Betty v. Liverpool & London & Globe Ins. Co.

Betty v. Liverpool & London & Globe Ins. Co.

Opinion

 [*308]  The plaintiff, Betty, brought suit in the State Court against defendants, co-insurers on policies insuring against 'all risks of direct physical loss'. Contained in the policy was the following provision with respect to Exclusions from its coverage:

'C. (Peril) --  This policy does not insure against any loss caused by or resulting from: * * *

'4. Unexplained loss or mysterious disappearance of property (except  [*309]  property in the custody of carriers or bailees for hire); or loss or shortage of property disclosed on taking inventory;'

The case was removed for diversity and tried by the Court without a jury. At the conclusion of the plaintiff's evidence, the Court rendered judgment for the defendants under Fed.R.Civ.P. rule 41(b), 28 U.S.C.A. The Court's findings of fact which are relevant to this appeal are summarized as follows:  [**2]  Policies of insurance with both defendants were in full force and effect during the period of time involved when the losses took place for which recovery is sought by this action. The outstanding policies were for $ 16,500.00 and $ 43,000.00 respectively, but the defendants had contracted between themselves to share losses equally.

The plaintiff, as assignee of insured, sought to recover for the loss of 1,024 recapped tires of the value of $ 11,376.64 which were owned at the time of loss by the insured, Biltmore Tire and Recapping Company, Inc., the plaintiff's assignor.

The joint answer set up among other defenses: the invalidity of plaintiff's assignment; failure of insured to give notice; a twelve months limitation on commencement of suit contained in the policy, and finally the exceptions to coverage set forth in Section III C.4 quoted above.

The insured suffered a property loss during the period between April 1, 1960, and September 6, 1960, of approximately 1,024 recapped tires of the value of $ 11,376.64 at its place of business on McDowell Street in Asheville, North Carolina.

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