Rosenbach v. National Fidelity & Casualty Co., a Corp.
| Decision Date | 04 May 1920 |
| Citation | 221 S.W. 386,204 Mo.App. 145 |
| Parties | PETER ROSENBACH, Appellant, v. NATIONAL FIDELITY & CASUALTY CO., a Corporation, Respondent |
| Court | Missouri Court of Appeals |
Submitted on Briefs April 7, 1920.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Rhodes E. Cave, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Frumberg & Russell for appellant.
(1) Where entry into a safe is effected by the use of tools upon one of the outer doors, and money is feloniously abstracted from the money chest within the safe, which money chest is also opened by the use of tools, the insurer is liable upon a policy indemnifying against loss of money feloniously abstracted from the the money chest after entry into said safe by the use of tools or explosives and after entry into such money chest by the use of tools or explosives. First National Bank v. Maryland Casualty Company, 121 P. 321; Fidelity & Casualty Company v. Sanders, 32 Ind.App 448. (2) Where there is no dispute as to the amount of the loss, it is immaterial whether or not plaintiff complied with the provision of the policy requiring the keeping of accounts. Leiman v. Metropolitan Surety Company, 111 N.Y.S 536.
J. P McCammon and R. J. Balch for respondent.
Defendant issued to plaintiff a combination fire and burglary insurance policy for $ 1000, on a safe belonging to plaintiff, for the term of one year. At the expiration of a year it was renewed for another year. The safe was located in plaintiff's premises in St. Louis. In the schedule annexed to the policy it is stated that inside of the safe there was what is called a "burglar-proof chest" with a lock key. There was a combination lock on the outer door of the safe. The policy provided for insurance against the direct loss by burglary of money, etc., "in consequence of the felonious abstraction of the same by burglars from the safe or safes, described in the schedule and located in the office or storeroom actually occupied by the assured, also described in said schedule, and hereinafter called the premises, after entry into such safe or safes by such burglars effected by the use of tools or explosives directly thereupon, and for direct loss by damage to said merchandise, or to said safe or safes or to the furniture, fixtures or premises caused by such burglarious entry, or an attempt thereat."
Among the special agreements in the policy it is provided that indemnity shall be paid, "For loss of money or property from a combination fire and burglar-proof safe or fire-proof safe with burglar-proof chest unless the same shall have been abstracted from the steel or so-called burglar-proof chest contained within the safe, after entry into said chest effected by the use of tools or explosives directly thereupon." It was further provided in the policy that the company was not liable for loss of money unless it belonged solely to the assured, nor if the accounts of the assured were not so kept that the actual loss could be accurately determined therefrom.
Setting up the terms of the policy and averring that while the policy was in force, plaintiff suffered a direct loss by burglary of $ 450 in money, "in consequence of the felonious abstraction of the same by burglars from the safe described in said policy, . . . after entry into such safe by such burglars effected by the use of tools directly thereupon," judgment is prayed for that amount, together with interest from January 25, 1916, and for ten per cent. of the amount for vexatious and wilful refusal to pay the loss, and for a reasonable attorney's fee.
The answer, after a general denial, sets up the terms of the policy we have quoted, averring that the $ 450 mentioned in the petition were not abstracted from the safe mentioned in the petition, after entry into such safe by such burglars, effected by the use of tools or explosives directly thereupon, and that the entry into the safe was not effected by such burglars by the use of tools or explosives, and the further averment that the accounts of the assured were not so kept that the actual loss could be accurately determined therefrom. To this the usual reply was filed.
A jury being waived, the cause was tried before the court on a statement of facts in which it was agreed that defendant is an insurance corporation, engaged in writing burglary and other insurance, authorized at the time to do business within this State; that plaintiff was engaged in the saloon business at 1014 N. Garrison Avenue, in the city of St. Louis, and has been so engaged at all times since February 13, 1914; that plaintiff took out the policy for the consideration of $ 10, the policy being delivered to him, and on February 10, 1915, it was renewed for another term of one year, carrying it to February 13, 1916, and that it was in full force and effect on the 24th and 25th days of January, 1916. The terms of the policy and schedule appearing by those instruments were considered as in evidence under the agreed statement. It was further agreed:
It was also agreed that plaintiff gave defendant proper notice and proof of loss on January 25, 1916, and that defendant, after investigation, refused to make any settlement of the alleged loss.
The reasonable value of an attorney's fee was left blank and it was agreed that this statement, the policy and schedule, and the depositions attached constitute all the evidence in the case, upon which it was submitted to the court.
The depositions taken were those of plaintiff, two or more policemen and plaintiff's barkeeper. That of plaintiff, describing the safe, of which there were photographs introduced and which are before us, was to the effect that inside of the safe was a compartment--a strong box; that the safe was what is called a combination fire and burglar-proof safe, that is to say a fire-proof safe with a burglar-proof chest inside of it. The safe was burglarized about the night of January 24-25, 1916. The amount taken from it was about $ 450 in paper money and silver, also two watches and a couple of little rings. Asked how he ascertained the amount of money in the safe, plaintiff testified, under examination by defendant, that he figured it up in the afternoon of the day before. There were fives and tens in paper money to the amount of about $ 380 and the rest was $ 50 worth of single dollars. Asked if he had a memorandum or book showing this he said that he put the items on a piece of paper, which he had in the safe; had figured the amount out before the burglary; had often carried as high as $ 2500 in the safe; knew what he had in the safe; remembered it and had made memoranda from day to day but had not kept them; kept no books, just slips of paper.
The testimony of the other witnesses was to the effect of the condition of...
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