JOHN OBERSTELLER, Respondent, v. THE COMMERCIAL ASSURANCE COMPANY, Appellant, 96 Cal. 645

Shabpstein, J. — This appeal is from a judgment re- • covered by the plaintiff against the defendant in an action upon a policy of insurance, issued by defendant to plaintiff, against loss or damage by fire of certain property, to wit, six hundred dollars on household furniture, useful and ornamental, four hundred dollars on pictures, paintings, and fire-screens, and two hundred dollars on wearing apparel of self and family,—an amount not exceeding twelve hundred dollars.

One provision of the policy is, that it shall be void “ in case of any fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after loss.” Defendant, in its answer, denied that plaintiff on his part performed all the conditions of said policy, and further answering, alleged, that subsequent to the fire, and prior to the commencement of this action, plaintiff presented to defendant a written statement, subscribed and sworn to, in which he asserted that the damage by the fire to the property insured was $1,845.75, and thereupon demanded payment of the sum of $1,200, the full amount for which said property was insured by defendant.

And defendant alleged that said statement was false and fraudulent, in that the damage to said property by said fire did not exceed the sum of $350. On the trial, the plaintiff, in his own behalf, testified that the property insured and lost by the fire was of the value of two thousand dollars. Defendant introduced evidence which tended to prove that the value thereof did not exceed $350. The court instructed the jury that if they should render a verdict in favor of the plaintiff, then they should find upon the following particular questions of fact: “1.

At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the furniture in said Chenery Street house? 2. At the time of the fire alleged in the complaint, to wit, the fire in the Chenery Street house, what was the cash market value of the pictures, paintings, and fire-screens in said Chenery Street house? 3.

At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the wearing apparel in said Chenery Street house? ” The jury returned a general verdict in favor of the plaintiff for five hundred dollars. In addition to the general verdict, the jury answered the interrogatories propounded to them, as above stated, as follows: “ 1. At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the household furniture in said Chenery Street house? Answer, $250. 2.

At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the pictures, paintings, and fire-screens in said Chenery Street house? Answer, $150. 3. At the time of the fire in the complaint alleged, to wit, the fire in the Chenery Street house, what was the cash market value of the wearing apparel in the Chenery Street house?

Answer, $100.” Immediately upon the entry of the general and special verdicts of the jury, defendant moved the court for judgment for defendant, on the ground that the verdict conclusively finds fraud upon the part of plaintiff, which was not granted, and judgment was entered for the sum of five hundred dollars. The code provides: “ Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly.” (Code Civ.

Proc., sec. 625.) This proceeding is not authorized in any other case; and the general and special verdicts in this case are entirely consistent. The special verdict finds the total value of the property insured and destroyed to be the sum of five hundred dollars, and the general verdict is for that sum, If in their special verdict the jury had found the value of the property to be less than five hundred dollars, and had rendered a general verdict for that or a greater sum, it would as clearly be within the provision above quoted as it now as clearly is not.

All that can now be said is, that the jury found that plaintiff’s loss was not so great as he represented it to be. That was favorable to the defendant. We think that finding was not conclusively a finding of fraud on the part of the plaintiff. Standing alone, it shows that he overestimated his property. Whether or not that vitiated the policy of insurance was a question not involved in the motion for judgment for the defendant upon the verdict.

That motion, as we have before stated, could not be granted on any other ground than the one specified in the code, viz., inconsistency between the general and special verdicts. The motion was properly denied. Judgment affirmed. De Haven, J., and McFarland, J., concurred. Hearing in Bank denied.