On appeal from the Superior Court, Appellate Division, whose opinion is reported in 32 N.J. Super. 496.
For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J. Heher, Burling and Jacobs, JJ., concurring in result.
In this cause we granted certification both of the defendant-appellant's petition and the plaintiff-respondent's cross-petition for certification. 18 N.J. 202 (1955). R.R. 1:10-2(d); 1:10-5.
The respondent brought an action on a policy of insurance issued to her by the appellant, which policy was entitled "Jewelry-Fur Floater Policy," and among the articles designated in the schedule of the policy was:
"Article I. Description. One diamond ring 2.22 cts. in platinum setting with two baguette diamonds. Amount $2,288.00."
The central diamond in the setting was lost, but the ring itself with the setting and the two baguette diamonds was not lost.
This action was brought to recover the amount of $2,288 stated in the schedule of the policy. At the close of the plaintiff-respondent's case, the defendant-appellant moved for a dismissal on the grounds: (1) there was no proof of value, and (2) because the item lost was part of a pair or set and the loss came within a specific provision of the policy.
On appeal to the Appellate Division that court held that the loss came within the provisions of the policy which reads as follows:
"Where any insured item consists of articles in a pair or set, this policy is not to pay more than the value of any particular part or parts which may be lost, without reference to any special value which such article may have as part of such pair or set; nor more than a proportionate part of the insured value of the pair or set." (Italics supplied)
With this conclusion we are in accord and for the reasons stated by Judge Jayne in the opinion of the court, 32 N.J. Super. 496 (App. Div. 1954).
However, the Appellate Division ordered a new trial and stated its reasons as follows:
"Normally we would affirm the judgment, but here it is clearly obvious and understandable that the attorney of the plaintiff mistakenly rationalized the basis of the cause of action. He believed the policy to be a valued policy and not without reason presented the case upon that premise. He entertained the conviction that the provision in the policy relating to the loss of a part of an insured item consisting 'of articles in a pair or set' was inapplicable to the loss of a stone from a finger ring. The plaintiff tendered the salvaged part of the ring to the defendant. For those reasons he was unprepared to produce ...