Johnston v. Fidelity & Deposit Company of Maryland

• Decision Date: 29 June 1925
• Citation: 275 S.W. 973,220 Mo.App. 753
• Parties: J. A. JOHNSTON, RESPONDENT, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, APPELLANT
• Court: Kansas Court of Appeals

275 S.W. 973

220 Mo.App. 753

J. A. JOHNSTON, RESPONDENT, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, APPELLANT

Court of Appeals of Missouri, Kansas City

June 29, 1925

Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

Davis & Woodruff for respondent.

Miller Winger & Reeder, Leland Hazard and S. J. McCulloch for appellant.

ARNOLD J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action to recover for a loss upon a mercantile safe burglary policy of insurance.

The cause was tried to the court without the aid of a jury. Judgment was for plaintiff in the principal sum of $ 843.78 and interest from March 3, 1923, amounting to $ 88.58; $ 84.37 for vexatious delay and $ 300 attorney fees, or a total of $ 1316.75. (It is stated in plaintiff's brief that the amount, $ 843.78, as the principal sum was error and that this error has been corrected by stipulation. The stipulation does not appear of record.) Motions for new trial and in arrest of judgment were ineffectual and defendant appeals.

The petition alleges that on or about April 23, 1922, defendant issued to plaintiff its certain mercantile safe burglary policy whereby it agreed to indemnify plaintiff for all loss by burglary occasioned by the abstraction of any money or securities from plaintiff's iron safe, kept in his place of business at No. 1008-1010 Walnut Street, in Kansas City, Mo., by any person or persons making felonious entry into said safe by actual force and violence, of which said force and violence there should be visible marks made upon such safe by tools, explosives, chemicals or electricity; that defendant further agreed to indemnify plaintiff for all damages to the safe and property contained therein, and consequent damages to plaintiff's premises, including furniture and fixtures; that on November 12, 1922, a person did make felonious entry into said safe by actual force and violence, of which there were visible marks made upon said safe by tools, chemicals and electricity, and that the safe was thereby damaged; that through said felonious entry plaintiff lost the sum of 865.43 in money, and damage to the safe in the sum of $ 8.05; that due notice of said burglary was given to the police authorities, and to defendant and proof of loss was furnished defendant. Vexatious delay is alleged and judgment is prayed for $ 873.48 with ten per cent penalty for vexatious delay and $ 350 attorney fees.

The amended answer admits the corporate status of defendant and the issuance of the policy, makes general denial and for further answer states the policy was subject to the following conditions, among others: "The company shall not be liable for loss or damage if the assured, any associate in interest or servant or employee of the assured or any other person lawfully upon the premises is implicated as principal or accessory in effecting or attempting to effect the burglary; or unless all vault, safe and chest doors are properly closed and locked by a combination or time lock at the time of the loss or damage; nor if effected by opening the door of any vault, safe or chest by the use of a key or by the manipulation of any lock. For further answer defendant denies that there was a felonious entry into the safe or vault described in the policy, by actual force and violence; denies that there were upon such safe or vault any visible marks of such force and violence made by tools, explosives, chemicals or electricity; states that at the time of the burglary the safe doors were not properly closed and locked by a combination or time lock, as required by the terms of the policy, and that if the said doors were properly closed and locked they were opened by the use of a key and by the manipulation of the lock thereon.

Upon the pleadings thus made the cause went to trial upon an agreed statement of facts. This statement covers the issuance of the policy and other formal matters not in issue; states the premium paid was the same as that charged by defendant for policies of the kind herein issued. It was agreed that the testimony of William D. Eustace, cashier and employee of assured at the said cafe and cafeteria, on November 12, 1922, and for sometime prior thereto would be, in substance, as follows:

"That the said Eustace arrived at said premises about 10:30 A. M. on November 12, 1922, said date being Sunday and the cafe being closed, and as he reached the foot of the steps descending to said cafe and cafeteria located in the basement as aforesaid, a man followed him and covering him with a pistol forced Eustace to unlock the door and compelled him to enter the cafe and relock the door from the inside. This person then forced Eustace to a far portion of the room about fifty feet distant from the door and around an angle therefrom, and there tied him to a chair and then returned to a portion of the room close to the door and out of sight of Eustace, where the office of the cafe and cafeteria was located. Eustace heard certain hammering and after about thirty minutes heard the said person depart by the same entrance. Eustace then succeeded in working his chair around to the doors through which he had entered, and later some persons in endeavoring to enter the cafe and cafeteria for meals, discovered him and called the police. Detectives came and broke in a glass door and released Eustace. The following day the keys to the doors were discovered in the entryway outside said doors."

It was agreed that the safe covered by the policy was of a type known as "fire proof" and that it "had heavy outer doors seven and one-half inches thick, with the usual locking device designed to be opened by a combination mechanism; that within these outer double doors were lighter inner double iron doors five-eights inches thick, designed to be fastened by a lock and key and that within these inner doors was a light iron door one-eighth inch thick, also designed to be fastened by a lock and key; that on said 12th day of November, 1922, shortly after the hour above mentioned, it was discovered that the outer double doors and the inner double doors were standing open and that the third door above mentioned had been forced open by the use of tools or otherwise and that from within the compartment reached by forcing open said third door a small metal box had been taken from within said compartment and pried open sufficiently to take therefrom the currency contained therein; that from said box and from the compartment aforesaid the sum of $ 865.43, belonging to said J. A. Johnston, the plaintiff herein, had been removed and has not since been recovered."

It is admitted that notice of the burglary was given to the police authorities, and to defendant, and proof of loss made. It was further agreed that there were no visible marks of actual force or violence upon the outer double doors; nor were there any such marks upon the inner doors designed to be secured by lock and key; that the only visible marks of actual force and violence were upon the third and last door, upon said metal box, and upon three small locked wooden drawers back of the second pair of double doors and immediately below the compartment enclosed by said third door. It was agreed that the cost of repairing the safe was $ 8.05.

Defendant claimed that the premium charged for the policy involved herein was determined, among other things, by the type and character of the safe insured. Plaintiff does not deny this but denies that such fact is in any way pertinent to the issues herein. It is agreed that if the court finds, as a matter of law, that this fact is proper material and competent to be considered, then it may be considered as an agreed fact. It was agreed that the terms "fire proof safe" and "burglar proof safe" as used in the policy are defined by the manual on burglary, theft and robbery insurance issued by the...