Boesky Bros. Twelfth St. Corp. v. U.S. Fid. & Guar. Co.

• Decision Date: 04 June 1934
• Court: Michigan Supreme Court
• Parties: BOESKY BROS. TWELFTH STREET CORPORATION v. UNITED STATES FIDELITY & GUARANTY CO.

267 Mich. 628

255 N.W. 307

BOESKY BROS. TWELFTH STREET CORPORATION

v.UNITED STATES FIDELITY & GUARANTY CO.

Supreme Court of Michigan.

June 4, 1934.

Appeal from Circuit Court, Wayne County; Guy A. Miller, Judge.

Suit by Boesky Brothers Twelfth Street Corporation against the United States Fidelity & Guaranty Company. From a judgment in favor of the plaintiff, the defendant appeals.

Reversed, without a new trial.

Argued before the Entire Bench, except BUSHNELL, J.

Payne & Payne, of Detroit, for appellant.

Friedman, Meyers & Keys, of Detroit (Aaron Weiswasser, of Detroit, of counsel), for appellee.

BUTZEL, Justice.

Boesky Brothers Twelfth Street Corporation brought suit against the United States Fidelity & Guaranty Company, on an insurance policy issued by the latter, to recover a loss by robbery within the insured's place of business, a restaurant in the city of Detroit. The policy limited the recovery to robbery from within the insured premises while ‘at least one custodian is on duty therein.’ On August 14, 1933, Harry Boesky, plaintiff's secretary and treasurer, closed the restaurant at 3:30 a. m. He took two of his employees and some others to their homes, and then drove to his own home about five or six blocks from the restaurant. As Boesky alighted from his automobile, a man jumped out of a Ford coupé, and forced him, at the point of a gun, to return to his car, drive back to the restaurant, unlock the door, and open the safe. Boesky hesitated a few moments before opening the safe, but with the pressure of the gun at his side, and a warning by the robber that he would kill him if he did not ‘quit stalling,’ he soon complied. The robber took a box containing $700 and escaped, after warning Boesky under penalty of death to remain fifteen minutes longer in the premises.

The sole question in the case is whether recovery may be had under the circumstances above stated, on a policy limiting the coverage to theft of property from within the premises while at least one custodian is on duty therein. The trial judge stated that the question was not free from doubt, but rendered judgment in favor of plaintiff, basing his decision upon the general principle that the insurance company, in order to protect itself against liability, must insert in the policy language free from all ambiguity, thus enabling the insured to know the limitations of his policy. There is no question but that in a case of ambiguity, the language must be strongly construed against the insurer. The courts have no patience with attempts by a paid insurer to escape liability by taking advantage of an ambiguity, a hidden meaning, or a forced construction of the language in a policy, when all question might have been avoided by a more generous or plainer use of words. We have gone far in denying any such defense on the part of an insurance company. See Birgbauer v. AEtna Casualty & Surety Co., 251 Mich. 614, 232 N. W. 403.

The question, however, arises whether there is any ambiguity in the present policy. The construction of the language in question has been before the courts in other cases to which our attention is directed. The factual set-up differs slightly in each of these cases, and the decisions reveal a wide divergence of judicial opinion. The conflict is strikingly...