Fidelity & Deposit Co. v. Panitz

Adkins, J., delivered the opinion of the Court. This is a suit on -a policy of burglary or theft insurance for the loss of a lady’s fur -coat alleged to have been stolen from a porch adjoining; the- apartment of appellee on the second floor of 928 Ohauncey Avenue, Baltimore City. By the terms of the policy, the company -agreed to indemnify the assured “for direct- loss- by burglary, theft or larceny of any of the property of t-he assured described in the- said schedule and stated therein to he insured hereunder, occasioned h-y the felonio-us abstraction from the interior of the home, building, apartment or rooms actually occupied by the assured, also- described in the said schedule and hereinafter called the premises, by any domestic servant- or other employee of the assured or by -any other person -or persons excepting any person whose property is insured hereunder. Appellee described the p-o-rch as follow's: “It is an outside porch.

There is one porch on the first floor and another’ porch on the second floor. The porch leads- out from, the back bedroom by a door, and there is also a window leading on the porch. There is no- steps down stairs from the porch; there is no- stairway fro-m, the porch to the street or yard; the porch is private so far as the apartment is concerned. There is only one entrance to the porch, ,and that is the back bedroom.” It was further testified that the porch is covered by a roof; it has- rainspouting and there is a rail about three feet, high that runs- around the porch; that clothes lines run from- the post of th© porch to¡ the wall of the building; that the porch ³⁰² was used for wash basins, litter, and clothes were hung out there; that the porch cannot he reached from either adjoining house and does not adjoin any other porch; that the dimensions of the porch are 21 feet by 5, and it is approximately 2'0"feet from the ground, and 12 or lo feet from the porch on the first floor; that there are no1 standards or poles from the porch on the first floor to the post of the floor of the second; that the yard immediately surrounding the dwelling is not enclosed by a fence; that there is noi way to reach that porch from the ground; that the only propel” way to- connect up with the porch is through the apartment; that the coat which was lost was hanging on the clothes line stretched across the porch atove referred to; that the only way to get the coat off the porch was for some one to have either climbed up1 from the ground or put a stick up there .and gotten it.

There was other testimony hearing on the question of whether the coat was stolen from the poreh or whether it might have fallen or been blown off. There are two questions raised by this appeal, viz.: (1) Was the coat, alleged to have been stolen, in a place covered by the terms of the policy? (2) Was there any evidence that the coat was stolen ? The court refused to> take the case from the jury at the close of the plaintiff’s testimony.

At the close of all the testimony defendant offered eleven prayers, of which only the first and fourth need he considered. Both of them were refused. The other prayers bear on the question of proof of larceny with which question we shall not have to deal. The first and fourth prayers were as follows : First Prayer. — Defendant prays the court to instruct the jury that the plaintiff has introduced no evidence legally sufficient to