Northwestern Casualty & Surety Co. v. Barzune

I dissent from that part of the decision of the majority reversing the judgment in favor of appellee for $168.50 and interest, being the amount of money extracted by the criminal from the safe, hence believe the judgment below should have been affirmed in its entirety.

The risk assumed by appellant is described in its policy as follows: "For all loss by burglary of money, securities and merchandise, as hereinafter defined, by its abstraction from within that part of any safe or vault to which the insurance under this policy applies, by any person or persons making felonious entry into such safe or vault by actual force and violence of which force and violence there shall be visible marks made upon such safe or vault by tools, explosives, electricity, gas or other chemicals, while such safe or vault is duly closed and locked and located in the assured's premises, described in the schedule, or located elsewhere after removal therefrom by burglars."

The safe burglarized is described in the agreed statement as follows: "That the plaintiff's safe, described in the schedule to said policy, was a Mosler Fireproof Safe, equipped with an outer door, three inches thick, locked by a combination lock, and said safe also contained an inner compartment with a door of thin metal, locked by a key lock; that such thin metal door was surrounded by a cast iron casing."

The entry into the safe, the force and violence used, the visible marks made, and the abstraction of money therefrom, are described in the agreed facts as follows: "That on or about April 19, 1929, the premises of plaintiff were burglarized by some person or persons unknown, making felonious entry into such safe, and plaintiff sustained a loss of $168.50 in money, and his safe was damaged to the extent of $11.50, substantially as alleged by him. That such loss and damage occurred under the following circumstances: The $168.50 in money which was lost by the plaintiff was contained within the inner compartment of said safe, and the door to said inner compartment, as well as the outer door of said safe, were both duly locked. The combination lock with which the outer door of said safe was equipped was worked or manipulated, and entry into the inner compartment was effected by the use of some character of tool, the cast iron casing surrounding the door thereof being broken and the door thereof being pried open."

If the case ended at this point, no question could be raised as to appellant's liability, because it appears that there was a felonious entry into the safe by the forcible use of some tool that left visible marks, in that, the cast-iron casing surrounding the second or inner door was broken or pried open. However, appellant contends that it should escape liability under the following exception or special agreement contained in the policy, to wit: "The company shall not be liable for any loss or damage * * * (j) Of or to money, securities or merchandise contained in a fire-proof safe, unless entry into such safe has been effected by the use of tools, explosives, chemicals or electricity directly upon the exterior thereof."

If the method of entering the safe had not been duly described, the agreed facts would doubtless preclude this discussion. Paragraph 4 of the agreed facts reads: "There was no visible marks made upon the exterior of such safe by tools, explosives, electricity, gas or other chemicals, and the opening of the outer door of said safe was affected by working or manipulating the combination lock thereof, and was not affected by the use of any tools, explosives, chemicals, or electricity directly upon the exterior thereof." In view, however, of the other facts stated — that is, that the "combination lock with which the outer door of said safe was equipped was worked or manipulated, entry into the inner compartment was effected by the use of some character of tools, the cast iron casing surrounding the door thereof being broken and the door thereof being pried open" — the statement in paragraph 4, to the effect that no visible marks were made upon the exterior of the safe by tools, etc., can only mean that there were no visible marks upon the exterior surface of the safe. If this is not its meaning, paragraph 4 is contradictory of other recitals, and is out of harmony with the line of thought pursued in the majority opinion. So, the question turns on the proper construction to be given the phrase "by the use of tools * * * directly upon the exterior thereof" (the safe), for if this language refers exclusively to the outside surface of the safe, no liability, under the letter of the policy, was shown, but if it refers, as I think it does, to any part of the safe exterior to the cavity holding its contents, liability was, in my opinion, clearly shown.

What did appellant mean by the phrase "by the use of tools * * * directly upon the exterior thereof"? The policy was certainly intended to indemnify appellee against loss resulting from felonious entry into a safe having both an inner and an outer door. The safe was constituted of an exterior and an interior, an outside and an inside, there existed no neutral zone, there could have been no abstraction of money from within the safe until the second door was forced that the cavity containing the money was reached, hence the operations of the criminal, in reaching the cavity containing the money, were necessarily made upon an exterior portion of the safe.

Appellant could have laid a good basis for its present contention if the policy, instead of using the language adopted, had contained, as a prerequisite to liability, provisions requiring forcibly entry through the outside door, or the exterior surface of the safe, attended by visible marks, etc.; but the policy contained no such or equivalent provisions. Appellant having adopted language susceptible of two constructions — one sustaining and the other defeating liability — I do not think the court, under the circumstances, should hesitate to apply the rule of construction that favors the insured.

On the exact facts presented, the case is one of first impression in this state, but decisions in point from other states sustain my view of the question. The cases mentioned below correctly applied the general rule construing, as should have been done, all doubtful provisions in favor of the insured.

Under similar facts, in Bruner v. Fidelity, etc., Co., 101 Neb. 825,166 N.W. 242, 243, the Supreme Court of Nebraska, answering a contention, in effect the same as appellant makes in the instant case, said: "This safe had double doors. Until the inner doors were opened no access could be had to its contents, and no entry made into the safe proper. Explosives were used upon the inner door." The court held that "entry into the safe" was made by the use of explosives and that it was not material that the outer door had not been so opened. In Fidelity, etc., Co. v. Sanders, 32 Ind. App. 448, 70 N.E. 167, 169, in a similar case, the court held that: "The policy makes no distinction between outer and inner doors. The pleading shows that the money and property were taken from a part of the safe that was entered by the use of tools and force. Aside from the rule that insurance policies should be liberally construed in favor of the assured, we think this policy means that, if the money or property in the safe is reached through the use of tools or explosives upon any part of the safe, the loss is covered by the policy."

In Moskovitz v. Travelers' Indemnity Co., 144 Minn. 98, 174 N.W. 616, under a similar policy, where, although the outer door was opened by manipulating the lock, as in the instant case, the entrance through the inner door was effected by force and violence leaving visible marks, as in the instant case, the Supreme Court of Minnesota said: "The policy is not quite clear. The rule of construction favors the insured and resolves ambiguities against the insurer. It was proper, and not difficult, to write a policy making a forcible entry through the outside door attended by visible marks a prerequisite of liability. If the insurance company intended to offer the plaintiff such a policy it could have made its meaning sufficiently clear by the use of a few apt words; and, wishing its liability thus limited, it should have done so."

In Columbia Co. v. Rogers, 29 Ga. App. 248, 114 S.E. 718, the Court of Appeals of Georgia held, under practically identical facts, that a felonious entry into the safe effected by tools, etc., directly upon any part of the safe exterior to the cavity holding the contents, was a felonious entry insured against. To the same effect, see Johnston v. Fidelity D. Co., 220 Mo. App. 753, 275 S.W. 973; Rosenbach v. National, etc., Co., 204 Mo. App. 145, 221 S.W. 386. The case of National Surety Co. v. Chalkley, 260 S.W. 216, 217, decided by the San Antonio Court of Civil Appeals, is more nearly in point than any Texas case, and I am constrained to adopt as pertinent here the language of Judge Fly; he said: "* * * The evidence showed that the property in the safe was obtained by an actual breaking into the house and an actual breaking by force and violence of the inside compartments of the safe, and appellant should not be permitted to evade its liability by a technicality which under the facts of this case is absolutely unjustified. The house was broken into, the safe was entered, the inner locks broken, and the property taken, and under a reasonable construction of the terms of the policy appellee is entitled to a recovery."

For these reasons, sustained by the authorities cited, I am of opinion that the majority erred in not affirming the judgment of the court below in its entirety.