Adler v. Lumber Mut. Fire Ins. Co.

• Decision Date: 15 December 1971
• Docket Number: No. 40,40
• Citation: 185 S.E.2d 144,280 N.C. 146
• Court: North Carolina Supreme Court
• Parties: Harold ADLER v. LUMBER MUTUAL FIRE INSURANCE COMPANY.

Page 144

185 S.E.2d 144

280 N.C. 146

Harold ADLER v. LUMBER MUTUAL FIRE INSURANCE COMPANY.

No. 40.

Supreme Court of North Carolina.

Dec. 15, 1971.

William T. McCuiston, Raleigh, for plaintiff appellant.

Teague, Johnson, Patterson, Dilthey & Clay, by Ronald C. Dilthey, Raleigh, for defendant appellee.

HUSKINS, Justice:

Under a 'Homeowners Policy' of insurance issued by defendant, plaintiff was insured against loss by 'THEFT, meaning any act of stealing or attempt thereat. . . .' The question posed on this appeal is whether the trial court erred in directing verdict for defendant and thereby denying recovery of the value of two diamond rings which disappeared under the circumstances narrated below.

On 18 August 1969 plaintiff owned two valuable diamond rings which were habitually worn by his wife. On that date she removed the rings from her hand upon retiring for the night and placed them in a dish on a dresser in her bedroom. The next day she stayed home until 4:00 p.m. when she left the house for two hours. Upon leaving she locked all the doors to the house; however, there was an unlocked bathroom window through which the house could have been entered by intruders. The following morning, 20 August 1969, while dressing for work, she reached into the dish for the rings and they were gone. She reported the loss of the rings to the police, and a detective came to the premises and made an investigation. She called his attention to the unlocked bathroom window. The police discovered no evidence of a break in and made no tests for fingerprints. No one has been charged with the theft of the rings. The dwelling was occupied by Mr. and Mrs. Adler, their eighteen-year-old daughter and a fourteen-year-old son. They have two pets, 'a Chihuahua and a dog.' The rings have never been recovered.

Plaintiff contends the foregoing facts, taken in the light most favorable to him, negate any cause for the loss save theft and are therefore sufficient to repel defendant's motion for a directed verdict and carry the larceny issue to the jury. We now explore the validity of that contention.

On defendant's motion for a directed verdict at close of plaintiff's evidence in a jury case, as here, the evidence must be taken as true and considered in the light most favorable to plaintiff. Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971); Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). When so considered, the motion should be allowed if, As a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. Kelly v. International Harvester Co., supra.

It must be recognized at the outset that plaintiff seeks recovery only under the theft provision of the policy and that the word Theft is defined therein as 'any act of stealing or attempt thereat.' To bring his loss within the provisions of such policy, plaintiff is required to offer evidence of facts and circumstances pointing to theft as the more probable cause of the loss--that is, evidence which (1) excludes the probability that the property was mislaid or lost and (2) points to larceny as the more rational inference. Davis v. St. Paul Mercury & Indemnity Co., 227 N.C. 80, 40 S.E.2d 609 (1946).

The insurance policy construed in Davis contained this provision: 'Mysterious disappearance of any insured property shall be presumed to be due to theft.' This Court held that a rule of evidence binding on the parties was created by that provision and the insured was thereby relieved from the necessity of producing evidence which would exclude the probability that the property was mislaid or lost and point to larceny as the more rational inference. Hence, a mere showing of mysterious disappearance...