Lewis v. Continental Casualty Co.

• Decision Date: 27 January 1931
• Citation: 295 P. 450,135 Or. 170
• Parties: LEWIS v. CONTINENTAL CASUALTY CO.
• Court: Oregon Supreme Court

295 P. 450

135 Or. 170

LEWIS v. CONTINENTAL CASUALTY CO.

Supreme Court of Oregon

January 27, 1931

Department 1.

Appeal from Circuit Court, Multnomah County; John H. Stevenson Judge.

Action by L. A. Lewis against the Continental Casualty Company, a corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for appellant.

Homer D. Angell, of Portland (John B. Bell, Jr., of Eugene, and Angell, Fisher & Sabin, of Portland, on the brief), for respondent.

RAND J.

This is an action at law to recover, under a policy insuring plaintiff against loss by burglary, theft, or larceny, for an alleged theft of a diamond, the property of plaintiff's wife. The policy covers jewelry, precious stones, and other articles designated in a schedule annexed "owned by the Assured or by any permanent member of the household of the Assured who does not pay board or rent, or by a relative of the Assured permanently residing with him but shall not apply to such property owned by a domestic servant or other employee of the Assured." The policy limited defendant's liability by providing that it should be liable only for losses occasioned by burglary, theft, or larceny "committed by a guest or by any domestic servant or other employee of the Assured or by any person whose property is not covered hereby." The cause was put at issue and a trial was had in the court below without the intervention of a jury. The trial court made a general finding, sustaining plaintiff's claim, and gave judgment in favor of plaintiff, from which defendant has appealed.

Defendant's contention is that the evidence was not sufficient to support the finding that the diamond had been stolen.

It appeared from the evidence of plaintiff and his wife that the diamond in question was one of two matched stones which plaintiff purchased and gave to his wife in 1905; that the two stones were first set in a ring; that about 1910, a necklace was purchased by plaintiff and given to his wife that the necklace had two pendants, in each of which one of said diamonds was set; that the necklace, while not being worn, was kept in the bottom of a top drawer in a dresser in plaintiff's bedrooom beneath a paper covering the bottom of the drawer, over which articles of clothing were placed; that about six days before the diamond was stolen, plaintiff's wife took the necklace from the drawer and, after examining it and finding that both diamands were in place, she replaced it under the paper and clothing at the bottom of said drawer; that the necklace was at that time intact was testified to by plaintiff's wife and Mrs. Smart, plaintiff's daughter; that on September 10, 1928, plaintiff's wife took said necklace from the drawer, intending to wear it that evening at some social function, and at that time found that one of the pendants containing the diamond in question had been forcibly broken from the necklace and was missing; that a thorough search was then made for the diamond and that it could not be found; that, on the following day, plaintiff was notified by his wife of its loss and on the same day he notified the police department; that, on the following day, he notified the agent of the insurance company that the diamond had been stolen.

Plaintiff's family consisted of himself and wife. They kept two servants a cook and a Filipino boy, both of whom had access...