Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1870-07-06
COURT PROCEEDINGS.

MCorkle & Faunce as. The Cleveland Insur-
ance Company, and rendition of Judgment
for the defendant. It will be remembered
that this case was tried to q jury at h June
term, 1863, and resulted in a disagreement OF
the jury. The case was hen referred TO
Judge Sutliff, TO hear and report upon the
law and facts; and under this order OF refer
ence. q trial was had I'm April last, at this
place. occupying some six days. The case is
one in which the community in and abont
B~aconsburg, indeed throughout the north
eastern part of the county, has taken a very
decided interest, and we have been requested
to report it at length. This is plainly inn
practicable, but wegive such salient features
of the Referees report as seem necessary TO
an understanding Of the case, promising that
so long as it twas probable that the case might
again go 10 jury we omitted any but a gen.
eral reference TO it, but now that it seems
to be understood that if tried again it will
be by the Court or a Referee, no prejudice
can arise TO either party by a more particu-
lar account.
The plaintiffs sued upon a contract OF
insurance for $500, being on stock of hard
ware s4.OOe, and building $1,000, the property
being situate at Baconsburg, in this county.
The policy was dated January %, lS6S, and
was for one year. The premises were totally
DESTROYED by fire, on the night Of the 18th
of August, 1865; and from all the circum-
stances, it was generally conceded to have
been la work of an incendiary. The de-
fences set up and passed upon by the Ref
cree, were: LIST. Intentional LIBERALIZATION
of stock in the application for the policy;
2d. That plaintiffs did not use their best
at the time of the fire, to save the
property, as, by the terms Of the policy, it
was their duty to do; b. That the loss did
not arise by misfortune or accident, but by
design and procurement OF the plaintiffs;
18th. That there was intentional over
valuation Of loss, in the proof of loss pre-
scented by plaintiffs, subsequent to h fire:
so made with the intent to collect of defend
ant a larger sum than the actual loss.
The second and third points were prinei-
pally relied on by the defendant to sustain
the defence, these being based upon the
absence of MCorkle, on the night
of the fire, with the ledger and two day
of the store, and the conduct of the
ether plaintiff at and subsequent to the fire,
the defendant insisting that M'Corkle's alb
sence, under all the circumstances, was
inconsistent with innocence, and the plain
tiff replying that such absence was fully
accounted for on the ground of legitimate,
natural and proper business.
Upon the first point, the Referee reports in
that while it is probable the
plaintiffs did not AVE on hand, when the
policy was applied for, the amount of goods
stated in the application, yet, that being
inexperienced merchants, were
at that time aware of the fact, and, as 4
result upon this issue, he finds for the plain
tihs.
TTpon the second point, the Referee reports
"the proof shows the fire 10 have occur
red about u p. NJ, of the 18th OF August IhaJ
McCorkle was out of town; that
was M his house. some distance nom the
that shortly after u the alarm was
given, and That those in the lmmedlaIe VI
came to the building with the prompt
ness of good citizens, and by forcing a WIN
removed a desk and the papers Whlch
tbev snnposed of particular value contained
that others forced open the front
to make ingress and 70 renoSe g9OISSI'
thar there were two or three kegs OF powder
the building, and that, thereupon, al
from the building and no lur-
Their effort TO REMOVE go4Ss; 5}pia nr neT1
to the ~bystanderS, some % WHOM
to awaiting the explosion with attsn-
tive interest. But the proof shows NAY
Faunce repaired to the building, AFTER notlnd
the alarm given in his vicinity, with the
OF a proprietor, and in adVance
Others in the same house or lmineulate
vicinity, Weakened by the same alarm; Inc
nroof shows powder to have been kept IN the
Store. and there is no proof 70 snow tnat
Faunce had any knowledge OF It's removal;
he testifes that he believed there was PoWder
in the building, and II So, as tne prIoI s1 I'VE
the fire to have been in the room where they
had kept the powder, when Faunce arrived
I and the caution given by him, in regard 70
fhe powder, iustiiahle and proper. In TINS
connection I find the facts, upon the PROOF
made nv Faunee, he left the store about y
o'clock OF the night Of the nres anu rocking
both the front and rear door, FASTENING
all the window blinds, eaTlng no ane ~ III
KEYS, McCorkle having the only otner key !,
that the rear door was bolted on the inner
Siie and that the rear door was proved oy
ot9Ier WITNESSES 10 have been found, during
Sba fra 10 have been Jeff unfastened, ana
that goods were found the next morning,
cutlery belonging to the store toSltNe DSen
dr6uped near the building, lima thaI aIleI
aimee had left the store. and previous 70
me alarm of nre. the store had been clandes-
timely entered, and some goous- anu PIoDa,
bly the powder, taken from the store, anu
the building set on fire by design OF ths PET
son so entering, after Faunce had so left the
h1ildinp. After the goods had been iound
next morning, 1 find upon proc, the iacl
was made known 10 Eapnce OF the nnulne
the goods. and the proposition tlaIe ~
Goods. suggesting that the person uropplne
me- Goods must haYe been the
and he objected TO the proposition, mat lht
insurance company WONG anSa not aing maj Are
wards thesaIne day, being INFORMED OF =
horse having been tied near Town, On az
u~nfreouented by-road u Ieui anu mat !
faw moments before the alarm a buggy HolL
tbat direetion was driven out OF that by-way
onto a road of not much uaNel anu uILNeL
from the town, anu ~SuSSestloI
| made by the neighbor, VINO heaIu Lne pusgS
| mass that he had tracked the same DugSY
fracS TO where the horse had apparently
Stood for a time and been fed, ana tnaI I'M
same uaS probably driven by the
he only remarked, Ike hougn a. NV, nm
nertinent on this issue 10 show thai taunc'
| Aid NOT use his best endeaVofs IL saving ant
! protecting his property from loss Dy Ife. =
more charitable explanation of his seemlni
indiffsrence TO detecting and ringing IN
I incendiary TO Justice, may, have Deen IN
feor m implicafing & friend; or, perhaps, I
| more selfish view OF Inc .a-Se, IesaLGH
| himself well insured, and that pursuit nigh
| he f%ruitlesS and certainly prohtless TO MN
Self under the belief expressed, that IN
4 insurance company would not pay the e1
psuse of pursuit a, Il,
the Referee. Invited q careful attention, no
onIy 10 the evidence n facts ALREADY ad
verified to, but to all the evidence IN reIali9l
to the other partner, McS 6a a1;o1nf of n
Goods in value, at time of loss, was S,1O
IIhat Of the building $3.50; that the 1ndeot
1 edness of the firm was between s0,Oy an
1 So OO0: thai they lost by the nre lnelr oliIs
HDyentories and Two ~day-books; that the
had M clerk. but ATTENDED, 70 the buslnes
themselves, that he LEFT B~aeonspprg aDou
10 A MOI the eth, in a buggy Q
wagon with the ledger n two OF the DAY
bo6ES belonging 10 the store, intending I
90 10 Ashtabula to learn the price OF Moou
work, bent stuff, which they Geatt IN an
/ which was manufactured NJ A~sntaOulsl, an
10 make settlements and collections on
yvay especfaliy Of q Mr.. Bryant, and " 9
three nj Harris CoFners, n a Mr.. barDei
in GQstaYuS, n TO yisit 2 stt; +4SauLeSs ~
cousin, in Denmark; that ne TBS aIra1sS
10 make this Journey two OF three Gay
hef1re. that he got up the horse at about
A NJ. or a little beiOrei alG nlt leu "
horse before starting. nor on the Esyl Hn n
he arrived at Jefferson Oh NJ We 81
and talked with a MI. Brown, about nll
north OF Bradley's, in Johnstoni called 2
Rrvanf's shortly after noon, ana IoI SON
time BRYANT engaged him IN conversation
that he could have no opPorI SIn ~ in :
infoTm Bryant that kG he'd them, as Bryan
promised TO call soon ana P2y Ihlhks y
did not stay long at SrA+ tLol
there mast Harris Orner but dld not tnei
Ell an any debtor, being told by some Inc
or son.a of them were away, unul PAST u
center OF aaStavus, going, west, he met pa
Der in the road ami talked Win MN 4 shHl
fime-fhinks a little af1er2P. NJ, probaDly
then drove to Green, and from gaeilee to Je
ssrSon ARRIVING there about S, perhaps
i! little before. but nearly dark, and the hostit
StabIe. tLat he sta!d around or in the pa
room or ofice until bout o, registered n
name and was lighted 90 bed by ~ PAIN
, that he did not go TO the barn or give an
directions about his horse, or take suppe
thnt he nrnsa in the morning about Q, tt