F. L. Dittmeier Real Estate Co. v. Southern Surety Co.

• Decision Date: 31 December 1926
• Docket Number: No. 25421.,25421.
• Citation: F. L. Dittmeier Real Estate Co. v. Southern Surety Co., 289 S.W. 877 (Mo. 1926)
• Parties: F. L. DITTMEIER REAL ESTATE CO. v. SOUTHERN SURETY CO.
• Court: Missouri Supreme Court

289 S.W. 877

F. L. DITTMEIER REAL ESTATE CO. v.SOUTHERN SURETY CO.

No. 25421.

Supreme Court of Missouri, Division No. 1.

December 31, 1926.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by the F. L. Dittmeier Real Estate Company against the Southern Surety Company.From a judgment for defendant, plaintiff appeals.Affirmed.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

Case, Voyles & Stemmler, of St. Louis, for respondent.

SEDDON, C.

Action for the recovery of the loss by theft of a stock of jewelry under the terms and provisions of a burglary insurance policy issued to appellant by the respondent.The petition, among other allegations, charges that—

"The defendant, by its policy of insurance, dated July 1, 1922, in consideration of a premium of $110, which was duly paid to it, did insure and agree to indemnify the plaintiff for the period of one year from the date of said policy in the sum of $10,000 for all loss or damage to merchandise, money, and securities occasioned by the felonious abstraction of the same from within certain safes described in said policy as safes No. 1andNo. 3, and located on the first floor of the building, actually occupied by the plaintiff and known as 624 Chestnut street, St. Louis, Mo., after entry into such safe or safes had been effected by force and violence by the use of tools, explosives, chemicals, or by electricity directly upon the exterior of said safes, of which force and violence there should be visible !harks.

"Plaintiff further states that between the hours of 12 p. m., July1, and 8 a. m., July 3, 1922, it did suffer loss and damages to the amount of $10,000 to merchandise, occasioned by the felonious abstraction of the same, on the dates aforesaid, from within said safes described in said policy as safes No. 1andNo. 3, and located on the first floor of the building, actually occupied by the plaintiff and known as 624 Chestnut street, St. Louis, Mo., and that said loss and damage was suffered after entry into such safe or safes had been effected by force and violence by the use of tools, explosives, chemicals, or by electricity directly upon the exterior of said safes, of which force and violence there was, visible marks."

The petition also charges that appellant suffered loss and damage on account of the alleged felonious abstraction of said jewelry in the sum of $12,348.35, and prays judgment for $10,000, the amount of said policy of insurance, together with damages in the sum of 10 per cent. on the amount of the loss and a reasonable attorney's fee, because of the alleged vexatious refusal of respondent to pay such loss.

The answer denies generally each and every allegation of the petition, and pleads the following special defenses:

"Further answering, defendant states that, on or about the 1st day of July, 1922, in consideration of a premium agreed to be paid to the defendant by the plaintiff of $110, defendant issued to the plaintiff corporation its certain contract of insurance, wherein and whereby it was agreed that defendant, in consideration of said premium and the declarations contained in said policy, which statements the said plaintiff corporation, on the acceptance of said policy, accepted as its own and warranted to be true, agreed to idemnify the said plaintiff corporation, subject to all the agreements and conditions contained in said policy, to the extent of $10,000 of money, bullion, postage, and revenue stamps uncanceled and in current use, negotiable securities, watches, jewelry, precious stones, articles made of gold, silver, or platinum, occasioned by the felonious abstraction of same from within the safes mentioned in said declarations, after entry into such safe or vault has been effected by force and violence, by the use of tools, explosives, chemicals, or electricity, directly upon the exterior thereof, of which force and violence there shall be visible marks, and from damage occasioned to such safes, or property contained therein, and furniture, fixtures, and premises, caused directly by entry or attempt at entry into such safe or safes.

"As a part of said agreement, and as a condition and part of the consideration agreed to by the plaintiff corporation in entering into said contract and accepting said policy, it was expressly stipulated that this defendant company should not be liable for any loss sustained by the plaintiff corporation, if said loss be effected by the opening of such safe or safes by the use of any key, or by the manipulation of any lock, nor unless entry has been forcibly and violently made into such safe or safes by tools, explosives, chemicals, or electricity directly applied upon the exterior of such safe or safes.

"By said policy it was also agreed that defendant should not be liable if all the doors of such safe or safes were not equipped with combination or time locks, and properly closed and locked at the time of the occurrence of the alleged loss, and should not be liable, if the assured, or any associate in interest, or any servant or employee of the assured, or any other person lawfully upon the premises, be implicated as principal or accessory in effecting or attempting to effect a loss to which said policy would apply.That in and by said provisions the plaintiff corporation agreed with the defendant as aforesaid, and the intent and purpose of said contract was that this defendant would not be liable for any loss which might occur by effecting entrance into said safe or safes by use of the combination or lock, with or without the knowledge of such combination obtained from the assured, any associate in interest, or any servant or employee, nor from entry therein effected by any person without the use of such combination or lock, by reason of the fact that such safe or safes be not at said time locked.

"Defendant avers that neither between the hours of 12 p. m., July1, and 8 a. m.July 3, 1922, nor at any other time, were the safes mentioned in said policy, or either of them, entered by force and violence, or by the use of tools, explosives, chemicals, or electricity applied upon the exterior of said safes, or either of them, and further avers that neither at said time, nor any other time, was there feloniously abstracted from the interior of said safe or safes, or either of them, a stock of jewelry as alleged in plaintiff's petition, or any property of the kind classified and intended to be referred to by said policy of the cash value of $12,348.35, or of any other value or sum, and specifically denies that plaintiff has sustained a loss in said sum, or any other sum, between said hours on said days, or at any other time, after the issue of said policy, occasioned by felonious abstraction from the interior of either of said safes.Defendant also specifically denies that there were any marks of force and violence at any of the times above mentioned upon said safes, or either of them."Defendant further states that, on or about the 5th day of July, 1922, plaintiff corporation claimed to have sustained a loss of a stock of jewelry abstracted from said safes between the hours of 12 p. m., July1, and 8 a. m., July 3, 1922, and defendant avers that any jewelry removed from said safes, or either of them, between said hours upon said days, was removed by some person or persons through the opening of said safes by working the locks thereof, through the use of the combination, or by key, or by manipulation, without any force, tools, explosives, chemicals, electricity, or violence, and that any loss sustained by plaintiff in such manner is not within the meaning of said policy or contract, and the plaintiff is not entitled to recover."

The reply is a general denial of the allegations of the answer.

The policy of insurance was applied for by appellant on or about June 29, 1922; the respondent issuing a "binder"(so-called) on that date, indicating that the policy was issued and effective as of said date, but the policy had not been manually delivered at the time the alleged burglary or loss occurred.The policy of insurance sued upon was put in evidence by appellant, and the pertinent paragraphs or provisions thereof are as follows:

"The Southern Surety Company, in consideration of the premium and of the statements in the declarations hereinafter contained, which statements the assured, on the acceptance of this policy, accepts as his own and warrants to be true, does hereby agree to indemnify the corporation, firm, person, or persons named in item 2 of the declarations and hereinafter called the assured, subject to the agreements hereinafter contained, for all loss.

"A.Of money, bullion, uncanceled United States postage and revenue stamps in current use, negotiable securities, and/or merchandise, restricted to watches, jewelry, precious stones, articles made of gold, silver, or platinum, and such other articles of value as are specified in section (f) of item 8 of the declarations hereto, occasioned by the felonious abstraction of the same from within any safe or vault described in the declarations and located in the office or store actually occupied by the assured and described in said declarations and hereinafter called the premises, after entry into such safe or vault has been effected by force and violence by the use of tools, explosives, chemicals or electricity directly upon the exterior thereof,, of which force and violence there shall be visible marks. * * *

"B.By damage (except by fire) to the said safe or vault and to the said property contained therein, and to the furniture, fixtures, and premises caused directly by such entry into the safe or attempt thereat.

"This agreement is subject to the following conditions:

* * * * * * *

"No. 2.The company shall not be liable for any loss * * * (i) unless the doors of all vaults, safes, and chests to which this policy applies are equipped with combination or time locks and properly...