Englehart v. Assurance Co. of America
| Decision Date | 26 October 1961 |
| Docket Number | No. 9546,9546 |
| Parties | Howard M. ENGLEHART, Plaintiff-Appellant, v. ASSURANCE COMPANY OF AMERICA, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Goode, Shea & Dietz, Shreveport, for appellant.
Bodenheimer, Looney, Richie & Jones, Shreveport, for appellee.
Before GLADNEY, AYRES and BOLIN, JJ.
This is an action brought by an insured against his insurer for the recovery of the insured value of a missing ring, together with statutory penalties and attorney's fees. Defendant denied coverage under the policy, and after trial on the merits the lower court sustained this position. Plaintiff has appealed from the judgment.
Howard M. Englehart, a resident of Shreveport, was the owner of a two carat diamond ring, the value of which exceeded the policy limits of $1,000. On March 16, 1960, he visited his daughter and son-in-law in Baton Rouge and that night removed the ring from his finger and placed it upon a dresser. This is the last time he recalls seeing the ring. The following morning his son-in-law drove him to the Baton Rouge Airport, from whence he made an early flight back to Shreveport, traveling in an airport limousine to his home. That same day he left the suit he had worn on the trip at a Shreveport laundry to be cleaned. The next day he discovered the ring to be missing, whereupon he searched his home, inquired at the cleaning establishment, checked at the airline office, and telephoned his daughter in Baton Rouge, all without avail. Plaintiff then reported to the police he had sent the ring to the cleaners in the watch pocket of the suit, and it had not been returned. He also notified the insurance company which sent an adjuster to investigate. Plaintiff gave this adjuster a written statement to the effect the ring was in the watch pocket of his trousers when the suit was delivered to the cleaners.
At the trial Englehart testified that he did not actually know if the ring was in the clothes when delivered to the cleaners, and had said this only because it was his usual habit, when not wearing the ring away from home, to carry it in the watch pocket of his trousers. An employee of the cleaning establishment testified that if the ring had been in the suit she would have discovered it during her thorough examination made when it was brought in for cleaning.
Plaintiff's position is that the loss was due to a 'mysterious disappearance' and thus was insured by a particular clause of the policy.
The pertinent policy provisions in this suit are:
'Division 11--Theft Away From the Premises:
This Company agrees to pay for loss by theft or attempt thereat or mysterious disappearance away from the premises of personal property which is owned or used by an insured. * * *'
'This insurance does not apply:
* * *
* * *
'(C) to property while in the charge of any laundry, cleaner, dyer, tailor or presser except by robbery or by theft through breaking and entering at their premises;'
The District Judge interpreted mysterious disappearance to mean circumstances which would indicate a theft and not a loss or misplacement due to forgetfulness. He relied on Loop vs. United States Fidelity & Guaranty Insurance Company, 63 So.2d 247 (Orl.App.1953), where the court held there had to be some possibility of theft based on the facts and circumstances of the case in order that there could be such a mysterious disappearance as was contemplated by the policy. The trial judge found no such facts or circumstances in the instant case and held for defendant. He also stated that had the ring been in the suit when taken to the cleaners, recovery would have been denied under the policy exclusion above quoted.
Two issues are presented: whether a mysterious disappearance as is insured against by this policy has occurred; and whether such disappearance, assuming it did occur, took place at a laundry and was thereby exempt from coverage by an express provision of the policy.
Our jurisprudence places the burden of proof on the insurer to prove a loss comes under a policy exclusion. Massachusetts Protective Ass'n, Inc. vs. Ferguson, 168 La. 271, 121 So. 863 (1929); Catchot vs. Delta Life Insurance Company, 57 So.2d 919 (Orl.App.1952); 46 C.J.S., Insurance, Sec. 1321(f). The direct, uncontradicted testimony of the employee of the cleaners who received the suit when delivered shows the ring was not in the suit at that time, and the testimony and actions of plaintiff plainly show he did not know for a fact that the ring was in the trousers when delivered. Accordingly, we believe defendant insurer has not met its burden of proving the exclusion applicable here.
Plaintiff's right of recovery thus depends on this court's interpretation of the mysterious disappearance clause of the policy in question. In support of their respective positions counsel for both parties have relied on the Loop case, supra, and Deckler, et al. vs. Travelers Indemnity Company, 94 So.2d 55 (La.App.1st Cir.1957). These cases dealt with the interpretation of policies which contained the following clause:
In the Loop case, insured's wife placed a ring on her finger at her residence, drove about three miles to the business section of New Orleans, parked at a garage, walked several blocks to shop and meet her husband, then returned to her home, and for the first time discovered the ring to be missing. Denying recovery, the court held there must be some possibility of theft before there can be a mysterious disappearance, and the facts, as related, did not amount to such a mysterious disappearance. The court stated:
'* * * if the facts made it even remotely possible to accept with any reasonable certainty the presumption that there was a theft, it would necessarily follow that, as a result of this presumption, the so-called mysterious disappearance would justify a recovery.
'* * * but where there is no fact which can be pointed to as evidencing the remotest possibility of theft, we find it impossible to classify the disappearance as mysterious and to accept the presumption that there was a theft.' 63 So.2d 248.
The Deckler case reaffirmed the principles of the Loop case and again denied recovery for loss of a ring, since plaintiff had not succeeded in showing there was some possibility of theft. In that case insured's wife last recalled seeing the ring on her finger during the afternoon of the date of loss. She had been in the house all that afternoon and evening, prepared the evening meal herself and cleaned the kitchen. A disposal unit failed to function properly and she repaired it. Shortly after this she noticed the ring was missing. The court concluded that considering all the surrounding facts and circumstances, a presumption of theft would not be implied.
In the only two Louisiana cases interpreting the term 'mysterious disappearance', the Loop and Deckler cases, a mysterious disappearance was presumed under the terms of the policy to be due to theft and was construed by the courts to require some possibility of theft based on the facts and circumstances of the case in order for there to be a mysterious disappearance. The subject policy is not so definite but affords no basis for a different ruling, and grounds for such a holding are found not only in the two cited cases, but in the policy itself. It will be observed that the mysterious disappearance clause is found in the instant policy as a part of 'Coverage Group B', and in describing the peril insured against by this Group, the Insurance Schedule on page One of the policy uses only the word 'Theft'. The title of a supplemental page which describes the property and perils covered by this group in more detail is: 'Coverage Group B--Broad Form Personal Theft Coverage.' Lastly, the particular clause in question is itself entitled: 'Division II--Theft Away From The Premises.'
For these reasons we hold that there must be some reasonable possibility of theft, based on the facts and circumstances of the case, for there to be such a 'mysterious disappearance' as is insured against by the policy in question.
It is remotely possible that theft could have occurred in this case at plaintiff's daughter's home, on the journey from Baton Rouge to his home in Shreveport, or at the cleaning establishment. Plaintiff himself, exonerates his daughter and her family, and the record fails to disclose the presence of any third person in this home; and even if theft or...
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