Great Eastern Casualty Co. v. Boli

• Decision Date: 17 May 1916
• Docket Number: (No. 994.)
• Citation: 187 S.W. 686
• Parties: GREAT EASTERN CASUALTY CO. v. BOLI.
• Court: Texas Court of Appeals

187 S.W. 686

GREAT EASTERN CASUALTY CO. v. BOLI.

(No. 994.)

Court of Civil Appeals of Texas. Amarillo.

May 17, 1916.

Rehearing Denied June 14, 1916.

Appeal from Dallas County Court at Law; T. A. Work, Judge.

Action by L. O. Boli, Jr., against the Great Eastern Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Saner, Saner, Kimbrough & Turner and Chas. D. Turner, all of Dallas, for appellant. Martin A. Seward and O. F. Wencker, both of Dallas, for appellee.

HENDRICKS, J.

The appellee, Boli, sued the appellant, Casualty Company, in the county court of Dallas county, at law, to recover the sum of $425, for the value of a diamond stud, alleged to have been stolen, and the loss covered by a policy of insurance, issued by the appellant, protecting the appellee against loss from burglary, theft, or larceny. The jury returned a verdict, finding that the stud in question was stolen and was of the value alleged, upon which judgment was rendered for said sum.

We think appellee's petition sufficiently exhibits an insurable interest in the property at the time of the issuance of the policy and at the time of the loss, and without discussion overrule the assignments based upon exceptions raising that question.

The real question is whether the appellee sufficiently proved, as a jury question, the loss of the diamond within the purview of the clause of the policy. The policy of insurance sued upon provided that the Casualty Company should insure the appellee "against loss from burglary, theft, or larceny," and clause D of a rider attached thereto provided that:

"Mere disappearance of property shall not be deemed sufficient evidence of burglary, theft, or larceny."

The appellee testified that on Saturday night, May 9, 1914, according to his custom, he took the diamond stud out of his necktie, placed the same on the chiffonier in his room, and the next morning he discovered the loss of the same, upon search. He said he remembered distinctly taking the stud from the tie and examining it under the electric light in his room to see if the prongs were intact, and if the diamond needed cleaning, as he intended to clean the same the next morning, Sunday. The next morning, as he went to place his collar and cuff buttons in his shirt, he noticed that the stud was gone.

Appellant insists that its peremptory instruction, considering the clauses of the policy, should have been given, alleging the insufficiency of the testimony. Appellant cites and copiously quotes from the following New York case, Duschenes v. National Surety Co., 79 Misc. Rep. 232, 139 N. Y. Supp. 881, as one, among others from the same court, as persuasive of this case in its favor. The case of Duschenes v. National Surety Co., supra, was decided by one of the Supreme Courts of New York, and discloses that the plaintiff occupied rooms in a hotel; that she wore the particular piece of jewelry alleged to have been stolen the day before the alleged theft, and after placing the jewelry in a plush case deposited the case in a jewelry box on her bureau. The next morning, after returning from breakfast, she found the jewelry missing from the jewelry box. The defendant had insured the plaintiff against "direct" loss ...