The Franklin Ins. Co. v. Culver

• Decision Date: 28 May 1855
• Citation: 6 Ind. 110
• Parties: The Franklin Insurance Company v. Culver
• Court: Indiana Supreme Court

6 Ind. 110

The Franklin Insurance Company v. Culver

Supreme Court of Indiana

May 28, 1855

From the Johnson Circuit Court.

The judgment is affirmed, with 5 per cent. damages and costs.

F. M Finch and S. Major, for appellant.

G. M Overstreet, A. B. Hunter, L. Barbour and A. G. Porter, for appellee.

OPINION

Davison J.

Assumpsit by Culver against the Franklin Insurance Company, upon a policy against fire, for 1,400 dollars, on a store-house and stock of goods, viz., 200 dollars on the house and 1,200 dollars on the goods. The policy was issued March 10, 1852, for one year from that date, and on the 3d of April following, the store-house, with all the goods, was consumed by fire. Plea, the general issue. Verdict in favor of the plaintiff for 1,200 dollars. New trial refused, and judgment.

The policy, among other conditions, contained the following:

"Persons sustaining loss by fire, shall forthwith give notice thereof in writing to the company or their agent, and, as soon after as possible, deliver as particular an account of their loss as the nature of the case will admit, (and if within their power, render to the company a schedule of articles destroyed or damaged, stating article by article,) signed with their proper hands; and they shall accompany the same with their oath or affirmation declaring the said account to be just," &c.; "also, what was the cash value of the subject insured," &c. "And whenever required in writing, the insured shall produce an exhibit of their books of account and vouchers to the insurers, in support of their claim, and permit extracts and copies thereof to be made," &c. "Any fraud or false swearing by the insured shall cause a forfeiture of all claims, and shall be a full bar to all remedies under the policy."

The property destroyed, and its value, was stated by Culver, under oath, to be as follows: "One-story frame store-house, 200 dollars. Dry goods, 1,000 dollars. Groceries, 150 dollars. Queensware, 25 dollars. Hardware, 25 dollars. The whole, 1,400 dollars."

His statement further shows that all the bills of goods purchased by him were consumed by the fire, and he was, therefore, unable to make out an invoice of the items and cost of each article destroyed; but that to the best of his knowledge and belief, the above was true and just; and that the fair cash value of said house and goods was between 1,400 and 1,500 dollars, according to the best of his judgment.

All the evidence is not set out in the record; but it was shown that the plaintiff's invoices were consumed with his goods, and that he had no copies; that the defendants' secretary had called on him to sign an instrument in writing, requesting the persons from whom he had purchased the goods to furnish the amounts of the invoices, but that he declined doing so.

In relation to this evidence, the Court charged, that "if the plaintiff furnished the names of the merchants from whom he had purchased, he did all that was his duty prima facie. Had the defendant applied to the names furnished for copies of the invoices, and they had declined furnishing them, without the plaintiff's...