Rosen v. Royal Indemnity Co.

| Mass. | Apr 6, 1927

Sanderson, J.

This is an action of contract to recover damages under a policy insuring against burglary, theft and larceny, for the alleged loss by theft of a diamond ring, the property of the plaintiff’s wife. The judge who presided at the trial allowed a motion of the defendant for a directed verdict with a stipulation that, if the case should have been submitted to the jury, judgment is to be entered for the plaintiff in a stated sum; otherwise judgment is to be entered on the verdict.

The policy covers jewelry and other articles, designated in a schedule annexed, “belonging to the Insured or any permanent member of the household of the Insured who does not pay board or rent, or to a relative of the Insured permanently residing with him, but shall not include such articles owned by domestic servants or other employes.”

The evidence tended to show that Mrs. Bosen returned to her home late in the evening on January 3, 1924, placed the ring in her hand bag with other jewelry, and then put the bag in a closet in her chamber. The next morning she put it in a drawer in a cabinet in the kitchen where' groceries were kept. About 3:30 in the afternoon when preparing to leave the house, she opened the bag and discovered that the ring was missing, although the other jewelry was there. Her family consisted of four children and her husband; and she had in her employ a maid and a chauffeur. On the morning of January 4, she prepared breakfast for her husband and children and sent the children to school. While the plaintiff was at breakfast three men came in to see him. During the morning three other men who were working in the sewer department near by came into the kitchen for water. There was also evidence that when Mrs. Rosen left the house in the afternoon of that day, she went in her automobile to a store in Boston and on this trip stated to her chauffeur that she had left her rings at home and asked him if he thought with the maid at home they would be safe until she got back. When she reached home the maid, upon being asked whether she had seen the ring, replied that she had not. The same evening the loss of the ring was reported to the police. A few days later she applied to the lost and found department of certain dry goods stores to ascertain if the ring had been found.

The policy did not protect against theft by any person whose property was covered by it. The burden was on the plaintiff to prove not only that the ring was stolen but also that it was stolen by some person for whose larceny the defendant would be liable under the policy. The defendant contends that the evidence is insufficient to establish burglary or theft, and that, if theft is shown, the evidence does not exclude the commission of the crime by some one of the parties for whose act the policy gives no protection. Mrs. Rosen testified that during the morning her children, chauffeur and maid had occasion to go to the cabinet for things there. There is no evidence that any one else went to it. If the ring were taken from the bag while in that cabinet, it is a matter of conjecture whether some one of these persons, and if so which one, took it. If it be assumed that the jury would have been warranted in finding that the ring was stolen, still fhe evidence fails to show that it was taken by a person for whose theft the defendant would be responsible.

Judgment on the verdict.