Fidelity & Deposit Co. of Maryland v. Pettis Dry Goods Co
| Citation | 190 N.E. 63,207 Ind. 38 |
| Decision Date | 16 April 1934 |
| Docket Number | 26017 |
| Parties | FIDELITY & DEPOSIT CO. OF MARYLAND v. PETTIS DRY GOODS CO |
| Court | Supreme Court of Indiana |
[Rehearing denied June 28, 1934.]
1. INSURANCE---Construction of Policy---Ambiguities.---Where the form of a burglary insurance policy was prepared by the insurer, any doubts or ambiguities therein must be resolved most strongly against it. p. 42.
2. INSURANCE---Burglary Insurance---Exclusion Clause---Limitation.---Where burglary insurance policy contained an exclusion clause, providing that if any person in specified classes participated in burglary there would be no liability, it was deemed the intention of the insurer to be liable for any burglary participated by any person not clearly within the classes specifically excluded p. 42.
3. INSURANCE---Burglary Insurance---Exclusion Clause---Former Night Watchman.---Where a burglary insurance policy excluded liability if the burglary were participated in by a watchman the insurer was held liable for a burglary participated in by one who had formerly acted as night watchman but was not so employed at the time of the burglary. p. 42.
Action by Pettis Dry Goods Company against Fidelity and Deposit Company of Maryland on a burglary insurance policy. From a judgment for plaintiff, defendant appealed. Transferred from the Appellate Court. Affirmed.
Kane Blain & Hollowell, of Indianapolis, for appellant.
Fesler Elam & Young and Irving M. Fauvre, all of Indianapolis, for appellee.
This is an action instituted by appellee against appellant to recover upon a contract of insurance for a loss resulting from a burglary committed on appellee's premises. The first paragraph of complaint is to recover upon drafts given in settlement of part of the loss. The second paragraph is upon the policy of insurance. Appellant answered in three paragraphs. The cause was tried by the court without the intervention of a jury. There were special findings of fact and conclusions of law in favor of appellee and judgment for appellee upon both paragraphs of complaint.
Appellant's motion for a new trial was overruled, and error is assigned upon that ruling and the court's conclusions of law.
Allof the error claimed by appellant is based upon the contention that one Hindman, who participated in the burglary, was a watchman in the employ of appellee. If this contention cannot be sustained, these was no error.
The policy of insurance contained the following provisions:
'The Company shall not be liable for damage to the premises, furniture, fixtures or safes therein, unless such property is owned by the Assured or unless the Assured as tenant is liable for such damage; nor shall the Company be liable for loss or damage: (1) if the Assured, any associate in interest, watchman, or office or clerical employe of the Assured is a principal or an accessory in effecting or attempting to effect the burglary. * * *'
There was installed in appellee's place of business an alarm system consisting of twenty-seven signal boxes, each connected by wire with the office of a telegraph company in such a manner that, when the box was pulled, a signal was given at that office. Twenty-six of these boxes were pulled regularly and in a certain sequence and at specified intervals. One of the boxes was an emergency box which was not to be pulled. There was nothing on any of the boxes to indicate the ones to be pulled nor the sequence in which they were to be operated. It was necessary for the watchman to be informed of the location of the boxes and the sequence in which they were to be used, and failure to pull a box at the proper time, or pulling a box other than in regular sequence, was treated as a trouble signal upon which the police would be notified. These facts were not generally known nor intended to be generally known, among the employees of appellee. It will be noted that this elaborate system was more than required by item 13 of the policy above quoted.
Appellee had continuously for a long time employed a regular night watchman, who was on duty and who was overpowered by the burglars at the time of the robbery. Thomas Hindman had been employed by appellee for many years as a porter and garage man. About seven months prior to the burglary in question there...
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Lwood v. Allstate Ins. Co., Civil Action No. 3:11-CV-128-JVB
...ambiguity, insurance policies are to be construed strictly against the insurer." Id. at 947 (citing Fidelity and Deposit Co. of Md. v. Pettis Dry Goods Co., 190 N.E. 63 (1934)). As a result, the Kiger Court interpreted the phrase "sudden and accidental" in favor of more expansive coverage, ......