Consumer's Money Order Corp. of America, Inc. (Mo.) v. New Hampshire Ins. Co., 31665

• Decision Date: 15 December 1964
• Docket Number: No. 31665,31665
• Citation: 386 S.W.2d 674
• Parties: CONSUMER'S MONEY ORDER CORP. OF AMERICA, INC. (MISSOURI), Plaintiff-Respondent, v. NEW HAMPSHIRE INSURANCE COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 674

386 S.W.2d 674

CONSUMER'S MONEY ORDER CORP. OF AMERICA, INC. (MISSOURI) Plaintiff-Respondent, v. NEW HAMPSHIRE INSURANCE COMPANY, Defendant-Appellant.

No. 31665.

St. Louis Court of Appeals, Missouri.

Dec. 15, 1964.

Motion for Rehearing or to Transfer to Supreme Court Denied

Jan. 11, 1965.

Application to Transfer Denied March 8, 1965.

Strubinger, Tudor, Tombrink & Wion, Edward P. Burke, Lawrence O. Willbrand, St. Louis, for defendant-appellant.

Ackerman & Schiller, Paxton H. Ackerman, Theodore F. Schwartz, Clayton, for plaintiff-respondent.

ANDERSON, Judge.

This is a suit on a policy of insurance issued by defendant, New Hampshire Insurance Company, insuring plaintiff among other things, against loss by robbery. The case was tried to a jury, and resulted in a verdict for plaintiff for the principal amount sued for with interest together with an attorney's fee and penalty under the vexatious refusal to pay statute. From the judgment on this verdict, defendant has appealed.

The policy was issued on August 31, 1961, for the term of one year. It insured the plaintiff against loss of money, securities and other property by robbery or an attempt thereat, within two premises specified in the policy. There was also a provision whereby the defendant agreed, 'To pay for loss of money, securities and other property by robbery or attempt thereat outside the premises while being conveyed by a messenger.' 'Messenger' was defined as including any employee who was in the regular service of and duly authorized by the insured to have the care and custody of the insured property outside the premises.

The definition of robbery, so far as material to this case was defined as the taking of insured property by violence inflicted upon a messenger or a custodian, or by putting him in fear of violence.

There was an endorsement on the policy extending the coverage which was as follows:

'It is agreed that the Money and Securities Broad Form protection granted on the Schedule of Locations Endorsement No. 2 shall include property in unattended automobiles subject to the condition of Endorsement No. 1 Babaco Alarm Warranty.'

The Babaco Alarm Warranty provided for in Endorsement No. 1 was as follows:

'It is a condition of this insurance that all automobiles used by the messengers in the performance of their duties are fitted with a Babaco Alarm and that such alarms are maintained in good order during the entire period of this insurance and shall be set 'on' at all times.'

The plaintiff, Consumer's Money Order Corp. of America, Inc., was engaged in the business of selling money orders through retail outlets. Harold Hausdorf was, at the time the events transpired which gave rise to this lawsuit, a regular employee of plaintiff. His duties were to collect money for plaintiff from various locations within the city of St. Louis. In the performance of his duties, Hausdorf used his own automobile. This automobile was equipped with a Babaco Alarm system, which plaintiff had installed. This system is so constructed that it could be turned on and off by inserting a key in a lock located on the outside of the trunk at the rear of the car. When the mechanism is turned to the 'on' position a siren will sound whenever a door of the automobile is opened or if the hood of the car is lifted. Hausdorf testified that it was his practice to turn on the system whenever he got out of the car to make a collection. He further testified that if he opened the door to get into the car when the lock was turned to the 'on' position, the siren would sound, and would continue until he would get out of the car and by the use of the key, turn the lock to the off position. In other words, under his testimony, if the system was turned on at all times he would be driving the car at all times with the siren sounding.

The loss for which plaintiff brought this suit occurred on January 6, 1962, when Hausdorf was making collections for plaintiff. Snow fell that day, and according to the testimony, the weather was miserable. The temperature was below freezing. At about 4:30 p. m., Hausdorf discovered that the lock of the alarm system was frozen and for that reason he could not insert the key into the lock to turn on the system. At that time, he was making a collection at a pharmacy located at Taylor and Easton. Hausdorf continued to make collections even though he knew the alarm system could not be turned on. He did not take his car to the Babaco service department as he normally would under such circumstances, because it was Saturday afternoon and such service was not available.

At about 6:00 p. m., Hausdorf arrived in front of a liquor store located at Glasgow and Montgomery. He parked his car in front of the store, got out and went into the store where he made a collection. He did not turn on the alarm system because the lock was frozen, and he could not insert the key into it. At that time there was about $18,000 in the car which he had collected for plaintiff from various locations within the city.

After Hausdorf made the collection at the liquor store he returned to his car, but was unable to start its motor. He then alighted and raised the hood of the car to ascertain the cause of the failure of the motor to start. While his head was under the hood, a man approached and inquired if he was having trouble. He raised up to a position where he was standing in front of the car. The man who accosted him was on the sidewalk. This man then displayed a gun and demanded money saying it was a holdup. Hausdorf gave him his personal funds thinking that would satisfy him, but the man demanded the rest of it which was in the inside pocket of his jacket, and which was money he had collected for plaintiff. Hausdorf...