In addition to the facts appearing in the majority opinion the evidence shows that the bedroom door was "kept open all the time"; that plaintiff's back yard was large and a play ground where numerous children from five to seven years of age gathered and that they were "in and out of the *Page 176 play room", opposite plaintiff's open bedroom; that one of plaintiff's male employees does now and has worked for plaintiff for fifteen years and the evidence is not clear how long the other worked for plaintiff; that the domestic servant and the other helper had been employed for some time prior to the loss and continued to work for plaintiff after it; that all were regarded as absolutely trustworthy and none of them were suspected; that the only reason for plaintiff and his wife to believe the rings had been stolen was because they were gone; that $10 in money in a bureau drawer was untouched and that plaintiff's wife does not testify that she talked with children or servants about the disappearance. It also appears that two types of insurance policy are in vogue, one covering loss from any cause, the other loss from "felonious abstraction". The present policy is of the latter type.
The cases cited in the majority opinion do not convince us that the verdict in this case was warranted. They and other cases referred to in a note in 46 L. R. A., N. S. 567, agree that "felonious abstraction" can not be presumed, that the burden of proof thereof is on plaintiff and that such abstracting can not be inferred merely from unexplained disappearance. The weight of authority and reason likewise, even where "direct loss" and "affirmative proof" are required, justifies inference of theft from circumstances. This is because such theft is always furtive. Whether circumstances justify the inference will often be for the jury. We can not concede because theft is a question of fact that it must in substantially all cases go to the jury as suggested inWright v. Mass. Bonding Co., supra. There must be not only evidence from which an inference of theft might be drawn, but it must be of a nature not consistent with honest disappearance. As said in the Stich case, supra, "When the evidence is entirely consistent with a loss by the innocent act of a third party, the plaintiff has obviously failed to prove a loss by `felonious abstraction'". In the Fienglas *Page 177 case, supra, plaintiff's evidence excluded the presence of children and all others except a suspicious stranger.
It seems to us that the inference from the evidence in the present case was equally, if not more, consistent with innocent childish abstraction than with felonious taking. The only ground for the latter inference was the possibility of theft by one of four trusted employees. The possibility of abstraction by children less than seven years of age was equally open and entirely inconsistent with the former possibility. Dishonesty is the exceptional not the usual human action and it does not seem to us that a jury is warranted in drawing the inference of theft against trusted employees unless plaintiff has substantially eliminated explanations of disappearance inconsistent with theft.Garner v. N.J. Fidelity Plate Glass Ins. Co., 200 S.W. 448;Schindler v. U.S. Fidelity Guaranty Co., 109 N.Y.S. 723. Upon argument plaintiff accepted this principle and stated that he believed he had sustained the burden; that he did not consider the possibility of children as having taken the rings as of serious moment. The majority of the court evidently accept this view. To us, however, the presence of small children and the possibility of their being attracted by the rings seems to be a circumstance so vital that while it exists no inference of felonious abstraction can be supported. Polstein v. Gen.Acc., 158 N.Y. Supp. 868. In the Wolf case, supra, the court says the disappearance "must be under circumstances which even if not excluding the possibility of mistake point strongly and persuasively to the conclusion that a theft was committed". We find neither strength nor persuasiveness in the conclusion of theft in the case at bar. There is a point beyond which inferences may not be extended. This court recently held that where there is no contrary evidence an inference of causation may be drawn from slight circumstances. Langley v. Woolworth,47 R.I. 165. To us that case seemed to go to the extreme limit. This case goes further. The inferences to be drawn are clearly consistent, either with *Page 178 liability or non-liability and it seems to us that plaintiff has not met the burden of proving his case. Ford v. McAdoo, 231 N.Y. 155 at 162.
We think the court erred at least in refusing a new trial and, if the possibility of innocent childish abstraction can not be eliminated, in our opinion a verdict should be directed.