Cahn & Wachenheim v. Fidelity & Casualty Co. of New York

• Decision Date: 03 November 1924
• Docket Number: 25070
• Citation: 102 So. 320,157 La. 238
• Parties: CAHN & WACHENHEIM v. FIDELITY & CASUALTY CO. OF NEW YORK
• Court: Louisiana Supreme Court

102 So. 320

157 La. 238

CAHN & WACHENHEIM v. FIDELITY & CASUALTY CO. OF NEW YORK

No. 25070

Supreme Court of Louisiana

November 3, 1924

Appeal from Civil District Court, Parish of Orleans; Columbus Reid Judge.

Action by Cahn & Wachenheim against the Fidelity & Casualty Company of New York. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Edmond J. Jacquet, Herbert W. Kaiser, and Martin H. Manion, all of New Orleans, for appellant.

Edgar M. Cahn and Wm. F. Conkerton, both of New Orleans, for appellee.

ST. PAUL, J. OVERTON and ROGERS, JJ., dissent.

OPINION

ST. PAUL, J.

Plaintiffs are retail merchants, conducting the Imperial Shoe Store, at Canal and Bourbon streets, in the city of New Orleans. In 1912 they purchased a secondhand ironsafe. Some time thereafter the safe was broken into, and was thereafter repaired. In January, 1918, the safe was insured against burglary by defendant company for one year; and in January 1919, the insurance was renewed for another year.

The policy was to cover any loss of property --

"feloniously taken by any person or persons, at any time during the day or night while the premises are not actually open for the transaction of business, from any safe, chest or vault to which insurance hereunder specially attaches, after entry into the safe or chest or vault by such person or persons in the manner hereinafter set forth."

The term "entry," within the meaning of the policy, was declared to be limited to --

"the felonious and forcible opening of a safe or vault or chest by the use of tools or electricity or chemical or explosives directly upon the exterior walls thereof or upon the outer or principal door thereto."

The defendant was not to be liable --

"if the assured or any associate in interest, or any officer or clerical employee of the assured, or any other employee of the assured directly in charge of property insured, is criminally implicated as principal or accessory in effecting or attempting to effect loss covered under this policy."

Nor was defendant to be liable for property taken from any safe or chest or vault --

"unless at the time of the occurrence of the loss all doors to the safe or chest or vault from which the loss occurs are properly closed and locked by all combination and (or) time locks with which such doors are respectively provided; * * * nor if the entry thereinto is effected by unlocking the door thereto by a key, or by the manipulation of the combination lock; nor if the entry is effected in any manner otherwise than as specified in General Provision No. 1 (defining 'entry,' as above)."

I.

From the foregoing it will be seen that the cause last quoted above is simply an amplification, or (in effect) reiteration, of what is meant by an "entry" into the safe or chest or vault; and therefore needs no further attention here.

On the other hand, it is clear that the clause immediately preceding the clause last mentioned provides for a limitation of the general liability of the defendant for an "entry" effected in the manner defined by the policy.

II.

Some time between the closing of plaintiffs' store on the evening of Saturday, November 15, 1919, and the reopening thereof on the following Monday morning, plaintiffs' store was entered and the contents of the safe stolen; being the cash receipts of the Saturday, and exceeding the amount of the policy herein ($ 2,500).

Plaintiffs sue upon the policy, alleging that the safe was entered in the manner defined therein. Defendant tendered (in effect) the general issue. It did not set up the limitation above mentioned; and hence that defense is not available.

"Where a policy insures generally against a particular peril, and contains a further clause exempting the company from liability for loss caused in a certain manner, which would otherwise have fallen within the general terms of the policy, the burden is upon the insurer to allege and prove that the loss fell within the exemption. Such a clause is considered as an exemption from liability, and a defense rather than as an exception proper, limiting and defining the risk covered." Fidelity & Casualty Co. of N. Y. v. First National Bank of Fallis, 42 Okl. 662, 142 P. 312; Cooley's Briefs on Insurance, vol. 4, p. 3035.

It is therefore largely immaterial to the issue herein involved who might have been the thief, or when and by what means he entered plaintiffs' store; the sole question being whether the safe was closed and locked, and the thief "entered" the same in the manner defined in the policy, and not by manipulating the combination lock thereof.

The case was tried by a jury, who returned a unanimous verdict for plaintiff; and defendant appeals.

III.

Mr. Eckert, who opened the store on Monday morning and admitted the porter, testified (in part):

"* * * The porter went up to the fourth floor and discovered the ladder at this hatch hole, and came down immediately, and said to me: "There is something wrong.' * * * I went upstairs right away and we saw them, and then came down to the third floor; and I saw all my papers on the third floor right by the safe. The papers were lying around the safe on the floor, * * * and I examined the safe, and found that the safe had been opened. * * * The combination was lying on the floor -- the knob. * * * The second piece, called the dial, was on the safe. * * * The doors of the safe were closed, but unlocked. * * *"

It was shown that the safe had been locked before the store was closed on Saturday evening. It was shown that the knob and dial had been knocked off by a blow or blows, given with a hammer or other heavy instrument.

This was the prima facie case made out by plaintiffs, which they supplemented by showing that all their employees had been with them from 10 to 15 years, and were still with them; that after the theft a private detective had been put on their trail, without result; that, of their employees, only two had the combination to the safe, and these two had no key to the store; that only one employee had a key to the store, but had not the combination to the safe; that the two partners alone had both the key to the store and the combination to the safe; that the junior partner was in New York at the time.

IV.

To rebut the prima facie case thus set up, the defendant relied principally on the testimony of the chief of police, and of two safe makers.

The chief of police testified (in part):

"After examining the front door, I found that the place [store?] had been entered by a key, or that the front door [to the store?] had been left open. I found a ladder leading to the hatch. No one had entered the hatch, as the dust on the inside of the attic was not disturbed. Further investigation developed that the hatch from the attic to the roof was locked from the inside. There was no way for any one to have gotten from the roof of the building to adjoining buildings, or to the street."

More testimony was taken, both pro and con, as to the possibility of entering or leaving the store otherwise than by the front door. The senior partner testified that the front door could not have been left open, because there was a watchman whose business it was to try the door after the closing of the store, who would have given notice, had he found it open or unlocked; that the lock was not a spring lock, and could not be opened or closed from the inside without a key.

But all this testimony leads nowhere. There was, as aforesaid, a fourth floor to the building, above that on which the office was, and the chief of police speaks of that fourth floor as an "attic." Eckert testifies that on that fourth floor there was "a little room, about six feet away from the opening," in which the aforesaid ladder was usually kept. This might have afforded a convenient hiding place for one entering the building, say, in the last busy hour, from 5 to 6, during which the store sold $ 636 of shoes for cash, at retail; and there were windows on the second floor through which an active man might, doubtless, find a way out of the store in the darkness and quiet of early Sunday morning; nor are skeleton keys and their use unknown to burglars -- all of which are no more fanciful surmises than that either the one young lady who had the combination to the safe, or the one young man who also had it, carried false keys to the store, or conspired, for the purpose of robbing the safe, with the one employee who had a key; or, finally, that the senior partner himself, who alone had both key and combination, was the one who emptied the safe.

There was therefore a possibility that the thief might be some one other than a person connected with the store. And, since any such surmise was within the range of possibility, and nothing in the evidence tended to show which was the more probable the jury evidently rejected such as were not in accord with the pleadings; and concluded that, since the defendant did not even charge, much less prove, that the theft had been committed by some one connected with the store, they (the jury) would not assume that such was the case. And in this the jury did not err.

V.

The theory of the defense is that the safe was opened by some one who knew the combination; that he thereafter knocked off the knob and dial, and placed the ladder under the hatch, in order to give the impression that the safe had been entered by force, and thus cover up the fact that the safe had been opened by means of the combination.

To support this defense it is shown that it would have taken at least two blows, perhaps three, to knock off the knob; that when these blows were struck the combination stood at or about the opening number (i. e., last number before opening) that when the lock was removed it...