Clemmons v. GLENS FALLS INSURANCE COMPANY , 2 N.C. App. 479 ( 1968 )

163 S.E.2d 425 (1968) 2 N.C. App. 479

Johnny Thomas CLEMMONS, d/b/a Clem's Texaco
v.
GLENS FALLS INSURANCE COMPANY.

No. 6813SC371.

Court of Appeals of North Carolina.

October 9, 1968.

Herring, Walton, Parker & Powell, by William A. Powell, Southport, for plaintiff appellee.

Marshall & Williams, by A. Dumay Gorham, Jr., Wilmington, for defendant appellant.

BROCK, Judge.

Plaintiff's theory of trial and argument in his brief is that someone unlatched the window from the inside of the building while the store was open for business, and came back later to gain entry and exit through the unlatched window. Defendant argues that plaintiff has failed to prove a loss coming within the terms of the policy. Therefore, the only question presented by this appeal is whether plaintiff's evidence, considered in the light most favorable to him, is sufficient to support a finding that his loss was covered by the insurance contract.

"Insurance policies must be given a reasonable interpretation and where there is no ambiguity they are to be construed according to their terms." Jamestown Mutual Insurance Co. v. Nationwide Mutual Insurance Co., 266 N.C. 430, 146 S.E.2d 410.

The only portions of the policy which are germane to this controversy are as follows:

"Glens Falls Insurance Company, Glens Falls, New York, agrees with the insured, Johnny Thomas Clemmons, D/B/A Clem's Texaco, P. O. Box 38, Brunswick, North Carolina, * * * subject to the * * * exclusions, conditions and other terms of this policy:

"INSURING AGREEMENTS

"To pay for loss by burglary, * * * while the premises are not open for business, of merchandise, * * * within the premises * * * To pay for damage to the premises * * *, and to the insured property within the premises * * * by such burglary * * *.

"SPECIAL PROVISIONS

Applicable to this Insurance

"2. Definitions:

"(a) * * *

"(b) ``Burglary' means the felonious abstraction of insured property (1) * *, or (2) * * *, or (3) from within the premises by a person making felonious exit therefrom by actual force and violence as evidenced by visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the interior of the premises at the place of such exit." (Emphasis in printed policy.)

It is not uncommon for insurance companies to include in their burglary or theft policies a provision that there must exist visible marks or visible evidence of force and violence in effecting a felonious entry. Such a provision is inserted for the protection of the insurer against fraud and false claims, and clearly favors the insurer over the insured. However, since such provisions are not ambiguous, the rule requiring construction in favor of the insured does not apply. Annot. 99 A.L.R. 2d 129, at 131; Annot. 169 A.L.R. 224; 10 Couch, Cyclopedia of Insurance Law 2d, Sec. 42:129, p. 762; 5 Appleman, Insurance Law and Practice, Sec. 3176, p. 311. And, although the policy in suit concerns a provision relative to an exit by force and violence, the same general principles apply, and the words of the provision being unambiguous, should be accorded their ordinary meaning.

We hold that clause 2(b) (3) quoted above reasonably means that the plaintiff must show exit by force and violence either by visible marks made by tools, etc., or by physical damage to the interior of the premises. Obviously the plaintiff's evidence does not tend to show visible marks made by tools, or explosives, or electricity or chemicals; and therefore he proceeds upon the theory of physical damage to the interior of the premises at the place of such exit.

The testimony of the deputy sheriff with respect to the condition of the inside of the window has been set out in the statement of facts. The only other evidence in the record concerning the condition of the inside of the window is the testimony of the plaintiff. On three occasions during his testimony he described the inside of the window as he observed it after discovering the burglary. On direct examination he testified as follows:

"Q. What, if anything, did you notice on that part of the window over which this latch fits?

"A. The paint was off. Certainly scarred off of it, right down to the metal."

Then on cross-examination he testified as follows:

"Q. Am I correct, Mr. Clemmons, there was no damage with respect to the window itself that you had to have repaired?

"A. No, sir. The onlyest mark there was on the window was where that lock went up and down on the other piece of metal. It rubbed the paint off of it when it was opened. That window hadn't been opened since I moved in there."

Later, upon questioning by Judge Clark the plaintiff testified:

"THE COURT: This condition of the scarring of the paint or removal of the paint from the latch and catch was observed by you after you noticed the merchandise was gone?

"A. Yes, sir."

The problem presented to us then is to determine whether plaintiff's evidence satisfies the requirement of showing physical damage to the interior of the premises at the place of exit.

Physical is defined as "material, substantive, having an objective existence, as distinguished from imaginary or fictitious." Black's Law Dictionary, 4th Ed. And according to Webster's Third New International Dictionary (1968) physical is "of or relating to natural or material things as opposed to things mental, moral, spiritual, or imaginary."

Damage is defined as "Loss, injury, or deterioration, caused by the negligence, design, or accident of one person to another, in respect of the latter's person or property." Black's Law Dictionary, 4th Ed. And, according to Webster's, supra, damage is "loss due to injury: injury or harm to person, property, or reputation."

In this case the only mark of any kind is the natural mark which would be made by lifting the latch of the window from the inside in a normal manner. We have no fault to find with Mr. Clemmons' assertion that someone obreptitiously unlatched the window while the premises was open for business and then came back under cover of night to burglarize his store. But to hold that this mark from unlatching the window from the inside in the manner in which it was designed to be unlatched comes within the definition of physical damage to the interior of his premises would place an unjust strain on the English language. But more than writing into this insurance contract a coverage which was clearly not intended, the interpretation asked by plaintiff would apply with equal force to the normal wear and tear from the turning of a key in a latch, the working of a bolt, the wear on the hinges and door frame from the opening and closing of a door in the manner in which it was designed to operate.

We think also that plaintiff, as the insured, has the duty to make a reasonable effort to secure the premises when he closes for the day. The contract of insurance by its terms is applicable only "while the premises are not open for business," and the reasonable construction of this term is that when not open for business, the premises shall be locked. By plaintiff's own testimony and theory of his claim, when he left the premises on 16 March 1967 he left the window unlocked; surely, had he left the premises with the front door unlocked and entry and exit had been gained thereby, this contract of insurance would not cover his loss.

For the reasons stated we hold that plaintiff's evidence fails to show that his loss was covered by his contract, and that the trial judge erred in denying defendant's motion for judgment of nonsuit.

Reversed.

BRITT and PARKER, JJ., concur.