First Nat. Bank v. Maryland Cas. Co.

• Decision Date: 17 January 1923
• Docket Number: 47.
• Citation: 121 A. 379,142 Md. 454
• Parties: FIRST NAT. BANK OF ST. MARY'S AT LEONARDTOWN v. MARYLAND CASUALTY CO.
• Court: Maryland Court of Appeals

121 A. 379

142 Md. 454

FIRST NAT. BANK OF ST. MARY'S AT LEONARDTOWN v. MARYLAND CASUALTY CO.

No. 47.

Court of Appeals of Maryland

January 17, 1923

Appeal from Baltimore City Court; Charles F. Stein, Judge.

Action by the First National Bank of St. Mary's at Leonardtown against the Maryland Casualty Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

Frank Gosnell and William L. Marbury, both of Baltimore (William Meverell Loker, of Leonardtown, and Marbury, Gosnell & Williams, of Baltimore, on the brief), for appellant.

Walter L. Clark, of Baltimore (Soper, Bowie & Clark and Henry B Frere, all of Baltimore, on the brief), for appellee.

PATTISON J.

The appeal in this case is from a judgment entered in the Baltimore city court, in favor of the appellee, the Maryland Casualty Company, against the appellant, the First National Bank of St. Mary's at Leonardtown, Md., in a special case stated under article 75, §§ 52-55, of the Code.

The action was brought by the appellant against the appellee upon two burglary insurance policies, one for $40,000, and the other for $20,000, issued to it by the appellee, to recover the value of the contents of safe deposit boxes belonging to others, to whom the boxes were rented, which were stolen from the boxes, by burglars, who in November, 1920, broke open and entered the vault of the bank in which the boxes were kept.

The form of the policies is known as "the American Bankers' Association standard form bank burglary and robbery policy," which was devised and drafted by the American Bankers' Association, of which the appellant is a member.

The larger policy has attached to it two riders or indorsements. The smaller one is without riders. The form of each policy however, is the same, and they differ only in the date and the amounts of premium and insurance. The riders on the larger policy, which do not appear on the smaller one, were regarded and treated by the parties in the submission of the case below as unimportant in their operation and effect upon the case on trial. Therefore, as the policies are in all other respects alike, we will hereafter speak of them as one and in referring to the appellant we will call it the "bank," and in speaking of the appellee we will refer to it as the "insurance company."

The policy provided that in consideration of the premises therein stated, the insurer, the insurance company, agrees to indemnify the insured, the bank, in the amount named and for the length of time therein mentioned.

"General Agreements.

A. For all loss of money and securities from within any safe or vault to which insurance under this policy applies caused by the felonious abstraction of the same during the day or night by such persons after forcible entry by such person or persons or any accomplice thereof into the safe or vault while, duly closed and locked, located in the banking room described in the schedule."

The policy then provides that--

"The foregoing general agreements are made subject to the following special agreements which shall be construed as conditions precedent to any recovery hereunder:

Special Agreements.

Definitions.

No. 1. The term 'money' as used in this policy shall be deemed to mean currency, coin, bank notes (signed and unsigned), bullion, and uncanceled United States postage and revenue stamps. The term 'securities' as used in this policy shall be deemed to mean express, postal, pension and bank money orders, bonds, debentures, checks, coupons, demand and time drafts, bills of exchange, acceptance, promissory notes, certificates of deposit, certificates of stock warehouse receipts, bills of lading, and all other instruments of a negotiable character as respects which, if negotiated by any holder, the assured would have no recourse against the innocent holder thereof. When Company Not Liable.

No. 2. The company shall not be liable: (a) For loss of money and securities, unless they belong to the assured, or are held by assured in trust or as collateral for indebtedness to assured, or are held by assured in any other capacity as respects which assured would be liable to the owner for their loss. * * * (c) If the books and accounts of the assured are not so kept that the loss may be accurately determined therefrom by the company."

Other subdivisions of section 1 follow, and these are followed by other "Special Agreements"; but of these none need be mentioned for the purposes of this case until we reach section 5, in which it is provided that in the event of a claim or loss under the policy, the bank shall furnish to the insurance company under oath "a statement in detail of the property on account of the loss or damage to which claim is made, a statement clearly defining the assured's interest in such property. * * * The assured shall, if requested, facilitate the adjustment of any claim for loss made hereunder by producing at the place of loss any and all books, papers, and vouchers, bearing in any way upon the claim made, and such other evidence as may be reasonably required to substantiate the claim."

It is set out in the special case stated that before and at the time of issuing the policies, the assured was a member of the American Bankers' Association, and had at such time, as a part of their business, or in connection therewith, a number of safe deposit boxes which it rented to its depositors, who alone had access thereto, and that on the night of the 12th day of November, 1920, while the policies were still in force, burglars forcibly entered the bank, and broke open its vault, and after unsuccessfully undertaking to enter the burglar-proof safe therein, broke open the boxes that were in the vault on the outside of the safe, and feloniously abstracted the contents therefrom.

The agreed statement of facts contains the admission:

"That the plaintiff (the bank) kept no book or record of the contents of said safe deposit boxes, and that it had no way of accurately determining from its books or records the pecuniary losses suffered and sustained by the said renters of said safe deposit boxes, but which said losses were actually ascertained by the plaintiff from affidavits from the box renters and otherwise, in which said affidavits the box renters make oath as a result of said burglary they have lost securities, other than registered bonds, amounting in the aggregate to $11,164.55 at the market value at the time of the loss."

In the record is found a letter, dated the 15th day of November, 1920, to the bank's cashier, from an employee of the insurance company, A. B. Nickerson, "examiner of claims," which was admitted as a part of the case stated, in which it is said:

"Answering your inquiry over the 'phone, I beg to advise you that the company is not liable for the contents of the safety deposit boxes, which were rented and which property is not the property of the bank. I refer you to special agreement 2, section 2."

It is admitted that the bank is liable to the renters of the boxes for the pecuniary losses sustained by them, resulting from said burglary, and that such losses the bank has for the purposes of this case paid and satisfied.

It was also admitted that all things had been done by the bank that it should have done to entitle it to recover against the insurance company for the loss of the contents of the boxes should the court determine that the insurance...