Frankel v. Massachusetts Bonding & Ins. Co.

• Decision Date: 18 June 1915
• Docket Number: No. 11650.,11650.
• Court: Missouri Court of Appeals
• Parties: FRANKEL et al. v. MASSACHUSETTS BONDING & INS. CO.

177 S.W. 775

FRANKEL et al. v. MASSACHUSETTS BONDING & INS. CO.

No. 11650.

Kansas City Court of Appeals, Missouri.

June 18, 1915.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Action by Daniel Frankel and others against the Massachusetts Bonding & Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed.

McCune, Harding, Brown & Murphy, of Kansas City, for appellant. Grant I. Rosenzweig, of Kansas City, for respondents.

TRIMBLE, J.

Plaintiff's suit is founded upon a policy of burglary insurance. There is no dispute over the facts. The only question involved is over the construction and interpretation of a phrase in the policy. It agreed to indemnify plaintiff for direct loss, by burglary, of money in current use, bullion, securities, uncanceled United States government post office or revenue stamps, in consequence of the felonious abstraction of the same from the safe, "by any person or persons who shall have made entry into such safe or safes by the use of tools or explosives applied directly to the outside thereof." The sole controversy is over the meaning to be given the words "by the, use of tools or explosives applied directly to the outside thereof."

The safe in question is about five feet high and three feet wide, and was fireproof only. Photographs of the safe, when closed, and also when open, were introduced in evidence, and a minute description thereof was given in the testimony. From these it appears, without contradiction, that when one approaches the closed safe he sees two doors in front attached to hinges at the right and left sides of the safe, and with the edges of the doors meeting in a perpendicular line in the middle of the front face of the safe. These doors are locked with an ordinary combination lock, that is, a knob with a scale marked on the circle thereof, the turning of which manipulates the combination, and, when that is in proper position, then a twist of the little handle near the knob throws the bolt. The doors are then opened by taking hold of the two handles (one on each door) and pulling outward, whereupon the two doors, opening in the middle, swing outward and around to the right and left sides, respectively. These doors are something over six inches thick. When these outer doors are swung open there are disclosed to view two other doors closing, and with their edges fitting and meeting in a perpendicular line in the middle of the safe in the same manner as do the first two, except that there is no combination lock thereon, but only handles by the turning of which a latch is lifted or drawn back and the doors swing outward from the center of the safe as the others. There was an air space between the outer doors and these last doors, and the latter were of iron or steel, and probably an inch in thickness. When these last, or middle, doors are opened there is disclosed to view the interior of the safe arranged as follows: On the right-hand side, extending from the front to the back side of the safe and occupying about one-third of the interior from the right to the left side, and running from the bottom nearly to the top, is a compartment for the storing of ledgers and account books. On the left side of the interior is a similar compartment of practically the same dimensions and used for the same purpose. The middle third of the interior is separated from the other two-thirds by thin wooden partitions on each side of the middle third. The lower three-sevenths of this middle third forms an empty receptacle extending to the back side of the safe in which articles could be stored in the same manner as in the right and left compartments, though, of course, its capacity is not so large. The next two-sevenths of this middle third are occupied by two wooden drawers one above the other, and above them was a little iron or steel door to the remaining two-sevenths of said middle space. In this compartment back of the little door the money, stamps, and other valuables of that kind were kept. This little door was locked with a key. On each side of this door and the little compartment back of it, and above the right and left compartments first above described, were pigecnholes in which papers and other small articles were stored.

Some time during the night between May 2 and May 3, 1913, burglars entered plaintiff's place of business, and after opening the outer doors first above described, and then the next, or middle, doors, tore out the framework that held the cash box in place, and carried it to an upper floor of the building, where they broke it open and secured money and stamps to the amount of about $300. It is conceded that no marks of any tools or violence of any kind were found on either the outer or the middle doors. No scratches appeared on them, and it is not contended that they were forced in any way. Either the outer doors were not locked, or the burglars effecting an entrance to the safe were able to work the combination lock. The question then is: Does the loss come within the terms of the policy, which insured against felonious abstraction of money, etc., from the safe by persons who made entry thereinto "by the use of tools or explosives applied directly to the outside thereof"?

The policy does not extend blanket insurance for all loss by theft...