Aronson v. Maryland Casualty Co.

• Decision Date: 01 March 1926
• Docket Number: No. 15559.,15559.
• Citation: 280 S.W. 724
• Parties: ARONSON v. MARYLAND CASUALTY CO.
• Court: Missouri Court of Appeals

280 S.W. 724

ARONSON v. MARYLAND CASUALTY CO.

No. 15559.

Kansas City Court of Appeals. Missouri.

March 1, 1926.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by Harry B. Aronson against the Maryland Casualty Company. From a judgment for the plaintiff, defendant appeals. Reversed and remanded.

McCune, Caldwell & Downing, of Kansas City, for appellant.

Jacobs & Henderson, of Kansas City, for respondent.

BLAND, J.

This is an action on a policy of burglary insurance in the sum of $500. Plaintiff recovered a verdict and judgment in the amount of the policy together with a penalty of $50 and $150 attorney's fees. Defendant has appealed.

The insuring clause of the policy reads as follows:

"$500.00 to loss of property from within the premises when the assured or at least one employee is on duty."

Under the heading of "Standard Combination Messenger and Interior Robbery Rider Insuring Clauses" appears the following:

"B. For all loss by robbery, occurring at any time during the hours beginning at 7 a. m., and ending at 12 midnight of property from within the premises provided the said premises are regularly open for business."

Under the heading "Definitions" appears the following:

"Premises, within the meaning of this policy, is limited to the interior of the assured's office or store, as specified in statement 5 of the schedule."

Under the heading "Schedule" appears the following:

"1. The name of the assured is Harry B. Aronson.

"2. The business address of the assured is S. E. corner Tenth and Garfield, Kansas City, Mo.

"3. The assured's premises are located at S. E. corner Tenth and Garfield, Kansas City, Mo.

"4. The assured's business is grocery.

"5. The premises are the interior of the assured's store occupying the portion of the building herein specified."

The building in which the plaintiff's grocery store was located was a one-story brick structure without a basement. The outside dimensions of the building were 50×28 feet. The interior of the building was divided into two rooms. The front room, or the place where the business of the store was ordinarily transacted was 28×28 feet, and the rear room was 28×22 feet. The two rooms were separated by a solid wood partition with a door in the center. The front room contained counters, cases, shelves, and the main part of the stock of groceries; the rear room was used for a storeroom where such articles as sugar, cigarettes, beans, canned milk, and chicken feed was stored. While the principal part of the business was conducted in the front room, plaintiff at times sold directly from the goods stored in the rear room, and sometimes customers of their own volition went to that part of the store to select purchases. Plaintiff had his office in the rear room of the store and made out his bills and kept his books there. Plaintiff testified that he had been using the back room as a part of his grocery store from the time he first moved into the building.

In addition to the rear room being put to the uses that we have described, it was also used as living quarters for plaintiff and his wife and small child, At the time of the burglary his sister-in-law was visiting plaintiff's family, and she, likewise, occupied the rear room. In connection with its use as living quarters, the rear room contained a heating stove, a cook stove, a chifforobe, a duofold bed, another bed, a kitchen cabinet, a dining table, a stand, an icebox, and a chair. Both plaintiff and his wife stated that this room was their "home." The rear room had an outside door, but this door was kept locked and had heavy sacks of sugar piled against it. The only means of access to it was through the front room, which contained the main entrance to the building. On the morning of January 9, 1923, while the policy was in force, the store was "held up"; $20 was taken from the cash register, which was in the front room, and a sack said to contain over $800 in money and checks was taken from the chifforobe in the back room.

Defendant offered a demurrer to the evidence, which was overruled, and thereafter offered, an instruction limiting plaintiff's recovery to the sum of $20, which the court refused to give. Defendant stood upon these instructions and offered no testimony.

Defendant insists that the policy covered the robbery from only that part of the grocery store proper, to wit, the front room. We think there is no question but that the rear room was part of the premises on which plaintiff conducted his business (Nahigian v. Fidelity & Casualty Co., 253 S. W. 83, 214 Mo. App. 1), even though it may have been used in part as living quarters by plaintiff and his family. The fact that one lives in his store does not make it any the less a store or necessarily convert it into a residence. There was nothing in the policy prohibiting the living in the store. We think that the policy covered the rear room where the robbery took place, unless there Is some peculiar provision of the policy indicating that that part of the premises was not to be covered by it. Section 5 of the schedule stated, "The premises are the interior of the assured's store occupying the portion of the building herein specified." Defendant insists that a "portion" means a part of the whole, and that this clause of the policy, together with the other parts that we have quoted, show that the policy did not cover the whole building, but only the front room. Section 5 of the schedule mentions the "building herein specified." We have carefully read over the policy and do not find that the word "building" appears therein at any other place than in the clause just quoted. We find that only the word "premises" is used. There is nothing to show whether this part of the policy was in printing. Evidently it was a form intended to be used in writing insurance of this kind which might cover large buildings having a number of tenants, or a building containing more than one business.

Defendant insists, conceding that this was a "stock" policy, that we must give some meaning to all of its clauses. No doubt defendant's contention would be correct provided it is possible to give a meaning to all of its provisions. Plaintiff's store or "premises" consisted of the entire interior of the building, we are certain of this. As the store did not occupy a portion of the building, but the entire interior of the...