Clary v. Protection Insurance

Insurance — fraud—negligence—secreted articles — memorandum articles —watch—new trial. If the loss result from the fraud or negligence of the insured, the loss falls on him. If the insured practice any fraud in obtaining a policy, the risk does not attach. *A policy upon wearing apparel, household furniture, and the stock of a [228 grocery, does not cover sheets, &c., not laid in for the use of the.family,’ or for sale, but smuggled into the country and kept secretly for clandestine sale A watch is a memorandum article, and not embraced in the common policy. On a motion for a new trial, if the party obtaining will reduce its amount to what is right, he may do so and avoid the order for a new trial.

Suit upon a policy of insurance, dated the 5th of November, 1831, upon $600, of stock, household furniture and wearing apparel, in :a grocery and dwelling house, on the northwest corner of Walnut and Columbia streets, Cincinnati, against loss by fire, for twelve months. There are six special pleas and issues not material to set out. The main defence was directed to establish fraud on the part of the ■plaintiff, in the concealment of goods in the first instance; in causing ¡the fire, and that the fire resulted from gross negligence of the plaintiff; and that certain articles for which the plaintiff claimed payment were not within the policy. It appeared in evidence, that when the plaintiff applied to insure, the company sent their surveyor with the plaintiff to look at the property intended to he covered. He was taken through the shop and house. The stock was very small; there was but little furniture, and that was of a cheap kind; the wearing apparel of the family that was shown was of the poorest kind. The plaintiff applied to-insure for $1,200, but 'when told the articles were of trifling value, he said that he expected to increase the stock in a few days, and to-keep it up. A policy was effected for $600 only, and the plaintiff was informed that it would be increased when the stock would warrant it. No Irish linen, or sheets, or shirts, were shown to the surveyor, or spoken of. The store was a grocery, in which it is usual-to keep liquors, wooden ware, slops, and gross articles of most varieties. A fire suddenly broke out about three months after the policy, and everything was burnt up. Compensation was claimed foithe furniture, amounting to about one hundred dollars; for a watch;, for the stock in the shop; and also for three hundred and sixty yards-of Irish linen, nineteen pair fine linen sheets, thirty-eight fine linen, shirts, and a quantity of diaper, which had been smuggled into the-country from Ireland. These articles had never been used, though once washed because they were soiled in the passage. The linens, &c., were said to be stowed away in the garret; they were not used in the'house, nor kept in the store for sale.