It is stipulated that on June 23, 1968 while the Plaintiffs’ automobile was unattended in the parking lot of a Waterville motel a number of articles of value were stolen from the trunk of the car.
At that time there was in еffect a Homeowners Policy issued by the Defendant which insured Plaintiffs against certain losses but excluded loss by theft of property in an automobile away from home unattended “unless the loss is a result of forcible entry either into such vehicle while all doors and windows thereof are closed and locked or into a fully inclosed and locked luggage compartment, of which entry there are visible marks upon the exterior of the vehicle”.
It appears that a similar policy was made available by the company with less stringent exclusions but at a somewhat higher premium.
The Presiding Justice who heard the matter without a jury found that the Plaintiffs had left their car with doors and luggage compartment closed and locked and that the thief had in some manner opened the car door and then opened the glove compartment which contained a button which in turn opened the lid over the luggage compartment. When the car was examined after the theft the right front door was closed but unlocked with the inside locking button being “up” and the glove compartment was open. There were no visible marks of forcible entry on the exterior of the vehicle. The facts he found are undisputed.
The Justice ruled that the Plaintiffs were entitled to judgment. He construed the requirement that there be. visible marks of forcible entry upon the exterior of the vehiсle to have been a contractual safeguard against the possibility of fraud. As it was undisputed that a theft from a locked vehicle had in fact taken place he reasoned that thе fact that the thief had succeeded in gaining access to the luggage compartment without leaving visible marks of forcible entry on the vehicle’s exterior was no defense to the insurance company who had engaged to compensate Plaintiffs for loss by theft.
The Justice added that if the presence of visible marks of forcible entry upon the exterior is necessary to Plaintiffs’ recovery, thеn the position of the door locking button in its “up” position and the open door of the glove compartment would constitute such visible marks of entry.
The matter comes to us on Defendant’s аppeal. Our problem is the construction of the policy’s exclusionary clause.
It appears that many policies insuring against theft from dwellings, safes and vehicles contain language limiting recovery to instances where entry was made by force and where there were visible marks from such an entry upon the exterior of the object entered. A few cases involving such limitatiоns have reached the courts of final jurisdiction of the states and there are numerous reported decisions on such *85 issues from the intermediate appellate courts.
National Surety Co. v. Silberberg Bros., Tex.Civ.App.,
The Massachusetts Court has also found “force and violence” present in the mere throwing of a bolt but held that the presence of scratchеs under the bolt which could have been made by the ordinary manual manipulation of the bolt failed to satisfy the policy’s requirement as “visible marks * * * of such entry by
tools.
* * * ” (Emphasis added.) Shattuck & Jones, Inc. v. Travellers Indemnity Company,
The great majority of the Courts reach an opposite conclusion from that arrived at in
Silberberg
and by our Presiding Justice and we find their reasoning convincing. The majority rule is that followed by the Maryland Court in Offutt v. Liberty Mutual Insurance Co.,
“The policy was not intended to cover all risks. The premium was undoubtedly set accordingly.”
The Rhode Island Court in Henry Gorman & Son, Inc. v. American Surety Company of New York,
In Schubach v. American Surety Co. of New York,
In Continental Insurance Company v. Cooper, Tenn.App.,
In Abrams v. National Fire Insurance Company of Hartford, Connecticut, Mun. Court of Appeals for the District of Columbia,
In deciding issues involving contracts of insurance we have frequently affirmed our acceptance of several widely accepted canons of construction. In case of ambiguity, a policy of insurance is given the construction most favorable to the insured for the reason that the insurer makes the policy and is presumed to have selected terms which express his real intention. Dunning v. Massachusetts Mutual Accident Association,
Here, as in Farm Bureau Mutual Ins. Cо. v. Waugh, supra, we find no ambiguity in the pertinent provisions of the policy. They do not contravene any principles of public policy. The exclusionary clause must be given the meaning which а person of ordinary intelligence would attach to it. The company did not undertake to insure against all thefts from unattended locked vehicles — only against those resulting from a forcible entry and from such a forcible entry as to leave visible marks upon the exterior of the vehicle. While policies containing the exclusion with which we are concerned were doubtless drаwn by the Company in recognition of the Company’s vulnerability to fraudulent claims for mysterious disappearances as well as to the frailty of human memory —and the premiums determined on that basis — the fact that the Plaintiffs’ claim was not a fraudulent or mistaken one does not give the policy holders more coverage than the Company contracted to furnish them. The Plaintiffs were required to present proof of visible marks of forcible entry upon the exterior of the vehicle.
The Plaintiffs rely in part upon McGlinchey v. Fidelity and Casualty Company,
Here the Defendant concedes that the Prеsiding Justice properly inferred that there had been a forcible entry. The remaining issue facing us is whether the Justice was in error when he found that the “up” position of the door locking button and the оpen glove compartment, both inside the car, were “visible marks upon the exterior of said vehicle”. We find that he was in error. If these were such “marks” they were marks on the interior, although doubtless visible to one standing outside the car.
The Plaintiffs’ loss was not covered by their policy with the Defendant.
Appeal sustained. Judgment for Defendant.