Kinney v. Maryland Casualty Co.

Indemnity Insurance—Loss or Jewelry from Safe—Pleading—Conjunctive Denials—Admission of Loss by Tools—Sole Issue as to Consent.—In an action on a policy of insurance indemnifying the owner of a safe against felonious abstraction of its contents by tools or explosives directly applied, where the complaint avers that by tools directly applied to said safe, on a specified date, persons unknown to the plaintiff feloniously abstracted jewelry and precious stones therefrom, of a specified value, against the will and without the consent of plaintiff, it is held that the answer by conjunctive denials admitted the abstraction of its contents by tools directly applied, and took issue only on plaintiff’s want of consent, and specially averred that the abstraction of its contents was by plaintiff’s connivance and consent, and raised no other issue.

Id.—Bules of Pleading—Denials of Sworn Complaint—Admissions. The rules of pleading, under our system, require a denial in an answer to a verified complaint of every specific averment thereof, in substance and spirit, and not merely a denial of its literal truth, and whenever the defendant fails to make the requisite denial, he admits the averment.

Id.—Bill of Exceptions Showing Entry by Key—Absence of Issue as to Tools Directly Applied.—Where there is no issue as to the use of tools directly applied to the safe, the fact that the bill of exceptions shows entry to the safe by a key does not require the determination upon appeal of the question whether a key is a tool, within the meaning of the policy.

Id.—Evidence of Value of Jewelry and Precious Stones Taken— Books in Court—Use of Memorandum from Books—Discretion. In proving the value of the jewelry and precious stones taken from the safe, where plaintiff had his books in court, his use of a memorandum taken therefrom to refresh his memory as a witness to the extent of the loss suffered thereby was properly allowed in the discretion of the court, leaving further proof from the books to be shown on cross-examination, if required, and where no further proof was required, the allowance of the use of the memorandum was without prejudice.

Id.—Use of Leading Questions—Discretion.—The allowance of leading questions upon the trial was within the discretion of the court, and where nothing in the record indicates an abuse of discretion, no prejudicial error in the allowance of such questions will be presumed.

Ij>.—Action on Policy Issued—Evidence as to a Different Form of Policy Talked of Properly Excluded.—In the action on the policy issued, evidence to show that a different form of policy was talked of before its issuance was properly excluded, where the policy issued is in no sense ambiguous or uncertain in its terms, and the rights of the parties are concluded thereby.