Obersteller v. Commercial Assurance Co.

Shabpstein, J. — This appeal is from a judgment re- • covered by the plaintiff against the defendant in an action upon a policy of insurance, issued by defendant to plaintiff, against loss or damage by fire of certain property, to wit, six hundred dollars on household furniture, useful and ornamental, four hundred dollars on pictures, paintings, and fire-screens, and two hundred dollars on wearing apparel of self and family,—an amount not exceeding twelve hundred dollars. One provision of the policy is, that it shall be void “ in case of any fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after loss.”

Defendant, in its answer, denied that plaintiff on his part performed all the conditions of said policy, and further answering, alleged, that subsequent to the fire, and prior to the commencement of this action, plaintiff presented to defendant a written statement, subscribed and sworn to, in which he asserted that the damage by the fire to the property insured was $1,845.75, and thereupon demanded payment of the sum of $1,200, the full amount for which said property was insured by defendant. And defendant alleged that said statement was false and fraudulent, in that the damage to said property by said fire did not exceed the sum of $350. On the trial, the plaintiff, in his own behalf, testified that the property insured and lost by the fire was of the value of two thousand dollars. Defendant introduced evidence which tended to prove that the value thereof did not exceed $350.

The court instructed the jury that if they should render a verdict in favor of the plaintiff, then they should find upon the following particular questions of fact: “1. At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the furniture in said Chenery Street house? 2. At the time of the fire alleged in the complaint, to wit, the fire in the Chenery Street house, what was the cash market value of the pictures, paintings, and [648]fire-screens in said Chenery Street house? 3. At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the wearing apparel in said Chenery Street house? ” The jury returned a general verdict in favor of the plaintiff for five hundred dollars.

In addition to the general verdict, the jury answered the interrogatories propounded to them, as above stated, as follows: “ 1. At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the household furniture in said Chenery Street house? Answer, $250. 2. At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the pictures, paintings, and fire-screens in said Chenery Street house? Answer, $150. 3. At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the wearing apparel in the Chenery Street house? Answer, $100.”