Garner v. New Jersey Fidelity & Plate Glass Ins. Co.

• Citation: 200 S.W. 448
• Decision Date: 28 January 1918
• Docket Number: No. 12518.,12518.
• Court: Court of Appeal of Missouri (US)
• Parties: GARNER v. NEW JERSEY FIDELITY & PLATE GLASS INS. CO.

200 S.W. 448

GARNER v. NEW JERSEY FIDELITY & PLATE GLASS INS. CO.

No. 12518.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Trigg Garner against the New Jersey Fidelity & Plate Glass Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Yates & Goble, of Kansas City, for appellant. Robinson & Goodrich and James M. Johnson, all of Kansas City, for respondent.

TRIMBLE, J.

This action is on a policy of burglary insurance wherein defendant insured plaintiff "against direct loss by burglary, theft, or larceny" of certain personal property, including jewelry and precious stones, while contained in plaintiff's residence. A clause in the policy required insured to "produce direct and affirmative evidence that the loss of the articles for which claim is made was due to the commission of a burglary, theft, or larceny; the disappearance of said articles not to be deemed such evidence." The defense raised is based upon this provision, the contention being that, under it, plaintiff could not prove by circumstantial evidence that the loss was caused by burglary, theft, or larceny. A further contention seems to be made, or at least is impliedly raised, that even if the loss can be proved by circumstantial evidence, the same was not sufficient to establish the loss by burglary, theft, or larceny. This can only be interpreted to mean that the evidence in this civil case must be of such a character as to establish the burglary, theft, or larceny beyond a reasonable doubt as in a criminal case in the prosecution of the alleged perpetrator of the crime. Aside from these matters, defendant's answer admits all the constitutive facts of the alleged cause of action, and no other matters or issues were raised in opposition thereto.

The household at plaintiff's residence consisted of himself and wife and two servants, one a white maid and the other a negroman, who, in addition to his other duties, acted as the family chauffeur. The jewelry in question, consisting of precious stones of considerable value, were kept in a safety deposit box, but, as plaintiff's wife had decided to visit relatives living at a distance, she and her husband, on the day preceding her intended departure, went to the safety deposit vault and selected those Mrs. Garner would take with her. The jewelry was placed in a chamois bag, which in turn was placed in the wife's hand bag and taken home, and the chamois bag containing the jewelry was by her placed on a shelf, in the closet of her bedroom on the second floor, and covered with some folded garments. This was in the forenoon. In the afternoon, the wife went to a social function, and did not return until about 6 o'clock. While she was away the two servants were at the home at work until about 3:30 p. m. when the man was called by telephone to bring the automobile down town and take plaintiff home. After the chauffeur left the house, the maid also left, going to a grocery store to make some purchases. She was not at home when plaintiff and the chauffeur arrived, shortly after 5 o'clock.

When plaintiff and the chauffeur drove upon the premises they observed a strange man coming out on the driveway, who appeared to be surprised and somewhat disconcerted at seeing them, and who, looking at them attentively, walked rapidly away. A witness, who was on the premises near by, testified that the strange man had come upon the premises that afternoon, and had gone first to the garage door, then to the basement of the house, and then to the kitchen door, through which he entered into the house. After remaining inside for half an hour he reappeared at the same door and left the premises by the driveway. Plaintiff and the chauffeur found the kitchen door unlocked.

The loss of the jewels was not discovered until about 9:30 that night. Plaintiff and his wife had retired, but, on remembering the jewels, the wife went to the closet and found the chamois bag and hand bag were there, but the jewels were gone. The closet was disarranged and "mussed up," showing that some one had made a hurried search through it.

Unless the two contentions made by defendant as hereinabove stated are valid and tenable, the foregoing facts are amply sufficient to justify the submission to the jury of the question of whether the loss was sustained by burglary, theft, or larceny. Hornbeck v. Southwestern Ins. Co., 195 S. W. 1054; Kansas City, etc., Auto Co. v. Old Colony Ins. Co., 187 Mo. App. 514, 174 S. W. 153; Colley v. National Live Stock Ins. Co., 185 Mo. App. 616, 171 S. W. 663; Stich v. Fidelity, etc., Co., 159 N. Y. Supp. 712.

It is well established that in civil cases involving charges of crime the rights of the parties are to be determined by the triers of fact according to the preponderance of the evidence, and not by the rule in criminal cases, which requires evidence establishing the guilt of the accused beyond a reasonable doubt. Edwards v. Knapp, 97 Mo. 432, 439, 10 S. W. 54; State ex rel. Ellison, 268 Mo. 239,...