Kaplan v. United States Fid. & Guar. Co.

• Decision Date: 18 February 1931
• Docket Number: No. 20174.,20174.
• Citation: 174 N.E. 834,343 Ill. 44
• Court: Illinois Supreme Court
• Parties: KAPLAN et al. v. UNITED STATES FIDELITY & GUARANTY CO.

343 Ill. 44

174 N.E. 834

KAPLAN et al.

v.UNITED STATES FIDELITY & GUARANTY CO.

No. 20174.

Supreme Court of Illinois.

Feb. 18, 1931.

Error to First Branch Appellate Court, First District, on Appeal from the Circuit Court, Cook County; John R. Caverly, Judge.

Action by Ike Kaplan against the United States Fidelity & Guaranty Company. Judgment for plaintiff was affirmed by the Appellate Court (255 Ill. App. 437), and defendant brings error.

Affirmed.

Eugene P. Kealy, of Chicago, for plaintiff in error.

Charles Rudolph and Winston, Strawn & Shaw, all of Chicago (Harold Beacom, Thomas A. Reynolds, and Arthur D. Welton, Jr., all of Chicago, of counsel), for defendants in error.

ORR, J.

This case is here on writ of error to review a judgment of the circuit court of Cook county,where, in an action of assumpsit upon an insurance policy, the defendants in error (herein called plaintiffs) obtained a jury verdict and subsequent judgment for $6,000 against plaintiffs in error (herein called defendants). Upon appeal this judgment was affirmed by the Appellate Court. 255 Ill. App. 437.

The declaration recited the material terms of a $10,000 policy, by which defendant undertook to indemnify plaintiffs from loss on account of interior robbery. It alleges that the policy was taken out April 3, 1926, and that on the morning of August 31, 1926, the holdup and robbery occurred, by which 52 fur coats and 147 dresses were taken from the Ladies Cloak & Dress Shop, operated by plaintiffs in Chicago. The record contains no suggestion of fraud or collusion in the accomplishment of the robbery. About 7 o'clock on the morning of the robbery Charles Pryor, a trusted employee of plaintiffs, was engaged in sweeping out their place of business before the hour of opening, as was his usual custom. He noticed a man dressed as a police officer standing at the front door with a paper box under his arm. During his several years of employment Pryor had been instructed to receive packages of returned garments and to collect money from those desiring to pay at a time when the other employees were not present. He therefore unlocked the front door and invited the apparent police officer in. Thereupon the stranger drew a gun and marched Pryor to the rear of the store, where he was forced to lie on the floor, his feet and hands bound. With the aid of confederates the fake officer then consummated the robbery.

Defendant sought to avoid liability on the policy by alleging that plaintiffs had failed to perform a condition designated by it as a promissory warranty. This condition was attached to the policy held by plaintiffs and contained a definition of ‘custodian’ as follows: ‘Custodian, as used in this policy, shall mean (1) the assured if an individual; (2) a member of the firm if the assured is a co-partnership; (3) any officer of the assured if the assured is a corporation; (4) any person not less than seventeen nor more than sixty-five years of age who is in the regular employ of the assured and duly authorized by him to act as paymaster, messenger, cashier, clerk or sales person, and while so acting to have the care and custody of property covered hereby. In no event shall a watchman or a porter be considered a custodian.’

It is contended by defendant that Charles Pryor was a porter, and that therefore he was not a custodian under the terms of this condition of the policy. Whether Pryor was a porter or not was one of the disputed facts when the cause was at issue before the jury. The record shows that he was called a handy man or a general man, and that he did janitor work, delivered packages, made the firm's bank deposits, washed windows, collected money, and washed and drove automobiles belonging to the members of the firm. He might have been properly called by any one of four or five different titles. Whether he was a porter or not was a disputed question of fact, and in such matters this court must be controlled by the verdict of the jury and the judgment of the trial court as affirmed by the Appellate Court. We cannot inquire as to the weight or preponderance of the evidence. Hinchliffe...