Smith v. Fid. & Deposit Co. of Md.
| Decision Date | 05 March 1923 |
| Docket Number | No. 48.,48. |
| Citation | 120 A. 322 |
| Parties | SMITH v. FIDELITY & DEPOSIT CO. OF MARYLAND. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Supreme Court.
Action by C. Stanley Smith against the Fidelity & Deposit Company of Maryland. From judgment for defendant, plaintiff appeals. Affirmed.
King & Vogt and Harold A. Price, all of Morristown, for appellant.
Oliver K. Day, of Morristown, for respondent.
There is but one controverted question on this appeal—the true construction and application of two clauses in a policy of burglary insurance. The trial resulted in the direction of a verdict for the defendant. This is the error assigned as the ground of appeal. The facts are not in dispute. Substantially they are these. The policy was dated December 4, 1920. It contained these two clauses, the only ones out of which grew the suit. Under the head, Schedule (Statements of Assured) Warranties:
(5) "An armed watchman with no other duties is employed within the said premises when not open for the transaction of business, who registers on a watchman's clock" (Yes or No, and, if so, state how often) "who signals a central station as per indorsement."
These blanks were not filled out, except the last, which was filled out "as per indorsement." The indorsement is:
"For and in consideration of the premium it is hereby understood and agreed that the protection described at the following locations will be maintained during the policy period in so far as is in the control of the assured."
Other pertinent facts are: The policy ran from December 4, 1920, to December 4, 1921. The assured were A. & J. Engel Retail Fur Corporation and A. & J. Engel, Inc. The burglary or theft occurred some time between 6 p. m. on May 25 and 8 a. m. on May 26, 1921, during the policy period There had been no watchman within the premises for some three weeks before the burglary.
The assured had space in the building of the France-Devens store, located at Youngstown, Ohio, for selling their stock of goods. This was under an agreement dated May 1, 1920, which was several months prior to the issuance of the burglary policy. This agreement provided for space on the second floor for the license and exclusive privilege of selling, etc. It provided that the lessee or its employees shall not have access to, or remain in, the premises any other time then during the lessor's (i. e. France-Devens) regular business hours, except by or with the permission of the lessor. The lessee shall have no keys to the building.
On September 4, 1920, before issuing the policy, the defendant company sent out an inspector, who had an interview with the vice president and general manager of the France-Devens Company in reference to the management of the business. From this interview the inspector ascertained the fur department was run under the name of the France-Devens Company, but it was owned by the A. & J. Engel Retail Fur Corporation, the assured; that one night watchman was employed within the premises. A few weeks before May 26, 1921 (about three) the night-watchman left, and no other was provided for until after the burglary. The record is not clear as to what was done, if anything, by the France-Devens. Company to procure another night watchman. Nothing was done by the assured. No notice was given to the insurer.
The problem, therefore, for solution is, is the defendant company liable for the theft and burglary under the terms of the policy? Was it error for the trial court to direct a verdict for the defendant under the undisputed facts? We think both of these questions must be answered, "No."
The courts in dealing with the litigation growing out of policies of insurance have said:
It is a settled, rule in the construction of contracts of insurance, that policies of insurance will be liberally construed in favor of the assured so as to uphold the contract. Snyder v. Dwelling House Ins. Co., 59 N. J. Law, 550, 37 Atl. 1022, 59 Am. St. Rep. 625; Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 313, 43 N. E. 856.
So, in the event of an ambiguity in the terms of the policy, a meaning should be given which is most favorable to the assured....
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