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Fitzgerald v. Union Ins. Co.

54 Cal. 599 Court Cal. Docket No. 6,475 English

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Majority

p. 599
[No. 6,475.]
FITZGERALD v. THE UNION INS. CO.

Headnote

Fire Insurance—Proof of Loss—Fraud—Verdict—Conflict of Evidence.
Appeal from a judgment for the plaintiff, in the Third District Court, County of Alameda. McKee, J.
Action upon a policy of fire insurance. The policy provided that the assured should, in case of loss or damage- by fire, give in a sworn statement of the amount of loss, etc.; and further provided, that “ all fraud or attempt at fraud by false swearing, or otherwise,” should cause a forfeiture of the policy. The complaint, which was verified, alleged the loss to be $5,250, and that plaintiff had given to the defendant due notice and proof of the samo. The jury rendered a general verdict for the sum of $2,375.
Sidney V. Smith & Son, for Appellant.
The discrepancy between the verdict and the sworn statement is $2,875. In cases of so great a variance, courts set aside the verdict, as, in effect finding fraud on the part of the assured. (Wall v. Howard Insurance Co. 7 Hubbard, (Me.) 32; Levy v. Baillie, 7 Bing. 349).
p. 600
Jas. C. Martin, and J. P. Ryan, for Respondent.

There was a substantial conflict in the evidence. Judgment affirmed.