297 Mass. 55 | Mass. | 1937
This is an action of contract upon a policy insuring the plaintiff against robbery in premises located on Southbridge Street, Worcester, Massachusetts, wherein the plaintiff conducted a meat and grocery store. To the plaintiff’s declaration the defendant pleaded a general denial and a violation of the terms of the policy.
In substance, the evidence contained in the bill of exceptions warranted a finding of the following facts: On July 28, 1932, at about 7 a.m. the plaintiff’s store manager, alone, arrived on the premises and opened the store. A few minutes later a man entered the store, gave the manager a twenty-dollar bill and asked him for a bag of flour. The manager, to get change, opened the safe and the cash drawer in it. On being interrupted by a remark, he turned and saw a revolver pointed in his face. He was then backed into the ice box, which was in a rear room, and locked up in it. He was released from the ice box by an employee of the plaintiff, who came into the store two or three minutes after the robber had left taking with him from the safe $252.11 of the plaintiff’s money. At the conclusion of the evidence, all of which, so far as material, is contained in the bill of exceptions, the defendant presented to the court a written motion for a directed verdict in its favor. This motion was denied, and the case is before this court on the defendant’s exception, duly saved, to such denial.
A copy of the insurance policy is annexed to the bill of
It is to be noted that the plaintiff testified that he employed three men all the time; that two of these worked inside the store with himself and the other worked on a truck making deliveries; that these men were supposed to report at the store at 7 a.m. ; and that the plaintiff was never there when they arrived because at that particular time he was always engaged in buying provisions. The provision of the policy that the “Assured and another employee” always will be on duty within the premises when the insurance applies, is a warranty, and the presence of the single employee on the occasion of the robbery was not a compliance with that warranty. Everson v. General Accident, Fire & Life Assurance Corp. Ltd. 202 Mass. 169. Faris v. Travelers Indemnity Co. 278 Mass. 204.
The plaintiff relies on G. L. (Ter. Ed.) c. 175, § 186, which reads: “No . . . warranty made in the negotiation of a policy of insurance by the insured . . . shall be deemed
The motion for a directed verdict for the defendant should have been allowed. The exception to the refusal to allow the motion is sustained and judgment is to be entered for the defendant.
So ordered.