Wilson v. Hawkeye Cas. Co.
| Decision Date | 21 March 1950 |
| Docket Number | No. 2452,2452 |
| Citation | 215 P.2d 867,67 Wyo. 141 |
| Parties | WILSON et al. v. HAWKEYE CASUALTY CO. |
| Court | Wyoming Supreme Court |
Joseph B. Sullivan, Douglas, for appellant.
Kline & Kline, Cheyenne, for respondents.
The District Court of Laramie County disposed of this case without a jury and awarded a judgment in favor of the plaintiffs in an action brought in that court by Charles M. Wilson and Rose Johnstone as plaintiffs against the defendant Hawkeye Casualty Company, a corporation. That part of the judgment awarded to Charles M. Wilson is not questioned in this direct appeal proceeding. The only controversy to be considered is the one arising because the plaintiff, Rose Johnstone, was by this judgment also allowed a recovery against the defendant for the amount she claimed with interest and costs. The action was brought on an insurance policy issued by the defendant Hawkeye Casualty Company and the controlling question to be resolved is whether the loss suffered by the plaintiff, Rose Johnstone, is legally covered by it.
Plaintiffs' petition consists of two alleged causes of action, the first of which deals with the insured loss by the plaintiff Wilson and concerning which there is no dispute. The second cause of action is that set forth on behalf of the plaintiff, Rose Johnstone, and is in substance as follows:
It adopts the first three paragraphs of the first cause of action on behalf of Charles M. Wilson which state that he and his wife, Julia, were the owners and occupants of a three story dwelling house whose location is duly described; that the defendant is an Iowa corporation qualified to transact business in Wyoming, and that about December 15, 1946 Wilson and his wife entered into an insurance contract with the defendant which issued to them a 'residence and outside theft policy' whereby in consideration and payment of the required premium the defendant 'agreed to pay for loss by theft from the above described premises of any jewelry, furs, or other personal property' not to exceed the sum of $1,000; that this policy remained in force for one year, expiring by the limitation thereof on December 15, 1947; that this policy provided that 'the mysterious disappearance of any insured property should be presumed to be due to theft', Exhibit A attached to and made a part of said pleading being stated to be a true copy of the instrument in question.
The cause of action in plaintiffs' petition setting forth the claim of Rose Johnstone then averred that she was an intimate friend of the Wilsons and that on April 7, 1947 and for several weeks previous thereto she had been living with them at their aforesaid residence as their guest and a member of their household; that she had at the time with her among her possessions in said dwelling house a certain diamond ring of the reasonable value of $1,600; that during this time she was ill health and that on April 7, 1947 she left the residence of her friends and went to Rochester, Minnesota for medical treatment and remained there until about May 21, 1947 when she returned to said residence. Paragraph 4 of the alleged second cause of action on behalf of Rose Johnstone reads verbatim as follows: 'That at the time that plaintiff left said insured premises, and went to Rochester, Minnesota for medical treatment as aforesaid, she did not wish to take with her any except the most essential of her belongings and with the knowledge and consent of said Julia G. Wilson and Charles M. Wilson, she left most of her personal possessions, including said diamond ring, at said insured premises; that when the returned from Rochester, Minnesota, she immediately went to the place in said dwelling house where she had secreted said diamond ring but found it missing and that it either had been stolen or had mysteriously disappeared; and although strict search has been made therefor, no trace of said diamond ring has ever been found.'
It is then stated that Charles N. Wilson and his wife acting for and in behalf of Rose Johnstone immediately notified the defendant of the loss of said ring and thereafter, at its request, furnished the defendant with statements and proof of loss and the Wilsons and this plaintiff have in every way complied with the terms and conditions of said policy and done all the things required of them to be done; and that more than thirty days have elapsed since this proof of loss of said ring was submitted to the defendant.
Paragraph 6 of the alleged second cause of action pleads verbatim that: 'during all times herein mentioned, said residence and outside theft policy of insurance was in full force and effect and that this plaintiff is entitled to bring this action in her own behalf for the reason that she has a beneficial interest in said contract of insurance by reason of the fact that at the time of the theft, or mysterious disappearance of said diamond ring, she was residing in said insured premises as a guest and a temporary member of the household of said insured.'
The remainder of the pleading states that the defendant has not paid to the plaintiff, Rose Johnstone, the value of the ring or any part thereof or supplied her with another ring of equal value and she accordingly requests judgment against the defendant for the sum of $975 with interest and costs.
The answer of the defendant, after admitting that it is willing to pay the plaintiff Charles M. Wilson the sum of $25 loss for which he sued in the first cause of action in plaintiffs' petition, answers the Johnstone alleged second cause of action by denying: 'each and every allegation contained in the paragraphs 4 and 6 of the second cause of action, and further denies that the Plaintiff Rose Johnstone had an insurable interest in the Policy of Insurance and her loss was not covered thereby.'
Plaintiff replied to this answer by denying 'each and every allegation contained' in its second paragraph, which is the part quoted above.
Only those portions of the policy of insurance involved here which throw any light upon what property is covered by it, now the important question before us, are below excerpted, viz.: We may note first that the policy itself is designated 'Residence and Outside Theft Policy'. Under the heading 'Declarations' Item 1 is:
'Name of Insured Julia G. Wilson & Charles Wilson'
Item 3 is as follows:
'The insurance afforded is only with respect to such and so many of the following coverages and sections thereunder as are indicated by a specific limit of insurance applicable thereto, subject to all the terms of this policy having reference thereto.
Limits of Premi-
Coverages Insurance ums
------------------------------------------------------------
A. Theft from the Premises or a
Depository
(a) Jewelry, Sterling Silver
and Furs $ $
------------------------------------------------------------
(b) All Other Property, $ $
------------------------------------------------------------
(a) and (b) Combined, $1,000.00 $18.00
------------------------------------------------------------
(c) Specified Articles, separately
described and enumerated
(Such articles are not
covered under sections
(a) or (b), $ $
------------------------------------------------------------
B. Theft Away from the
Premises $1000.00 * $Nil
------------------------------------------------------------
*Subject to limit of $100 on
money & $500 on securities
and U. S. War Savings Total Premium $18.00
Stamps."
Under the heading 'Insuring Agreements' following the statement: 'Hawkeye Casualty Company (A Stock Company, Herein Called the Company) Agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:' appear:
'I Coverage A--Theft from the Premises or a Depository. To pay for loss by theft from the premises or, if the property has been placed therein by the Insured for safekeeping, from within any bank, trust or safe deposit company, public warehouse, or occupied dwelling not owned or occupied by or rented to the insured, of such of the following classes of property as are indicated by a specific limit of insurance applicable thereto in the declarations:
'(a) jewelry, sterling silver and furs, which words for the purpose of this insurance mean Jewelry, watches, necklaces, bracelets, gems, precious and semi-precious stones, articles of gold, platinum and sterling silver, furs, and articles containing fur which represents their principal value, not included in section (c) hereof:
'(b) all other property, not included in section (c) hereof;
'(c) specified articles, separately described and enumerated in section (c) of Coverage A in the deductions.
'To pay for damage to the premises and to the insured property at the premises or such depository caused by theft or attempt thereat, and for damage to the interior of that part of any building occupied by the insured at the premises and to the insured property therein caused by vandalism or malicious mischief, provided that with respect to damage to the building the insured is the owner thereof or is liable for such damage.
'With respect to loss occurring at any part of the premises not occupied exclusively by the insured's household, this insuring agreement applies only to property owned or used by the insured or a permanent member of his household or owned by a residence employee thereof.
'Coverage B--Theft Away from the Premises
'To pay for loss or damage by theft or attempt thereat, vandalism or malicious mischief away from the...
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