Sowden v. United States Fidelity & Guaranty Company

• Decision Date: 08 January 1927
• Docket Number: 27,025
• Citation: 252 P. 208,122 Kan. 375
• Court: Kansas Supreme Court
• Parties: RALPH SOWDEN, Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant

252 P. 208

122 Kan. 375

RALPH SOWDEN, Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant

No. 27,025

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BURGLARY AND THEFT INSURANCE--Affirmative Proof of Larceny--Circumstantial Evidence. A clause in a policy insuring against a loss by theft that affirmative proof must be made of the larceny to warrant a recovery does not prevent the establishment of that fact by purely circumstantial evidence.

2. SAME--Affirmative Proof of Larceny--Sufficiency of Evidence to Go to Jury. In an action upon such a policy a submission to the jury of the question whether insured jewelry had been stolen was warranted by evidence that it was left at night upon the top of a chiffonier and was gone in the morning that none of the persons known to be in the house or having a right there had taken it or knew anything about it, that it was never heard of again by the owner, and that an outside door of the house had been unlocked all night.

3. SAME--Proof of Loss--Waiver of Defects. In an action on a theft insurance policy it is held that the making of sufficient proof of loss to the company was admitted and that in any event the proof made was sufficient.

4. SAME--Instructions. In such an action it is held that an instruction complained of was not prejudicial.

James A. McDermott, of Winfield, for the appellant.

Albert Faulconer, Kirke W. Dale and C. L. Swarts, all of Arkansas City, for the appellee.

OPINION

MASON, J.:

The United States Fidelity and Guaranty Company issued to Ralph Sowden a policy insuring him against the loss of certain property by burglary, theft or larceny. He brought this action against the company alleging the loss by theft and larceny of a diamond ring worth $ 375 and two earbobs worth $ 150, covered by the policy. He recovered judgment and the defendant appeals.

The policy included this provision:

"Affirmative proof of loss or damage under oath on forms provided by the company must be furnished to the company at its home office in Baltimore, Md., within sixty days from the date of the discovery of such loss or damage."

The proof of loss furnished to the defendant was made by the writing in of answers to printed questions on a prepared blank. The principal contention of the defendant is that at the trial there was an entire lack of affirmative evidence, or of substantial evidence, that the insured property was stolen.

1. The wife of the plaintiff testified to this effect: The last time she saw the ring and earbobs was the night of July 5, 1923, at their home. She was packing her things to go to Colorado. She left by automobile on the morning of July 6, taking her two children, three and ten years old, and her maid. The occupants of the house were those indicated, and another family consisting of a husband and wife, who lived in an upstairs room. The arrangement of the house was described in full detail. The door of the back porch was not locked, nor was the screen door hooked, because of the maid being out. The inside doors were not locked. When the packing was practically finished and the plaintiff had gone to bed, the witness, being afraid to travel with the ring and earbobs, seeing his bunch of keys on top of a chiffonier, where he was in the habit of placing them, put the ring on the keys and the earbobs beside them, thinking he would be more apt to see them there, and that the chiffonier, which was in a large room adjoining a sleeping porch where the family slept, was high enough so that the children could not reach them. She intended to tell him about them. She got up between four and five o'clock the next morning, called the maid, got the children up, ate breakfast and got into the car. She did not observe whether the jewelry was on the chiffonier. There was a rim around the top of the chiffonier that would prevent the ring and earbobs from rolling off. The plaintiff got up just before the others left, at about half past six. The witness did not tell him about the jewelry then, nor did she write him about it. After her return home she first had occasion to wear it in October. She asked her husband to bring it from the mill of the company of which he was president, where she supposed he had taken it. She never saw it again, never gave consent to anybody to take it, and knew nothing of its whereabouts. Nothing else was missing from the house, and there were no evidences of any disturbance.

The plaintiff testified to this effect: He placed his keys on the chiffonier as already indicated. In the morning he picked them up and at that time there Was nothing there by them. If the jewelry had been there he certainly would have picked it up. He never gave consent to anyone to take the jewelry. He first knew of its being missing when his wife asked him for it, as she related. A thorough search was made, which was fruitless. He had taken the family silver to the vault at the mill.

The maid gave this testimony: She saw the plaintiff's wife place the jewelry on the chiffonier on top of the keys as narrated by her. She then went to a carnival with her sister, returning between eleven and eleven thirty. She came in through the back porch and did not lock the screen door. She knew nothing as to what became of the jewelry.

Of the couple who were occupying a room in the plaintiff's home, the wife testified that she took care of the house after Mrs. Sowden left for Colorado; that on that morning she straightened up the room where the chiffonier was an did not see the jewelry, with which she was familiar; that in cleaning up she could not have failed to notice the large ring if it had been there. The husband testified he knew nothing about the jewelry.

The cases bearing on the character of evidence sufficient to prove that missing articles were stolen are fully collected in notes in 46 L.R.A. N.S. 562, 567, 568; 41 A. L. R. 846, 851-853; and 44 A. L. R. 471, 472, the last one bringing the annotation to within a year. It is well established that even where a policy insuring against theft requires that the proof of the larceny shall be "direct and affirmative," or even "conclusive," circumstantial evidence may be sufficient. In the second of the notes referred to this language is used:

"It seems that under policies requiring direct and affirmative evidence of the burglary, larceny, or theft, the courts refuse to construe the term 'direct and affirmative' or 'conclusive' evidence in its strict, technical sense, as to do so would render the policy valueless except in the most unusual cases; thus, the fact that the evidence of theft is wholly circumstantial will not defeat a recovery on such policies." (41 A. L. R. 846, 851.)

It is said that even in the absence of any special provision as to the degree or character of proof required "as a rule, no recovery can be had upon policies indemnifying against loss by burglary, theft, or larceny where the evidence merely shows that property covered by the policy is missing." (46 L.R.A. N.S. 561, 567.) That is obviously sound law. If a claimant under a theft insurance policy were to rest his case, so far as concerns this feature of it, upon his testimony that "the insured property has disappeared," he would of course not be entitled to go to the jury upon the issue whether it had been stolen. But when to the bare fact of disappearance there is added all the known circumstances attending it, stronger reasons usually, and almost necessarily, appear for its being thought due to one cause rather than to another, so that there arises a basis for forming a rational judgment on the subject. And where upon an assembling of all the available information the hypothesis of larceny seems more probable than any other that can be suggested, no reason is apparent why the matter should not go to the jury to be determined on the fair inferences to be drawn from the facts directly established.

In the present case there was direct evidence that Mrs. Sowden left the jewelry on the chiffonier the night before starting for Colorado, the ring being on the bunch of keys and the earbobs beside it, and never saw any of it again. The jurors, aware that memory is fallible, especially in such matters, might think she was mistaken and that probably she later put it in a safer place and forgot it, but certainly no rule of law required them to disbelieve her testimony. The plaintiff's statement that in the morning when he...