This is an action of assumpsit to recover the value of two diamond rings alleged to have been stolen from plaintiff's house. After trial in the Superior Court the jury returned a verdict for the plaintiff. Defendant's motion for a new trial was denied by the trial justice, and the case is now before this court on defendant's exceptions.
It appears in the record that the defendant issued a policy agreeing to indemnify the plaintiff for direct loss by burglary, theft or larceny of certain personal property, including jewelry belonging to his wife, occasioned by its felonious abstraction from the interior of his house by any domestic servant, employee or other person, excepting the persons whose property was insured.
Plaintiff's wife owned two diamond rings and testified that for six years she always kept them in a small jewel box on a dresser in her bedroom, when not wearing them; that Sunday morning, October 9, 1921, she opened the box and the rings were not in it, although she had put them in it the previous Tuesday. October 13, 1921, plaintiff told the defendant's local agent of the loss of the rings. The next day he wrote a letter to the agent stating that the rings were worn October 4, and missed October 9. At the time of the disappearance of the rings the plaintiff and his wife occupied a single house. Mrs. McDuff's bedroom was on the second floor of the house, but it was not kept locked, and the jewel box was not locked. They had two children, aged six and five years. The children had a play room across the hall from their mother's bedroom. Several small children in the neighborhood had access to the play room. A domestic servant lived in plaintiff's house, and another woman was employed there three days each week. Within a few days prior to the discovery of the loss of the rings two male employees of plaintiff put glass tops on some furniture in the bedroom. Plaintiff testified that he had confidence in all of the employees mentioned, but believed that somebody had taken the rings and that his wife had not mislaid them. *Page 174
Defendant claims exceptions to the denial of its motions for a directed verdict and for a new trial. These motions were based upon the contention that the evidence was insufficient to prove the loss of the rings by theft or larceny. Upon the evidence presented the trial justice could not say, as a matter of law, that the rings were not feloniously abstracted from the jewel box. The inference to be drawn from the undisputed testimony on this issue required its submission to the jury. Wright v.Mass. Bonding Co., 8 C.C.A. Tenn. 108; Haas v. Fidelity Deposit Co., 160 N.Y.S. 1101.
Plaintiff's policy required that, upon the discovery of any loss, he should give affirmative proof of loss under oath including a statement containing sufficient evidence of the commission of a burglary, theft or larceny, to which the loss was due, and his belief as to the time of its occurrence.
This requirement as to proof of loss is similar to that stated in Fienglas v. New Amsterdam Casualty Co., 151 N.Y.S. 371, in which the plaintiff obtained judgment upon proof of theft by circumstantial evidence. It is often impossible to obtain direct evidence of the loss of jewelry by theft and such loss may be proved by circumstantial evidence. Miller v. Mass. Bonding Ins. Co., Pa. 93 A. 320. The plaintiff was not required to prove by direct evidence the theft of the rings; it was enough if he showed circumstances sufficient to justify the inference that they had been stolen. The trial justice, at the request of the defendant, instructed the jury that in order to recover, the plaintiff must prove by a preponderance of the evidence that the rings were taken by some person with the intention of stealing them; and if the rings were simply lost by the plaintiff or his wife, or mislaid by them, the plaintiff was not entitled to recover.
The testimony of plaintiff and his wife is direct and positive that the rings were placed in the jewel box. It appears that four other persons had access to the bedroom in which the box was kept. No person was authorized by the plaintiff or his wife to take the rings from the box and *Page 175 it is not unreasonable to infer that the person who did abstract them, did so with a felonious intent. Cases holding the defendant liable for theft on circumstantial evidence are Wolf v. AetnaA. L. Co., 170 N.Y.S. 787; Stich v. Fidelity DepositCo., 159 N.Y.S. 712; Haas v. Fidelity Deposit Co., supra;Fienglas v. New Amsterdam Casualty Co., supra. The three years elapsing between the discovery of the loss of the rings and the date of the trial was a circumstance which might be considered by the jury in deciding whether the rings were mislaid or stolen. After a careful consideration of the evidence, as it does not clearly appear that the decision of the trial justice in denying the motion for a new trial on the ground that the verdict was against the evidence was erroneous, the exception thereto is not sustained.
Defendant has two exceptions to the admission of the testimony of the plaintiff as to the cost of one of the rings and the weight of the diamond in it. The testimony was admissible as the plaintiff had previously testified that he purchased the ring in 1914 of a jeweler. In Motton v. Smith, 27 R.I. 57, the court held it reversible error for the plaintiff to testify to the value of jewelry because it was not shown that she had any knowledge of the value of such articles; but on reargument, p. 62, the court said that if the plaintiff was present when the jewelry was bought, her evidence as to value would be admissible.
The other exceptions have been considered and found to be without merit.
All of the defendant's exceptions are overruled and the case is remitted to the Superior Court with direction to enter judgment for the plaintiff upon the verdict.