Sklencher v. Fire Ass'n of Philadelphia

• Decision Date: 21 March 1905
• Citation: 60 A. 232,72 N.J.L. 48
• Parties: SKLENCHER v. FIRE ASS'N OF PHILADELPHIA.
• Court: New Jersey Supreme Court

60 A. 232

72 N.J.L. 48

SKLENCHER

v. FIRE ASS'N OF PHILADELPHIA.

Supreme Court of New Jersey.

March 21, 1905.

(Syllabus by the Court.)

Error to Circuit Court, Middlesex County.

Action by George Sklencher against the Fire Association of Philadelphia. Judgment for plaintiff. Defendant brings error. Reversed.

Argued November term, 1904, before GUMMERE, C. J., and GARRISON, GARRETSON, and REED, JJ.

Thomas R. Booraem and Willard P. Voorhees, for plaintiff in error. Charles T. Cowenhoven, for defendant in error.

GARRETSON, J. This was an action upon a policy issued by the defendant to the plaintiff, insuring him against all direct loss or damage by fire—$400 on stock of leather and findings, shoes manufactured and in the process of manufacture, cigars, tobacco, and smokers' articles, and $100 on tools, implements, and utensils used in making and repairing boots and shoes, and also on store furniture and fixtures of every description, contained in a described building. A fire occurred, entailing loss, and the action is for the amount of the loss. Upon the trial, exception was taken to the admission of the evidence as to the contents of the store three to five days before the fire. This was evidence tending to show what was in the building when the fire occurred, and, we think, was competent.

Parts of the charge excepted to, as to the manner of the plaintiff's leaving the store, and as to how the plaintiff acted when he was arrested, were within the rights of the judge, as comments on the evidence.

Evidence appears in the case from which it may be concluded that some of the goods insured were stolen from the place where they were during the progress of the fire. The defendant requested the court to charge the jury that the plaintiff is not entitled to recover for any goods which were stolen, or surreptitiously removed, and not burned. The judge charged the jury upon this subject as follows: "Of course, you must understand this: that this plaintiff was under the duty to remove these goods, and to do everything that he could to protect them from fire, and from loss by theft or anything else; but if, before he could remove them, those goods were stolen; if he had no power to prevent the theft; if, by the exercise of ordinary care and caution and prudence, he could not prevent their being stolen—the defendant would be liable for that loss." In so charging, there was error. The policy contained this clause: "This company shall not be liable for loss...