N. Y. Jobbing House v. Sterling Fire Ins. Co. et al., 54 Utah 394.

The requests were properly refused.

5

by the court. They were not correct statements of the law applicable to this case. If we were to concede that they were proper, the refusal to instruct as requested would still not be prejudicial error, because the instructions given were full and clear and covered every issue and every phase of the case. We find no error in the record.

The judgment is affirmed at appellant's costs.

CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ., concur.

NEW YORK JOBBING HOUSE v. STERLING FIRE INS. CO. et al.

No. 3329. Decided April 28, 1919. (182 Pac. 361.) Rehearing Denied July 11, 1919.

1.

2.

ACTION-CONSOLIDATION OF ACTIONS-IDENTITY OF PARTIES. Actions by the same plaintiff against different insurance companies to recover varying amounts under separate policies for losses sustained in the same fire cannot be consolidated for trial under Comp. Laws, 1917, section 7219; the parties not being the same. (Page 399.)

STATUTES-ADOPTION OF STATUTES OF SISTER STATE-CONSTRUCTION. Where the provisions of a statute of a sister state are adopted, the adoption is made with construction placed upon it by the courts of the state from which it is adopted.1 (Page 401.)

3. APPEAL AND ERROR-REVIEW-HARMLESS ERROR. Consolidation for trial of actions by the same plaintiff against different insurance companies to recover varying amounts as losses in the same fire, although not authorized by Comp. Laws 1917, section 7219, is not reversible error in the absence of showing of prejudicial error in the final result, in view of section 6622, requiring errors or defects to be disregarded which do not affect the substantial rights of the parties.2 (Page 403.)

1 Dixon v. Ricketts, 26 Utah, 215, 72 Pac. 947.

2 Barton Bros. v. G. J. C. M. & M. Inst., 10 Utah, 346, 37 Pac. 576; Doyle v. West Temple Terrace Co., 43 Utah, 277, 130 Pac. 103; Miller v. Gray, 50 Utah, 224, 167 Pac. 358.

4.

5.

6.

7.

Appeal from Third District.

In an

INSURANCE-FIRE INSURANCE-EVIDENCE-ADMISSIBILITY.
action on fire insurance policies, where defendants alleged fraud,
misrepresentation, and concealment in the proof of loss, evi-
dence by plaintiff's manager that several insurance companies
had inspected plaintiff's stock before the policies were written
was admissible as tending to show that plaintiff at the time
the policies were written had on hand the amount of merchan-
dise claimed. (Page 403.)

APPEAL AND ERROR-REVIEW-HARMLESS ERROR. In an action
on fire policies written by several companies wherein defend-
ants set up fraud in the proof of loss, evidence by plaintiff's
manager that agents of other companies had inspected plaintiff's
stock before the policies were written held not prejudicial be-
cause it proved nothing for or against defendant companies,
which had failed to inspect plaintiff's stock. (Page 403.)
EVIDENCE-OTHER TRANSACTIONS-FIRE INSURANCE. In action
on fire policies brought against several companies, exclusion
of evidence that a representative of another company not a
party to the action had inspected plaintiff's merchandise be-
fore the fire and had canceled policies, giving reasons and pur-
poses therefor, was proper, the court stating that witness could
testify as to each and every item of investigation that he made
concerning the value of the stock, the value of the stock being
the material issue and not reasons and purposes in canceling
policy. (Page 404.)
INSURANCE-FIRE INSURANCE AMOUNT OF Loss-EVIDENCE-
SUFFICIENCY. In an action on insurace policies, where defend-
ants set up fraud, misrepresentations, and concealment in the
proof of loss, evidence held to sustain a finding for plaintiff as
to the amount of merchandise lost. (Page 406.)

Appeal from District Court, Third District, Salt Lake County; W. H. Bramel, Judge.

Actions by the New York Jobbing House against the Sterling Fire Insurance Company and others. Cases consolidated, and, from a judgment for plaintiff, defendants appeal.

AFFIRMED.

W. M. McCrea and C. S. Price, both of Salt Lake City, for appellants.

N. Y. Jobbing House v. Sterling Fire Ins. Co. et al., 54 Utah 394.

Booth, Lee, Badger & Rich, and M. E. Wilson, all of Salt Lake City, for respondent.

APPELLANT'S POINTS.

Courts have frequently found it necessary in the interests of justice to disregard an apparent conflict of evidence where the only evidence giving rise to a conflict is evidence which is in conflict with undisputed physical facts, natural laws and human experience. Zoccolillo v. Oregon Short Line, 53 Utah, 39, 177 Pac. 201; Shepard v. Wichita Ice Company, 108 Pac. 819, 28 L. R. A. (N. S.), 649.

The Court was in error in consolidating these actions over the objection of each of the defendants when obviously the situation did not meet the requirements of the Statute. Ortman v. Union Pacific Railway Company, 4 Pac. Rep. 858; section 3489 Comp. Laws of Utah, 1907; Smith v. Smith, 46 Pac. Rep. 128.

RESPONDENT'S POINTS.

Even though the consolidation is technically erroneous, reversal can not be had unless prejudice or loss has been sustained by it. Peterson v. Dillon, 67 Pac. 397; Biron v. Edwards, 46 N. W. 813. The power to consolidate does not depend upon any statute for its existence. Hayward v. Mason, 104 Pac. 141.

This court has repeatedly held that it has nothing to do with the sufficiency of the evidence to justify the verdict or finding unless there is no competent evidence to support it. And, further, that in determining the insufficiency of the evidence to support a verdict, the Appellate Court will make that determination in the light most favorable to the successful party. Board of Education v. Wright Osborne Company, 49 Utah 453.

CORFMAN, C. J.

Appeal from Third District.

On February 9, 1918, plaintiff commenced, in the district court of Salt Lake county, five separate suits against the defendants, Sterling Fire Insurance Company, Alliance Insurance Company, Rhode Island Insurance Company, Citizens' Insurance Company, and the Northern Assurance Company, as insurers, to recover loss and damage occasioned by fire to a stock of merchandise and store fixtures. The property had been insured by the several defendants under separate policies for various amounts aggregating a total of $15,500. To the complaints in the several suits a copy of the policy issued by the respective defendant companies was attached and made a part thereof. Each policy was of the same or standard form, gave permission for other concurrent insurance, and contained the following "reduced rate average clause":

"In consideration of the reduced rate at which and the form under which this policy is written, it is expressly stipulated and Imade a condition of the contract that in the event of loss this company shall be liable for no greater proportion thereof than the amount hereby insured bears to ninety per cent. of the actual cash value of the property described herein at the time when such loss shall happen, nor for more than the proportion which this policy bears to the total insurance thereon: Provided, however, that if the aggregate claim for any loss shall not exceed two per cent. of the insurance covering on the specific item of property on which claim is made, no special inventory or appraisement of the undamaged property shall be required."

Each policy also contained the following clause:

"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 policy be not truly stated herein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss."

It was in substance further alleged in each of the several complaints that a fire occurred in the "Atlas Block," Salt Lake City, on the night of October 25, 1917, wherein the plaintiff's stock of merchandise and fixtures were damaged and destroyed to the extent of $17,500; that plaintiff had on hand at the time of the fire merchandise of the fair cash value of $18,000 and fixtures of the value of $2,000, all of which

N. Y. Jobbing House v. Sterling Fire Ins. Co. et al., 54 Utah 394.

were insured, as set forth in the policy attached to and made a part of the complaint; that, although plaintiff made due proof of his loss and damage, defendant refused to pay the amount of its policy or any other sum, claiming no liability thereunder.

The several complaints were verified by the same person and subscribed by the same attorneys.

The appearance of the respective defendants in the several causes against them were also the same, and each defendant in its answer to the complaint admitted the amount of the insurance, denied the extent of plaintiff's loss, and as an affirmative defense alleged fraud, misrepresentation, and concealment in making sworn proof in writing of the loss and damage sustained by the plaintiff in violation of the express terms and provisions of the policy, and that by reason thereof the policy had become void and was of no force or effect.

After the issues had been thus joined in the several suits brought by the plaintiff against the defendants, the cases were set for trial one to follow the other. On September 25, 1918, the case against the Sterling Fire Insurance Company was first called for trial, and, before proceeding therewith, counsel for the plaintiff moved that the several cases be consolidated for the purposes of trial. The plaintiff's motion, over the objections of the defendants, was sustained and the order made that the several cases be consolidated for trial. A trial by jury was then proceeded with, the trial court according to each of the defendants the same rights and privileges it would have been entitled to had its case been tried separately. Upon the conclusion of the testimony the cases thus consolidated were submitted to the jury to make special findings as well as for the purpose of returning a general verdict.

The findings of the jury upon the special interrogatories propounded were:

"Question No. 1. Did the plaintiff, through its agent, M. F. Kady, in the proofs of loss introduced in evidence herein, willfully and knowingly and for the purpose of defrauding defendant make and swear to any false statements as to the extent, amount, and value of the property destroyed by said fire and covered by the policies of insurance in evidence herein? Answer: No.