The opinion of the court was delivered by: GALSTON
This is an action to recover the value of a diamond ring which was owned by the plaintiffs and insured by the defendant.
The action was originally instituted in the Supreme Court of the State of New York, County of Kings. On petition of the defendant, it was removed to this court on the ground of diversity of citizenship, the plaintiffs being citizens of the State of New York, residing in Brooklyn, and the defendant being a corporation duly organized and existing under the laws of the State of Ohio.
The defendant company issued a 'Jewelry-Fur Floater Policy' dated February 26, 1947, to the plaintiffs, in the amount of $ 7,750, insuring the following items of property:
"1. One (1) Jules Jurgeson,
14 Kt. Solid gold man's
bracelet watch........ $ 500.00
"2. One (1) Lady's diamond
and platinum solitaire
ring, that contains a
diamond set in the center,
weighing about seven
and one-half carats,
(7 1/2 cts.), Imp...... 7,250.00
The policy was issued for a one-year term, expiring February 26, 1948. Effective January 5, 1948, the term of the policy was extended for one year, to expire February 26, 1949, insuring only the diamond ring described in the original policy in the amount of $ 7,250.
The complaint alleges the loss of the diamond ring on February 4, 1949, the filing of a report of the loss and claim for its value to the insurance company, and its failure to make payment on the claim. The defendant's answer is a general denial of the material allegations in respect to the loss or theft of the ring and the value thereof.
The evidence discloses that the plaintiff, Josephine D'Angelo, kept the ring, a gift from her husband, the plaintiff, James D'Angelo, in a small covered porcelain dish on the dresser in the bedroom of their home. On February 4, 1949, she went for the ring, intending to wear it to a dinner engagement, but could not find it in the porcelain dish. She looked for it in the dresser drawers, about the room and then through the house generally, but could not locate it. The loss was reported to the police that night, but the ring was not found and has not since been found. A report of the loss was duly sent to the insurance company, and a claim filed.
The plaintiff, Josephine D'Angelo, testified that the last time she saw the ring was on January 31, 1949. It appears that she wore it when she went out that night. Her best recollection is that she returned the ring to the porcelain dish upon her return home. However, of that fact she is not sure because of excitement attending her discovery, upon her return home, that her husband had accidentally taken an overdose of sleeping tablets. A number of friends and relatives were in and out of the room between January 31st and February 4th, during the husband's illness. The D'Angelos made no inquiries of these people with respect to their knowledge, if any, of the possible whereabouts of the ring.
The plaintiff, James D'Angelo, testified that he has been a salesman since 1935. He estimated his annual earnings between 1939 and 1948 as follows:
1939 $ 6,746.00
He had no other source of income. His family consisted of his wife, Josephine, and two children. The family living expenses average $ 70 per week.
D'Angelo testified that he purchased the diamond ring some time in 1945 or 1946 from one Salvatore Bianco, a friend who, with one of D'Angelo's brothers, operated a funeral service establishment. It appears that D'Angelo, during the course of a conversation with Bianco, indicated a desire to buy his wife a gift for their fifteenth wedding anniversary. Bianco offered to show him two diamond rings which he wanted to sell preparatory to taking a trip to Italy. D'Angelo decided to buy the seven and a half carat ring and paid Bianco $ 6,000 in cash. A day or two later Bianco requested an additional payment of $ 1,200, stating that there was a tax in that amount to be paid on the ring. D'Angelo paid the $ 1,200, again in cash. He stated that he did not question Bianco in any way and that he did not have the ring appraised before purchasing it.
On February 4th, James D'Angelo was visiting with a friend in New Jersey. When informed by telephone of the disappearance of the diamond ring, he returned home to comfort his wife and join in the search for the ring. He denied having sold, pawned, hidden or given away the ring in question. He stated he knew nothing about what might have happened to it.
There is in evidence an appraisal report, dated March 11, 1946, antedating the issuance of the policy in suit of M. Levy & Co., Inc., jewelers located at 134 Fulton Street, New York City. It reads:
'One lady's diamond and platinum solitaire ring, that contains a large emerald-cut diamond set in the center, weighing about seven and one-half carats, (7 1/2 cts.); Imp., no other stones in the mounting.
'The above article has this day been appraised by us for Mr. James D'Angelo, of 228 Montrose ...