Levy v. Equitable Fire & Marine Ins. Co.

• Decision Date: 04 December 1958
• Docket Number: No. 9908,9908
• Citation: 146 A.2d 231,88 R.I. 252
• Court: Rhode Island Supreme Court
• Parties: Louis A. LEVY v. EQUITABLE FIRE & MARINE INSURANCE COMPANY. Ex.

Page 231

146 A.2d 231

88 R.I. 252

Louis A. LEVY v. EQUITABLE FIRE & MARINE INSURANCE COMPANY.

Ex. No. 9908.

Supreme Court of Rhode Island.

Dec. 4, 1958.

Leonard A. Kamaras, Providence, for plaintiff.

Orme & Sullivan, Walter R. Orme, Leo J. Sullivan, Wickford, for defendant.

PAOLINO, Justice.

This is an action of the case in assumpsit to recover the value of an insured mink stole which the plaintiff alleges was lost by a cleansing company. After a hearing in the superior court by a justice thereof sitting without a jury a decision was rendered for the defendant. The case is before us on the plaintiff's exceptions to such decision and to certain rulings of the trial justice.

The declaration alleges that defendant issued to plaintiff a 'Jewelry-Fur Floater Policy' insuring a mink cape stole, that the loss thereof was within the policy coverage, and that defendant failed to pay for such loss. The defendant pleaded the general issue. It is undisputed that at the time of the alleged loss the policy of insurance was in full force and effect.

We shall refer only to those portions of the evidence which are pertinent to the issues raised by the exceptions. It appears from such evidence that on or about June 25, 1956 plaintiff's wife delivered the insured stole in person to the Swiss Cleansing Company of this city to be cleaned and stored during the summer months; that she received a storage receipt for the same; and that sometime in the late fall of the same year she called for the garment at the company's plant.

The instant action is based on plaintiff's claim that the stole which was returned to his wife was not the same one left by her for storage. The plaintiff's wife, his mother-in-law, and Arnold M. Winston who testified for plaintiff in substance corroborated the claim that the stole in question was not plaintiff's.

This testimony was disputed by defendant. One of its witnesses Ester Coty, who was employed by the cleansing company as a clerk, testified that she waited on plaintiff's wife in June 1956 when the stole was left for storage; that she again waited on her when she called for it in the fall of that year; and that the stole which had been delivered by her to plaintiff's wife was the same garment which had been left with her for cleansing and storage.

After the parties had rested their case and the attorneys had completed their arguments, the trial justice, before rendering his decision from the bench, made the following observation: 'There is no--is the plaintiff in the courtroom?' The plaintiff's attorney thereupon informed the court that plaintiff was in the courtroom and made an oral motion to reopen the case for the purpose of allowing plaintiff to take the stand to identify himself as the plaintiff in the case. The defendant objected to this motion. The plaintiff's exception to the denial of such motion seems to be based on the contention that the trial justice abused his discretion.

It is well established that motions to reopen a case after testimony is closed are addressed to the discretion of the trial justice and his action on such motions will not be disturbed by this court except for an abuse of discretion. Kwasniewski v. New York, N. H. & H. R. Co., 53 R.I. 144, 147, 164 A. 558. It is also well settled that a decision made in the exercise of a discretionary power should not be disturbed unless it is clearly shown that such discretion has been improperly exercised or that there has been an abuse thereof. Durepo v. Watson, 75 R.I. 51, 63 A.2d 570; Kirsh v. Frank, 76 R.I. 438, 71 A.2d 778; Vingi v. Trillo, 77 R.I. 55, 73 A.2d 43.

After a careful consideration of plaintiff's contention on this issue, we fail to find any abuse of discretion in the ruling of the trial justice. The main issue in the case is the question of identification of the insured garment. It is clear, and plaintiff himself concedes, that he could not add anything to the case that had not already been testified to by his wife. This exception is therefore overruled.

After denying plaintiff's motion to reopen the case, the trial justice rendered a decision for defendant. He reviewed the evidence and stated that the main issue was the question of identification; that plaintiff had not satisfied the court by a fair preponderance of the evidence that the stole covered by the policy was not the garment which was returned to plaintiff's wife on the day in question; and that for such reason he would enter a decision for defendant. Immediately thereafter counsel for plaintiff asked the trial justice if it was not discretionary with him to allow plaintiff to testify. The trial justice replied that upon defendant's objection to plaintiff's motion to reopen the case he had, in the circumstances and in his discretion, sustained the objection.

The plaintiff's exception to the decision on the merits in favor of defendant is based on his contention that the trial justice misconceived the evidence and misapplied the law. After a careful examination of the entire record we cannot agree with this contention. It is clear that the decisive issue in this case, namely, the question of identification of the insured garment, depended entirely upon the credibility of the testimony of the witnesses for both parties. The trial justice who saw and heard them testify was in...