A. J. Bayless Markets, Inc. v. Ohio Casualty Insurance Co.

• Decision Date: 01 July 1940
• Docket Number: Civil 4163
• Citation: 104 P.2d 145,55 Ariz. 530
• Parties: A. J. BAYLESS MARKETS, INC., a Corporation, Appellant, v. THE OHIO CASUALTY INSURANCE COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

104 P.2d 145

55 Ariz. 530

A. J. BAYLESS MARKETS, INC., a Corporation, Appellant, v. THE OHIO CASUALTY INSURANCE COMPANY, a Corporation, Appellee

Civil No. 4163

Supreme Court of Arizona

July 1, 1940

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.

Messrs Moore & Romley, for Appellant.

Messrs Struckmeyer & Flynn, for Appellee.

OPINION

ROSS, C.J.

A. J Bayless Markets, Inc., brought this action against the Ohio Casualty Insurance Company on a policy issued by the latter to recover loss by robbery within the insured's place of business, a retail food market located at 816 East Van Buren Street, Phoenix.

About 9:30 P.M., Sunday, November 27, 1938, Henry Etter, general manager of such store, was telephoned at his home that a front window in the store was broken. The caller identified himself as the patrolman on the beat and stated he would wait at the store if Etter would come immediately. While Etter was preparing to answer the call and just as he was approaching his automobile, parked at the side of his home, a man pressed against his back an object, which Etter believed to be a gun and ordered him into the automobile under a threat of being "blasted." At the same time another man took the wheel of Etter's automobile. They drove around town for a little while and in the meantime tied Etter's hands together, blindfolded him and placed him between the front and back seats. They forced him to divulge the combination of the store safe. When they arrived at the store one of them stood on the outside and the other entered with Etter and compelled him to unlock the store safe, from which the robber took $1,044.15 in money. The robbers then drove away in Etter's automobile leaving Etter in the store.

The case was tried by the court without a jury and resulted in a judgment for the defendant. The plaintiff has appealed and asks that we declare that it is entitled, under the facts and the law, to judgment for its losses. In other words, plaintiff contends that the loss was covered by the policy.

The policy indemnifies the insured against loss from robbery of the custodian of property outside of the premises at any place in America or Canada, but we are not concerned with that feature of the policy. It also indemnifies the insured against loss from robbery inside of the premises of the insured. It is the terms of the contract covering this feature of the insurance with which we are concerned, for the facts above recited show that the robbery took place inside insured's premises.

It is admitted that what was done to Etter to obtain the money was robbery as defined by the policy, and there is no question but that Etter was an employee of the plaintiff and the rightful custodian of the plaintiff's store as defined by the policy. Indeed, the only question to be determined is whether the policy required a custodian to be on duty when the inside robbery was committed and if so whether that condition was fulfilled.

The policy provides, as we read it, that the insurance granted is against robbery on the inside of insured's premises, when the property taken is of the kind usual to the insured's business, and "while at least one custodian is on duty therein" between 7:00 A.M. and 7:00 A.M. (24-hour coverage). This condition seems to be a common one in robbery insurance. In Boesky Brothers Twelfth Street Corp. v. United States Fidelity &amp Guaranty Co., 267 Mich. 628, 255 N.W. 307, 308, the holdup was enacted much as this one, and the policy, as we gather from the court's opinion, was evidently identical in some of its details. It is there...