78 Pa. Super. 222 | Pa. Super. Ct. | 1922
Opinion by
This action was upon a policy of insurance against loss of property by burglary, larceny or theft, committed by any person or persons, from within the interior of the premises of the plaintiff. The property, for the loss of which the action was brought, consisted of a gold ring with a setting of three pearls surrounded by diamonds. Evidence was introduced by the plaintiff to show the circumstances connected with the disappearance of the ring, which excluded any other theory than that the property had been taken by theft. The particulars of the evidence need not here be recited. The case was tried before one of the judges of the court below,
The ground upon which the finding in favor of the defendant was 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: “The company shall not be liable for any loss......unless the assured can show conclusively that loss was occasioned by burglary, larceny or theft, and the mere disappearance of property herein insured shall not be deemed as evidence that the loss was occasioned by burglary, larceny or theft.”
Appellant’s contention is, as stated in its paper-book, that, “Under the provisions of this section, the burden is upon the assured to show conclusively a loss by burglary, larceny or theft. The word ‘conclusively’ is derived from the word ‘concludo,’ meaning to ‘shut out or preclude.’ ” This contention gives to the word “conclusively” a meaning so severely technical that, if it is to prevail, a policy containing the provision we have here, could avail the assured only in cases so rare that the average person would hardly think the contingency in which the policy could operate worth guarding against. The judgment of a court of competent jurisdiction is conclusive of the facts involved in the issue, as between the parties to the record and, in some cases, those whose rights are involved in the issue and are duly notified to defend those rights, but it is not conclusive as to other parties. Evidence which is conclusive of a fact is evi
The judgment is affirmed.