Lyons v. United States Fid. & Guar. Co.
| Citation | 145 N.E. 440,87 Ind.App. 514 |
| Decision Date | 20 November 1924 |
| Docket Number | No. 11658.,11658. |
| Court | Court of Appeals of Indiana |
| Parties | LYONS et al. v. UNITED STATES FIDELITY & GUARANTY CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allen County; L. W. Royce, Special Judge.
Action by John Lyons and others against the United States Fidelity & Guaranty Company. From a judgment for defendant, plaintiffs appeal. Affirmed.
Superseding former opinion in 139 N. E. 343.
Olds & Thomas, of Ft. Wayne, for appellants.
Arthur W. Parry, of Ft. Wayne, for appellee.
On August 25, 1920, appellants as partners owned and operated a store for the sale of furs at retail. On that day appellee issued to appellants a policy of insurance by which appellee agreed to indemnify appellants against loss by burglary. This action is by appellants to recover on the policy. The complaint, which is in the usual form in such cases, contains an averment that on August 26, 1920, “furs and goods of the value of $8,418.09 of the property of said plaintiffs covered by said insurance, and being a part of their stock of goods in their said store, were feloniously taken and carried therefrom in the nighttime.” In addition to a formal answer in denial, appellee filed an answer setting up that the policy sued on contained the following provision:
“This policy shall not cover any loss *** if the assured or any associate in interest *** is implicated as principal or accessory in effecting or attempting to effect the loss.”
And that if there were any articles of merchandise removed from the premises during the night of August 26, 1920, as averred in the complaint, such merchandise was removed “by the plaintiff Harry Lyons, in person, or with the full knowledge, consent, and by the express authority and direction of the said Harry Lyons.” To this paragraph of answer appellants filed a reply in denial. Verdict and judgment for appellee.
Overruling motion for a new trial is the only error assigned, and the only reason for a new trial presented to this court as a cause for reversal is the action of the trial court in refusing to give instruction numbered 12 tendered by appellants. By this instruction, the court was asked to instruct the jury that, in order to defeat a recovery “upon the issue” presented by the special paragraph of answer, “it was necessary for the defendant to establish by a preponderance of the evidence” that the goods alleged to have been taken from the store “had been removed from the premises by the plaintiff Harry Lyons, in person, or by his authority and direction.”
On the trial of the cause, it was the theory of appellee, defendant below, that there was no burglary, no felonious removal of the goods, as averred in the complaint. In support of this theory there was much evidence, and the court on its own motion, by its instruction numbered 8, instructed the jury that there could be no recovery unless plaintiffs by a preponderance of the evidence had established “the fact that their store was burglarized, and that a portion of their goods was...
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