370 "HOME-INDEMNITY- CO .. 101` v. JELKS.- .[187 HOME INDEMNITY COMPANy OF NEW 'YORK V.. jELKS. 4-3006.
Opinion delivered May 8, 1933... 1. INSURANCEBURGLARY BY FORCE.—Where a policy covered, burglary. of- a safe by force," and exempted burglary by manipulation of the safe's lock, proof by insured that the safe was forcibly broken made a prima facie eak, and the insurer had the burden to show that the burglary was effected by manipulating the lock without force. 2. EvIDENcn—EFFEcr OF =ART MON:Y.—It is the exclusive pro. vince of the jury to determine the, value and weight to be given to the testimony of expert witnesses. • Appeal from Craighead Circuit Court, Jonesboro District ; Neil Killough, Judge ; affirmed. STATEMENT BY THE COURT. This suit was instituted by W. C. Jelks, appellee, against appellant, Home Indemnity Company of New York, to compensate a burglary which_was alleged to have been effected in appellee's place of business in the town
ARK.] HOME INDEMNITY CO. OF N. Y. v. JELKS. 371 - of Jonesboro. - This :alleged : . burglary .occurred-on the night . of March ! 16, 1932. -,Prior, to that, time, the appellant,-:.Home Inrnity. Oompany of . New, , York, -had effected a policy of burglary insurance in fa-or, of appel7 lee, the pertinent clauses.of i said : policy read as : follows : •• .• q Loss . by burglary . of any...property Ironi within that . portion , ofiany , safe .or . yault , to . which .the insuranCe under . . this poliey' applies, occasioned by' any person or persdris makingi felonious, entry•Iirito , such safe , or vault by, actual force and 'violence, ? of. which .force ,and .vinlenee there shall be :.:visible -marks ,made-. upon such safe .bt vault by tools; • explosive;; .electricity, : . gas or . other • cheini- • cals, while 'such safe or , vault is duly elosek :and locked, by at least one - 'conibination or 'time-lock; andilOcated in the • insured'a prethises. a§ hereinafter defined,. • or as-located elsewhere 'after renaoval theréfrOm •by.burglars." , • . Para • graph B . (4) . providei`thaf the coMPany shall not be liable for loss 'Or:damage . "effectiVe by opening -the ` dOor 'of "any "vanit,- safe : or Chest by the 'use of a key or by- the : manipulation of any lock.'" On the trial of the case . in the . circuit .court appellee introduced testimony to the , following effect : . , • • That he .was engaged in the:garage business. in Jones-boro..on . March. 16 and..,17,-1932 . ; . that . on the night of the •16th- he remained in his , place ..of business, 'until, .nine.- or ten, :o 'clock, when the . building . waS _closed up and the doors locked; _that the Safe was , locked,, and the. combination. effected,..prior . ,his : leaving the building : : that -on the morning of the .17th it was discovered that, the safe had . ,been . entered, the contents . taken : therefrom, the money stolen and papers scattered on the floor, .together with some small,coins; that on eamination it was determined that the dial, on tholock , had been broken off with , sorne , blunt instrument ! and the; safe; had been, opened_ in. • some manner unknown to the appellee and his witnesses.; that there was stolen from the ,safe$970.39 that , the knob on the dial of the safe had dents in it whieh indicated . that it had been struck with_ a.blunt, instrument . ; thatthere was no ! indication on the .doors or. windows .of the building that . force had, been t nsed. in entering : the building;
372 HOME INDEMNITY CO: OF-Y.-Y. -V: JELKS. -[187 that-the ' locks on the doors and ' windows were intadt, as they were the night before . when -he left' the'building: • The testimOny on behalf of appellant Was.'to the ior-lowing effect : . . ' A : witneS y s t h b e' name of 'A. JOhnsoni a locksmith, testified that he , -was called by the chief ,of police and found the door of:the. safe open, the . .dial-knocked off, and he -further testified -that the safe could- not have,been opened except by working .the combination; that, with the dial knocked off; the* combination • could not. be worked: This witness further- testified on crosS-examination "that Ihave opened hundreds of safes in the last few years without knoWing the; combination. • It is possible to open a' safe without knowing-the combination." ...• , Mr. -A: E. Linzel, a safe and. lock. expert fOr teen years, .testified • in effect- that this safe -was *opened 'by manipulating the tumblers; that.he.had examined the dial and lock to this safe carefully ; . that, -if the:dial had been knocked off prior , to manipulating the combination, it would have been impossible to dial the. comhination. "When that happens, it is hecessary to drill into the lock proper and break the : tumblerS to pieCes . ; if the dial is broken off, yOh *deStroY' the effective handle, in working the combination, and the key by 'which you work it. ' That when he . saw this . . safe the' Spindle was in: place,- and no marks of violence appeared . upon it eXcept . the screw Was broken in two*;* that,- after . 'this dial was broken: . off,' 'it was impossible-to 'work the combination.; that, as an ex-- pert, he could not -have worked the Combination with the dial knocked off. * After . the introduction of the . :ab e o • v testimony, the appellant mOved the court to direct the jury to return a verdict in its favor.- The court refused this request and Submitted the 'issues 'of the-CaSe to- the* jury.* -The jury returned . a verdict in favor of the *appellee; froni which This appeal is prosec-ated. • ' • Buzbee, PUgh . <6 . Harrison and DudlCy <6 Barrett; for appellant. Basil Baker; for appellee:. - JOHNSON; C. J., (after stdtini the facts). But one qtestion is preSehted' in this• appeal for determination,
ABK.] HOME INDEMNftY CO. OF N. Y. V. JBLKS. 373 • namely: Did the trial court err . in refusing to direct a verdict for appellant? •• We think that, under the terms of the policy of insurance sued on in this . case, when appellee produced facts and circumstanceS in 'testimony showing, or tending to show, that the safe \vast forcibly broken and entered, and that loss was sustained by reason . thereof, this made a prinia . facie case ori behalf of aPPellee, and the burden then shifted tO appellant tO . show by testimony that the bill-glary :waS . effected.by manipulating the_tura-blers or lock, which woUld:exempt .it.from liability. . • .. In brief and Oral argument it is insisted on behalf of- appellant that the testimony of the two expert witnesses, Johnson and Linzel, is . reasonable, consistentand unimPeached, therefOre • that the trial coUrt should have, a§ a:matter of law; sb advised.the jury. Let's see. This court held in Talunt v. Mohr, 21 Ark.. 349, quoting from a headnote of the opinion : • "It is competent for witnesses skilled in the science and practice of medicine to giVe their opinions to the jury on' question§ involving the soundness of a slave, in relation to the -disease with which he Was ' . afflicte4, its character, etc., but the jury are the judges of the weight to be attached to their opinions." ' • Again, this court held in Arkansas S. W. Ry. Co: Wingfield, 94 Ark: 75; 12,6 S. W. 76 : • • - 'It is .for 'the jury to. determine what value . his opinion. is. entitled; to under the circumstances, and to- give it 'such weight 'as -they- think it deserves." . • It is 'evident from previous decisions of this court that it is the eXclusive province- of the jury : to determine the value and weight to be given the testimony of expert witnesses, and the jury is authorized to believe or disbelieve the whole or any part of such expert 'Witnesses ' testimony. • • • • _ . . ; • The jury,- in the . exercise of their exclusive province in this case, has determined to disregard the testimony of the expert witnesses, therefore we cannot, as a niatter of law, say that they should not have done so. To do so would overrule the cases hereinabove cited; and we are. unwilling to do this.
-No7error appearing,- the judgment -of the trial court is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.