Arthur B. Walsh, Jr., and Frank R. Ambler, Philadelphia, for appellant.
Eugene H. Feldman, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 435]
Plaintiffs sued defendant upon its residence and outside theft insurance policy. The jury returned a verdict for defendant and the court below awarded a new trial, concluding that the charge may have misled the jury. Defendant appealed.
The policy insured plaintiffs against theft of certain personal property, including jewelry, and provided inter alia: 'The word 'theft' includes larceny, burglary and robbery. Mysterious disappearance of any insured property, except a precious or semi-precious stone from its setting in any watch or piece of jewelry, shall be presumed to be due to theft.'
On February 22, 1950, while the policy was in force, plaintiff-husband received a diamond ring and a wrist watch from a Philadelphia jeweler who had
[ 173 Pa. Super. Page 436]
repaired them. The ring belonged to his wife; the wrist watch to his sister-in-law. The two articles were wrapped separately in tissue paper and placed in a small jeweler's envelope with the flap left open. The husband put the envelope in his right trousers pocket, and that evening played handball with his brother-in-law at a health club. After the game, he recovered the ring from the club's safe deposit box and showed it to his brother-in-law. He re-wrapped the ring in the tissue paper, replaced it with the watch in the envelope and put the envelope, unsealed, in his trousers pocket. After resting for a few minutes, they denied at a restaurant, and the brother-in-law drove plaintiff-husband home. He placed the envelope on the bureau in his bedroom without opening it. The next morning, after he had gone to work, his wife found the envelope; it contained the wrist watch but the ring was missing; and a thorough search of the premises failed to disclose the ring.
There was no evidence that the house had been entered during the night or that any one within the house had misappropriated the ring, and plaintiffs relied upon the presumption arising from the 'mysterious disappearance of any insured article.' Defendant offered no evidence.
After defining a technical theft, to which further reference will be made, the learned trial judge turned to the clause creating a presumption of theft, and charged: 'Now, that clause means exactly what it says: In other words, if you find that there was a mysterious disappearance of this ring then there is a presumption that that mysterious disappearance occurred by reason of theft. However, it is a presumption, and this presumption like all presumptions is rebuttable by ...