188 Tenn. 230 | Tenn. | 1949
delivered the opinion of the Court.
This is a suit on a “Commercial Bobbery and Burglary Policy” issued by the American Automobile Insurance Company to B. H. Gracey, doing business as Weona Pood Store No. 42, located at 797 Breedlove in Memphis, Tennessee.
The plaintiff was given a judgment in the General Sessions Court for the amount claimed to have been lost. An appeal was taken to the Circuit Court and that court sustained defendant’s motion for a directed verdict at the conclusion of the plaintiff’s evidence. The plaintiff appealed to the Court of Appeals where there was an affirmance of the judgment of the Circuit Court. The case is now before us by petition for certiorari, the plaintiff, petitioner, filing assignments of error and complaining that courts below should have allowed him a recovery for the amount sued for plus 25% as a penalty, etc.
The assignments of error do not comply with Buie 14 of the Court. What purports to be eight assignments of
“ ‘Burglary’ means the felonious abstraction of insured property from within the insured’s safe, chest, or vault by any person or persons making felonious entry into such safe, chest, or vault, if any, containing such safe or chest, when all doors thereof are closed and locked by all combination and time locks thereon; provided such entry shall be made by actual force and violence, of which there shall be visible marks made by tools, explosives, electricity, gas or other chemicals upon the exterior of . . . ”
There is no contention made that anything but the safe was insured. The evidence that there was an entry upon the premises by violence is wholly irrelevant in determining the question of liability.
The sole question is whether or not there was a breaking open of the safe by actual force and violence. There is no evidence whatever that there were any marks upon the safe made by tools, explosives, electricity, gas or other chemicals. This being the case the Circuit Court and the Court of Appeals concurred in holding that plaintiff’s loss was not covered.
The insurance policy, which is the initial agreement between the parties, limits the insurer’s liability in that there can be no recovery unless there is evidence of external violence used in opening the safe, and such as are expressly mentioned in the conditions.
It is beside the point to argue that there was no proof that it was an “inside job.” While all the wit
The cases cited by the Court of Appeals support the conclusion that there is no liability. The condition in question is fully discussed in Couch’s Cyclopedia of Insurance Law (1929 Ed., Y. 5, Sec. 1184(c) 4234), as follows:
“On the contrary, an entry into a safe by working the combination is not a forcible or violent entry by the use of tools or explosives, even though such manipulation is made possible by force previously applied to the safe. Nor does the term ‘forcible entry’ of a safe, as used in a burglary policy insuring against forcible entry by the use of tools, explosives, chemicals, etc., cover entry by use of a key. And a forcible and violent entrance leaving visible marks, is not effected where the burglar drugged the night watchman and entered and left by the use of the latter’s keys and the orderly operation of the usual bars and latches on the doors, ancl the only evidence of force or violence was the disarrangement of the insured stock of goods. . . .
“Naturally, where the policy limits liability to cases of forcible entry or exit, evidenced by visible marks, no recovery can be had for loss by theft, larceny, or mysterious disappearance, where there are no visible marks of violence. Nor are conclusive visible marks of forcible and violent entry into the safe’ established by photographs showing one or two small indentations upon the face of the combination dial of the safe, it also appearing that the combination was in good order after the burglary, and that the lock responded to the manipulation of the tumblers in the proper manner.”
Our own case of Orr & Co. v. Great American Indemnity Co., 174 Tenn. 257, 124 S. W. (2d) 714, 715, relied
Certiorari is denied.