
    JAMES DOLAN, Respondent, v. THE ÆTNA INSURANCE COMPANY, Appellant.
    
      Policy of Reinsurance — when the question of the fraudulent intent of the assured should be left to the jury — when a verdict should not be set aside because the jury has had an unauthorised paper before it.
    
    This action was brought upon a policy issued by the defendant, insuring the . plaintiff’s barn, house, and the personal property, wearing apparel, &c., therein, against loss by fire. It contained a clause providing “that any fraud or attempt at fraud, on the part of the assured, shall cause a forfeiture of all claims under this policy.” Upon the trial, it was shown that there was included in the proofs of loss a-sealskin sacquc, valued at $75, given by some person other than the plaintiff, to his unmarried daughter Mary, who was twenty-seven years old, but. who had. always.resided with and been •provided for by him.- There was evidence to show that the agent of-, the •defendant the insurance company, with knowledge of the facts, had directed ¡the daughter to appraise the sacque, and that it had thereafter been included in the proofs of loss.
    
      Meld, that it was for the jury to say whether or not the plaintiff inserted the sacqne in the proofs of loss, with a willful intent to defraud the defend-ant, and that a verdict in the plaintiff’s favor would not- be disturbed.
    
      Meld,, further, that neither the fact that the plain tiff stated in his proofs of loss that the damage to the building amounted to $1,017.64, while it had been estimated by the appraisers at $694, nor the fact that ho had stated to the agent that the building was worth from $3,500 to $4,000, while it was, in fact, worth less than that amount, was conclusive evidence of an attempt to defraud the defendant, and that the question whether they were or not, was properly left to to the jury.
    The constable having allowed the jurors, after they had retired, to come into the court-room, they, while there, found upon the floor and took back to the jury room with them, a memorandum of the items of damages, made by the plaintiff’s attorney and used by him in summing up. The court, upon the jury subsequently applying to it for instructions, discovered that they had this memorandum, and, upon ascertaining how they had obtained it, took it from them, remarking that they had no right to it and must give no heed to it. The damages, as found by the jury, agreed with the directions contained in the charge of the court, in regard thereto.
    
      Meld, that a motion to set aside the verdict, based upon this irregularity, was properly denied. Mitchell v. Carter, 14 Hun, 448, distinguished.
    Appeal from a judgment in favor of tlie plaintiff, entered upon .a verdict rendered at the Cayuga Circuit, and also from an order ■denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried; also, from an order ■denying a motion to set aside the verdict for an alleged irregularity, in respect to the possession, by the jury, of a paper containing a ¡statement of the items of damages.
    The action was upon a policy of insurance issued by the defendant on July 15, 1876, insuring the plaintiff against loss by fire, •on his house in Auburn for $2,500; on the personal property, wearing apparel, &c. therein, for $1,500 ; and on his barn, for $500.
    A fire occurred on September 5, 1876, which partially consumed the house and personal property. Proofs of "loss were presented -on October 14, 1876. The jury rendered a verdict for $1,822.66. The defendant alleged that the fire was fraudulent and felonious, having been set by the plaintiff, or with his knowledge or connivance. And also that the plaintiff fraudulently misrepresented the value of the house at the time the policy was procured. One Mealier was defendant’s agent in Auburn, and had his place of business in the Auburn Savings Bank.
    
      E&wvn Hieles and H. V. Howland, for the appellant.
    The conduct of the jury on the trial, in obtaining the memoranda made by the plaintiffs counsel, was irregular, and their verdict should be set aside. {Drew v. Andrews, 8 Hun,' 23 ; Mitchell v. Canter, 14 Id., 448 ; Hiél v. Abel, 24 Wend., 185 ; Hancock v. Salmon, 8 Barb., 564, 566; Watertown, &c., v. Mix, 51 N. Y., 561; Schnapper v. Railroad Co., 55 Barb., 497; Sanders v. Bowen, 9 Iiun, 153.) It is not necessary for a party to show prejudice, where such irregularity and misconduct has taken place. Men’s minds will unconsciously be influenced by sxich statements, in writing, when put before them as jurors. (1 Hill, 211; 45 Barb., 98; 17 Mass., 218; 7 Com. L., 433 ; 29 Barb., 226; 51 Id., 346; 20 How. Pr., 384.) Dolan attempted, knowingly and fraudulently, in his proofs of loss, to obtain of the defendant, and to claim of them under oath, far more than his real damages and loss to his house, and for this reason his whole claim was forfeited. (Wood on Insurance, § 429, and cases there cited ; Hickman v. Long I. Ins. Co., Edm. Sel. Cas., 374; Wolf v. Goodhue F. Ins. Co., 43 Barb., 400 ; Unger v. People's Ins. Co., 4 Daly, 96.) The evidence shows that the plaintiff must have set these incendiary fires himself, and that the verdict in his favor ought not to be sustained. {Adsit v. Wilson, 7 How. Pr., 64; Clark v. Richards, 3 E. D. Smith, 89 ; Mwmford v. Smith, 1 Cai., 520 ; Vance v. Philips, 6 Hill, 433; Jackson v. Sternberg, 1 Cai., 162 ; Cohen v. Dupont, 1 Sandf., 260.)
    
      Frank D. Wright, for the respondent.
    The court properly denied the motion to set aside the verdict on account of the jury having taken the memorandum. {Lonsdale v. Brown, 4 Wash. C. Ct., 148; Rix v. Burdett, 1 L. & B., 148; 21 Yennont, 515; 1 Graham & Waterman on New Trials, 47; Anson v. Tinsley, 19 Geo., 303 ; Higgins v. Brown, 12 Iuv 277; Morris v. Howe, 36 Iowa, 494 ; Tracy v. Card, 2 Ohio [N. S.], 431.) ■
   Hardin, J.:

The policy of insurance provides, viz.: ■ And any fraud or attempt at fraud, on the part of the assured, shall cause a forfeiture of all claims under this policy.” The defendant insists that the plaintiff, in submitting proofs of loss, violated this provision of the policy, and therefore, ought not to recover. At the time of the fire, Mary Ann Dolan, a daughter of the plaintiff, was residing with him, and had continued so to do after she was twenty-one, as before, a member of his family; he provided for her as for his other children, though she was twenty-seven years of age. Several articles used by her and provided for her wearing apparel, were named in the proofs of loss. Among them was a set of fursj valued at $75, which were given her by a person not a member of the plaintiff’s family.

The trial judge instructed the jury. The plaintiff cannot recover for the sealskin sacque and furs, if the jury find that they were given to her by some other person than her father.” He submitted to the jury the question as to ownership of the other set of furs or sacque, and instructed the jury that the plaintiff “ is only entitled to recover for such wearing apparel as was his.” He also told the jury that if the father had given it to her out and out, he had no title to it.”

We think the ruling and instructions correct. But it is insisted that, by claiming, in the proofs of loss, these furs and other articles of wearing apparel, furnished by the father for the daughter, a forfeiture was caused of all claims under the policy. ¥e cannot so hold as a matter of law. The question of fraudulent intent in regard to the proofs of loss were submitted very fully to the jury, and we ought not to disturb their finding in that regard. (Wood on Insurance, § 429, p. 744; Wolf v. Goodhue Fire Insurance, 43 Barb., 400.)

There was evidence that the sacque was appraised by Mary Ann a few days after the fire, by the direction of Mr. Stowell, the agent of the company, and also to the effect that he was then informed as to the circumstances attending the plaintiff’s possession of it, and that it was given by some person to his daughter. This information the defendant’s agent had, at the time he told her to appraise it, which was prior to the formal proofs.

It was for the jmy to say whether there was any willful intent to defraud the defendant by inserting it, with the other articles appraised by the agent’s direction, in the proofs of loss subsequently submitted to the defendant. The defendant insisted that the fire was caused by the knowledge, act, or procurement of the plaintiff. There is no direct proof to sustain this allegation. Circumstances •and events are relied upon. It is said the house was over insured, and opinions of witnesses are introduced to establish that it was not worth more than $1,200 or $1,400.

The property was minutely described and all the facts relating to its age, its construction, its situation, were developed. The fact that for many years it had been insured for $2,000, and that this new policy was written for $2,500 ; that an estimate had just before been obtained as to the probable cost of changing it over, and that the house was set on fire in four places, and that kindling wood, or split boards were used to light the fire, and that three of the fires were set near plaintiff’s sleeping-room, and many other circumstances tending to give rise to the suspicion that the plaintiff caused his house to be fired, were given in evidence. Standing uncontradicted, they tend to lead the mind to condemn the plaintiff as the guilty author of the fire. But he took the ntand and contradicted the principal allegation, by giving evidence to the effect that he did not cause or procure the fire to be set.

lie had previously been examined before a sheriff’s jury, and upon a former trial of this action. Upon this trial he did not remember some things he had previously stated, and he varied his evidence in some particular points, and contradicted some evidence given, by other witnesses. Under such circumstances, the trial judge submitted all-the evidence very cautiously and clearly to the jury, with.instructions to find for the defendant, if they believed the plaintiff caused the' house to be burned. They have found, upon a full consideration of the evidence, that he was not the author of the. fire. Though we might have come to a different conclusion upon the case after reading the evidence, we cannot now say that the trial judge erred in holding that a fair question of fact was presented for the determination of the j7-

We do not see that the verdict is against the weight of the whole evidence upon the question involved, to such an extent as to justify our interference with the province of the jury. They are -the judges upon conflicting evidence. We must adopt their result. (Adsit v. Wilson, 7 How. Pr., 64.) Although Stout and Spring-stead, the chosen appraisers, estimated, the day after the fire, the •damages to the building at $694, and the assured, on October 14, 1876, submitted proofs of loss, in which he stated the damages at $1,017.64, we do not think it was error to submit to the jury, whether such proofs were fraudulent, or made with a willful intent to defraud the company. It was the opinion of the assured that his loss was greater than the estimate thereof made by the appraisers. The company knew of the appraisal, and it is difficult to see how any deception was intended ujDon the part of the assured.

Though, as a matter of law, as the trial judge properly held, he was bound by the appraisal, the claim may have been in the entire faith and honest belief that the damages were $1,017.64, instead of $694. The jury having found that there was no fraudulent and intentional over-valuation of the loss, we do not feel at liberty, under the evidence upon the question, to disturb their verdict. (Wood on Insurance, 429, § 220, and eases cited.)

There was evidence given tending to show that the assured represented the house to be worth $3,500 or $4,000. This was controverted, and the plaintiff claimed, as a witness, that he did not state its value over $2,500. The agent who wrote the policy had his place of business only a few streets from the insured prop•erty, and it is difficult to supjjose he was free from negligence if he wrote the policy, without personal knowledge of its situation and value. But suppose that he did, then it was a question of fact upon the evidence for the jury to determine whether the assured, in stating the value of the house, was guilty of “ an intentional and fraudulent over-valuation,” or whether it was an honest error of judgment, or a mistake. (Insurance Co. v. Weides, 14 Wall., 375; Franklin Ins. Co. v. Vaughan, 92 U. S., 516.)

It is urged that the court committed a fatal error in receiving tbe evidence of Yanderbascbe, tbat be bad made an estimate of tbe damages caused by tbe fire, and that the estimate was careful. Totbe proof of tbe amount of tbe estimate an objection was taken by tbe defendant, and tbe question was reserved. At a later stage of tbe case tbe evidence was again offered, and tbe court, upon tbe defendant’s objection, excluded it, and ruled that tbe parties were bound by tbe agent’s appraisal. It is now urged tbat where illegal evidence, properly excepted to, has been received during the trial, it must be shown tbat tbe verdict was not affected by it. If tbe evidence may Lave affected tbe verdict, the error cannot be disregarded. (Erben v. Lorillard, 19 N. Y., 299.)

Applying tbat rule to tbe rulings under review, we think no-fatal error was committed. Tbe amount of tbe estimate was excluded, and it therefore did not affect tbe verdict. Tbe fact that an estimate bad been carefully made by tbe witness could not affect tbe verdict. It did not affect tbe minds of tbe jury upon tbe question of damages, or any other question in tbe case. (Williams v. Fitch, 18 N. Y., 546; Clark v. Crandall, 3 Barb., 613.)

It is insisted tbat it was error to receive tbe evidence of Mary Ann Dolan, as to articles of personal property and their value. Tbe objection was “ tbat damages must be arrived at in tbe manner provided by tbe policy.” Tbat is tbe only ground of Objection which can now be considered. (Tooley v. Bacon, 70 N. Y., 34.)

Soon after tbe fire Mr. Stowell, as agent of tbe company, proceeded to investigate tbe fire and ascertain tbe loss. The witness, Mary Ann, testified tbat “ Mr. Stowell told her to appraise she then did so, with tbe aid of her mother. Certainly it was competent for tbe company to arrive at tbe damages in that mode, and after tbe estimate or appraisal was so made, it was competent for tbe plaintiff to give evidence thereof. It was not error to receive such appraisal in connection with tbe explanations given in connection with it.

It appeared by the evidence of Springstead, who was called by tbe defendant, tbat he and bis partner pulled down tbe old bouse after the fire, and built a new one “ a little larger and considerably higher than tbe old bouse.” Tbe defendant then asked, “Do you know what was tbe cost of tbat bouse.” Tbe plaintiff objected, and tbe court sustained tbe objection. Tbe knowledge of the witness upon that subject did not appear to be competent or material to any.issue before the court. (Gouge v. Roberts, 53 N. Y., 619.)

It is now argued that the evidence should have been received upon the question of motive. If there was any view in which such evidence could be pertinent upon the question of motive, the attention of the trial judge should have been directed to it. We think the ruling was correct. When F. M. Smith was giving evidence of the estimate and appraisal made by him, he spoke of his estimate as containing missing goods, and he said “ $6.57 would be the value of the goods that were missing, based upon what they showed me.”

This was objected to, and the objection sustained, as we read the case. Then the plaintiff offered the appraisal, Exhibit M. This was objected to and received, and the defendant took an exception. The exhibit contained items for goods missing, $6.57, and we do not see any predicate for their recovery in the evidence.

To the extent of $6.57, we think the appraisal was erroneously received. We must, therefore, allow the defendant the benefit of this erroneous ruling, which we may do by requiring a stipulation that it (with interest upon it) be stricken from the damages. (Birkbeck v. Burrows, 2 Hall, 51.)

II. The appeal from the order refusing to set aside the verdict for irregularity, brings before us an inquiry as to what the effect was, or might possibly have been, made upon the minds of the jury, by a summary of the items of damages, which was obtained accidentally by the jury. It had been used by counsel for the plaintiff, in the course of his address to the jury, and apparently left by mistake on the table or floor, where he stood when addressing the jury. While they were retired, they were allowed by the constable, during the night and Sunday, to return to the courtroom, and they picked up the summary. After they came in possession of it, they had occasion to go into court for instruction. While before the court, the judge discovered that they had the summary, and asked the jury where they obtained it. They explained, and he then took it from them, remarking to them that they had no right to the paper, and they must give no heed to it.

They retired, and subsequently agreed upon their verdict. Under such circumstances, it is fair to presume they obeyed the instruction that was given them by the judge. ’ But upon looking into the paper, we find nothing upon it that could, by any possibility, relate to any question in the case, except the one of damages, that was not the subject of contradicting evidence offered by the defendant; and under the proofs in the case, we have come to the conclusion that the amount of damages was clearly warranted by the evidence.

Our attention has been directed to our decision in Mitchell v. Carter (14 Hun, 448), where we sustained an order setting aside a verdict because the jury had the minutes of the trial judge. We think this case is unlike that in the important particulars we have stated, as we must presume that the jury obeyed the instructions of the trial judge to give no heed to the summary of the figures showing the amount for which the recovery should be had.

Besides the judge had instructed the jury, without exception, save as to the claim of $75 for the sacque, that the recovery should be for the sum which the jury gave. We ought, therefore, to apply the rule which requires us to disregard such irregularities as we can see did not influence the jury in reaching theif verdict. (Code Civ. Pro., 1003.) We think the Special Term properly denied the motion based upon the alleged irregularity. These views lead-us to reverse the judgment and orders, unless the plaintiff shall stipulate to strike out $6.57 and interest thereon, from the time when the loss became payable, in which ease the judgment, as modified, will be, with the orders appealed from, affirmed.

Judgment and .orders reversed, and a new trial ordered, with costs to abide the' event, unless the plaintiff shall stipulate to deduct the sum of $6.57 and interest thereon, from December 14, 1876, in which case tiie judgment, as so modified, and the orders, arc affirmed.

Talcott, P. J., and Smith, J., concurred.

Ordered accordingly.  