Jackson Steam Laundry v. Aetna Casualty & Surety Co.

• Decision Date: 03 March 1930
• Docket Number: 28108
• Parties: JACKSON STEAM LAUNDRY v. AETNA CASUALTY & SURETY CO
• Court: Mississippi Supreme Court

126 So. 478

156 Miss. 649

JACKSON STEAM LAUNDRY v. AETNA CASUALTY & SURETY CO

No. 28108

Supreme Court of Mississippi

March 3, 1930

Division B

APPEAL from circuit court of Hinds county, First district HON. W. H POTTER, Judge.

Action by the Jackson Steam Laundry against Aetna Casualty & Surety Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

J. W. Cassedy, Jr., of Brookhaven, and E. G Williams, of McComb, for appellant.

A policy of insurance covering loss by the felonious abstraction of property from within safe or vault while closed and locked by at least one combination or time lock, after entry into such safe or vault has been effected by force and violence by the use of tools, explosives, gas or other chemicals directly upon the exterior thereof, of which force and violence there shall be visible marks protects the insured where there is evidence that a burglary was committed, and this evidence consists of visible marks on some part of the safe showing that it had been broken into and burglarized, rather than showing that a larceny had been committed, if such visible marks appeared elsewhere on the exterior of the safe where the money was kept.

Columbia Casualty Company v. Rogers Company, 29 Ga.App. 248, 114 S.E. 718; National Surety Co. v. Chalkey, 260 S.W. 216; Fidelity & Casualty Company v. Sanders, 32 Ind.App. 448, 70 N.E. 167; Moskivitz v. Travelers Indemnity Company, 144 Minn. 98, 174 N.W. 616; Johnson v. Fidelity & D. Company, 275 S.W. 973; T. J. Bruner Company v. Fidelity & C. Company, 111 Neb. 825, 166 N.W. 242.

Insurance policies are always construed most strongly against the insurer and most favorably for the insured, and where there are two reasonable constructions of a policy the one favorable to the insured must be adopted.

New York Life Insurance Co. v. Blaylock, 144 Miss. 541; Home Insurance Company v. Moore, 117 So. 524; U. S. Fidelity & Guaranty Co. v. Hood, 124 Miss. 584; Woodman v. Bunch, 115 Miss. 512; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660.

Watkins, Watkins & Eager, of Jackson, for appellee.

Where the language of a policy is unambiguous, the contract should be construed as written.

Brown v. Powell, 130 Miss. 504, 94 So. 457; Continental Casualty Company v. Hall, 118 Miss. 874, 80 So. 335; Am. Life & Ace. Ins. Co. v. Nirdlinger, 113 Miss. 74, 73 So. 875.

There being no visible marks of force and violence directly upon the exterior of the safe, the policy contract involved in this case does not cover the loss sued for herein.

Blank v. National Surety Company, 181 Iowa 648, 165 N.W. 46, L.R.A. 1918B, 562; Frankel v. Mass. Bonding, etc., Company, 177 S.W. 775; First National Bank of Monrovia v. Maryland Casualty Company, 132 Cal. 61, 121 P. 321, 28 Ann. Cas. 1170; Brill v. Metropolitan Surety Company, 113 N.Y.S. 476; Rosenthal et al. v. American Bonding Company of Baltimore, 207 N.Y. 162, 100 N.E. 718.

OPINION

Ethridge, P. J.

The Jackson Steam Laundry brought suit against the Aetna Casualty & Surety Company for one thousand dollars upon a certain burglary insurance policy, at the February, 1929, term of the circuit court. There was a trial, resulting in a judgment in favor of the Aetna Casualty & Surety Company, the trial judge giving a peremptory instruction. The alleged burglary occurred on the 9th day of October, 1927; the inner drawer of a safe having been rifled of cash and checks belonging to the Jackson Steam Laundry amounting to two thousand, two hundred thirty-seven dollars and ten cents.

It appears from the testimony of the plaintiff that the president and general manager of the company, on the night of October 8, 1927, closed the safe, lie stating that he was sure the combination was turned on and the safe locked. The following morning, Sunday, there was an effort to telephone the president to call his attention to the fact that some laundry had not been delivered to a customer at one of the hotels, but at the time the president was not at his home, and his wife, who answered the telephone, did not know where to find him, and called the assistant manager, who also had knowledge of the combination of the safe. Said assistant manager went to the office of the laundry somewhere near eleven o'clock in the morning, and, it being necessary to get in the safe to get the records so as to find the customer's laundry, he opened the safe and found that the inner drawer, which had been locked with a key, had been broken, and the money and checks taken out, and the drawer left on the floor somewhere in the laundry office. He testified there was some difficulty in opening the safe, as it did not open on the first effort, but both he and the general manager testified there were no visible marks upon the exterior of the safe, and no outward evidence of force or violence, or of tools, explosives, gas, or other chemicals having been used; the safe having evidently been opened by manipulating the combination of the lock.

The insuring clause in the policy, which is the key to this lawsuit and which is presented for construction reads as follows: "For loss by burglary of the property designated in Condition R, within the respective amounts of coverage therein stated as applicable thereto from within that part of any safe or vault to which the insurance hereunder applies as stated in Condition B, occasioned by the felonious abstraction of such property from within such safe or vault while closed and locked by at least one combination or time lock, and located in the Assured's premises as defined herein or elsewhere, after removal therefrom by burglars, after entry into such safe or vault has been effected by force and violence by the use of tools, explosives, gas or other chemicals directly upon the exterior thereof, of which force and violence there shall be visible marks."

It appears that this whole controversy turns upon whether there must be evidence of force or violence by the use of tools, explosives, gas or other chemicals, directly upon the exterior thereof, of which force and violence there shall be visible marks." Webster's Unabridged Dictionary defines "exterior" as the "outward surface; . . . outside," and defines "external" as pertaining to the "outside, outward."

There is no evidence in the record of any force or violence by the use of tools, explosives, gas, or other chemicals being applied directly upon the exterior of the safe, nor was there any evidence showing visible marks of violence on the exterior. The rule is well settled in law that, when the terms of a policy are ambiguous, the court will adopt that construction most favorable to the party who did not prepare or...