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MILLER v. BOSTON INSURANCE COMPANY (03/22/66)

decided: March 22, 1966.

MILLER
v.
BOSTON INSURANCE COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1959, No. 1544, in case of Benjamin Miller v. Boston Insurance Company and Jacob Friedman.

COUNSEL

Richard W. Hopkins, with him White & Williams, for appellant.

Cornelius C. O'Brien, Jr., with him Matthew J. Ryan, III, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien

Author: O'brien

[ 420 Pa. Page 568]

Appellee, Benjamin Miller, brought an action of assumpsit against appellant, Boston Insurance Company, to recover for the loss of a diamond ring, which was insured by appellant under a Jewelers' Block Policy. The policy insured appellee against "all risks of loss of or damage . . . arising from any cause whatsoever except: . . . (M) Unexplained loss, mysterious disappearance or loss or shortage disclosed on taking inventory".

On March 11, 1958, Miller, a dealer in jewelry, consigned the ring to Jacob Friedman, who was also a jewelry dealer. On the following day, Friedman consigned the ring to another dealer, David Willner, who was attempting to sell the ring. Willner's body was recovered from the East River in New York City in July of 1958. The day before his death, Willner stated he had the ring "in his pocket" and was still trying to sell it. The record is bare as to any evidence of the

[ 420 Pa. Page 569]

    cause of Willner's death, and the ring was not returned to either Friedman or appellee.

On August 16, 1958, appellee, by letter, requested the return of the ring from Friedman. This letter, and other inquiries, produced no results. The written memorandum under which Friedman obtained the ring from appellee holds Friedman responsible for the care, custody and return of the ring. Friedman made inquiries of Willner's executor, and his attorney also investigated as to the whereabouts of the ring. The ring was never returned or, to appellee's knowledge, found by Friedman or any person acting in his behalf.

At trial, the jury returned a verdict for appellee against the appellant, the Boston Insurance Company, and the additional defendant, Jacob Friedman. The only issue the lower court submitted to the jury was whether it believed the testimony of appellee, Miller, and the additional defendant, Friedman. These issues resulted from the lower court's interpretation of the insurance policy's coverage. Following the verdict, appellant made motions for judgment n.o.v. and for a new trial. This appeal followed denial of the motions and entry of judgment on the verdict.

In Connolly v. P.T.C., 420 Pa. 280, 216 A.2d 60 (1966), we stated: "In considering a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom is considered in the light most favorable to the verdict winner. Lewis v. United States Rubber Co., 414 Pa. 626, 202 A.2d 20 (1964); Pritts v. Wigle, 414 Pa. 309, 200 A.2d 386 (1964); Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963), and in reviewing on appeal, we stated in Vignoli v. Standard M. Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965): 'The grant or refusal of a new trial will not be reversed on appeal, absent an abuse of discretion or error of law which controlled the outcome of the case.'" See Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965),

[ 420 Pa. Page 570]

    and cases cited therein. Viewing the record in the light of these standards, we conclude that ...


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