Shattuck & Jones v. Travelers Indem. Co.

• Decision Date: 30 June 1948
• Citation: 80 N.E.2d 313,323 Mass. 146
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SHATTUCK & JONES, INCORPORATED v. THE TRAVELERS INDEMNITY COMPANY.

323 Mass. 146

80 N.E.2d 313

SHATTUCK & JONES, INCORPORATED v. THE TRAVELERS INDEMNITY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1948

May 6, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN SPALDING, & WILLIAMS, JJ.

Insurance, Burglary insurance.

Mere proof of felonious entry into premises by pushing back from outside a horizontal metal bolt across the inside of a divided door evidenced by scratches on the bolt not shown to have been made by "tools," would not be sufficient for recovery of loss under a burglary insurance policy whose terms required proof of felonious entry "by actual force and violence" of which "there shall be visible marks made upon the exterior of the premises . . . by tools explosives, electricity or chemicals," even assuming that the operation of the bolt was "actual force and violence."

CONTRACT. Writ in the Superior Court dated June 9, 1947. The action was tried before Dillon, J.

Lee M. Friedman (T. D. Burns with him,) for the plaintiff. John J. Sullivan, for the defendant.

LUMMUS, J. The plaintiff brings this action of contract upon a policy of burglary insurance issued by the defendant, to recover for a loss sustained during the night of February 25, 1947, by the breaking into its building on Atlantic Avenue in Boston and the stealing therein of a large quantity of fish. At the trial the judge directed a verdict for the defendant, and the plaintiff excepted.

By the policy the defendant insured the plaintiff against loss by larceny from the premises "by any person or persons making felonious entry into the premises by actual force and violence when the premises are not open for business, of which force and violence there shall be visible marks made upon the exterior of the premises at the place of such entry by tools explosives, electricity or chemicals." The policy differs from that in Shulkin v. Travelers Indemnity Co. 267 Mass. 160 , in that the "visible marks" must be "upon the exterior" of the premises.

The evidence most favorable to the plaintiff may be summarized as follows. The rear door is divided vertically into two parts. A bolt about six inches long runs horizontally on the inside of the door and fastens the two parts together. It was an old bolt and was corroded. The wood of the door at the junction of the two parts was worn, and light from the outside shone through. On the morning of February 26, 1947, the door stood partly...