RI Recreation Center v. Aetna Casualty & Surety Co.

• Decision Date: 03 November 1949
• Docket Number: No. 4437.,4437.
• Citation: 177 F.2d 603
• Parties: R. I. RECREATION CENTER, Inc. v. ?TNA CASUALTY & SURETY CO.
• Court: U.S. Court of Appeals — First Circuit

177 F.2d 603 (1949)

R. I. RECREATION CENTER, Inc. v. ?TNA CASUALTY & SURETY CO.

No. 4437.

United States Court of Appeals First Circuit.

November 3, 1949.

Abraham Belilove, Providence, R. I., (Arcaro, Carty & Belilove, Providence, R. I., with him on brief), for appellant.

Matthew W. Goring, Providence, R. I., (S. Everett Wilkins, Jr., and Hinckley, Allen, Tillinghast & Wheeler, of Providence, R. I., with him on brief), for appellee.

WOODBURY, Circuit Judge.

The plaintiff in an action^* brought to recover on a Comprehensive Dishonesty, Disappearance and Destruction policy of insurance, has taken this appeal from a final judgment entered for the defendant on its motion for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A.

The policy in suit, which it is conceded was in force when the plaintiff's admitted loss of $3,800 in currency occurred, contains five insuring agreements, only one of which (Insuring Agreement II) was ever in effect; the plaintiff not having purchased coverage under any of the others. This agreement in pertinent part provides for payment up to the limit of the liability assumed, ($4,000) for loss of "Money and Securities" occurring within the insured's premises "caused by the actual destruction, disappearance or wrongful abstraction thereof", except "loss, damage or destruction caused or contributed to by * * * any dishonest, fraudulent or criminal act, * * * committed by any Employee, director or trustee of the Assured, whether acting alone or in collusion with others."

After the action was brought and removed to the court below and the defendant had filed its answer, counsel for the defendant took the depositions of the plaintiff's general manager and manager pursuant to Rule 26, F.R.C.P. Then it moved for summary judgment on the basis of the pleadings on file and the depositions which had been taken and the plaintiff countered with a cross-motion for summary judgment on the same basis. Hence for present purposes we take the statements made in the depositions at face value. From them it appears that the plaintiff's loss occurred under the following circumstances.

The plaintiff's general manager and its manager, Joseph A. Sullivan and Edward H. Sullivan respectively, are brothers. Edward as manager had custody of the plaintiff's funds which he kept in a safe on the premises of the corporation. Neither he nor his brother had authority to borrow corporate funds or to make any use of them for their personal needs or purposes.

About two o'clock in the morning of April 23, 1947, Edward received a telephone call from his brother Joseph's wife asking him to meet his brother in front of a hotel in Pawtucket. Edward complied and arriving at the hotel saw his brother's car parked in front of it. He drove up behind his brother's car and got out, whereupon he was confronted by an armed stranger in dark glasses who ordered him into the back seat of his brother's car. As he complied another armed stranger got in beside him from the opposite side, and the two searched him and then disclosed their plan. This was to drive him in his own car to the premises of the plaintiff corporation in Providence, where he was to enter, take all the money out of the safe, and turn it over to them. He was told that if he did not do as directed "they would take care of" his brother and his wife and "would not forget" him later on, and further "that they would take care of" his child also. During this conversation Joseph sat on the front seat with his wife and another armed stranger but did not speak and Edward was not allowed to speak to him. Apparently a fourth armed stranger was also present.

Following these events the two who had searched Edward and given him his orders, leaving Joseph and his wife with the other two unknowns in Joseph's car, drove Edward in his car to the corporation's place of business and there let him out and drove away. Edward then rapped on the window with his key to call one of the three employees of the corporation who were in the premises cleaning up, and one of them admitted him. He said nothing to this employee, or to either of the other two, but went directly to the office, where there was a telephone, unlocked the safe and removed all the money in bills from it leaving only some silver. He did not count the bills but putting them in a deposit bag he immediately left the office and walked along Main Street into Pawtucket as directed. After he had walked a mile or so the two strangers drove up in his car, ordered him into it, and drove off. They at once relieved Edward of the deposit bag in which he had placed the money and then drove around for a time, eventually meeting Joseph in his car with his wife and their two guards. The four unknowns then ordered Edward out, gave him the key to his brother's car, told him to wait five minutes while they escaped, and then drove off in his car after letting him know where he would find it later. Edward waited as directed, then went and found his car, and only after that reported the night's proceedings to the police.

The defendant contends that applying settled principles of law to the facts outlined above Edward could not be found to have been acting under coercion when he took the plaintiff's money out of its safe. Hence it says that although the plaintiff might have insured against its loss had it seen fit to broaden the scope of its coverage by taking out insurance under other insuring agreements in the policy, its loss was not covered by Insuring Agreement II since it was caused or contributed to by the criminal act of an employee. The plaintiff, on the other hand, takes the position that the agreed facts at least provide a basis for finding that when Edward took the money he was acting under coercion, as that term is defined in the law, and thus in doing so was but the innocent tool or instrumentality of the bandits. Hence it says, in the event of a finding of coercion, it would follow as a matter of law that Edward was innocent of any dishonest fraudulent or criminal act with the result that its loss was clearly covered by Insuring Agreement II of the policy.

Barring cases involving children, wives, and mental defectives, there do not seem to be many cases in point. It appears to be established, however, that although coercion or necessity will never excuse taking the life of an innocent person, it will excuse lesser crimes. But to provide an excuse the compulsion must be present, immediate and impending, and of such a nature as to induce a well founded fear of death or at least serious bodily injury. And there must be no reasonable opportunity to escape the compulsion without committing the crime. See 22 C.J.S., Criminal Law, ß 44; 15 Am.Jur., Criminal Law, ß 318. The general rule, with citation of state cases, is well summarized in Shannon v. United States, 10 Cir., 76 F.2d 490, 493, in which it is said: "Coercion which will excuse the...