*1 a value for arriving at tax assessors any custom of the (3) value, than market assessment other purposes 100% other basis taxes on to collect contrary that it is law than arbitrators’ assessment. original as- the trial court the case was returned to
When ap- fi. fa.’s issued fa.’s were voided new sessment fi. aby found millage rate to the assessment plying the current for then moved defendant majority of the arbitrators. proper judgment. This was granted summary Supreme no Court decision procedure, since under the amendment figure other and since the used, could have been after the case was returned plaintiffs’ petition to the filed way contradicted County in no Superior Fulton Court allegations original petition to the effect that prop- plaintiffs’ assessed majority of had the arbitrators figure against which the erty $82,000, for taxation at millage applied. rate was
Judgment E'berhardt, J., concur. Bell, J.,P. affirmed. February February Argued 28, 1969.— 4, 1969 —Decided Rehearing 20, March denied appellants. Conyers, A. for Tate appellees. Murphy, Lokey, Harold M. Sheats, J. C. Charles COMPANY, 44208. ATLANTA INC. TALLOW FIREMAN’S FUND INSURANCE COMPANY. Argued January Decided March *2 Warner, Jr., Hall Donald Westmoreland, O’Brien, & C. Wilbur appellant. E. O’Brien, Dorsey,
Powell, Goldstein, Murphy, Edward E. Frazer & Keaten, for appellee. James H. Coverage Judge. covered, under
Deen, disappearance or by destruction, securities money A, loss mer- premises the insured wrongful abstraction within against Coverage insured loss company, and under B cantile wrongful disappearance or by destruction, securities, or subject to the that at premises, outside abstraction wrongful or abstrac- destruction, disappearance of such the time being conveyed, either or an tion the car involved here. company. No armored armored vehicle insured, means the definition, contract under the A “employee insured, partner an officer or insured authorized duly It premises.” property outside the engaged transporting who was admitted that the premises, was company from bank to the custody. money in his care and to have the that it opinion is of Equally, majority this court to the from the bank process conveyed in fact in the even occurred, theft employer’s premises at time when the interval en though for a route stopped 10-minute glove compartment (leaving money in a box in a locked into a restaurant within his locked automobile while he went during his sandwich) burglarized buy a and the automobile was transport. Webster, convey carry absence. To means reasonably cannot Dictionary, International 3rd Ed. New from being transported carried said was not theft, company premises the bank to the at the time *3 required there no automobile to be policy which the disappearance in actual motion at the time of the abstraction goods. any provision of the is there Neither that messenger’s person must carried on rather than in the conveyance. coverage vehicle of To so limit in the absence of unambiguous clear and policy would be violative of policies cardinal that to in rule insurance be construed against favor Bene- of rather than the insured. Massachusetts (2) (30 Assn. v. Robinson, Ga. 256 42 LRA fit Life granting The trial court erred in defendant’s motion for summary judgment. judgment All the concur in the ex-
Judgment judges reversed. J., specially, who dissents. concurs cept Deen, Eberhardt, J., joined by J., Hall, J., con- Bell, J., Pannell, P. Jordan J. P. joined by Felton, J., C. specially, Whitman, curs J. specially. Judge, concurring The able Deen, County heard and Civil Court of Fulton who decided this case ruling in held in the final order: “The court’s this matter is ruling Georgia Appeals on the Court of based Liquor Store, Inc. v. Home Ins. 115 Ga. 864.” The Liquor Cleveland Ave. involved Store case policy with identical provisions, situation, fact and identical except messenger stopped that case at his to home eat lunch and left the an unlocked automobile. fact that judge trial understandably here felt that he was bound by the decision in the Liquor Cleveland Ave. Store granting summary judgment company amply to the insurance demonstrates my mind practical necessity overruling it. (Cleveland In that case Ave. Store Home Ins. 202)), the sole issue decision was
correctly stated as “whether the money was stolen ‘while conveyed by messenger’ meaning within the of the insurance contract.” The opinion, however, then stated: un “We find it necessary to determine whether the being ‘conveyed’ at the time of theft, for' we re custody conclude quired by the lacking.” insurance contract was P. As majority noted in opinion is not here, for the order be a have actual manual possession of money at time of its theft or disappearance, only but that he “in author ized the insured to custody.” have the care and Cases from other jurisdictions involving the words and custody,” “care designated “while of” persons, as well as “while “in conveyed,” transit,” “in transit,” give actual and so on no such drastic meaning limitation to the of the words. imports idea actually being
2. Insofar as transit, (Tex. Co. Davis, it was held National Fire Ins. App.) Civ. applicable under goods 179 SW2d were insured “while in of the insured” and “in actual *4 transit” driver left that where the the car unattended with the running stopped motor he for lunch, while and an unauthorized it it, damaging drove off overturned person the merchandise, the loss of latter was covered. court relied on the def- “Custody” in inition of 88: “It charge 25 CJS means to in safekeeping, control, connotes although and includes well, as require of physical it does not element manual possession, implying temporary physical merely, control responsibility
434
custody.”
thing
preservation
for the
in
protection and
Corp. Maryland
(Emphasis supplied.)
Cas.
In Chemstrand
(98
covering
“only
theft
1),
Co.,
I state special dan and concur concurrence. Pannell judgment concurring specially. concur I Judge, Hall, agree do however, majority opinion; reached Ins. v. Home Store That is distin- be overruled. 202), should appears held: sufficient reason guishable its facts. “No on moneybag not have zipper could why plastic McIntyre home, into his manually carried relating to a policy covered under would have been why leave the home of left it un- car. moneybag on seat of an unlocked When open parked public street, as an invita- protected car, along custody, to take it was passed it, tion to who present policy.” P. In the within *5 messenger’s protective custody case was still (locked compartment car) glove during of a locked a 10-minute process being interval while conveyed. in the property This for policy provides protection conveyed by messenger. (actual a a Custody protective) is can process conveying. element of the How one object conveying person nor which has neither his protective custody? within his common tell Realism and sense us a process of conveying package does not perform have to eat, body his and daily functions at the grasping same time package his order the same to be custody. Realism and common sense also tell us that when a leaves his package unprotected totally in an open public car on a street while he eats lunch in his home, cannot be said protective that the has custody of the package and is thereby process in the conveying the same. agreement requirements insuring present
The were not They present judice. case. in the sub am Judge authorized state that Felton, Chief special concur Whitman concurrence. dissenting. Judge, seems me major-
Ebbrhardt, ity grounded holding upon have their language defining “messenger” word upon policy, insuring agreement itself. applicable insuring agreement, covering losses outside the premises, provides
insured’s that the insurer will “pay for loss and securities by the disappearance actual destruction, wrongful abstraction thereof outside premises conveyed by messenger or any armored motor vehicle com- pany, or living theft while within quarters in the home of any messenger.” messenger is enough,
True the word defined to mean “the or an officer insured, partner thereof, therein or any employee regular thereof who is in the
the insured to the care and have the insured premises.” simply outside This describes and delimits the messengers may individuals who serve as within coverage. As to employees, covers those who are in service to have duly authorized and, additionally, cover- impose does This or securities. employed though regularly age situations where securities, money custody of to have care and and authorized *6 the not within at a or under circumstances may lost it time have while the loss must occurred insuring clause. The have conveyed him. being by or securities were regularly involved was employee is conceded here that the It and have he authorized to the employed and was that only pro- of custody money securities the insured. The of and do, require they if construction, visions of the contract which conveyed.” custody,” phrases and “while are “care the case problem same researched the We heretofore Ins. Liquor of Cleveland Avenue Store Home 115 v. protec- where we concluded that the 202), by is custody money contemplated the contract tive care and of messenger. “while personal possession by Likewise, actual other conveyed” uniformly has been held courts of jurisdictions personal posses- require the matter dealing with to messenger. proper sion of a That is reasonable meaning conclusion as of terms is out borne to fact to protection that is extended and securities “while being conveyed” by by “any armored the insured’s motor company.” custody vehicle mes- The care senger, armored along described with that of an motor vehicle ejusdem company, generis, under the or under the maxim rule sociis, imports noscitur a of like the care course, protective character—not same, but in nature. has generally appear can considered that this the care or personal has been possession. Feed Cf. Great American Southern Indem. Co. Stores, came to the same 51 Ga. We conclusion in the Cleveland Store case and can no reason to see do otherwise here. that case in this are contracts in similarity so. The facts have some substantially same, points However, as some differences.
and, out, Hall left shop, car on the lot of a messenger parked the sandwich it—though may car have been locked—and buy went inside a sandwich, as it, I see was then “conveying” money. simply It was stored and locked. a
That there difference accorded treatment money or types securities and other is a matter too generally and commonly known to Money of cavil. admit the hands of thief generally not identifiable and is immedi- ately negotiable. by Judge require
The cases cited
do
Deen
a different
Corp. Century
result.
In Kamar Fur.
Ins.
N.
S.
142 Y.
clothing
2d
samples
salesman left the racks of
locked hotel room
went for
while he
lunch
room was
burglarized.
could not have been expected
carry
He
the racks
clothing
him.
money.
with
These
in nature from
different
Swartz,
recovery
American
In
Indem. Co.
F2d
was
held
authorized where
held up
money, lying
car and the
beside her on
seat,
taken,
*7
having been “under the constant
observation
the authorized
messenger and within her reach” at all times after she received
it. The court dealt with
on-the-premises
(not in-
robbery
here)
volved
in Fox West
Coast Theaters
Union Ind.
(9
78)
Newberry
Wash.
P2d
J. J.
v.Co. Continental
Rptr. 509).
Birg-
Cas.
Cal.
2d 728
Cal.
In
Surety Co.,
403)
bauer Aetna Cas. &
44307. JOHNSON OF MAYOR &c. ATHENS. Judge. 1. admission in a con- Chief evidence, Felton, case, demnation plat the condemned