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Ferdinand v. Agricultural Insurance Co.

Decided: November 5, 1956.

E. JAY FERDINAND AND PHYLLIS C. FERDINAND, PLAINTIFFS-RESPONDENTS,
v.
AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, NEW YORK, A CORPORATION, DEFENDANT-APPELLANT



For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Jacobs. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J., concurring in result.

Vanderbilt

[22 NJ Page 484] This is an appeal from the judgment of the Appellate Division of the Superior Court affirming the judgment of the Law Division, entered by the direction of the trial court in favor of the plaintiffs when the defendant rested without offering any testimony at the end of the

plaintiffs' case. We granted certification, 21 N.J. 550 (May 21, 1956).

The action was brought to recover $11,775 under a jewelry-fur floater policy issued by the defendant insurance company to the plaintiffs. Seven of the ten items of jewelry covered by the policy were allegedly stolen from the plaintiffs' automobile while parked overninght at a motel in Dancia, Florida. The jewelry was specifically described in a schedule attached to the policy and a dollar value was set opposite each item. A jewelry expert had appraised five of the seven lost articles of jewelry in 1953 for the purpose of obtaining the insurance. The values set forth for these items in the policy are the values as they appeared on the written appraisal of the jewelry expert made at that time. The policy was issued May 4, 1953 and provided that the property was insured "against all risks of loss or damage * * * while in all situations" with certain exceptions which have no material bearing on the issue before us.

The plaintiffs' case consisted of their own testimony and that of a jewelry expert and a deputy sheriff of the county where the alleged robbery took place. The plaintiffs' testimony was uncontroverted. They established that on February 12, 1954 they left their home in Millburn, N.J., on a trip to Florida and that they arrived in Dancia on the evening of February 14. There they stopped at the Suburban Motel, parked their car about 40 or 50 feet from the window of their room, locked it and retired for the night at about 10 P.M. The following morning, at about 8 A.M., the plaintiff E. Jay Ferdinand went to the car and discovered that a hole about 3 inches in diameter had been broken in the right-hand front window, large enough for someone to reach inside and release the lock. The contents of the car were "upset and disarrayed." Their jewelry case had been ripped apart and some of it was on the front seat and some on the floor. The contents had been dumped and strewn about. He called to his wife and then ran to the motel office to tell them what had happened and to call the police. A deputy sheriff responded to the call and

proceeded to make an investigation and it was then discovered, in addition to the damage already noticed, that the bottom of the glove compartment in the car had been torn out. While the deputy sheriff was there, this plaintiff took a camera from the trunk of the car and took photographs of the interior of the car and of the broken window. These photographs were received in evidence.

The testimony of the plaintiffs regarding the condition of the car was substantially corroborated by that of the deputy sheriff who responded to the call and by the photographs taken by the plaintiff.

The defendant cross-examined the plaintiffs extensively with respect to their direct testimony concerning the events of the alleged robbery and also with respect to the purchase of the jewelry. We refer only to those facts amplified on cross-examination that have aroused our doubts.

On the night previous to the alleged robbery, Mr. Ferdinand testified that he put his $400 gold "Jules Jergenson" wristwatch into the jewelry box and then returned the box to the rear seat of the car before retiring. From the testimony the watch apparently stayed in the box along with the other jewelry all the next day and was left there on the rear seat of the car, while he and his wife slept at the motel in Dancia.

The thief was seemingly a person of discriminating tastes. In the dark of the night he or she took time to select the most valuable pieces of jewelry leaving the less valuable items of costume jewelry virtually intact, only disarrayed.

Subsequent to the event the plaintiffs were interviewed in Florida by a representative of the insurance company. During the course of that interview they signed a statement indicating that they didn't "believe" that "any of the inexpensive costume jewelry [was] missing"; that "nothing [was] taken that was uninsured;" and that they did not "own any valuable articles of jewelry not involved in the loss." At the trial they testified that after they returned home, they discovered some of the costume pieces were missing and some valuable pieces which were not insured were gone. It also appeared that another of the statements made by the

plaintiffs to the insurance company was inaccurate; the policy covered ten items of jewelry and only seven of them are claimed to have been stolen.

Other facts also appear which, when considered with these circumstances, raise doubts. The plaintiff E. Jay Ferdinand has had some legal training. He had worked as an adjuster for various insurance companies and also as a jewelry salesman. He was also an insurance broker and in fact was also the agent who wrote the policy under which he is now claiming. He testified that he had no knowledge of what evidence would be necessary to prove his loss, nevertheless he undertook to document the physical conditions with the camera he carried in his car trunk. His experience could have dictated, after a more mature reflection, that his original story to the insurance company representative that nothing but insured pieces were taken was somewhat incredible and that it would be more believable if some of the other pieces of jewelry, valuable or costume, were taken.

Further, it appears that all the insured jewelry that was taken was purchased for cash or taken in trade for other jewelry, without receipt and some of it from peddlers on the Bowery in New York City.

The same jewelry expert who had given the appraisal upon the inception of the policy testified as to the value of the jewelry at the time of the issuance of the policy and at the time of the loss. This testimony likewise remained uncontroverted.

At the conclusion of the plaintiffs' case, the defendant rested without offering any evidence. The trial judge denied the plaintiffs' motion for a judgment in their favor as a matter of law under R.R. 4:51 (a directed verdict), and said he would let the case go to the jury. He then recessed for luncheon. When the court reconvened, he stated that during the noon recess he had reviewed the testimony and wished to hear further argument on the plaintiffs' motion for a directed verdict. Thereafter, in rendering an oral opinion in which he held that the plaintiffs were entitled to a judgment for $11,775 and interest, he said:

"I find from the evidence in this case that there is nothing from which a jury could draw a reasonable inference that the plaintiff did not own the seven specific articles claimed to have been stolen.

I further find there is nothing in the evidence which would permit the jury to draw a reasonable inference that the articles were not stolen from the automobile on the night of February 14 or the morning of February 15 and there is no evidence from which a jury could draw a reasonable inference that the values testified to by the plaintiff Mr. Ferdinand, or by an independent witness, Mr. Kerber, was other than that stated."

The Appellate Division of the Supreme Court affirmed, 40 N.J. Super. 1 (1956), holding that "there were no facts or circumstances from which a jury could draw an inference" that the jewelry was not stolen, that "from the uncontroverted proofs the trial court quite properly directed a verdict in the plaintiffs' favor," and that "there was no evidence nor inference to be drawn from the proven facts upon which a jury verdict in favor of the defendant could have been based" and that "any verdict in favor of the defendant would necessarily have been bottomed solely upon mere conjecture or hypothesis not supported by the evidence, and if such a verdict had been rendered, the court would have been justified in setting it aside and entering a judgment for the plaintiffs."

True it is that there were no conflicting inferences which could be drawn from the facts as they were testified to by the plaintiffs and their witnesses. But we cannot agree that a verdict in ...


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