Sun Ins. Office, Ltd., of London v. Mallick

• Decision Date: 13 January 1931
• Docket Number: No. 48.,48.
• Parties: SUN INS. OFFICE, LIMITED, OF LONDON v. MALLICK.
• Court: Maryland Court of Appeals

153 A. 35

SUN INS. OFFICE, LIMITED, OF LONDON

v. MALLICK.^*

No. 48.

Court of Appeals of Maryland.

Jan. 13, 1931.

Appeal from Superior Court of Baltimore City; Samuel K. Dennis, Judge.

Action by Abram J. Mallick against the Sun Insurance Office, Limited, of London. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before BOND, C. J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Walter L. Clark and Herbert Levy, both of Baltimore (A. B. Makover, Jacob Kartman, Clater W. Smith, and Morris Rosenberg, all of Baltimore, on the brief), for appellant.

S. Ralph Warnken and W. Calvin Chesnut, both of Baltimore (Cook, Chesnut & Markell, of Baltimore, on the brief), for appellee.

DIGGES, J.

In September, 1927, a "fine arts" policy of insurance was executed by the appellant and appellee in the amount of $75,000, "covering on an original manuscript on sheepskin 'The Seven Books of Moses' consisting of eleven rolls, valued at $75,000." The policy also provides: "This policy covers the property insured hereunder as described herein against loss or damage by accident, collision, derailment, fire, theft or water or loss or damage of any kind whatsoever, except as hereinafter excluded. * * * This entire policy shall be void if the assured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof; or in case of any fraud or false swearing by the assured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. * * * In case of loss or damage, this company shall pay or make good to the assured such loss or damage up to but not exceeding the amount set opposite the several articles covered hereunder as shown above or as per schedule attached to this policy, which amounts are ₍agreed to be the values of said articles for the purpose of this insurance. * * * In the event of loss, immediate notice with full particulars must be given or mailed by the assured to this company or its agent." The property was described as being located in the dwelling house of the assured at 2730 St. Paul street, Baltimore, Md.; and the period covered by the contract was from noon on the 23d day of September, 1927, to noon, September 23, 1928. It will be seen that the contract was a "fine arts insurance policy," and was a "valued policy," which means that the parties had liquidated or agreed upon the amount to be paid by the company in case loss occurred through the happening of any risk insured against. In other words, the parties agreed in advance (at the time the contract was executed) that the damage suffered by the assured in case of loss should be $75,000, without regard to the intrinsic or market value of the article. By the contract the parties agreed not upon the value of the article insured, but on the amount to be paid by the company in event of loss. It is alleged that on the night of the 9th-10th of February, 1928, the insured property was stolen. Theft being one of the risks insured against, the appellee notified the company and made claim for $75,000, the amount at which the insured property was valued in the policy. After considerable negotiation back and forth, the right to recover was denied and the claim refused by the company. Whereupon suit on the policy was instituted in the superior court of Baltimore city on September 22, 1928. On January 30, 1930, the case was heard by the court sitting as a jury, and resulted in a verdict and judgment for the appellee for $75,000. The appeal here is prosecuted from that judgment.

The record in this case consists of more than 900 pages and contains all of the testimony produced in the trial below. There are forty-seven exceptions in the record, forty-six to rulings on evidence and one to the ruling on the prayers. Thirteen prayers were offered by the plaintiff, to which the defendant objected, and filed special exceptions to the plaintiff's first prayer. The court granted the plaintiff's first prayer and overruled the defendant's special exception thereto. The defendant offered sixty-seven prayers, fifteen of which were granted as offered, and twelve were granted as amended by the court.

The volume of the record in this case is largely made up of testimony which was necessary and pertinent for the decision of matters of fact submitted to the jury, and which, having been passed upon by the jury, have no proper place in the consideration of the case by this court except in so far as it be necessary in order to determine the legal questions presented. Such evidence will be stated as briefly as a clear understanding of the case will permit. Mallick, the appellee, is a native Persian; his father was a well-educated Persian, Reverend Moses Jacob Mallick, a Protestant missionary, a man of culture, of above the average means, who had traveled extensively in Europe and once in the United States. Reverend Mallick had a large family, of good standing. He appears to have owned a large house and ground, and conducted a school and orphan asylum near Urmia. At the age of fourteen the appellee came to this country in 1900, attended school for some time, and engaged in various occupations. He went back to his father's home in Persia about 1911, and was married in 1912, in the latter part of which year he returned to this country, and was followed by his wife several years later. His father was among those massacred by the Turks and Kurds in 1915. The appellee testified that before leaving Persia in 1912 his father gave him the manuscript which is the subject-matter of the insurance, explaining it was ancient and would one day be a "fortune"; that his father got the manuscript from a "secret room"; and that he (the appellee) brought it to the United States in 1912. Upon his return to this country he worked for a while for various parties in Baltimore, and at all times dealt in rugs as a side line. Finally in 1917 he established himself permanently in the rug business at 919 North Calvert street, Baltimore. This business seems to have prospered to such degree as to enable him to own his store at the address stated, and also his home at 2730 St. Paul street, which he purchased and put in his wife's name and which is still subject to a small mortgage. At the time the insurance policy was issued, he had good credit and was in good standing with his banking connections, and this condition has continued. The manuscript or scroll which was insured was kept in the appellee's store prior to 1927, at which place it was shown by him to a number of witnesses who testified to having seen and examined it. It appears that about 1926 the appellee read of a large sum having been obtained for old stamps, up to which time he does not seem to have attached much value to the manuscript. About this time he talked with Mr. A. J. Grape, the president of the bank in which appellee deposited, about the manuscript which he had, and later took it to Mr. Grape, who gave him a receipt for it, with the understanding that he would send it to his uncle, Mr. Jacob Grape, who was at the University of Pennsylvania, in an effort to ascertain its value with a view to selling. It was sent to Jacob Grape, who exhibited it at a club known as the Oriental Club, which seems to have been made up of instructors, students, or investigators in Oriental archæology with special reference to Semitic subjects. Jacob Grape submitted to his nephew in Baltimore a report fully describing the manuscript, and a letter in which it was stated that the Jewish members of the Oriental Club seemed to be more interested than others and desired more information in respect to the history of the manuscript than he was able to give, and stated that with the information he had, no one was willing to place a higher value upon the manuscript than $300. This letter else stated that Jacob Grape, at the suggestion of the head of the Semitic department, had taken the manuscript to Professor Greenstone, who told him that "synagogue documents of this sort are imported into the United States from Oriental countries where they are made, and that they cost Hebrew congregations from $75 to $250 a piece, but the columns are usually written on parchment which is thinner than these hides and sometimes longer than this one is (93 feet)." There seems to be no contradiction that Mallick was acquainted with the contents of these communications. Subsequently the manuscript was returned by Grape to the appellee, and later was given by him to a cousin, Yonan, who lived in Yonkers, N. Y.; the purpose of this delivery being to make further investigations as to value and prospects of sale. A receipt was given by Yonan to Mallick, in which it was agreed that the manuscript would be insured for $150,000 in favor of Mallick. Mallick later visited Yonkers, and while there the manuscript was examined by agents with a view to insuring same, but this did not result in a policy being issued. F. Albert Roloson is a member of the insurance firm of Henry M. Warfield-Roloson Company, had known Mallick for several years prior to the issuing of the policy, and had purchased rugs from him. Mallick had been to his house on several occasions, and Roloson had talked to him a great deal about conditions in Persia. He testified that the first time he saw the manuscript was on September 2, 1927, when Mallick called him over the phone and asked him to come to his house to talk about business; that Mallick had told him prior to that time that he was going to give him some of his insurance; that he went to Mallick's house and was shown the manuscript; "there were eleven separate rolls of very soft skin, which he said was sheepskin, and looked to me like that, as far as I could tell"; that Mallick told him he wanted to take the manuscript to New York for the purpose of trying to sell it, and wanted a policy to cover it while there; that he told Mallick "he could get it covered...