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GERHARD v. BOSTON INS. CO.

July 13, 1951

GERHARD
v.
BOSTON INS. CO.



The opinion of the court was delivered by: MCGRANERY

At the conclusion of the trial the jury in the instant case returned a special verdict in the form of answers to the interrogatories which had been submitted to it by the court under Fed. Rules. Civ. Proc. rule 49(a), 28 U.S.C.

The plaintiff then moved for judgment on the special verdict, whereupon the defendant moved to set aside the special verdict, for a new trial and for judgment.

 The within action had been inaugurated by the plaintiff's suit on an insurance policy issued by the defendant and countersigned n Philadelphia.

 The policy is designated 'Jewelry-Fur Floater' and covers a matched pearl necklace. It sets forth that the company insured the plaintiff for 'the sum of five thousand dollars on jewelry and/or furs, as per schedule below * * *.' The schedule consists of three columns. The first is titled: 'Item No.' and was filled in with the numeral '1'. The second is titled: 'Description of Articles Insured' and was filled in with description: 'Genuine pearl necklace consisting of three strands of 107, 109 and 115 pearls each, including clasp of platinum with diamond chips.'; and the third is titled: 'Insured Value' and was filled in with the amount five thousand dollars.

 No appraisal was required upon the issuance of this policy and the plaintiff was informed that none was required for any article valued under fifteen thousand dollars.

 While this policy was still in effect the above-described pearl necklace held in the outstretched hand of the plaintiff for examination by her sister attracted the hungry eyes of a horse of somewhat eccentric taste. The animal viewed the necklace as an eatable delicacy and swiftly attacked it as if it were lumps of sugar. Speedily the plaintiff retrieved from the horse's mouth 262 of the pearls.

 When the action on the policy came to trial the plaintiff contended that the policy was a valued contract of insurance and hence that she was relieved of the necessity of proof of value or loss. The issue of whether it was, indeed, a 'valued' contract was reserved by the court and the trial proceeded as in a suit on an 'open' policy. The jury answered the interrogatories by a finding that the value of the necklace on the date of loss was five thousand dollars and by a finding that the salvaged value of the rescued pearls was five hundred dollars. On the resulting special verdict of four thousand five hundred dollars plaintiff has moved for judgment. In examining the entire record this court has sought in vain for competent evidence in support of the jury's finding that the necklace was worth five thousand dollars on the date of its loss.

 It is true that the plaintiff's placing of this valuation on the necklace when she applied for its insurance policy and the placing of this amount in the policy by the company combine to become evidence of value as of the date of issuance of the said policy.

 Furthermore, plaintiff's question as to whether an appraisal would be required had elicited a negative answer from the defendant.

 Hence, the plaintiff's valuation clearly was accepted in lieu of an appraisal as evidence of value at the date of issuance.

 This court is aware, however, that: 'Opinion of any kind is a poor quality of evidence, and where admissible at all it is only so because it is the best that is available. In all questions of competency on that subject there must be a sliding scale, the only standard of which is that the witness shall have such knowledge of the subject-matter as can be reasonably expected in view of the circumstances of the particular case.' Whitekettle v. N.Y. Underwriters Ins. Co., 293 Pa. 385, 143 A. 129, 130.

 If the policy was in fact an 'open' one, even an appraisal would not have precluded the defendant company from denying the value of the item at a subsequent date. See Friel v. National Liberty Ins. Co. of America, D.C., 71 F.Supp. 761. Although the record does not disclose proof of value at the date of loss, it is apparent that this deficiency might have been cured by the plaintiff through expert testimony on the fluctuation market value.

 During argument to sustain the jury's verdict, the plaintiff endeavored to support the jury's finding of value based upon the testimony of several expert witnesses (two of whom had appeared on behalf of the defendant and one on behalf of the plaintiff).


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