247 Pa. 182 | Pa. | 1915
Opinion by
The action was on a policy of insurance against direct loss of the property described in the schedule attached, occurring by its felonious abstraction from the interior of the building, apartments, or rooms wholly occupied by the assured. The property, for the loss of which the action was brought, consisted of various articles of personal jewelry. Evidence was introduced by plaintiff to show the circumstances connected with their disappearance, which it is claimed excluded other theory than that the property had been lost by theft. The particulars of the evidence need not here be recited. At the close of plaintiff’s case defendant moved for binding instructions; the motion was overruled and the case was submitted to the jury, with the result that a verdict was rendered for the plaintiff for the full amount of the claim. A motion for judgment non obstante followed, which in turn was also denied. The ground on which binding instructions were asked, and on which the motion for judgment rested, was the insufficiency of the evidence submitted to meet the requirements of a clause in the policy which reads as follows :
Appellant’s contention is that the evidence adduced by plaintiff to show the felonious taking of the property was wholly circumstantial, and that conceding the sufficiency of the evidence in ordinary case to warrant an inference..of theft, yet because here the agreement of the parties required for the establishment of . this material fact on which defendant’s liability was made dependent, evidence direct and affirmative, of the former of which there was none, binding instructions should have been given. This contention gives to the words “direct and affirmative evidence” a meaning so severely technical that if. this meaning alone can be given them, a policy containing the provision we have here, would avail the assured only in the rarest and most exceptional cases, so exceptional that the average person would hardly think the contingency in which, the policy could operate worth guarding against. Theft may. not be described as a deed of darkness,, yet it is notoriously one which is rarely, if ever, attempted except as the thief has reason to believe that he will be undiscovered in the act. He never invites any one unless it be a confederate, to witness the operation. To . limit the assured’s right to recovery to cases where the corpus delicti can be proved by direct testimony, that is, by the testimony of witnesses who saw the actual taking, would make the policy next to valueless. We will not impute to the defendant company any such purpose in the use of these words; nor can we assume that the assured understood them in this narrow and restricted sense, in view of the marked subtraction such construction would necessarily make from his security. Stated plainly, what is contended for is, that the factum probandum being the felonious taking of the property, this could only be established by the. testb
The assignment of error is overruled and the judgment is affirmed.