The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-09-12

aged from the Undamaged Goods.
Case Was Tried at March Term.
Judge r. w. Archibald yesterday
granted new trial in the case of r.
NJ. Thornton, of Wilkes Barre, against
the insurance companies.
The case was tried at the March term
of the United States Circuit court in
this city, and verdict for the PLAINTIFF
| in the sum of $3150 awarded.
The defendant companies asked for Il
new trial on the ground that the court
erred in not directing that the defend
ant forfeited all claim to reimburse
| nent because he failed to comply with
a provision of the policies requiring
| that, in case of fire, the insured shall
protect the property from further dam
age and separate the damaged property
from the undamaged and put it in the
best possible order.
Court ruled that IL was the duty Of
the insured to do this, but denied that
| a failure to do so worked a forfeiture.
Judge Archibald now decides that the
jury should have been instructed that
such neglect worked forfeiture. The
| opinion reads as follows:
1t was provided by the policy in suit
| that: "1f fire occurs, the insured shall
protect the property from further
damage. and forthwith separate the
| damaged from the unchanged personal
property. and put 1t 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 pres
ent instance and the court was there
fore requested to charge in the defend
ants third point that If he failed in this
duty. he was not entitled to recover The
court affirmed the duty, put 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.
The question is whether this instruction
was correct.
The authority relied upon to sustain 1t
Is Woltere VS.. Western Assurance Co.,
95 Wis. 265 but the decision in that case
has reference to an entirely different pro-
vision of the policy. The stipulation
there was that the company should not
be liable for loss caused directly or in
directly 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 un-
necessary provision. and must be re-
garded as introduced out of extra pre-
caution; every policy hoiGer is bound to
do all that he reasonably can in case of
a fire to preserve and protect the prop
erty insured, and cannot, therefore, hold
the company liable for ioss which Is
traceable to a disregard OF that duty.
But it was rightly held. constituting this
provision, that as there was nothing
which made the neglecr of the insured
an avoidance Of the policy. the stipula-
tion was sufficiently enforced by directing
the jury to dsallow for the loss of any,
thing that was occasioned by 1t.
But the case cited does not touch the
one in hand. The law which is really ap-
plicable is to be found in Oshkosh Match
Co. vs. Manchester Fire Assurance Co..
92 Wis. $40. 1t was made the duty of the
owner there, as here. If the fire oc-
CURED. to forthwith separate the dam
aged and undamaged personal property.
put it in the best possible order [andl
make complete inventory of the same"
and having failed to do so. 1t was held
that this was breach of the conditions
of the policy. and worked a forfeiture.
1.-THE conditions referred to are substan-
tial and important" says Pinney, j.,
land are designed, among other things.
to enable the company to fairly investi-
gate and ascertain the loss. and to de-
tect dishonesty and fraudulent prac-
tices. They were conditions for the pro-
lection of the company, to be performed
after the loss. and until performed or
performance had been Gury waived, no
recovery could be had on the policy. We
must regard these provisions as having
been deliberately agreed to, and with the
understanding that they We're material
and would be performed accordingly; and
1t is the duty of the court to give full
effect to them as writetn."
There can be no question as to the
Il Nf AL,
ton in question is absolute, and must he
observed as a condition precedent to "A
recovery. II is not introduced into the
policy so much for the purpose of keep
ing down the loss, as to enable the COM
pany to ascertain with some degree OF
accuracy just what the loss Is. And 1t
must be as strictly observed as any of
the other provisions with which 1t is
directly associated in the context. such
as the immediate notice of the fire. the
furnishing of satisfactory proofs of loss
within a specified time. or the submis- !
sion to an examination under oath, and !
the production of books and papers, If |:
required. All these are unquestionably to !,
he complied with unless excused, and |
they are not to be distinguished in char
acter from the one under discussion.
1t is no answer to say that the plain |
tilf complied with these requirements so |
far as he was able, being prevented, as
he claims, from anything further, by the
of the company's adjuster
and local agent. That was question fer
the jury. and should nor nave been with
drawn from them as it was by the in
structions given, They should have eN- !
pressly told, IN the language of the point.
that If the plaintiff failed in his duty in
not separating the damaged and undaE,
aged goods, he was not entitled to re-
cover. The rule is made absolute and
new trial is awarded.