Helbing

The fourth clause of the policy contains the following:

And the eighth clause provides:

It is claimed by appellant, that inasmuch as there was a discrepancy of five hundred dollars between the sum named in the “ application ” and the verdict, the burden of proof was cast upon the plaintiffs to establish that the statement' in the application was not intentionally false. But under our system, fraud is ordinarily a question of fact, and the Court is not authorized, except where by statute a legal presumption is created, to instruct a jury that the existence of one fact is to he inferred from the existence of another. (People v. Walden, 51 Cal. 588 ; Stone v. Geyser Co. 52 Cal. 315 ; People v. Carrillo, 54 Cal. 63 .) The jury may not have believed that the application was intentionally false, even in the absence of explanatory evidence.

The same is true in reference to the difference between the statements of the assured, (sworn or unsworn) made after the fire, and the verdict. It may indeed be true that if the discrepancy, in view of all the circumstances, is so great as to *159 convey the conviction of fraud to the reasonable mind, the jury should find fraud, as they should find…