Fidelity & Cas. Co. of New York v. Wathen

• Decision Date: 11 November 1924
• Citation: 266 S.W. 4,205 Ky. 511
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. WATHEN.
• Court: Kentucky Court of Appeals

266 S.W. 4

205 Ky. 511

FIDELITY & CASUALTY CO. OF NEW YORK v. WATHEN.

Court of Appeals of Kentucky.

November 11, 1924

Rehearing Denied Dec. 19, 1924.

Appeal from Circuit Court, Bullitt County.

Action by Richard Wathen against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Fred Forcht, of Louisville, and J. R. Zimmerman, of Shepherdsville, for appellant.

T. C Carroll, of Shepherdsville, and John P. Haswell, of Louisville, for appellee.

SAMPSON C.J.

Appellant the Fidelity & Casualty Company, issued and delivered to appellee, Wathen, a policy of insurance, whereby it agreed to indemnify him for all loss occasioned to him by burglary larceny, or theft of his property from within the interior of his residence, committed by any domestic servant or other employee of Wathen or by any other person or persons, except himself, including precious stones and articles of gold, platinum, or silver, the maximum amount of such insurance or indemnity being the sum of $1,000, the premises being his residence at Bardstown Junction, in Bullitt county, Ky. This policy was in full force and effect at the time of the happening of the incident hereinafter recited.

Some time in the last days of December, 1921, appellee, Wathen, was invited to the house of a friend in a neighboring town for a holiday, and he went. Returning a day or so later to his home at Bardstown Junction, he unlocked the door to the house, passing into his room on the first floor, he removed his collar and tie, which he laid on the dresser in that room. He had worn in his tie on that trip a diamond stick pin, and, when he removed his collar and tie, he stuck the diamond pin in the tie and left it on the dresser. The door was closed and locked. In the course of the day Wathen went to a neighboring village to buy some hogs, but being unable to do so there, he went to another village, where he remained over night, returning to his home next morning. When he came to the house, he found it locked as he had left it. On entering, he observed nothing unusual. Later in the day, while dressing preparatory to going to Louisville, he discovered, for the first time, that his stick pin was not in his tie, where he left it on the dresser. He made diligent search, but could not find it, and was never able to find it thereafter. He then looked through the house for signs of burglars, but could discover none. The door to his room was closed, but two of the windows therein, while down, were not locked. He could see no evidence of the windows having been raised. There were no tracks or other evidence of any one having entered the house. That evening he reported the loss to the insurance company, stating that the pin, a gift from his daughter, then dead, was worth $550. Appellee, Wathen, was a widower and lived at his residence alone. No member of the family, save Wathen, had been in the house for some weeks, and he kept no servants. He testified that no one had a right to be in his house from the time he left his pin on the dresser until he discovered its loss, but he says he does not know what became of the pin. On these facts the court submitted the cause to a jury over appellant's objection; it insisting that there was not sufficient evidence to carry the case to the jury, and that the evidence offered by appellee was vague and uncertain, being equally consistent with two or more theories as to the loss--that is to say, there was just as much proof to show unaccount for disappearance of the stone as there was to show burglary, and in such case the court should have peremptorily directed the jury to find for the defendant company.

The only question, as we see it, necessary to decide on this appeal is...