Adler v. Lumber Mutual Fire Insurance Company

179 S.E.2d 786 (1971)

10 N.C. App. 720

Harold ADLER v. LUMBER MUTUAL FIRE INSURANCE COMPANY.

No. 7110DC215.

Court of Appeals of North Carolina.

March 31, 1971.

Certiorari Allowed May 12, 1971.

*787 William T. McCuiston, Raleigh, for plaintiff-appellant.

Teague, Johnson, Patterson, Dilthey & Clay by Ronald C. Dilthey, Raleigh, for defendant-appellee.

Certiorari Allowed by Supreme Court May 12, 1971.

CAMPBELL, Judge.

Plaintiff assigns as error the granting of defendant's motion for a directed verdict. On appeal from the granting of a motion for directed verdict, all the evidence tending to support plaintiff's claim must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom, with contradictions, conflicts and inconsistencies therein being resolved in plaintiff's favor. Anderson v. Mann, 9 N.C.App. 397, 176 S.E.2d 365 (1970). If the evidence thus considered is insufficient to go to the jury, the granting of the motion for a directed verdict must be upheld.

The policy in question provides coverage for loss by theft and defines theft as follows:

"THEFT, meaning any act of stealing or attempt thereat and, as to Coverage C (on premises), including theft of property covered from within any bank, trust or safe deposit company, public warehouse, or occupied by or rented to an Insured, *788 in which the property covered has been placed for safekeeping. Upon knowledge of loss under this peril or of an occurrence which may give rise to a claim for such loss, the Insured shall give notice as soon as practicable to this Company or any of its authorized agents and also to the police."

In order for plaintiff to recover under the terms of this policy, he must offer some evidence of loss by theft. Considered in the light most favorable to him, the plaintiff's evidence only shows that the rings were placed in a dish on his wife's dresser and were not there when she returned to pick them up two days later. No evidence, circumstantial or otherwise, was presented that would allow the jury to find that the loss was by theft. At most plaintiff's evidence established a mysterious disappearance.

The plaintiff relies on the case of Davis v. St. Paul Mercury & Indemnity Co., 227 N.C. 80, 40 S.E.2d 609 (1946). In that case, the policy had a provision to the effect that the mysterious disappearance of any insured property shall be presumed to be due to theft. No such provision is present in the policy held by plaintiff. The North Carolina Supreme Court, in Davis v. St. Paul Mercury & Indemnity Co., supra, speaking of the type policy that is now under consideration, stated:

"* * * But all mysterious disappearances are not the result of theft. Hence, frequently, proof of the mysterious disappearance of property alone was held insufficient to support a verdict; and if there was no evidence of a breaking and entry or other circumstance pointing to theft as the more probable cause of the loss, a recovery under the policy was not permitted. * * *"

The directed verdict was properly granted on the grounds that plaintiff's evidence was insufficient to go to the jury on the issue of theft. This issue being determinative of the case on appeal, we do not consider plaintiff's other assignment of error.

The judgment of the District Court is

Affirmed.

BRITT and HEDRICK, JJ., concur.