Wolf v. Goodhue Fire Insurance , 1864 N.Y. App. Div. LEXIS 145 ( 1864 )

James C. Smith, J.

Atieran attentive consideration of this case, I am of opinion that the order for a new trial should be reversed. The order was made, as appears by the opinion contained in the printed case, upon the ground that the verdict is inconsistent with the belief of the jury in the honesty of the Engleharts, or the absence of fraud or perjury on their part, in the preparation of the preliminary proofs; or, in other words, as the verdict is for only $412.27, it shows conclusively, that the jury believed that the Engleharts fraudulently stated their loss at more than $3000, and therefore the verdict should have been in the defendant’s favor. I think, however, this assumption is not absolutely correct. The most that can be claimed is that the verdict establishes one of the following alternative propositions : (1.) That the jury, believing the allegation of fraud to be true, erroneously found for the plaintiff; or (2.) That disbelieving that allegation, they erroneously rendered a verdict for a much less sum than the plaintiff was entitled to recover. If either of these propositions is to be regarded as established by the verdict, it would seem to be the latter, according to the intendment of law that a verdict settles in favor of the prevailing party every question of fact litigated upon the trial. We are not to intend that the jury found either of the issues in favor of the unsuccessful party, for the purpose of overturning their verdict. On the contrary, we are required to hold that every issue was found against the unsuccessful party, if necessary to sustain the verdict. But if the jury gave the plaintiff less than he was entitled to recover, upon the finding of the issues, that is an error of which the plaintiff, alone, can complain. If he submits to the verdict, the defendants can not be heard to insist that it shall be set aside because it is unjust to the plaintiff. The argument on which the defendants’ motion for a new trial is based virtually concedes that if the verdict had been for the whole amount insured, it could not have been disturbed; but such increase would not have affected the character or weight of the evidence furnished by the verdict, that the jury believed the allegations of the plaintiff upon oil the issues, to be true. If upon a new trial the plaintiff should recover a verdict for the whole amount of his insurance, upon precisely the same evidence now before us, it is safe to assume that the verdict would not be set saide. I think, therefore, the order granting a new trial on the application of the defendants should be. reversed on the ground that the verdict, by intendment of law, finds all the issues of fact in favor of the plaintiff, and its only error is one which the plaintiff alone can be heard to allege.

But if we could overlook the legal intendment above adverted to, and indulge in speculations as to whether the jury did not in fact decide the issue of fraud against the plaintiff, although they found generally in his favor, I should hold that the defendants’ claim in that respect is not established by satisfactory evidence. The amount which the plaintiff claimed to recover was not the entire value of the property destroyed or damaged, nor the one half of it, but simply the amount insured by the defendants’ policy, to wit. $1000, with interest, perhaps, in the discretion of the jury. (1 John. 315, 406. 23 Wend. 525.) Hine hundred dollars of the insurance was on the “stock of watches,'clocks, jewelry and tools,” and one hundred on the “fixtures, show cases, and furniture.” Many of the items set out in the schedule contained in the proofs of loss were not covered by the terms of the policy, as appears by a comparison of the two instruments. It is evident, therefore, that the amount of the verdict does not necessarily indicate the valuation which the jury put upon the entire property destroyed by the fire. It is also to be borne in mind that the property consisted of a variety of articles kept in a retail store, many of them in packages and drawers, out of the view of customers or casual observers, and that most of them were of such a description that different witnesses might honestly entertain widely differing opinions as to their value. In these circumstances it seems to me we should hardly be warranted in assuming that the excess of the valuation of the articles covered by the policy stated in the proofs of loss over that found by the jury, is of itself conclusive evidence that the former was fraudulently made.

But, to present the case in the most favorable light for the defendants, let it be assumed that the verdict is the result of a compromise of opinions on the part of the jurors; that some of them were of opinion the fraud was established, and others thought it was not, and that the verdict is not what either of them alone would have rendered, and is not, in amount, the logical result of any possible findings, is it for that reason to be set aside ? It may be the result of a deliberate and unanimous conviction that an agreement upon the extreme ground taken by either of the litigants was impracticable, and that it was far better for them, and for the public interests, to terminate the controversy by the verdict that was rendered, than to prolong it by a disagreement. I am not prepared to saj- that in a case of unliquidated damages such a mode of reaching a verdict is to be condemned. On the contrary, I am apprehensive that if we send this case down to another jury we shall set a precedent which, if generally followed, will lead to very embarrassing and mischievous consequences. At the same time it is proper for me to say, that while I do-not think we should interfere with the verdict, I am not altogether satisfied with it. Probably it is not such a decision as any one of the jurors would have come to, if the cause had been tried before him alone, as a referee. ■ But .that is merely saying that a verdict is the result of the deliberations of twelve men, and not of one. If the verdict' in this case had been attained by any arrangement among the jurors which made it the result of chance, it of course would not be allowed to stand. But as it is not shown to have re-suited from any irregularity, or improper motive, and as it does not violate any rule of law, at least to the prejudice of the defendants who alone seek to get rid of it, I am unable to assent to the order setting it aside.

[Monroe General Term, December 5, 1864.

Welles, J. concurred.

E. D. Smith, J. dissented.

Order reversed.

Welles, E. Darwin Smith and James G. Smith, Justices,]