The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1907-01-23
ADJUDGES PAINT IN
FIRE INSURANCE
Court Holds That Company
Forfeited Right to Obtain
Claimants Proof of Loss
VICTORY FOR BERGIN

The suit of Thomas ]. Bergin VS.. The
Commercial Union Assurance Gem
pany, Limited, of London, was con-
tiRued yesterday before Judge Whitson
in the United States Circuit Court.
Bergin brought suit against the COM
pany to recover $1,000 insurance upon
building at 211 California street and
which was burned down on April Is.
1t was shown that several years ago
certain corporations secured the en-
actment of q law whereby in an action
to recover insurance the attorney for
the company could ask many subsidiary
questions Of the Jurors as to where
the fire in issue originated. The law
provides that II the Jurys verdict
should be inconsistent with their re-
plies to the interrogatories the verdict
should be set aside.
At the special session OF the Legisla-
ture called last year by Governor Par
dee an effort was made to repeal the
law, but the move was unsuccessful.
At an early stage OF the present trial
Carrot McEnerney, counsel for Bergin,
raised the point that the law in ques-
ton was not applicable to cases on
trial in the Federal courts. Judge
Whitson announced that the Supreme
Court Of the United States had decided
that the statute was not applicable to
the Federal courts.
Attorney Van Ness, counsel for the
defense, remarked that United States
District Judge Beatty OF Idaho. sitting
in the United States Circuit Court in
San Francisco, had ruled the other way.
Judge Whitson replied that he relied
upon the Supreme Court decision never
theless.
The efforts of the defense had been
directed to show that the Bergin fire
originated from flames in the Sachs
building at pa Sansome street and that
the Sachs fire was caused by a crossing
of electric light and power wires in
the basement and that the tangling Of
wires was caused by the earthquake.
Evidence had been introduced to show
that smoke was seen issuing from the
basement twenty or twenty-five min
utes after the cessation of the earth
quake shock.
This theory was attacked by Nc
Enerney. He placed upon the stand
Henry IL Thompson, foreman Of Sta
ton Of the San Francisco Gas and
Electric Company, on Jessie street, who
testified that he and other employees
shut off the power from Station c i'm
mediately upon the cessation of the
shock.
At the close Of the testimony Van
Ness stated that Bergin, according to
his own testimony, had not complied
senting to the company his proof of
loss. The policy required the insured
TO render to the company a sworn
statement of his knowledge or belief
as TO the time and origin of the fire.
Judge Whitson ruled that the in
surance company by reason of its de-
NAL Of liability, had dispensed with
the requirement that proof of loss
should be made by the insured He
said further that his view was that
the jury should be instructed that the
plaintiff had, as a matter Of law,
made out a prima-facie case, and that
the evidence. except in so far as il
related to the exception, placed the
burden upon the insurance company
TO show that the case was within the
exception.
Van Ness asked whether the court
would instruct the jury to give a YER
dict for the company should they be-
lieve from the evidence that a fire.
started by the earthquake, spread
until IL reached the Bergin house and
consumed it. Judge Whltson replied
that he would so instruct the jury.
The case will be continued today.