On appeal from the Supreme Court.
For the plaintiff-respondent, King & Vogt.
For the defendants-appellants, Lum, Tamblyn & Colyer.
The opinion of the court was delivered by
WELLS, J. These are appeals from judgments entered upon verdicts in the Supreme Court in favor of the plaintiff.
There were four suits, three of which were on fire insurance policies covering the plaintiff's residence in Morristown, and the fourth on a policy covering the personal property in said residence.
These two appeals raised the questions presented in the four cases and the judgments in the other cases will follow this.
The facts briefly are as follows: On Friday evening, August 5th, 1932, between ten and eleven o'clock, a fire evidently of incendiary origin, broke out in the plaintiff's house and partially destroyed it and greatly damaged its contents.
During and after the fire, nine wooden kegs of gasoline, some burned out and some intact, distributed at various points in the house, containing in the aggregate approximately forty gallons of gasoline, were found by the firemen.
The house was vacant at the time, the plaintiff's family being away on a vacation in Massachusetts.
Some nine or ten hours before the fire, the plaintiff, his secretary and an employe had left the premises, leaving the door leading into the cellar unlocked but closed, and the plaintiff then departed for Massachusetts and was there at the time the fire occurred.
It was the contention of the insurance companies that the fire was set by the plaintiff, but an examination of the testimony discloses no evidence of that fact nor is there any evidence that the plaintiff in any way arranged with anyone else to set the house afire or in any way acquiesced in it or had any knowledge thereof.
The appellants' first point is that the court erred in refusing to direct a verdict in their favor, on the ground that in an examination submitted to by plaintiff before the trial under the terms of the policy, the plaintiff swore falsely.
The policy was of the standard form and contained the usual clause, namely, "this entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured ...