205 Ky. 511 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
Appellant, the Fidelity & Casualty Company, issued and delivered to appellee, Wathen, a policy of insurance, whereby it agreed to indemnify him for all loss occasioned to him by burglary, larceny or theft of his property from within the interior of his residence, committed by any domestic servant or other employee of Wathen or by any other person or persons, except himself, including precious stones and articles of gold, platinum or silver, the maximum amount of such insurance or indemnity being the sum of $1,000.00, the premises being his residence at Bardstown Junction, in Bullitt county, Kentucky. This policy was in full force and effect at the time of the happening of the incident hereinafter recited.
Some time in the last days of December, 1921, appellee, Wathen, was invited to the house of a friend in a neighboring town for a holiday, and he went. Returning a day or so later to his home at Bardstown Junction he unlocked the door to the house.- iPassing into his room on the first floor, he removed his collar and tie, which he laid on the dresser in that room. He had worn in his tie on that trip a diamond stickpin, and when he removed his collar and tie he stuck the diamond pin in the tie and left it on the dresser. The door was closed and -locked. In the course of the day Wathen went to a neighboring village to buy some hogs, but being unable to do so there, he went to another village, where he- remained overnight, returning to his home next morning. When he came to the house he found it locked as he had left it. On entering he.observed nothing unusual. Later in the day while dressing preparatory to- going to Louisville he- discovered, for the first time, that his stickpin was- not in his tie where he left it on the dresser. He made diligent search but could not find it and was never able to find it thereafter. He then looked through the house- for signs of burglars but could discover none. The door to his room was closed but two of the windows therein, while down, were not
The only question, as we see it, necessary to decide on this appeal is, whether there was sufficient evidence to carry the ease to the jury and to support the verdict. Appellee Wathen was the only witness who testified at the trial. His evidence is entirely consistent. There are no contradictions. He proved that he left his .diamond in his tie on the dresser in his room in the house described in the policy and that he locked the house and went away and when he returned the diamond was gone. It was not incumbent upon him to prove that the diamond was lost as a result of burglary, as in the case of National Surety Co. v. Redmon, 173 Ky. 294, or that it disappeared through larceny or through theft. He made out his case when he established facts from which the jury was warranted in deducing the ultimate fact that the diamond had disappeared either through burglary, larceny or theft. In the Redman case, supra, the insured charged that his diamond was lost through burglary, and we ruled that it was necessary for him to prove facts sufficient to establish the burglary, which in that- case we held he did not do.
Theft is a broader term than larceny and includes any wrongful deprivation of property of another. Ken
The jury, as reasonable men, knew as well as they could know anything from human testimony that the diamond pin which appellee Wathen placed on his dresser with Ms tie and collar did not leave there of its own volition, or without the aid of some human agency. Whether it was taken by a burglar or by some person concealed in the house or otherwise purloined makes no difference under the terms of the policy. Certain it is that the diamond was taken from the tie of appellee Wathen without his knowledge or consent, by some one who had a knowledge of its value, to appropriate it to his own use. That the taker had knowledge of its value is manifest from, the choice or selection of this one article from among many ethers. He took nothing else. Prom such facts the jury was warranted in concluding that the diamond was taken by a being that had reason. Lr other words a human being, and was not carried away by a mouse or some animal not possessing the power of reasoning.
We conclude that the trial court properly submitted the cause to the jury and that the jury was fully warranted from the evidence in returning a verdict in favor of appellee Wathen.
At the time appellee Wathen reported his loss to the insurance company he fixed the value of the pin at $550.00. Later, and within a few days, he amended his statement upon this subject by claiming something more than $1,000.00. In his pleading and evidence he says he was laboring under a misapprehension at the time he made his first claim, giving the following facts in support of this assertion: The diamond had been in the family for many years. His deceased wife had originally.owned it; later it passed to his daughter'who, before her death, had it made into a stickpin for her father, appellee. He did not know what it cost nor exactly its weight or size,
Judgment affirmed.