Novick v. Home Indem. Co.

• Decision Date: 07 December 1948
• Citation: 82 N.E.2d 803,323 Mass. 463
• Parties: NOVICK v. HOME INDEMNITY CO., N. Y.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 463

82 N.E.2d 803

NOVICK

v.HOME INDEMNITY CO., N. Y.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 7, 1948.

Exceptions from Superior Court, Suffolk County; Pinanski, Judge.

Action of contract by Joseph Novick against the Home Indemnity Company, N. Y., to recover for a loss alleged to have been covered by terms of policy of burglary insurance. A judgment was entered for plaintiff, and defendant brings exceptions.

Exceptions overruled.

Before QUA, C. J., and LUMMUS, DOLAN, WILKINS, and WILLIAMS, JJ.

W. F. Henneberry, of Newton Center, for plaintiff.

J. W. Blakeney, Jr., of Boston, for defendant.

WILLIAMS, Justice.

This is an action of contract to recover for a loss alleged to have been covered by the terms of a policy of burglary insurance issued to the plaintiff by the defendant. It is agreed that the policy was in effect at the time of the theft in question, that proof of loss was seasonably filed, and that the plaintiff was the insured under the policy. The judge in the Superior Court having found for the plaintiff, the defendant excepted to the denial of its requests for rulings and its motion that a finding be entered for the defendant. By the terms of the policy the defendant agreed: ‘1. To pay the assured for all loss by burglary of such property from within that part of any safe or vault to which the insurance under this policy applies, occasioned by any person or persons making felonious entry into such safe or vault by actual force and violence of which force and violence there shall be visible marks made upon such safe or vault by tools, explosives, electricity, gas or other chemicals, while such safe or vault is duly closed, and locked by at least one combination or time lock * * *.’ The policy contained a condition that: ‘C. The company shall not be liable * * * for loss of property from within any safe containing a chest or compartment of any description, unless both the safe and the chest or compartment shall have been entered in the manner specified in paragraph 1 * * *.’ ‘C’ incorporates by reference the language used in ‘I’ concerning force and violence and the visible marks resulting therefrom.

There was evidence from which the judge could find the following facts. During the night of December 1, 1943, the safe of the plaintiff located at his place of business in Boston was entered by thieves by the use of a torch and its contents stolen. Visible marks of force were apparent on the outer surface of the safe. Within the safe was an inner receptacle or compartment constructed of steel and equipped with a combination lock supplemented on the outside by a...