Hartford Fire Ins. Co. of Hartford, Conn. v. Baker

• Court: Oklahoma Supreme Court
• Writing for the Court: HERR, C. PER CURIAM.
• Citation: Hartford Fire Ins. Co. of Hartford, Conn. v. Baker, 260 P. 6, 127 Okla. 166, 1927 OK 269 (Okla. 1927)
• Decision Date: 13 September 1927
• Docket Number: 15302.
• Parties: HARTFORD FIRE INS. CO. OF HARTFORD, CONN., v. BAKER et al.

260 P. 6

127 Okla. 166, 1927 OK 269

HARTFORD FIRE INS. CO. OF HARTFORD, CONN., v. BAKER et al.

No. 15302.

Supreme Court of Oklahoma

September 13, 1927

Rehearing Denied Oct. 18, 1927.

Syllabus by the Court.

Defendant issued its "tourist's policy," wherein it insured the plaintiffs against loss of personal property arising through all the risks and perils of fire, lightning navigation, and transportation, and the policy attached from the time the property insured was taken from the residence of the assured. The policy also provided that loss by pilferage or theft while the articles were in the custody of insured was not covered by the policy. Held: That loss occasioned by inadvertently dropping or leaving the articles in railway carriages, or other public conveyances, is covered by such policy, and recovery may be had thereunder.

Section 6009, Comp. St. 1921, provides: In estimating damages * * * the value of property to a buyer or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded as would suffice with reasonable diligence for him to make such a purchase. Held: That where plaintiff lost a piece of jewelry and immediately made inquiry of the dealer from whom the article was purchased, and inquired of other dealers in jewelry, the cost of replacing the lost articles, she may testify as the result of such inquiry, what the replacement value of the lost article was at the time of loss.

Where in an action on a tourist policy of insurance, providing that, in case the property insured is in different places the policy covers at each place that proportion of the whole amount of the policy that the value of the property in each place bears to the value in all, and that, in the event of loss, the policy shall pay such portion of same as the sum thereby insured bears to the aggregate cash value of all the property covered thereunder, and at the trial of the case the evidence offered by plaintiffs showed the value of the lost article to be $800, and that portions of the property covered by the policy were in different places at the time of the loss, that the aggregate value of the property covered by the policy was $10,250 and that the amount of insurance carried was $4,000, it is error to render judgment against the defendant for the full value of the article lost, though defendant fails to plead such provision.

Under section 780, C. O. S. 1921, this court has the power, on appeal, to modify the judgment of any county, superior or district court and where the record clearly shows the judgment of any such court to be excessive and the amount of such excess, and definitely, clearly, and satisfactorily shows the amount for which judgment should have been rendered, this court will modify the judgment accordingly. The judgment in the instant case is modified reducing plaintiffs' amount of recovery from $800 to $312.20.

Evidence examined; held sufficient to sustain the trial court in submitting the case to the jury.

Commissioners' Opinion, Division No. 2.

Appeal from District Court, Tulsa County; Edwin R. McNeill, Judge.

Action by Frank A. Baker and another against the Hartford Fire Insurance Company of Hartford, Connecticut, to recover on a tourist's insurance policy. Judgment for plaintiffs, and defendant appeals. Modified and affirmed.

Rittenhouse & Rittenhouse, of Oklahoma City, and Myers & Snerly, of Chicago, Ill., for plaintiff in error.

Benjamin C. Conner and Harry A. Tallman, all of Tulsa, for defendants in error.

HERR C.

The defendants in error will be referred to as plaintiffs and the plaintiff in error as the defendant, as the parties appeared in the trial court.

Plaintiffs brought this suit against the defendant on a tourist's policy of insurance to recover the value of a diamond and platinum bowknot brooch which they allege was of the value of $800. The trial resulted in a verdict and judgment in favor of the plaintiffs in the amount sued for. Defendant appeals.

The policy sued on insures on baggage and personal effects of the plaintiffs and members of their family from the time the property insured is taken from the residence of the insured and continues wherever said property may be, covering against all the risks and perils of fire, lightning, navigation, and transportation, including the risk of theft while being transported by any common carrier, in the sum of $4,000. The policy further insures against loss by theft from rooms occupied by insured in any hotel or boarding house and loss by theft of baggage while in transit in custody of any common carrier, providing such baggage has been properly checked. Said policy provides that loss by theft of articles in the custody of the insured in or on steamships, railroad cars, or other conveyances shall not be covered by the policy.

The plaintiffs allege that the loss of said brooch occurred on the 28th day of October, 1921, while Mrs. Baker, one of the plaintiffs, was a regular passenger on the train known as the Lake Shore Limited of the Grand Central Railroad lines, traveling between New York and Chicago; that in some manner not entirely clear to her but arising out of the confusion and risks of transportation she misplaced and lost said brooch and that said loss was not occasioned by pilferage or theft.

At the close of plaintiff's testimony, defendant moved the court for a directed verdict in its favor, which was by the court denied. This ruling is assigned as error.

It is contended by the defendant that the evidence fails to establish that the brooch was lost while insured was traveling on the train, as alleged and contended by the plaintiffs. There is no direct evidence as to how the brooch disappeared. The only evidence which tends to shed any light upon the proposition consists of the testimony of the plaintiff, Mrs. Baker; the defendant offered no evidence. Mrs. Baker testified that she boarded the train at New York on the 28th day of October, 1921; that her destination was South Bend, Ind.; that immediately before she left the hotel in New York, she placed the brooch in her traveling bag; that she carried the bag in her hand on her way from the hotel to the train and it remained in her possession until she boarded the train; that the brooch was dropped into the bag loose; that she had, in addition to said brooch, in said bag, a Pullman robe, a night dress, and some toilet articles; that the bag was not locked; that she opened her bag in her berth at night upon retiring and took therefrom certain articles; and that she again opened her bag in the morning and removed therefrom certain toilet articles; that shortly after arrival at South Bend she opened the bag and discovered the loss of the brooch. She further testified that she kept the bag in her exclusive possession from the time she left New York until she arrived at South Bend.

It is the theory of plaintiffs that in removing some of the articles from the traveling bag, while on the Pullman, the brooch was lost. It is contended by the defendant that the evidence is insufficient to establish, as a matter of fact, that the loss so occurred, and contends that the court therefore erred in overruling its motion for a directed verdict.

We are of the opinion that there was sufficient evidence from which the jury might have reasonably inferred that the loss occurred as contended by the plaintiffs and that the court ruled correctly in submitting this issue to the jury.

Defendant further contends that, even though the plaintiffs' theory of the loss is correct, such loss is not covered by the policy of insurance. It is not contended that the property, while in the personal custody of the insured, was not covered by the policy, provided the loss was not occasioned by pilferage or theft. Defendant, in its answer, alleges the loss occurred by pilferage or theft while the article was in the custody of plaintiffs, and the burden of proving the loss, in such manner, was upon the defendant, but as it did not introduce or attempt to introduce any evidence in support of this defense, we assume it abandoned the same. If the policy covered any loss while the property was in the custody of the assured, the query presents itself: Under what circumstances could a loss occur while the property was in the custody of the assured that would make the defendant liable? It is necessary to consider what was meant by the term "all the risks and perils" of navigation and transportation. The term "perils of navigation" has a fixed and definite meaning in law, as has the term "perils of transportation." In Pitcher v. Hennessey, 48 N.Y. 419, Earl, C., in discussing the term "risk of navigation," said:

"The learned judge who wrote the opinion of the General Term held that these words had a fixed legal signification, and meant the same as perils of the sea, or perils of navigation. These latter terms are held to cover losses or damage occasioned by stress of weather, winds, waves, lightning, tempest, rocks, sands, and other extraordinary causes which no human care or foresight could guard against or prevent (Story on Contracts, § 166; 2 Parsons on Mar. Law, 219; Angell on Car. § 168), and very likely they would not cover this peril. But there is no case holding that 'risk of

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