Gracey v. American Auto. Ins. Co.

• Decision Date: 11 March 1949
• Citation: 218 S.W.2d 735,188 Tenn. 230
• Parties: GRACEY v. AMERICAN AUTOMOBILE INS. CO.
• Court: Tennessee Supreme Court

218 S.W.2d 735

188 Tenn. 230

GRACEY v. AMERICAN AUTOMOBILE INS. CO.

Supreme Court of Tennessee.

March 11, 1949

Error to Law Court, Shelby County; John W. Wilson, Judge.

Suit by R. H. Gracey, doing business as Weona Food Store No. 42 against American Automobile Insurance Company. To review judgment of the Court of Appeals affirming judgment of circuit court sustaining defendant's motion for a directed verdict at conclusion of plaintiff's evidence on appeal from a judgment for plaintiff in General Sessions court, plaintiff brings certiorari.

Certiorari denied.

Milton Williams, of Memphis, for plaintiff in error.

George T. Lewis, Jr., of Memphis (Waring, Walker, Cox & Lewis, of Memphis, of counsel), for defendant in error.

NEIL Chief Justice.

This is a suit on a 'Commercial Robbery and Burglary Policy' issued by the American Automobile Insurance Company to R. H Gracey, doing business as Weona Food Store No. 42, located at 797 Breedlove in Memphis, Tennessee.

The plaintiff was given a judgment in the General Sessions Court for the amount claimed to have been lost. An appeal was taken to the Circuit Court and that court sustained defendant's motion for a directed verdict at the conclusion of the plaintiff's evidence. The plaintiff appealed to the Court of Appeals where there was an affirmance of the judgment of the Circuit Court. The case is now before us by petition for certiorari, the plaintiff, petitioner, filing assignments of error and complaining that courts below should have allowed him a recovery for the amount sued for plus 25% as a penalty etc.

The assignments of error do not comply with Rule 14 of the Court. What purports to be eight assignments of error are merely eight separate arguments of facts in support of petitioner's theory of the case, that is that the burglary was not an 'inside job' and he should be allowed to recover on the policy. The provisions of the policy are clear and unambiguous. The insured was covered subject to the following conditions:

"Burglary' means the felonious abstraction of insured property from within the insured's safe, chest, or vault by any person or persons making felonious entry into such safe, chest, or vault, if any, containing such safe or chest, when all doors thereof are closed and locked by all combination and time locks thereon; provided such entry shall be made by actual force and violence, of which there shall be visible marks made by tools, explosives, electricity, gas or other chemicals upon the exterior of * * *'

There is no contention made that anything but the safe was insured. The evidence that there was an entry upon the premises by violence is wholly irrelevant in determining the question of liability.

The sole question is whether or not there was a breaking open of the safe by actual force and violence. There is no evidence whatever that there were any marks upon the safe made by tools, explosives, electricity, gas or other chemicals. This being the case the Circuit Court and the Court of Appeals concurred in holding that plaintiff's loss was not covered.

The insurance policy, which is the initial agreement between the parties, limits the insurer's liability in that there can be no recovery unless there is evidence of external violence used in opening the safe, and such as are expressly mentioned in the conditions.

It is beside the point to argue that there was no proof that it was an 'inside job.' While all the witnesses for the plaintiff who had access to the safe testified they did not remove the contents of the safe tends to support the plaintiff's theory that it was not an 'inside job' still this is not determinative of the question of liability. It is true that some leading authorities have said that the conditions, found in this and similar policies, were made to relieve the insurer of all liability where the crime was committed by persons...