Huron Bowl, Inc. v. Security Ins. Co. of New Haven

Citation165 N.W.2d 265,14 Mich.App. 62
Decision Date24 October 1968
Docket NumberNo. 2,Docket No. 4005,2
PartiesHURON BOWL, INC., a Michigan corporation, Plaintiff-Appellant, v. SECURITY INSURANCE COMPANY OF NEW HAVEN, a corporation, Transamerica Insurance Company, a corporation, General Casualty Company of Wisconsin, a corporation, and Capitol Indemnity Company, a corporation, jointly and severally, Defendants-Appellees
CourtCourt of Appeal of Michigan (US)

James M. Wienner, Daniels, Zussman & Wienner, Detroit, for plaintiff-appellant.

Sugar, Schwartz & Silver, Detroit, for defendants-appellees.

Before GILLIS, P.J., and FITZGERALD and McGREGOR, JJ.

GILLIS, Presiding Judge.

Plaintiff appeals a summary judgment. The dispute centers about the terms of insurance under policies issued by defendants which defendants claim do not cover the loss in question.

The loss occurred on January 7, 1966 at about 5 a.m. when approximately $13,000 was taken from the locked safes on plaintiff's bowling alley premises. Plaintiff had one employee on duty at the time who was forced, by threats of violence, to lie on the floor and be tied up while the intruders made their way to plaintiff's office and opened the locked safes. Essentially, the sole issue presented is whether, under the definitions of the insurance policies, this theft could properly be classified as a robbery or burglary. Plaintiff had 'robbery,' but not 'burglary' coverage. Defendants contended, and the trial court so found, that the theft was a 'burglary' (as defined in the policy coverage). Plaintiff contends that the court erred in not finding that its employee was 'robbed,' but would evidently settle for a holding that a material issue of fact exists as to whether it was robbery or burglary.

The pertinent policy provisions (the language of which is stipulated by the parties) state that:

"Robbery' means the taking of insured property * * * by putting him (a custodian) in fear of violence.'

A custodian is defined thus:

"Custodian' means the insured * * * or any employee thereof who is in the regular service of and duly authorized by the insured to have the care and custody of the insured property within the premises, Excluding any person while acting as a watchman, porter or janitor.' (Emphasis supplied.)

As is evident, the determination of whether the theft was within the definition of these quoted sections must of necessity depend upon the character and quality of the duties and responsibilities of plaintiff's employee who was on duty at the time of the theft. Defendants successfully pursued their motion on the dual grounds that:

(1) money locked in the safe was not within the care and control of the employee who had no access to the money, whose responsibilities did not include the safe or its contents, and who had no knowledge of the amount of money, if any, locked within the safe.

(2) at the time of the theft the employee was acting as a 'watchman, porter or janitor' and thus even if he had care and custody, it was within the coverage exclusion.

We are satisfied from the pleadings, record and briefs, that the trial court correctly concluded that, as a matter of law, based on the deposition of plaintiff's officers and employee, the money locked in the safe was not within the 'care and custody' of the employee on duty, except insofar as he was acting as a watchman, janitor or porter.

It is elementary that in interpreting contracts of insurance we give the language used its natural and ordinary meaning. Michigan Mutual Liability Company v. Pokerwinski (1967), 8 Mich.App. 475, 154 N.W.2d 609. We will not give words used a forced or strained meaning, nor will we write a new contract for the parties regardless of the desirability of so doing. Edgar's Warehouse, Inc. v. United States Fidelity & Guaranty Company (1965), 375 Mich. 598, 134 N.W.2d 746; Sturgis National Bank v. Maryland Casualty Co. (1930), 252 Mich. 426, 233 N.W. 367; Topolewski v. Detroit Automobile Inter-Insurance Exchange (1967), 6 Mich.App. 286, 148 N.W.2d 906; Scanlon v. Western Fire Insurance Company (1966), 4 Mich.App. 234, 144 N.W.2d 677.

'Care and custody' connotes dominion over the property which need not attain actual possession. Birgbauer v. Aetna Casualty & Surety Co. (1930), 251 Mich. 614, 232 N.W. 403. It does imply, however, some temporary right of dominion over, or charge of the property albeit under the direction of another. See Bierman-Danzi Corp. v. Fireman's Fund Insurance Co. (1952 Mun.Ct.N.Y.) 203 Misc. 119, 115 N.Y.S.2d 706; Fox West Coast Theatres, Inc. v. Union Indemnity Company (1932), 167 Wash. 319, 9 P.2d 78. It is not a term of precise definition and its pertinence to this opinion is only to the extent that it, on its face, includes true 'custodians' as well as watchman, porters and janitors as defined in the policy.

...

To continue reading

Request your trial
7 cases
  • Arrigo's Fleet Service, Inc. v. Aetna Life & Cas. Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • July 24, 1974
    ...Co. of New York, 189 Kan. 459, 470, 370 P.2d 379, 387, 99 A.L.R.2d 118, 128 (1962). In Huron Bowl, Inc. v. Security Ins. Co. of New Haven, 14 Mich.App. 62, 65, 165 N.W.2d 265, 266--267 (1968), Judge J. H. Gillis wrote: "Care and custody' connotes dominion over the property which need not at......
  • Cora v. Patterson
    • United States
    • Court of Appeal of Michigan — District of US
    • August 28, 1974
    ...Economy Mills of Elwell, Inc. v. Motorists Mutual Ins. Co., 8 Mich.App. 451, 154 N.W.2d 659 (1967); Huron Bowl, Inc. v. Security Ins. Co. of New Haven, 14 Mich.App. 62, 165 N.W.2d 265 (1968); Travelers Indemnity Co. v. Duffin, 28 Mich.App. 142, 184 N.W.2d 229 (1970), rev'd on other grounds,......
  • Doran v. Equitable Life Assur. Soc. of U.S.
    • United States
    • Court of Appeal of Michigan — District of US
    • February 12, 1975
    ...Warehouse Inc. v. United States Fidelity & Guaranty Co., 375 Mich. 598, 134 N.W.2d 746 (1965); Huron Bowl, Inc. v. Security Insurance Co. of New Haven, 14 Mich.App. 62, 165 N.W.2d 265 (1968); Weaver v. Michigan Mutual Liability Co., 32 Mich.App. 605, 189 N.W.2d 116 (1971). To permit a jury ......
  • Parameter Driven Software v. Mass. Bay Ins. Co.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • February 10, 1993
    ...(1939); See also Upjohn Co. v. New Hampshire Ins. Co., 438 Mich. 197, 208, n. 8, 476 N.W.2d 392 (1991); Huron Bowl, Inc. v. Security Ins. Co., 14 Mich.App. 62, 65, 165 N.W.2d 265 (1968) (contract language should be given its natural and ordinary A. Coverage under Property Damage Liability C......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT