I do not agree with the opinion of the majority granting the motion for rehearing and remanding this case, and will state my views.
Appellant insists that the question at issue in the civil suit in which the alleged perjury is charged to have been committed was the bona fides of the transfer of the policy sued on from Z.P. West to appellant. The transfer was made after the loss had occurred, and appellant's contention is that, under these facts it is immaterial whether the transfer of the policy was bona fide and for a valuable consideration, or was without consideration, and made with intent to defraud the creditors of Z.P. West. In other words, that the perjury is based upon an issue that was immaterial in the trial of the civil suit, and therefore can not be legally a basis for perjury. It appears that in the District Court of Comanche County, in a certain civil suit then on trial, styled Casey-Swasey Company, a corporation, plaintiff, v. Manchester Fire Insurance Company, a corporation, duly incorporated in England, and doing business by permit in the State of Texas, defendant, and after the issues were all made, the jury was sworn, etc., and in the course of the trial it then and there became a material issue whether Z.P. West transferred, assigned and delivered to J.T. Maroney the policy of insurance on which said then pending suit of Casey-Swasey Company v. said Manchester Fire Insurance Company was brought and predicated. The indictment in substance alleges that J.T. Maroney testified that he had loaned Z.P. West a thousand dollars, and that West transferred the policy, after the burning, to said Maroney to pay said amount. Subsequently Maroney transferred said policy to plaintiff in the civil suit, to wit, Casey-Swasey Company. That the statement by Maroney that he loaned said money was false; and that the transfer to said Maroney by West was for the purpose and intent on the part of both to hinder, delay and defraud the creditors of the said Z.P. West. Upon the trial, among other defenses set up by the defendant insurance company was this: the policy contract sued on, among other things, provides by warranty clause therein, as follows: "This insurance policy shall be void if insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof, or in case of any fraud or false swearing concerning this insurance or the subject matter thereof, whether the same be before or after a loss." Under the clause of defendant's answer just referred to, it certainly became a material *Page 531 inquiry as to whether Maroney had a bona fide transfer of said policy from West. If he did not, then West had no right to transfer said policy, and West having no right to do so, Maroney would have no right to transfer it to the plaintiff. Goodson's testimony shows that the insolvency of West was thoroughly established.
Appellant refers us to various authorities holding that, in order to void this clause of an insurance policy, the evidence must show that the swearing was willfully done. These authorities, I take it, are correct, and in no way assist appellant's contention now urged, since the allegation in the indictment is that appellant willfully swore to said facts, and the proof clearly established the fact that he did willfully swear to said facts, and said facts were and are material inquiry in said civil suit.
In Willis Bro. v. Insurance Company, 70 Tex. 12, the following were the facts: Scott obtained a policy of insurance on a house in Lampasas for one year from Hargrave, the local agent of the insurance company; and shortly thereafter Scott, with the consent of the company, transferred said policy to Hargrave, he having a short time before purchased the property insured from Scott and received a general warranty deed to the same. These transfers were made without consideration and with intent on the part of both Scott and Hargraves to defraud the creditors of Scott. But this intent was not known to the insurance company until after the destruction of the building by fire on August 14, 1884. On July 13, 1884, Hargrave made a general assignment of all his property, including that insured, to Henry Exall, for the benefit of Hargrave's creditors. The insurance company in no way consented to this assignment. Willis Bro., who were creditors of Scott, brought suit against him and caused an attachment to be levied on the property insured, claiming that the transfer to Hargrave was fraudulent and void, and garnisheed the insurance company. Notice of the fire was given, and proof of the loss made by said Scott in proper form. He then claimed that the transfer of the property to Hargrave was intended as a mortgage; and the insurance company, through its general agent, denied all liability to Scott, and afterwards in answer to the garnishement denied under oath that it was indebted or in any way liable to Scott on the policy of insurance, which answer was controverted by Willis Bro. by written affidavit. Under this state of facts, the court say: "Was appellant liable on its policy to the creditors of Scott? The company was induced to give its consent to the transfer of the policy upon the false representation that Hargrave had become the owner of the property insured, while the proof showed that the understanding was that the transfer from Scott to Hargrave should be a mere cover to enable Scott to effect a favorable compromise with his creditors, he being at the time largely indebted; and no consideration having passed, the transfer was fraudulent and void as to his creditors. In the policy it was provided `that all fraud or attempted fraud by false swearing or otherwise, shall be a complete bar to any recovery from loss under it.' The company *Page 532 doubtless understood, and it was without doubt, intended by Scott and Hargrave that it should understand, that there had been a complete and valid transfer of the property as to all persons but it being invalid as to the creditors of Scott, created such a state of confusion and doubt as to the ownership of the property as rendered it hazardous to pay the loss to anyone. This was to the disadvantage and detriment of the company and calculated to provoke litigation, and being induced by false representations was a fraud upon it, which it had provided against in its policy." It was held in that decision that Willis Bro. could not recover by sheer force of the fraud perpetrated by Scott and Hargrave. The clause that the insurance company defended on in the civil suit, out of which this perjury grew, stated that any fraud or false swearing, either before or after the loss, would vitiate the policy. So it will be seen that the clause relied upon to vitiate the policy now under consideration is much broader in its scope and terms than the clause of the policy relied upon in Willis Bro. v. Insurance Company. Certainly it was a material inquiry in said civil suit, and hence was a legal and proper basis for the indictment for perjury, as held in the original opinion. In my opinion the motion for rehearing should be overruled.