Consolidated appeals by plaintiffs from judgments of the United States District Court for the District of Connecticut, William H. Timbers, J., holding that the fire insurance policies sued on were voided by fraud and false swearing in the testimony of one of the plaintiffs at trial.
Lumbard, Chief Judge, Hays and Feinberg, Circuit Judges.
The plaintiffs in these two consolidated diversity actions, Giuseppe Lomartira, Sr., and Rose Lomartira,*fn1 have appealed from a decision of Judge Timbers, sitting without a jury in the District of Connecticut, that the three fire insurance policies sued on were voided by the trial testimony of plaintiff Giuseppe Lomartira, Sr., regarding alleged improvements, found by Judge Timbers to be knowingly false and fraudulent, because each of the policies contained a provision prescribed by the Connecticut standard form of fire insurance policy, Conn. Gen. Stat. § 38-98 (1958):
"Concealment, fraud. 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 case of any fraud or false swearing by the insured relating thereto."
We affirm Judge Timbers' decision.
Although the total face amount of the policies was $25,000, the Lomartiras had bought the insured two-story frame dwelling in Branford, together with the lot it stood on and another tract, for $9,000 about two years before its total destruction by two fires on May 26 and 30, 1957.*fn2 The value of the dwelling before the fires was thus one of the two chief issues in the ten-day trial before Judge Timbers.*fn3 The other was whether the plaintiffs' conceded failure to file sworn proofs of loss was waived (or the defendants estopped to raise it as a defense), either by an alleged general custom in the area of not requiring such proofs, or by the actions of defendants' representative, the General Adjustment Bureau, in investigating the loss, suggesting a settlement, and allegedly assuring the Lomartiras that it would "take care of everything."
Plaintiff Giuseppe Lomartira, Sr., testified that after acquiring the insured dwelling he plastered its stone cellar and did "concrete work on the two porches." He also testified that he paid one Russo, doing business as the Russo Roofing Company, "a little over" $8,000 in cash to rewire the building, to paint its interior, and to install new storm windows, new gutters, a new bathroom, and new doors and hardwood floors. Russo, he said, had died "about a year or two ago." On cross-examination, Lomartira testified that he had paid Russo in periodic installments over three or four months of 1955, with cash earned from selling vegetables raised on his farm.
On the seventh day of trial, defendants called one Dominick Russo, doing business as Russo Roofing Company, who testified that he knew of no other Russo in the roofing business in the Branford-New Haven area. Russo stated that he knew Lomartira, and in 1955 had received $800 for installing a new roof and front door and painting the exterior shingles on the Lomartiras' residence, down the road from the insured dwelling. He testified that he had never done any other work for the Lomartiras, and his ledger recorded no other payments from them during 1955-1957. In particular, he explicitly denied that he made any of the improvements on the insured dwelling regarding which Lomartira had testified.
At the close of Russo's testimony, the court stated:
"I think in all fairness to all persons involved, the Court should make it clear here and now, in the light of testimony by Mr. Russo and of the exhibits which have been marked and produced by him, that the Court regards this as a serious matter, and wholly aside from the issues in this case, I expect a full explanation satisfactory to the Court of what appears to be a very serious discrepancy between the testimony of the plaintiff and of his son on the one hand, and the testimony of Mr. Russo and the records produced by him.
"The Court naturally retains an open mind on this until the record is closed, but I simply want to give fair warning to all concerned that unless an explanation satisfactory to the Court is forthcoming, that I intend to take appropriate steps to determine whether there has been any violation of any law applicable to testimony under oath in this Court."
On the tenth day of trial, five days after Russo's testimony and the court's statement, plaintiff called two rebuttal witnesses, a former co-owner and a former tenant of the insured dwelling, who testified that new storm windows, doors, and floors were installed and the interior of the house painted in 1955, in addition to the work Lomartira testified he did himself. The former tenant stated that "three or four men" who came in a pickup truck did this work, but plaintiffs made no attempt to identify them, to establish that anyone was paid $8,000 for making the improvements, or, in general, to rebut Russo's testimony. Lomartira himself was not recalled.
At the close of plaintiffs' rebuttal, defendants moved to amend their answers by adding the defense of fraud and false swearing, on the ground that it had been "tried by express or implied consent of the parties." Fed. R. Civ. P. 15(b). Judge Timbers granted the ...