Conlin v. Dakota Fire Ins. Co., 8111

• Decision Date: 13 February 1964
• Docket Number: No. 8111,8111
• Citation: 126 N.W.2d 421
• Parties: Edward J. CONLIN, Jr., and Joanne D. Conlin, Plaintiffs and Respondents, v. DAKOTA FIRE INSURANCE COMPANY, a domestic corporation, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 421

126 N.W.2d 421

Edward J. CONLIN, Jr., and Joanne D. Conlin, Plaintiffs and Respondents, v. DAKOTA FIRE INSURANCE COMPANY, a domestic corporation Defendant and Appellant.

No. 8111.

Supreme Court of North Dakota.

Feb. 13, 1964.

Syllabus by the Court

1. Disappearance of luggage checked with an airline by passengers in connection with their travel was a 'mysterious disappearance' covered by the extended theft provisions of an insurance policy on a dwelling, which policy covered losses of unscheduled personal property away from the premises.

2. Where luggage checked with an airline in Chicago, to be delivered to its owners at their destination, New Orleans, disappeared, the owners were not prohibited, under a policy which required them to notify the police of its loss 'as soon as practicable,' from recovering the value of the luggage from their insurance company, although they did not notify the police of the disappearance.

3. Where airline passengers, in checking their luggage, failed to declare its full value to the airline, they are not extopped, on being paid by the airline the maximum allowable, under the provisions of the official tariff governing passenger fares, for loss of the luggage, from recovering its full value from the insurance company with which it was insured.

Breidenbach & Milhollan, Bismarck, for plaintiffs and respondents.

Conmy & Conmy, Bismarck, for defendant and appellant.

ERICKSTAD, Judge.

This is an appeal by the defendant from a judgment of the District Court of Burleigh County, obtained by the plaintiffs in the sum of $877.43. A trial de novo is requested.

The case was tried by the court without a jury on facts stipulated as follows:

'I.

'The Defendant is a private corporation for profit organized and existing under the laws of the State of North Dakota, is qualified to, and does engage in the business of writing fire insurance policies under the laws of the State of North Dakota, and it has its home office and principal place of business in Bismarck, Burleigh County, North Dakota.

'II.

'On June 28th, 1959, the Plaintiffs paid a premium to the Defendant and were issued in exchange therefor, a fire insurance policy, numbered H101018, which is attached hereto and incorporated in this Stipulation as Exhibit 'A,' which insured the Plaintiffs for a period of three years upon their residence at 615 Raymond Street in the City of Bismarck, North Dakota, as well as certain unscheduled personal property insured in the amount of Eight Thousand Dollars ($8,000), which policy of insurance was in full force and effect throughout all times material to this case.

'III.

'On April 23, 1961, at about 2:00 o'clock P.M., the Plaintiffs, husband and wife, who had previously purchased round trip tickets for transportation of themselves and their baggage aboard Delta Air Lines, Flight 763, from Chicago, Illinois, to New Orleans, Louisiana, checked in five pieces of luggage with Delta Air Lines at their O'Hare field station, which luggage was to have accompanied them aboard Flight 763. Subsequently, Flight 763 was cancelled and upon recommendation of Delta Air Lines, the Plaintiffs left their luggage checked with and in custody of the company and took a later Delta Air Lines flight from Midway Airport in Chicago to the same New Orleans destination.

'IV.

'Delta Air Lines undertook to transfer the five pieces of luggage which had been checked into their 'O'Hare field terminal, to their Midway air terminal and see to it that the luggage arrived in New Orleans with or before the Plaintiffs. The Plaintiffs do not know what happened to the luggage, but when they arrived in New Orleans and claimed their luggage, one piece with all its contents was missing. The Plaintiffs requested Delta Air Lines to search for and locate the missing item of luggage but they were informed by the Air Lines that the search was unsuccessful and the luggage and its contents have not to this day been located. The Plaintiffs do not know what has happened to the missing luggage and its contents.

'V.

'Under the provisions of the official tariff governing fares, filed with and approved by the Civil Aeronautics Board, the liability of Delta Air Lines for the lost luggage was One Hundred Dollars ($100), which amount has been paid to the Plaintiffs. The only exception to the hundred dollar limitation of liability is in event that excess valuation for the luggage is declared and applicable charges paid at the time the luggage is checked into the care of the air line. In this case the Plaintiffs did not declare a valuation in excess of One Hundred Dollars ($100). The Plaintiffs object to the consideration of these facts by the court on the grounds that they are not relevant but admit that the facts contained in this paragraph are true and correct.

'VI.

'The Plaintiffs were the owners of the missing luggage and its contents, which consisted of men's and women's wearing apparel, all of which had a fair market value of Nine Hundred Dollars ($900), all of which has been lost to the Plaintiffs.

'VII.

'The Plaintiffs did not notify the Chicago Police Department or any other police department about the disappearance of the luggage and its contents but relied solely and exclusively upon the Air Lines to locate the missing luggage and contents.

'VIII.

'The Plaintiffs have complied with all conditions precedent, other than notification of police, if that is required, for receiving payment for their loss under the terms of the policy, but the Defendant has denied liability under the policy on the grounds that the loss described herein is not insured under the terms of the above referred to policy of fire insurance.'

The pertinent parts of the aforementioned insurance policy, incorporated in the stipulation as Exhibit 'A,' will be referred to as they are discussed in this opinion.

The first question we must answer is: does the loss of luggage which was checked with the airline constitute such a 'mysterious disappearance' as to be covered by the extended theft provisions of an insurance policy on a dwelling, which policy covered losses of unscheduled personal property away from the premises?

The Circuit Court of Appeal of Louisiana seems to be the only court to date which has interpreted a 'mysterious disappearance' clause such as presented here.

In the case of Englehart v. Assurance Company of America, 139 So.2d 108 (La.Ct.App.1961), the Louisiana court first held, in effect, that the facts and circumstances must show a reasonable possibility that the disappearance was due to theft, for the loss to be covered under the 'mysterious disappearance' clause of the insurance policy. On rehearing, the court reversed its position and required only that the disappearance be under unknown, puzzling and baffling circumstances which arouse wonder, curiosity, or speculation, or under circumstances which are difficult to understand or explain.

The first decision followed the decisions of Loop v. United States Fidelity & Guaranty Ins. Co., 63 So.2d 247 (La.Ct.App.1953), and Deckler v. Travelers...