Ferdinand v. Agricultural Ins. Co. of Watertown, N. Y., A--52
| Citation | 122 A.2d 1,40 N.J.Super. 1 |
| Decision Date | 02 April 1956 |
| Docket Number | No. A--52,A--52 |
| Parties | E. Jay FERDINAND and Phyllis C. Ferdinand, Plaintiffs-Respondents, v. AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, NEW YORK, a corporation,Defendant-Appellant, and Appleton & Cox, Inc., etc., Defendant. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
George I. Janow of the New York Bar, New York City, argued the cause for defendant-appellant (Samuel Dreskin, Newark, attorney).
Frederick C. Vonhof, Newark, argued the cause for plaintiffs-respondents (Albert M. Neiss, East Orange, attorney).
Before Judges GOLDMANN, FREUND ane CONFORD.
The opinion of the court was delivered by
FREUND, J.A.D.
The defendant appeals from a judgment for the plaintiffs entered by direction of the court when the defendant rested without offering testimony at the close of the plaintiffs' case. The defendant argues that the case should have been submitted to the jury and that the sole issue is the propriety of the court's action in not doing so.
The action was on contract, to recover for the loss of seven pieces of jewelry under a 'jewelry-fur floater' policy issued by the defendant to the plaintiffs in consideration of the premium paid. The insured items were specifically described in a schedule attached to the policy, with its dollar value set opposite each article. The policy provided that the property was insured 'against all risks of loss or damage, * * * whilst in all situations' with certain exceptions not here involved.
The basis of the plaintiffs' claim was that the jewelry was stolen from their automobile while parked overnight on the grounds of a motel near Miami, Florida. Four witnesses testified for the plaintiffs: the plaintiffs themselves, a criminal investigator from the Sheriff's Office of Dade County, Florida, and a jewelry expert. The plaintiffs' testimony is uncontroverted. They established that on February 12, 1954 they left their home in New Jersey on a trip to Florida, that the jewelry alleged to have been stolen was in a pouch in a locked jewel box on the rear seat of the automobile, covered by wearing apparel and luggage; that other luggage, furs and cameras were in the trunk compartment. On the night of February 14, they stopped at a motel near Miami, Florida, parked their car about 40 or 50 feet from the window of their room, locked it and retired for the night about 10 P.M. The following morning, about 8 A.M., the plaintiff, E. Jay Ferdinand, went to the car and discovered that it had been broken into; the glass of the right-hand front window had a hole in it about three inches in diameter, large enough to reach inside and open the door. He looked inside and saw 'everything upset and disarrayed.' The jewel box had been ripped apart, some of it was on the front seat and some on the floor. He called to his wife, and then ran to the motel office to tell them what had happened and to call the police. He found that seven pieces of jewelry, the subject of this litigation, as well as some uninsured costume jewelry, were missing, and that the whole bottom of the glove compartment had been torn out. Deputy Sheriff Priest responded to the call, took fingerprints and proceeded to make an investigation. While he was there, the plaintiff took a camera from the trunk of the car and took photographs which were received in evidence. Officer Priest testified, describing the condition of the car, its contents, the method probably used to force entry, and that to the best of his knowledge the items had never been recovered. The testimony of the plaintiffs regarding the condition of the car was substantially corroborated by that of the deputy sheriff and by the photographs.
The defendant offered no evidence whatsoever, but cross-examined the plaintiffs extensively, not only with respect to their direct testimony, but also as to the purchase of the jewelry, which had been bought over a period of years, some of it on the Bowery in New York City, paid for either in cash or in trade for other jewelry, and without receipts.
Mr. Emanuel Kerber, a jewelry expert, testified as to the value of the jewelry at the time of the issuance of the policy and at the time of the loss. His appraisal of five of the seven items was made, in writing, on April 20, 1953, for the purpose of obtaining the insurance. The policy, issued on May 4, 1953, set forth the items of jewelry and the valuation of each as they appear on the appraisal. The policy recited that the insurance was 'on jewelry * * * as per schedule attached or as scheduled below, being property of the assured. * * *' If the defendant desired proof of purchase and ownership of the items specifically insured, it should have required such information before the issuance of the policy. Under the circumstances the time and place of purchase was immaterial and irrelevant insofar as the claim for indemnification for loss under the policy is concerned, and no jury question was raised with respect thereto.
The trial court held that the policy here involved was an open, rather than a valued policy, even though the value of each item was specified in the contract. Karcher v. Philadelphia Fire & Marine Ins. Co., 32 N.J.Super. 496, 108 A.2d 638 (App.Div.1954), modified and affirmed 19 N.J. 214, 116 A.2d 1 (1955). In the instant case, it is of no consequence whether it be regarded as one or the other, because the plaintiffs did furnish testimony as to the value at the time of the issuance of the policy and at the time of the loss. This testimony remained entirely uncontroverted by the defendant, and so there was no jury issue in that regard.
The remaining question pertains to the theft. At the conclusion of the plaintiffs' case, Judge Colie denied the plaintiffs' motion for a directed verdict, and when the defendant rested its case said he would let the case go to the jury, and recessed for lunch. When court reconvened, the judge said that during the noon recess he had reviewed the testimony and wished to hear further argument on the plaintiffs' motion. Thereafter, he rendered an oral opinion in which he held the plaintiffs entitled to a judgment for $11,775 and interest. He said 'I find from the evidence in this case that there is nothing from which a jury could draw a reasonable inference that the plaintiff did not own the seven specific articles claimed to have been stolen.
'I further find there is nothing in the evidence which would permit the jury to draw a reasonable inference that the articles were not stolen from the automobile on the night of February 14 or the morning of February 15 and there is no evidence from which a jury could draw a reasonable inference that the values testified to by the plaintiff Mr. Ferdinand, or by an independent witness, Mr. Kerber, was other than that stated.'
In an action on a jewelry floater insurance contract insuring specific property against all risks of loss, with certain exceptions, the plaintiff is entitled to recover if he establishes a loss under any unnexcepted situation. The plaintiffs' complaint alleged that the jewelry was stolen. Loss of insured property by theft may be established by circumstantial evidence. Miller v. New Amsterdam Casualty Co., 94 N.J.L. 508, 110 A. 810 (E. & A.1920).
It is entirely settled that where there are no disputed facts or disputed inferences to be drawn from uncontroverted facts which reasonably permit but a single conclusion, it is the duty of the court to direct a verdict. Polhemus v. Prudential Realty Corporation, 74 N.J.L. 570, 67 A. 303 (E. & A.1906); Belcher v. Manchester Bldg. & Loan Ass'n, 74 N.J.L. 833, 839, 67 A. 399 (E. & A.1907); Shapanka v. Nirenberg 157 A. 557, 9 N.J.Misc. 1339 (Sup.Ct.1931), affirmed 109 N.J.L. 550, 162 A. 658 (E. & A.1932); Mortgage Corp. of N.J. v. Aetna Cas. & Surety Co., 19 N.J. 30, 38, 115 A.2d 43 (1955); Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041 (1926); Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720 (1929). Only where fair-minded men may honestly differ as to the conclusion to be drawn from the evidence, whether controverted or uncontroverted, is there a jury question. Earlin v. Mors, 1 N.J. 336, 63 A.2d 531 (1949); Bazinsky v. Conklin, 8 N.J. 40, 83 A.2d 705 (1951); Long v. Board of Chosen Freeholders of Hudson County, 10 N.J. 380, 91 A.2d 724 (1952). Generally, it is for the jury to determine whether there has been a loss of a nature covered by the policy. 'However, if the evidence is positive and consistent, and is not contradicted by either the physical facts or the surrounding circumstances, the court may properly direct a verdict.' 8 Couch, Cyclopedia of Insurance, § 1183, p. 4230; General Accident, Fire & Life Assurance Corporation v. Thompson, 101 Okl. 138, 223 P. 666 (Sup.Ct.1924).
The uncontroverted and unimpeached testimony of the plaintiffs and their witnesses showed the disappearance of the insured property under circumstances indicating a felonious abstraction and was consistent with their claim under the policy and with their complaint. To defeat the plaintiffs' case, one of two positions would have to be sustained: that the claim is a fabrication in that the jewelry was not stolen, or that the theft occurred through prearrangement. There were no facts or circumstances from which a jury could draw an inference of either assumption. Such a finding would be entirely speculative or conjectural and absolutely devoid of evidential support.
The rule on the submission to the jury of the credibility of a witness was lucidly stated by Mr. Justice Katzenbach in Potoker v. Klein, 105 N.J.L. 183, 143 A. 375, 376, (E. & A.1928) where a directed verdict was affirmed. He said:
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