Davis v. St. Paul Mercury & Indem. Co.
| Citation | 40 S.E.2d 609,227 N.C. 80 |
| Decision Date | 18 December 1946 |
| Docket Number | 666 |
| Parties | DAVIS v. ST. PAUL MERCURY & INDEMNITY CO. |
| Court | United States State Supreme Court of North Carolina |
Civil action instituted in the municipal court of Greensboro to recover on a policy of insurance against loss by theft.
On 16 June 1945, plaintiff put $97 in currency in his pocket and went on a fishing trip with a friend. The boat capsized and he was thrown in the water. After recovering his tackle poles, and other articles of personal property in the boat he went ashore. After emerging from the lake he, for the first time since leaving home, felt for his money and discovered that in some manner it had disappeared.
At the time, defendant had outstanding and in full force a 'residence and outside theft policy' insuring plaintiff against loss by theft. It contained the following provision:
The plaintiff filed claim with defendant, alleging loss by theft. The claim was denied. Thereupon plaintiff instituted this action in the Greensboro municipal court and obtained judgment, from which defendant appealed to the Superior Court.
At the trial in the Superior Court defendant tendered the following issue:
'Did the plaintiff sustain the loss by theft in accordance with the terms and provisions of the policy of insurance issued to him by the defendant?'
The court declined to submit the issue tendered and defendant excepted.
It thereupon submitted two issues as follows:
'1. Did the property of the plaintiff mysteriously disappear?
The jury having answered the first issue 'Yes' and the second '$97.00,' the court entered judgment on the verdict and defendant appealed.
A C. Davis, of Greensboro, for plaintiff appellee.
Sapp & Moore, of Greensboro, for defendant appellant.
The defendant's exceptive assignments of error present two questions for decision: (1) Is there evidence, sufficient to be submitted to a jury, tending to show that plaintiff sustained a loss by theft, and (2) did the court err in declining to submit the issue tendered?
Decision of the first question requires an interpretation of the provision 'mysterious disappearance of any insured property shall be presumed to be due to theft' incorporated in the policy as a part of the definition of theft.
Under the old policies it was not necessary for the insured to offer direct proof of the theft. He could, and of necessity usually did, rely on circumstantial evidence. If he was able to make proof of facts and circumstances sufficient to justify the inference of theft as the more rational hypothesis, his case was submitted to the jury. However theft is usually committed in secret. When property is stolen it ordinarily mysteriously disappears. But all mysterious disappearances are not the result of theft. Hence, frequently, proof of the mysterious disappearance of property alone was held insufficient to support a verdict; and if there was no evidence of a breaking and entry or other circumstance pointing to theft as the more probable cause of the loss, a recovery under the policy was not permitted. Thus, the insured, under the old policies, oftentimes found his claim contested and encountered difficulty in making out a case for the jury.
This new provision, stipulating that the mysterious disappearance of insured property shall be presumed to be due to theft, was incorporated in such policies to answer the obvious objections to the old and to afford a somewhat larger measure of protection to the insured.
This more liberal definition of theft, thus provided, creates a rule of evidence binding on the parties. Proof of the mysterious disappearance of insured property, nothing else appearing, is proof of theft. Evidence excluding the probability that the property was mislaid or lost is not required and proof of circumstances pointing to larceny as the more rational inference is not essential. It is stipulated that the inference of theft arises, as of course, upon proof of a mysterious disappearance.
This conclusion or inference is more than a mere permissive inference. Theft is to be presumed, and to presume means to take for granted until the contrary is proved, Morford v Peck, 46 Conn. 380; Green v. Maloney, 7 Houst.Del., 22, 30 A....
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