Davis v. Guardian Assurance Co. — 68 N.Y. St. Rep. 483

Majority

p. 483

Abraham Davis, Resp’t, v. Guardian Assurance Company, App’lt.

(Supreme Court, General Term, First Department,

Filed June 14, 1895.)

Headnote

1. Insurance — Appraisement—Defense.

The fact that no appraisement was made pursuant to the requirements of the policy, where, by reason of an improper proposal by the company’s appraiser to" the insured’s appraiser, the insured refused to allow them to proceed with the appraisement, and no new appraisers were appointed, is not a defense to an action on the policy.

2. Same — Damages—False statement.

A considerable discrepancy between the sum 'claimed in the proofs of loss and the sum awarded on the trial does not ordinarily amount to proof of a fraudulent overvaluation, and whether the difference between the amount claimed and the amount awarded is so great as to -justify the court in setting aside the verdict, depends upon the facts of each case.

3. Appeal — Discretion.

Whether the trial court will, or will not, submit specific questions to the jury, rests in its sound discretion, and its determination will not be reviewed unless it appears that its discretion has been abused.

p. 484

Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made ou the minutes.

This action was begun March 4, 1892, to recover from an insurer damages caused by fire. The defendant by a writ ten policy insured the plaintiff from June 27, 1891, to June 27, 1894, against loss or damage by fire, not exceeding $1,500, on his household furniture, clothing, stores, and supplies, situate at No. 141 First avenue, in the city of New York, where the plaintiff and his family resided. Between six and ten o’clock in the evening of November 3, 1891, a fire occurred in the premises, damaging some, and destroying some, of the property insured. November 19,1891, the plaintiff verified and delivered to the defendant proofs of loss, in which he stated that the damage caused to his property by the fire amounted to $2,154.15. Annexed to and forming a part of the proofs was a schedule of the property lost and insured, which consisted of about 250 items. The policy contains the following provisions: “This entire policy shall be void * * * in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. * * * In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire. * * * No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements." November 23, 1891, the parties executed an agreement submitting to appraisers the question of the amount of damages caused by the fire to the plaintiff’s property. Marks Levy was selected by the plaintiff and Carl E. L. Hinriehs by the defendant. November 25th the appraisers took and subscribed the usual oath, and appointed, in writing, Louis Alexander as umpire. On Friday, November 27th, the appraisers met and began their work, and after appraising a number of articles they adjourned until Sunday, November 29th, when they again met and resumed work. The plaintiff on this occasion expressed dissatisfaction with the conduct of the appraisers, and Levy withdrew and refused to continue to act as appraiser, and, December 7th, executed a written resignation addressed to the defendant. The appraiser selected by the defendant went on with the umpire, against the plaintiff’s objection, and completed the appraisement, assessing the damages at $420.70.

Benno Loewy, for app’lt; Samuel Greenbaum, for resp’t.

— Only two defenses are set up in the answer: (1) That the plaintiff refused to permit the damages to be appraised, pursuant to the terms of the policy, and (2) that the plaintiff falsely and fraudulently overstated in his verified proofs of loss the value of the property destroyed and injured, and the damage to the property injured. On the trial, no objection being interposed that such a defense was not pleaded, the defendant gave evidence which, it insisted, required the jury to find that the plaintiff fraudulently set, or caused to be set, the fire which occasioned the damages. On the trial Marks Levy, the appraiser selected bythe plaintiff, testified that, on the last day that he acted as an appraiser, ho and Hinrichs went to a saloon and drank together, “ and that Mr. Hinrichs said to me — told me that ‘We get through easy with this job; the adjuster has got places to appraise; some in the country, and we will go there; in Newton, and we will go there.’ I answered, ‘I will see how the time will be with me, if I can spare it.’ That is all.” Hinrichs denied that he made any such statement to Levy. The plaintiff testified that the fact that this conversation had occurred was brought to his knowledge, and that thereupon, and for that reason, and because he was dissatified with the damages agreed upon for the articles appraised, he refused to allow the appraisers to continue. The court instructed the jury that, if they found that such a proposition was made, it was a sufficient justification for the plaintiff to refuse to permit tfhe appraisers to continue the appraisement. That this instruction was proper is apparent, as the plaintiff was under no obligation to permit his damages to be appraised by an appraiser who would make such a proposition, or by one who would listen to it, without! disclosing the fact. The plaintiff testified that after Levy resigned he called on Mr. Meserole, the defendant’s assistant manager, and told him that he was ready to appoint another appraiser. Meserole testified that the plaintiff called on him and wanted another appraisal, bnt did not think the plaintiff used the words, “that he was ready to appoint a new appraiser.” The jury having found that an improper proposal was made by the defendant’s appraiser, and new appraisers not having been appointed, the fact that no appraisement was made, pursuant to the requirements of the policy, is not a defense to the action.

In respect to the second defense, it is insisted that the verdict of the jury, assessing the damages at $1,000, the plaintiff having sworn in his verified proofs of the loss that his damages were $2,154.15, is proof that the plaintiff falsely overestimated the damages to his goods and that the court erred in not setting aside the verdict on this ground; that the verdict for $1,000 damages is inconsistent with the verdict that the plaintiff did not falsely overstate in his proofs of loss the damages done to his property. In support of this contention the defendant cites Sternfeld v. Park Insurance Co., 50 Hun, 262 ; 49 St. Rep. 333 . In that case the insured, by his verified proofs of loss, stated his damages to be $23,342.47. The appraisers appraised the damages at $4,'321.53, making an overestimate of $19,020.94. The jury by their verdict found that the damage to the property was $5,000,

p. 486

making an overestimate by the plaintiff of $18,342.47. In discussing the case the court said that there was no evidence that “ tétided to explain this difference on the ground of any mistake dr misapprehension concerning either of facts upon which • the proofs were made and verified ; and as there was no ground from which it could be inferred that the loSs had been ovérstated in this maimer by mistake, there was reason for assuming" that it had be'en fraudulently made, to defraud the insurance company out of the other half of the amoutit of the policy. Such an inference necessarily follows from so great a difference;” The amount of the loss sustained was found to be léss than one-fourth of the amount claimed. In that case the judgment" and the order denying a- motion for a new trial were reversed, updn the ground that it Was clear, from the verdict of the jury, that the plaintiff had fraudulently overestimated the damages. In other words, that the verdict that the plaintiff had not falsely overestimated the damage to his property was inconsistent with the finding, that the1 damage did not exceed $5,000. In- Furlong v. Agri. Insurance Co., 45 St. Rep. 856 , the insured, in his verified proofs of loss,- s-wore that the damages caused to his personal, property were $1,161.60. The jury assessed the dathages on" the personál property at less than $80,— less than one-fourteenth of the claim, — and it was held that the jury’s valuation of the damages at $80 was inconsistent with the finding that the insured had not,-in swearing they were $1,161.60, falsely overstated the dámages in his proofs of loss, and the judgment and order were reversed. In Unger v. Insurance Co., 4 Daly, 96 , the insured, in his verified proofs of loss, claimed that the injury to h"is property amounted to- $16,336;23. The cause was" referred, and the referees found that the loss was $9,172.88. It was held, on an appeal from the judgment entered on the report, that the discrepancy between the amount of the claim and the amount awarded by the referees was not proof- that the plaintiff had sworn falsely in his proofs of loss. In Dolan v. Insurance Co., 22 Hun, 396 , the insured, when the policy was obtained, represented that the building, was worth from $3,500 to $4,000, , and in his proofs of loss he stated that the injury to his building by the fire amounted to $1,01-7.64. The appraisers appraised the damages to the building at $694, which was held to be the amount of damages recoverable for its loss-.- The jury found that there was no fraudulent overvaluation of the damages- in the proofs of loss, atid the court held that the discrepancy between the amount claimed and the amount awarded did not -require the court to- bold, as a matter of law, that the plaintiff bad fraudulently overstated his damages. Many cases have arisen over like clauses in fire insurance policies, which are c-ited in 2 May, Ins. (3d ed.) 477, and 1 Bid. Ins. 446 et seq. The cases cannot be harmonized, and an analysis of them will serve no useful purpose. The result of a majority of the decisions is that a considerable discrepancy between the amount claimed in the proofs of loss- and the amount awarded on the trial i's evidence of a- fraudulent overvaluation, but that it does not ordinarily amouh'tto proof of a f-randulent overvaluation, and that a verdict or finding that

p. 487

the damages sustained by the insured are much less than those claimed in his proofs of loss, is not necessarily inconsistent, and whether the difference between the amount claimed and the amount awarded is so great as to justify the court in setting aside the verdict depends upon the facts of each case.

In the case at bar the property lost and damaged consisted wholly of household furniture, clothing, stores and supplies. The plaintiff asserted in his proofs of loss that the damages caused by the fire amounted to $2,254.15, while the amount awarded by the jury was $1,000. There is no class of property in respect to the value of which persons will so widely differ as articles of household furniture and clothing. Such property always is deemed to be of greater value by its owner than by any other person. A carpet and articles of furniture possess more value to the owner than to a dealer who estimates their value at what they will sell for as second-hand articles. So in respect to personal clothing. It has little or ho market value, though unworn, while it may be worth to its owner substantially what it cost. Considering the nature of the property, we do not think that this court would be justified, as a matter of law, in setting aside the verdict and granting a new trial, because the plaintiff claimed the damages to be a little more than twice the amount awarded. The •evidence given on the trial, if believed, justifies the verdict which was returned, and might have justified a larger one, or, if the jury in its discretion had believed the evidence of the defendant’s witnesses, who evidently testified to the salable value of the articles as second-hand property, a verdict for a less sum would have been justified. The question of the extent of the plaintiff’s damages, and whether the plaintiff falsely overestimated his loss, were fairly submitted to the jury by the learned trial judge, and, while the case may be a close one, we think the verdict should not be overturned as against the weight of ■evidence.

The hour at which this fire occurred, and the circumstances under which it occurred, were such that the jury were entirely justified in finding that it was not fraudulently set or caused by the plaintiff. At the close of the evidence the plaintiff asked the court to submit eight specific questions to the jury, pursuant to Section 1187 of the Code of Civil Procedure. Whether the trial court will or will not submit specific questions to the jury rests in its sound discretion, and its determination will not be reviewed unless it appear that its discretion has been abused. It wss not proper to ask that eight questions be submitted to the jury in this case, there not being so many issues of fact, and no error was committed in declining to submit the questions proposed.

After looking at the exceptions taken to the admission and exclusion of evidence, arid at those taken to the charge, we find none 4hat seem to be erroneous, or so'close as to require discussion.

The judgment and order should be affirmed, with costs.

All concur.