Hammontree v. Central Mut. Ins. Co.
| Decision Date | 05 January 1965 |
| Docket Number | 8362,Nos. 8361,s. 8361 |
| Citation | 385 S.W.2d 661 |
| Parties | Mary John HAMMONTREE, Plaintiff-Respondent, v. CENTRAL MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant. Mary John HAMMONTREE, Plaintiff-Appellant, v. CENTRAL MUTUAL INSURANCE COMPANY, a corporation, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff.
Stewart, Reid & Turner, Springfield, for defendant.
In this court-tried action at law on a 'homeowners policy' issued to plaintiff, Mary John Hammontree, by defendant, Central Mutual Insurance Company, judgment was entered awarding plaintiff $300 for the 'mysterious disappearance' of a necklace and diamond pendant on May 10, 1963, under circumstances hereinafter detailed, but denying plaintiff's prayer for damages and an attorney's fee on account of defendant's alleged vexatious refusal to pay the loss. V.A.M.S. Sec. 375.420. We have consolidated defendant's appeal from the judgment for $300, here docketed as Case No. 8361, and plaintiff's appeal from denial of damages and attorney's fee, here docketed as Case No. 8362.
Defendant's policy No. H955575 (), issued to plaintiff for a policy term of three years beginning March 15, 1961, provided coverage against various perils, including Coverage C with respect to 'unscheduled personal property' (on the described premises, i. e., at plaintiff's home address, and away from those premises while 'owned, worn or used' by plaintiff) against the peril of 'Theft, meaning any act of stealing or attempt thereat * * *.'
For an additional premium of $11, defendant attached to the policy an endorsement effective August 23, 1962, with the caption 'EXTENDED THEFT COVERAGE' followed by two numbered paragraphs, the first of which read: 'Inclusion of Mysterious Disappearance: So much of the description of the peril of theft under the caption 'Perils Insured Against,' in Section 1 of the form attached to this policy, as reads: 'Theft, meaning any act of stealing or attempt thereat' is amended to read: 'Theft, meaning any act of stealing or attempt thereat, or mysterious disappearance (except mysterious disappearance of a precious or semi-precious stone from its setting in any watch or piece of jewelry).'' The second numbered paragraph, not material here, deleted an exclusion in the policy and thereby extended coverage to personal property 'while unattended in or on any automobile.'
In the course of dressing at her home about 6 P.M. on May 10, 1963, for a dinner engagement with two friends, Mrs. Velma Askins and Mrs. Opel Hooper, plaintiff placed the necklace around her neck and fastened the 'spring-ring' clasp herself by reaching behind her neck and fitting together the two rings which comprised the clasp. Although she could not see the clasp, she fastened it 'in the usual manner' and followed her customary practice of pulling the necklace 'a little to see for sure it [was] on there tight.' She had worn the necklace much of the time after it had been given to her at Christmas 1961, and the clasp on the necklace had given no trouble and had required no repair or replacement.
With no further thought about the necklace, plaintiff and her two friends set forth in plaintiff's automobile to celebrate the birthdays of plaintiff and Mrs. Askins. They went first to The Grove, where they entered the cocktail lounge, remained 'around forty-five minutes,' and 'had one drink.' Then they drove several miles across Springfield to Shady Inn, where Mrs. Hooper thought that her husband might be having dinner; but, failing to locate him, plaintiff and her companions entered the dining room and, in due course, ordered their meal. When she happened to put her hand to her neck, plaintiff discovered that her necklace was missing. It then was 8:30 to 9:00 P.M. The loss was reported to the manager at Shady Inn, and plaintiff and her companions unsuccessfully searched for the necklace there and, after eating dinner, looked for it in plaintiff's automobile. Then they returned to The Grove, talked with the manager there, and searched in the dimly-lighted cocktail lounge and in the outside area where plaintiff's automobile had been parked. Plaintiff later searched in her home, her garage, and again in her automobile, but the necklace was not found. Her last recollection of having the necklace was when she fastened it around her neck about 6 P.M. at her home; she first missed it about 8:30 to 9:00 P.M. at Shady Inn; and she had no information or knowledge as to when or where, during the intervening period, the necklace had disappeared.
Both The Grove and Shady Inn were 'crowded'--there were 'just lots of people at both places.' But there was no evidence that plaintiff had been shoved or jostled, or that she had danced or otherwise had come into physical contact with anyone. In a signed statement taken from plaintiff on June 5, 1963, she said that: At the trial she offered the safe alternative that 'it was either lost or stolen.'
The trial court's judgment for plaintiff was predicated upon his holdings (a) that 'mysterious disappearance' in the policy provision in suit, i. e., 'Inclusion of Mysterious Disappearance: * * * 'Theft meaning any act of stealing or attempt thereat, or mysterious disappearance * * *'' (hereinafter referred to as the 'inclusion-meaning' provision), is 'not a part of the definition of 'theft" but is 'a risk covered by the policy,' and (b) that the disappearance of the necklace was a 'mysterious disappearance' within the coverage afforded by the 'inclusion-meaning' provision. Defendant contends that both holdings were erroneous.
Is 'mysterious disappearance' a risk covered by the policy? The earlier cases 1 construing so-called 'mysterious disappearance' clauses involved claims presented under what is referred to as the 'presumptive theft' provision, to wit: Davis v. St. Paul Mercury & Indemnity Co., 227 N.C. 80, 40 S.E2d 609, 610, 169 A.L.R. 220. Under the 'presumptive theft' provision, a showing of 'mysterious disappearance' simply served to raise a rebuttable presumption of theft and created a rule of evidence binding on the parties, 2 but obviously did not broaden the coverage to include and insure 'mysterious disappearance' as such. Seward v. Assurance Co. of America, 218 Cal.App.2d Supp. 895, 32 Cal.Rptr. 821, 823.
In recent years, the 'presumptive theft' provision has given way to various revisions, namely (a) that which we refer to as the 'simple coordinate' provision (i. e., '[t]his Company agrees to pay for loss by theft or attempt thereat or mysterious disappearance * * *') found in the policies involved in Englehart v. Assurance Co. of America, La.App., 139 So.2d 108, 110, and Seward, supra, 32 Cal.Rptr. at 822, (b) that which we refer to as the 'including' provision (i. e., '[t]heft, including attempted theft, mysterious disappearance, larceny, burglarly (sic), robbery * * *') found in the policy involved in Midlo v. Indiana Lumbermen's Mutual Ins. Co., La.App., 160 So.2d 314, 315, and (c) the hereinbefore-quoted 'inclusion-meaning' provision found in the policies involved in the instant suit, Conlin v. Dakota Fire Ins. Co., N.D., 126 N.W.2d 421, 424, and Austin v. American Casualty Co., D.C.App., 193 A.2d 741.
Under the 'simple coordinate' provision, "[m]ysterious disappearance' no longer raises a presumption of theft which constitutes a contractual 'rule of evidence binding on the parties' to the insurance contract' but 'becomes a risk covered by the policy' and '[t]here is no necessity to show possibility or probability that the loss resulted from theft.' Seward, supra, 32 Cal.Rptr. at 823. To the same effect, see Englehart, supra, 139 So.2d at 112-113.
Under the 'including' provision '[t]heft is * * * defined so as to include attempted theft (which is of course not in fact theft) and mysterious disappearance (which may or may not be in fact theft), etc.,' and (as under the 'simple coordinate' provision) 'the possibility or probability of theft need not be shown * * *.' Midlo, supra, 160 So.2d at 315.
In Austin, supra, 193 A.2d at 742, the District of Columbia Court of Appeals construed the 'inclusion-meaning' provision as simply reducing 'the quantum of proof necessary to establish a theft by permitting a finding of theft from proof of a mysterious disappearance under circumstances which suggest the probability of theft.' But in Conlin, supra, the Supreme Court of North Dakota construed the same policy provision as requiring only proof of a 'mysterious disappearance' within the widely-accepted judicial definition of those terms, i. e., 'that the disappearance be under unknown, puzzling, and baffling circumstances which arouse wonder, curiosity, or speculation, or under circumstances which are difficult to understand or explain * * *.' 126 N.W.2d at 425. And, as we have noted, the trial court in the instant case likewise held that recovery under the same policy provision might be had by showing a 'mysterious disappearance' since that is (so the court concluded) 'not a part of the definition of 'theft" but 'a risk covered by the policy.'
Turning again to the language of the 'inclusion-meaning' provision under scrutiny ), insertion of the comma after 'thereat' suggests that the subsequent words 'or mysterious disappearance' are not to be included in and as a part of the phrase 'meaning any act of stealing or attempt thereat' which is definitive of 'theft,' but rather denote and identify ...
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