Fireman's Fund Indem. Co. v. Perry

• Decision Date: 27 January 1942
• Citation: 5 So.2d 862,149 Fla. 410
• Parties: FIREMAN'S FUND INDEMNITY CO. v. PERRY.
• Court: Florida Supreme Court

5 So.2d 862

149 Fla. 410

FIREMAN'S FUND INDEMNITY CO. v. PERRY.

Florida Supreme Court

January 27, 1942

Rehearing Denied Feb. 14, 1942.

Shackleford Farrior & Shannon, of Tampa, for plaintiff in error.

McKay MacFarlane, Jackson & Ferguson, of Tampa, for defendant in error.

BUFORD, Justice.

Writ of error brings for review judgment in favor of the plaintiff in a suit brought against the Indemnity Company on an indemnity policy which insured plaintiff's decedent against damage by loss of certain jewelry by reason of burglary, robbery theft or larceny.

Plaintiff in error presents three questions which we are asked to determine as follows:

'1. In an action wherein recovery is sought upon a policy insuring against burglary robbery, theft or larceny in the trial of which the evidence adduced by the plaintiff is solely circumstantial and merely shows that certain of the insured property is missing, and where the inference of disappearance through causes not covered by the policy is as reasonable as the hypothesis of felonious loss, is the plaintiff entitled to effect recovery?

'2. In such action where the plaintiff joins issue upon defendant's pleas, which alleged the failure of the insured to furnish proof of loss, in accordance with the policy, within sixty (60) days from the time of the discovery of the same, which act was made a condition precedent by the specific terms of the policy, and where the evidence conclusively establishes that such proof was not furnished within said period, is the defendant entitled to a directed verdict?

'3. Under the circumstances last stated and particularly in view of the fact that the plaintiff had filed no replication to defendant's pleas of failure to comply with conditions precedent as to furnishing proof of loss, and further in view of the fact that the only notice of proof furnished to the defendant, within the sixty (60) day period expressly negatived the existence of any evidence of burglary or theft beyond the disappearance of the property, was it proper to charge the jury that 'you may determine from the evidence whether or not the proof was furnished within sixty (60) days. It is also true, as a matter of law, that where the company denies liability, that does away with the necessity of furnishing proof of loss required, that is, if within the time provided by the policy for the furnishing of proof of loss the company denies liability, then the furnishing of proof is not necessary''.

As to the first question we may say that on the record as a whole the conclusions may reasonably be drawn that the jewelry, to-wit the rings, were stolen from the bedroom of Mrs. Nina H. Perry by someone who had access to the room, and under the evidence it was a matter for the jury to determine, under proper charges of the court which were given, whether the rings had been so stolen or not.

In the case of Reed et vir. v. American Insurance Co. of Newark, New Jersey, 128 Fla. 549, 175 So. 224, 225, we stated the rule to be applied in testing the sufficiency of circumstantial evidence in civil cases, as follows:

'In civil cases the preponderance of evidence required, where circumstantial evidence is relied on as the method of proof, is a preponderance of all reasonable inferences that might be drawn from the circumstances in evidence to prove the principal fact sought to be established sufficient to outweigh all other contrary inferences. King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858.'

In Stigletts v. McDonald, 135 Fla. 385, 186 So. 233, 235, we said:

'Circumstantial evidence must be a general rule be of such a conclusive nature that it is not reasonably susceptible of two equally reasonable inferences.'

Perhaps it could serve no useful purpose to detail the salient facts proved. Nevertheless, we will, in short and concise language, state them.

During her lifetime Mrs. Perry owned a wedding ring, a solitaire engagement ring and a dinner ring, which were insured as stated, supra. Mrs. Perry resided with her children, two sons and a daughter, in the City of Tampa, Florida. She sometimes kept the rings in a deposit box in a bank and when she kept them at home it was her custom to keep them in a jewelry compartment in a drawer of her dressing table, or in a lock-box which she kept in her closet. Her bedroom was located on the second floor of the building. On June 9th, 1939, Mrs. Perry went with some friends to Indian Rock Beach to attend a social function at the home of a Mrs. Swann. The evidence shows that she wore the rings on this occasion; that she was wearing them when she came home and was wearing them when she went in to dinner that evening. At the dinner table she was taken ill and went immediately to her bedroom where she remained the balance of that night. There is some evidence that she was up and about the house on June 11th and 12th; that she went for a short ride on one occasion between the 9th and 16th but immediately returned to her home. On the 16th of June Mrs. Perry had a turn for the worse, was taken to a hospital and there died on the 20th of June.

The rings in question were set with diamonds. and the record shows, could not have been worn without being seen by those who saw the wearer. The rings were never seen by any living witness after Mrs. Perry left the supper table on the night of June 9th. The evidence is conclusive that she did not have them on at any time when she left the house after June 9th. Immediately upon the death of Mrs. Perry the family made a thorough search of her room and her effects. The rings could not be found. Of course, it is possible that she hid them somewhere so that they might never be found, but this is not a reasonable hypothesis. A most reasonable conclusion, from all the facts and circumstances, is that some one who had access to Mrs. Perry's room found the rings, where she had put them when she was taken ill on the night of the 9th, and appropriated them to their own use.

The record shows that at least two servants had free access to Mrs. Perry's room. It is true that these servants were negroes of good reputation. The record also shows that other jewelry belonging to Mrs. Perry, having practically no value except a sentimental value, was found in the receptacle as stated, supra, where Mrs. Perry usually kept her jewelry and that nothing appeared to be missing except the valuable diamond rings.

The record also shows that at the time Mrs. Perry was taken to the hospital neither her sons nor her daughter were at home and that the servants then had free run of the house.

We think that this meets the rule as stated, supra, in regard to the sufficiency of circumstantial evidence.

As to the second question, the pleas referred to in this question are in the following language:

'5. For further plea defendant says that the policy sued upon contained among other provisions the following:

"J. Affirmative proof of loss or damage under oath on forms provided by the Company must be furnished to the Company at its Head Office in San Francisco, California, or to its Eastern Office in New York City, New York, within sixty days from the date of the discovery of such loss or damage. Such proof shall contain a complete inventory of all the property stolen or damaged, stating the original cost, the actual cash value of each article at the time of the loss and the amount of loss thereon, and shall also contain statements in detail as follows: (1) Describing the damage done to the property; (2) defining the interest of the assured in the property for which indemnity is claimed; (3) reasonable evidence of the commission of a burglary, robbery, theft or larceny, to which the loss or damage was due and of the time of its occurrence; (4) describing other similar insurance, if any, on the property insured and the purposes for which and the persons by whom the premises were occupied at the time of the loss. The Assured upon request of the Company shall render all assistance in his power to facilitate the investigation and adjustment of any claim, exhibiting for the purpose any and all books, papers and vouchers bearing in any way upon the claim made and submitting himself and his associates in interest and also, so far as he is able, his employees and members of his household to examination and interrogation by any representative of the Company, under oath is required. In the event of loss or damage for which claim is made the Assured shall, at the request and expense of the Company, take legal action to secure the arrest and prosecution of the offenders and the recovery of the property.'

'Defendant alleges that neither the insured nor her personal representative did give to it, within sixty days from the date of the discovery of the alleged loss or damage, proof of loss as required by the policy provision aforesaid, wherefore, plaintiff is barred of recovery.

'6. For further plea defendant says that condition precedent set foth in the policy was that the insured should, within sixty days from the date of discovery of loss or damage under the...