet & Co. and she During his stay in the laundry business he bought him a suit of clothes so that he might delivered to his wife checks in small amounts, take a managership. He was next employed made payable to the order of the M. & M. as manager by the same company, the Burns Laundry, which he, as president of the com-Company, in the same business of soliciting pany, indorsed. She demurred to accepting bank accounts, at a salary of $25 a week; them, thinking that it was suspicious, and and he says he sent her $20 a week; that inquired why the money was not put into the this continued so long as he was a manager. account of the company. He, however, al- He was next sent to Mt. Jackson, Va., and layed her suspicions. The day after Thanks- from there sent her $20 a week; from there giving, 1909, he said he was going away, that to Henderson, N. C., where business was not the laundry business was doing nicely; that good; and it appears from the correspondhe was going with the knowledge and assent ence that his wife was willing to join him of Mr. Mason; that Mr. Mason was to draw there, but he inquired of the Burns Company $25, and he $15, a week, and let it accumu- for assurances about his staying South as late for the purpose of paying for the stock manager (because, he says, he did not want to or dividends; that he had a good offer of a bring her down on a fool's errand), and they position at $40 a week at Belle Vernon, Pa. could give no assurances; thereupon he adThis story was absolutely untrue. It is ap-vised her not to come. While at Henderson parent from the testimony that the creditors his board cost him $7 a week, the balance he were pressing the company for payment; sent to his wife. He returned to Hackensack that he had taken those moneys which he in July, 1910. He says Mrs. McComb did not gave his wife wrongfully, and, having secured object to his going away, and she bought him a position at Belle Vernon (not at $40 a a suit of clothes to go away as manager. week), suddenly departed, and within a few She knew his plans. He says it was on this days afterwards his wife learned of the true visit in July that his wife told him he could situation in a conference with Mr. Mason. háre a room in the attic, but his testimony When defendant reached Pittsburgh he tele-leaves it in doubt whether it was in March graphed his wife, and wrote her, inclosing or July he was asked to sleep in the attic, all the money he had $5. His position at and she bought him the clothing. He next Belle Vernon was that of a solicitor of bank entered the service of the Bankers' Corporaaccounts, for which he received $10 a week, tion, in the same line, at Mt. Vernon, N. Y., and a commission on all over and above a where he remained until September 21, 1910. certain sum deposited through his solicita- During this period of service he made $12, tion. At Belle Vernon he says he averaged $15, $18, and $20 a week, and sent it to his $15, $18, and $20 a week, and sent his wife wife, outside of what he had to pay for $10, $12, and $15 every week, being all he board. During the month of August, 1910, made, excepting about $4 a week which he while he was so employed, the petitioner's paid for his board. He next went to Mason- mother was not at home, and the defendant town. From Masontown he went to Rocking-visited petitioner on week-ends, and they co.
habited and were
on friendly relations. , would see his child. She then wrote back From August, 1910, down to the date of the Exhibit D 1, saying: “The doctor's orders filing of the petition the parties had no sex- must be obeyed. You must not annoy me ual relations. After leaving the Bankers' | further." This last letter, it appears, so Corporation he was employed by the Ætna incensed him that he stopped sending money. Life Insurance Company on Long Island dur- The petition was filed within a month thereing the month of September, 1910, receiving after. $20 a week, and paid it to his wife, excepting Aside from the foregoing, other facts apwhat he paid for board; he living with pear which shed some light on the case. The his parents in Jersey City. He next worked petitioner says that on a visit to her about for his brother-in-law, Alfred Lewis, in the Labor Day, 1910, the first thing he said dairy products business, until December, was: 1910, receiving $15 a week, all of which he “ 'I will send you some money; I have congave to his wife, his compensation being $15 sulted my lawyer, and you will never get a di
I will send you some money
vorce from me. a week and board. He says he left his broth- from time to time, and, if necessary, have it er-in-law in December, 1910, obtaining em- registered. He told me that." ployment in Winston-Salem, N. C., from the She, in reply, said she did not want a diBurns Company as solicitor and was there vorce. He denies that he ever spoke to her until January 18, 1911, earning $12, $15, $18, about a divorce, or that he consulted a lawyer $20, and $25 a week, paid his board, and until this suit was brought. Owing to his sent the balance to his wife. From Winston- admitted untruthfulness in dealing with his Salem he went to Roxborough, N. C., for the wife and her mother, and the fact that he did same concern in the same line of business, send her a registered letter, which he says and earned from $12 to $18 a week, and was sent so that he could have something to stayed there until February 10, 1911, and fall back on in case anything happened, sent the money that he earned to his wife as which might naturally be taken to mean if before. Leaving there he came back to Jer- his wife applied for a divorce, I am inclined sey City, worked for his brother-in-law until to the belief that the petitioner is telling the the latter end of April, 1911, at $15 a week truth. Prior to leaving the laundry business, and board, and sent all of his wages to his which was in November, 1909, she learned wife. About February, 1912, or shortly prior that her husband owed money to the Glen Isthereto, he went into business for himself. land Hotel, which she said was a notorious From that time down to January, 1913, he resort, and her suspicions were aroused. was in the cigar business and milk business. Taking these suspicions in 1909 and his state See Exhibits P 31, 32, and 37. In this last ment as to how he would prevent her from letter, which was written in October, 1912, he obtaining a divorce, made about October, says he is in the cigar business, and was par
1910, into consideration, she consulted a lawticularly unfortunate “this summer, and did yer some time in July, 1911, and laid the cir
cumstances before him, acting upon whose adnot have any money to send.” He did, however, send some money, as appears by the vice, she employed a detective to follow deexhibits; and it also appears that he did not because her funds gave out. She kept copies
fendant, and only discontinued his services visit her from December, 1911, until Novem- of her letters written to him, as well as his ber, 1912, the visit at this latter time being letters to her, after this date, because of her brought about by a letter to him from his wife lawyer telling her to be very careful. The saying that she was going to Suffern, and of married life of the petitioner down to this fering to come down to meet him if he shoulddate having been so unsatisfactory, with such write. He telegraphed, and she returned little hope of betterment in sight, I am inclinfrom Suffern and met him on the 6th or 7th ed to believe she then conceived the idea of of November. The conversation this obtaining a divorce if conditions did not immeeting was like most of the others, simply prove. The defendant explains that the bill talking about the future and about his earn- referred to was contracted on the day of the ing possibilities, and nothing came of it. Hudson-Fulton celebration, when he went About January, 1913, he was in the milk busi-into the hotel with a number of friends hopness, and said he was making from $12 to $15 ing to secure all the laundry work of the hoa week, with $200 or $300 invested.
He sent tel. some money to his wife during this month, Some of the letters which she offered in and said he ceased sending her money during evidence she says were shown to her lawyer the baby's illness, which was the latter end before they were sent, others were not. of January, or the early part of February, While the defendant was wandering through1913, because he learned that the baby was out the country in an effort to make money, ill, and the doctor had ordered that no one his wife and child, during the summer, be admitted to see him. She had asked the were at Asbury Park, and sometimes, doctor if Mr. McComb could not see the child, in the spring and fall, at Foxwood Inn, and he said: "No; under no circumstances." Suffern, N. Y. It is very apparent that The defendant then wrote to his wife, saying the defendant was practicing a great deal that, regardless of the doctor's orders, he of self-denial, and endured a great deal
in keeping away from the society of his wife for her support. It is unlikely that he friends in his travels through Pennsylvania, would do this if he was not anxious to care Virginia, North Carolina, and New York, for her. On these various trips he sent her seeking to earn money, all of which, outside virtually all he earned, less a sufficient sum of his bare means of support, he sent her. to pay his board. He did not even have monThis rather indicates quite some love and ey. to buy clothing, and was reduced to such affection for his wife and child. Another a degree that when he came to New York fact seems to not only demonstrate this, but from Roxborough to become a manager his also that this love was reciprocal, appears in wife took him to Rogers, Peet & Co. and two letters (Exhibits P 33 and P 34) which bought him clothing. If he was carrying passed between the parties in April, 1912, out a preconceived design of sending her less than a year before this petition was filed, money for the purpose of defeating a divorce, the defendant wrote inclosing a receipt for he certainly punished himself severely to acpremium on $1,000 policy in the Prudential, complish this end. He might readily have and said:
sent less and fully subserved the purpose in“I have taken an additional $2,000 (policy), tended. I can hardly believe this. I think the quarterly payment of which falls due on he endeavored to do the best he could, but, by
15th, Galen's birthday. Should anything happen to me, you will collect $3,000, as every- | reason of some mental characteristics, which thing is payable to you."
are evidenced a great deal in his letters, he To which she replied, saying:
seemed incapable of acquiring a position to "I sincerely hope that I shall never be the properly care for his wife and child. Some one to profit by it. You know you have many of these characteristics appear plainly in his tasks to perform yet, and it is our ambition, letters. They are filled with the most exagor should be, to live until we have done them gerated statements as to his earning capacity well."
While before his marriage and for some and the money he was making. They were time afterwards his conduct towards the pe- filled with such expressions as that he was titioner was rather reprehensible, he seemed “making a barrel of money,” and he exto be filled with a desire to do his best for plained that the reason why he wrote such his family. But he says that the constant things to his wife was that he desired to talk in the house when he went to Hacken- buoy her up and make her cheerful. Some of sack was “Money, money, money,” which was his letters, however, are rather harsh. About very annoying. I think perhaps he exag- August, 1911, he wrote the letter, Exhibit P gerates this; yet, under the circumstances, 21, in which he told her, after saying that he it was but natural that there should have loved and thought of her all the time, and been some talk of money matters that made wanted her to be with him, and that he wishit rather disagreeable to him, considering the ed her to come and live with him, he says: large amounts of money of his mother-in-law “I will provide the very best I can for you and wife he had squandered in such a short ‘no, as my future actions will depend on your
yes time, and afterwards finding how difficult reply." it was, in open competition, to earn a liveli· hood. But it did not excuse his failure to
This letter was registered, and is apparvisit his wife while he was in business at ently the only registered letter he ever sent North Arlington and living at Jersey City
her. To this letter she replied on August and Nutley for a period beginning with De- 8, 1911. (Prior to which time, July, 1911, cember, 1911, and ending with November, she had consulted a lawyer.) 1912.
In her reply she pointedly asked him why The whole aspect of the case is peculiar. he registered the letter when it contained The petitioner contends that the desertion no money and he had never sent her a reg. commenced in October, 1910; that at that istered letter before, even letters that contime he had a deserting mind; that this is tained money; his explanations were rather evidenced by the fact that he told her, two lame, thus provoking comment on the fact weeks after Labor Day of 1910, that she in her subsequent letters. It is apparent would not get a divorce, because he had con- that the registry of the letter, taken in sulted a lawyer, and would send her money, connection with his previous statement, as to which would defeat it. If his intent at that the manner in which he would prevent her time was to desert his wife and never after- from obtaining a divorce, conveyed to her wards resume the marital relation, the mere the idea that the letter was registered with fact that he sent her money would not of it. the same end in view. self prevent a decree being entered against
On the stand he testified that he determinhim; the mere sending of money to a wife ed to write the letter to have something to does not constitute the full measure of duty fall back upon in case anything happened. which a husband owes to his wife. His de While it has not been testified to, I am sertion could be willful, and yet he might inclined to the belief that the defendant support her. The strange part of the case, wrote this letter for use in case his wife however, is that while he was with the should sue for divorce; that it must have laundry company he actually took about $300 been in his mind that his absence might of the company's funds and gave it to his amount to a desertion. He says, however,