Caldwell v. St. Paul Mercury & Indemnity Co.

• Decision Date: 18 December 1950
• Docket Number: No. 37699,37699
• Court: Mississippi Supreme Court
• Parties: CALDWELL v. ST. PAUL MERCURY & INDEMNITY CO.

Page 570

49 So.2d 570

210 Miss. 320

CALDWELL v. ST. PAUL MERCURY & INDEMNITY CO.

No. 37699.

Supreme Court of Mississippi, Division B.

Dec. 18, 1950.

Chill, Landman & Gordon, Jackson, for appellant.

Lipscomb & Ray, Jackson, for appellee.

ETHRIDGE, Commissioner.

This is a suit by appellant, Jack I. Caldwell, against appellee, St. Paul Mercury & Indemnity Company, on a theft insurance policy for the loss by theft of a diamond from a ring of appellant's wife.

On September 25, 1947, a diamond disappeared from a ring on Mrs. Caldwell's hand. She testified that she had the ring on her finger with the stone in it about seven o'clock that night, while she was sitting in the living room of their home with her daughters, the youngest of whom was fifteen years, but at about nine or nine-thirty, before she started to go to bed, she noticed that the stone was missing. She and her children looked for it in the house that Thursday night, but were unable to find it. The next morning her maid came early, and she and the maid looked for it again, even using a vacuum cleaner, and straining the refuse from that instrument. The maid came again on Saturday and was paid for that week's work. She did not work on Sunday, but came again on Monday morning. Mrs. Caldwell instructed the maid to go into the closet with the vacuum cleaner, to clean the rugs, and to continue to search for the stone that day. Mrs. Caldwell went to work, and when she returned late that afternoon, the maid had left and never came back, although Mrs. Caldwell owed her $2 for that day's work. Appellant has not been able to locate the maid since that time, nor the stone. The maid had been working for appellant about six months, and apparently appellant trusted her and had had no difficulty with the maid in other respects.

Mrs. Caldwell testified that she knew the stone was in the ring at seven o'clock after she had eaten supper, and that she did not go out of the house between the times she knew she had the stone and she discovered it to be missing later that evening. She had owned the ring for five years, having purchased it in 1942, and had not had the mountings on the stone tightened. She stated that the stone must have disappeared in the house. She testified that she does not remember whether she washed the dishes that night, but that very probably she washed her hands in the lavatory, and that she did not have a plumber examine the plumbing in either the kitchen or the bathroom in a search for the stone.

Two other witnesses for appellant testified only on the value of the stone at the time of loss, and the making of proof of loss. Testimony on value was also presented by defendant's sole witness, a jeweler, who also testified that the mountings on the ring were worn, and in his opinion the stone came out of the mountings by natural wear.

The policy contained a clause reading as follows: 'Theft. The word 'theft' includes larceny, burglary, and robbery. Mysterious disappearance of any insured property shall be presumed to be due to theft.'

This suit originated in the County Court of the First Judicial District of Hinds County, Mississippi, in which a jury returned a verdict for the present appellant, who was the plaintiff there. On appeal the circuit court held that the trial court should have granted a peremptory instruction for the insurance company, appellee here, and acted accordingly.

Appellant argues that the trial court was correct in submitting the case to the jury. He says that it was a jury question as to whether the presumption created by the policy ever came into effect by 'mysterious disappearance', and as to whether the presumption once existing was rebutted by the evidence. He further says that even disregarding the presumption, the question was for the jury under these facts as to whether the stone was covered by the theft policy. Appellee contends that it is reasonable to presume that the stone fell from the setting either into the lavatory or the kitchen sink, and that it is still there, and that the presumption, if it ever existed, was rebutted by this and other evidence. Appellee says that the stone was first lost in appellant's house, and therefore this theft policy does not apply, and that the jury's verdict was purely speculative without any permissible circumstantial evidence of theft.

The case focuses on three questions: (1) whether there was a 'mysterious disappearance' which put into operation the contractual procedural presumption of theft; (2) whether the presumption was rebutted by the evidence; and (3) if it was rebutted, whether there was enough circumstantial evidence of theft to make a question for the jury on the issue of theft vel non.

Certain basic principles are pertinent in considering this rather singular factual situation and theft insurance policy. There have been, over a period of years, many cases involving the question of whether the evidence was sufficient to justify a jury's finding of theft and liability under a theft insurance policy. While mere disappearance of an article is not sufficient of itself to warrant a finding that its loss was due to theft, the courts have held consistently that a finding of such a felonious abstraction may in a proper case rest upon circumstantial evidence. Thus, 'proof that the loss was the result of * * * theft is not necessary if facts are shown which warrant the inference that the loss was due' to theft. 29 Am.Jur., Insurance, Section 1516.

Even in cases where the policy required 'direct and affirmative' or 'conclusive' evidence, the courts have refused to construe these terms in a strict technical sense, because to do so would render the policy valueless except in the most unusual cases, and have in policies containing that clause sustained verdicts based on wholly circumstantial evidence. Note, 41 A.L.R. 846, 851. See also Annotations in 44 A.L.R. 471; 54 A.L.R. 467; 169 A.L.R. 233. In Jackson Steam Laundry v. AEtna Casualty & Surety Co., 1930, 156 Miss. 649, 126 So. 478, the burglary policy contained a very restricted clause and the court found that there was no circumstantial evidence justifying submitting the issue to a jury. It is not applicable to the present case.

The only case which we have found involving the interpretation of a similar 'mysterious disappearance' clause is Davis v. St. Paul Mercury & Indemnity Co., 1946, 227 N.C. 80, 40 S.E.2d 609, 611, 169 A.L.R. 220. The plaintiff sued on a policy with a clause exactly similar to the present one. Plaintiff had put $97 in his pocket and gone on a fishing trip with a friend. The boat capsized and he was thrown in the water. After he had recovered his fishing equipment he went ashore, and for the first time since leaving home he felt for his money and found that it had in some manner disappeared. The trial court refused to submit to the jury the issue of whether plaintiff had sustained the loss by theft, and only submitted whether plaintiff's property had mysteriously disappeared, and in what amount, if any, defendant was indebted to plaintiff.

The Supreme Court held that the trial judge erred because the policy was a theft policy and did not cover property mislaid or lost. However, it pointed out that the 'mysterious disappearance' clause was designed to afford the insured a larger measure of protection than under the old theft policies, and that it created a rule of evidence binding on the parties....