Weiss v. London Guaranty & Accident Co., Limited
| Decision Date | 14 April 1924 |
| Docket Number | 292 |
| Citation | 280 Pa. 325,124 A. 472 |
| Parties | Weiss et ux. v. London Guarantee and Accident Co., Ltd., Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 26, 1924
Appeal, No. 292, Jan. T., 1924, by defendant, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1921, No. 6404, on verdict for plaintiff, in case of William and Lena Weiss v London Guarantee and Accident Co., Ltd. Reversed.
Assumpsit on policy of burglary insurance. Before McDEVITT, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiffs for $6,558.50. Defendant appealed.
Errors assigned were instructions, appearing by opinion of Supreme Court, quoting record.
The judgment is reversed with a venire facias de novo.
Wm. W Smithers, for appellant. -- Binding instructions for defendant were called for by reason of the defects and inadequacies of the means of proof: Howard Express Co. v. Wile, 46 Pa. 201; First Bank v. Wirebach, 106 Pa. 37; Dinan v. Assn., 213 Pa. 489; Hopkins v. Tate, 255 Pa. 56; Holden v. R.R., 169 Pa. 1; Fineburg v. Ry., 182 Pa. 97.
Combined with evil character, interest and lack of corroboration, the record reveals material oral and documentary contradictions, by both plaintiffs.
That part of the charge in which the jury were told that plaintiffs might be given "as much credence as though they were the whitest lilies ever painted," coupled with the half-truth expressed in the instruction that mere guilt would not warrant a verdict for defendant constituted a glaring error: Peirson v. Duncan, 162 Pa. 187; Borham v. Davis, 146 Pa. 72; Ensminger v. Hess, 192 Pa. 432; Reeves v. R.R., 30 Pa. 454; Mastel v. Walker, 246 Pa. 65.
The portion of the charge declaring that there is a burden on insurance companies to investigate the character of assured before issuing a policy was highly prejudicial and constituted reversible error: Mastel v. Walker, 246 Pa. 65.
William T. Connor, with him John R. K. Scott, for appellee. -- There was no justification for the trial judge giving binding directions, or in the court below entering judgment n.o.v.: Howard Express Co. v. Wyle, 64 Pa. 206; Lebanon Ins. Co. v. Kepler, 106 Pa. 34.
There was no error in the charge of the trial judge: Mastel v. Walker, 246 Pa. 65; Deval v. Glover, 250 Pa. 417; Hunter v. Bremer, 256 Pa. 257; Sikorski v. Ry., 260 Pa. 250; Conklin v. Traction Co., 266 Pa. 167.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
This action was brought to recover upon a policy issued by the defendant company to indemnify against loss of jewelry. It was taken out on June 1, 1921, in the amount of $4,000, and originally protected against burglary alone. Three weeks later, a rider was secured covering damage arising by reason of robbery from the person, and, on August 20th, for a further premium, the maximum liability was raised to $8,000. A reason given for the increase was an alleged buying of additional valuables, though on the trial the dates of such purchases could not be given. Testimony was offered to show that, on September 6, 1921, about two weeks after the policy limit had been doubled, a robbery occurred in the apartment of the plaintiffs.
It was insisted that both husband and wife, -- married in 1920, -- left their rooms in the early evening, one to attend a wedding, and the other a theater, and that the wife returned to the apartment shortly after eleven o'clock, removed her hat and went into the kitchenette, which opened upon a fire escape. It is said that three masked men then entered, one put his hand over her face and the other removed the jewels, including finger rings and bracelets, and a bar pin, though no violence to the person appeared, except a swelling on her face. Her screams attracted the attention of residents of the floor below, and they summoned a policeman. He testified to observing certain bruises, and another officer gave evidence of the discovery the next day of cigarette butts and matches on the fire escape. A family named Ginsberg occupied rooms on the same floor, but they were not produced at the trial, it being claimed they had given up their apartment after the alleged robbery. Mr. Weiss did not return until later in the night, and insisted that the Ginsbergs were there, though no one else so stated.
The case rested chiefly on the testimony of the husband and wife, and a third party, the keeper of a cigar store, who claimed to have sold to the plaintiffs the articles alleged to have been taken. One witness was called by the defendant to show contradictory statements by Mrs. Weiss, but his testimony was properly rejected because of the failure to identify her as the person with whom he talked. The case was submitted to the jury, which rendered a verdict for $6,558.50, subsequently reduced by $59.65.
The right to recover rested upon the evidence given by the plaintiffs and Feinberg, slightly corroborated by the two policemen. If the story which they told was believable, then a verdict in their favor could be sustained. The whole question turned on the credibility of these witnesses, and, under the circumstances disclosed, it was the duty of the court to most carefully explain to the jury the weight to be given to their testimony, not only because of the interest of two of them, the plaintiffs, but as to all three, in view of their criminal records, and, further, to call attention to the many contradictions which appeared in the stories they told.
Mrs. Weiss, who said she was thirty-one years old, could not remember how many times she had been arrested, nor the last time she had confessed her guilt, but did say that she had been an inmate of, and conducted, two bawdyhouses in Philadelphia under a different name, and was indicted as Lena Allen three times from November, 1922, to March, 1923, on charges of keeping a disorderly house, and found guilty. The husband, the other plaintiff, claimed to be thirty-three years of age, but could not remember how many times he had been arrested, admitting, however, three or four times, and finally stating that he had been indicted five times in the federal and state courts after 1911, covering charges of larceny, shoplifting and dealing in narcotics, in which cases he had been convicted or pleaded guilty, and served sentences in Philadelphia, Atlanta, Georgia, and Mercer County, New Jersey. The third witness, Feinberg, who kept a cigar store and sold diamonds, was convicted in 1917 of receiving stolen goods, and in the federal court on the charge of selling narcotics, for which he served a prison term in Atlanta, Georgia. He kept no books.
On such testimony, with certain minor corroborating facts by the policemen, as above referred to, the case was submitted. Under these circumstances, it...
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