Thornton v. Security Ins Co.
| Decision Date | 11 September 1902 |
| Docket Number | 1. |
| Parties | THORNTON v. SECURITY INS. CO. |
| Court | U.S. District Court — Middle District of Pennsylvania |
E. N Willard and John McGahren, for plaintiff.
Jno. T Lenahan and M. J. Martin, for defendant.
It was provided by the policy in suit that 'if fire occurs the insured shall * * * protect the property from further damage and forthwith separate the damaged from the undamaged personal property, and put it in the best possible order ' There was evidence from which the jury might have found that this was not observed by the plaintiff in the present instance, and the court was therefore requested to charge in the defendant's third point that, if he failed in this duty, he was not entitled to recover. The court affirmed the duty, but denied the result claimed, charging simply that while the plaintiff could not recover for any loss which was occasioned by his neglect to care for the property, he might have a verdict, notwithstanding it, for whatever there was over and above it. The question is whether this instruction was correct. The authority relied upon to sustain it is Wolters v. Assurance Co., 95 Wis. 265, 70 N.W. 62, but the decision in that case has reference to an entirely different provision of the policy. The stipulation there was that the company should not be liable for loss caused directly or indirectly by the neglect of the insured to use all reasonable means to save and preserve the property at the time of the fire. This, it is submitted, was an unnecessary provision, and must be regarded as introduced out of extra precaution. Every policy holder is bound to do all that he reasonably can, in case of a fire, to preserve and protect the property insured, and cannot, therefore, hold the company liable for loss which is traceable to a disregard of that duty. But it was rightly held, construing this provision, that, as there was nothing which made the neglect of the insured an avoidance of the policy, the stipulation was sufficiently enforced by directing the jury to disallow for the loss of anything that was occasioned by it. But the case cited does not touch the one in hand. The law which is really applicable is to be found in Oshkosh Match Works v. Manchester Fire Assur. Co., 92 Wis. 510, 66 N.W. 525. It was made the duty of the owner there, as here, if a fire occurred, to 'forthwith separate the damaged and undamaged personal property, put it in the...
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