McCoy Grocery Co. v. Travelers Indem. Co.

• Decision Date: 27 April 1960
• Docket Number: Nos. 1,2,No. 38119,38119,s. 1
• Citation: 114 S.E.2d 924,101 Ga.App. 638
• Parties: McCOY GROCERY COMPANY v. TRAVELERS INDEMNITY COMPANY
• Court: Georgia Court of Appeals

Page 924

114 S.E.2d 924

101 Ga.App. 638

McCOY GROCERY COMPANY v. TRAVELERS INDEMNITY COMPANY.

No. 38119.

Court of Appeals of Georgia, Division Nos. 1, 2.

April 27, 1960.

Rehearing Denied May 12, 1960.

James H. Fort, Columbus, for plaintiff in error.

Hatcher, smith, stubbs & Rothschild, Albert W. Stubbs, Columbus, for defendant in error.

Syllabus Opinion by the Court.

NICHOLS, Judge.

1. "When a court passes upon a motion for a nonsuit, it decides only one question; that is, do the allegations and the proof correspond? In sustaining such a motion the court does not hold that the plaintiff is not entitled under the law to recover on the facts alleged; neither does the overruling of the motion decide that the plaintiff is entitled under the law to recover. The right to recover under the facts alleged is not involved in the decision of such a motion. If the plaintiff 'proves his case as laid', he is entitled to prevail as against a nonsuit; but it by no means follows from this that he is entitled to recover on the facts 'as laid." Kelly v. Strouse, 116 Ga. 872, 883, 43 S.E. 280. See also Flewellen v. Flewellen, 114 Ga. 403, 40 S.E. 301; Barge v. Robinson, 115 Ga. 41, 41 S.E. 258; McCandless v. Conley, 115 Ga. 48, 41 S.E. 256.' Gray v. Schlapp et al., 92 Ga.App. 261, 88 S.E.2d 536, 538.

2. The plaintiff in this case sought to recover, under a policy of burglary insurance, a copy of which is attached to the petition, issued by the defendant insurance company for 'the felonious abstraction of insured property from within a vault or safe described in the declarations and located within the premises by a person making felonious entry into such vault or such safe and any vault containing the safe, when all doors thereof are duly closed and locked by all combination locks thereon, provided such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives * * * upon the exterior of all of said doors of such vault or safe * * * if entry is made through such doors * * *' (Emphasis ours). The plaintiff introduced evidence to show there had been a felonious abstraction of funds from within a safe located within the plaintiff's premises by some person making felonious entry into such safe; that such felonious entry into said safe was made when all the doors thereof were duly closed and locked by all combination locks thereon; that there were visible marks of actual force and violence made by tools of some description and covered by the policy upon the exterior door to the safe, which door was the only door, under the evidence upon which there was a combination lock, as contemplated by the policy.

3. Whether or not there was any evidence of the insured's liability for the physical damage done to the building in the alleged wrongful entry to same, and for which the plaintiff seeks to recover under the policy, need not be considered here since there was sufficient evidence to go to the jury on the question of the defendant's liability for the money allegedly stolen from the safe.

Judgment reversed.

GARDNER, P. J., and TOWNSEND, CARLISLE and FRANKUM, JJ., concur.

FELTON, Chief Judge (dissenting).

The plaintiff alleged in his amended petition that entry to the safe was made by actual force and violence of which there were visible marks upon the exterior of all doors of such safe. While there is evidence of visible marks on certain portions of the safe, in my opinion the plaintiff has not proved that entry to the safe was made by actual force and violence and has therefore failed to prove his case as laid. The sum and substance of the evidence is that on the evening of May 2, 1959, the inner and outer doors of the safe were locked by an employee of the plaintiff who left the premises about 7:30 P.M.; that when the store was opened the next morning the safe had been moved 12 to 18 inches from the wall; there was a small dent or scratch on the dial which is located on the outside door; the inner door was open and the key to it was broken off; that the knob on the outside was absolutely clean before this occasion and had no scratches on it at all. There were also some scratches around the hinges and the edge of the outer door. The plaintiff's manager had the combination to the safe changed immediately after this occurrence and about a week or ten days later he noticed that the knob did not twirl freely as it had done previously and that there was a sort of bind in it.

While there is no precise precedent in Georgia, a number of decisions from other jurisdictions support the proposition that the mere presence of marks or scratches upon a safe which has been opened in some manner is not sufficient, in and of itself, to satisfy the policy provisions requiring the showing of an entry by actual force and violence. See in this connection Newark Dance Palace v. Maryland Cas. Co., 125 Misc. 869, 212 N.Y.S. 286; Brill v. Metropolitan...