Atlanta Tallow Co. v. Fireman's Fund Insurance
Atlanta Tallow Co. v. Fireman's Fund Insurance
Opinion of the Court
The insurance policy covered, under Coverage A, loss of money and securities by destruction, disappearance or wrongful abstraction within the premises of the insured mercantile company, and under Coverage B insured against loss of money or securities, by destruction, disappearance or wrongful abstraction outside the premises, subject to the provision that at the time of such destruction, disappearance or wrongful abstraction the property is being conveyed, either by a messenger or an armored vehicle company. No armored car was involved here.
The trial court erred in granting the defendant’s motion for summary judgment.
Judgment reversed.
Concurring Opinion
concurring specially.
The able Judge of the Civil Court of Fulton County who heard and decided this case held in the final order: “The court’s ruling in this matter is based on the ruling of the Georgia Court of Appeals in Cleveland
2. Insofar as it imports the idea of actually being in transit, it was held in National Fire Ins. Co. v. Davis, (Tex. Civ. App.) 179 SW2d 316, where under the applicable policy the goods were insured only “while in the custody of the insured” and “in actual transit” that where the driver left the car unattended with the motor running while he stopped for lunch, and an unauthorized person drove it off and overturned it, damaging the merchandise, the loss of the latter was covered. The court relied on the definition of “Custody” in 25 CJS 88: “It means to have in charge or safekeeping, connotes control, and includes as well, although it does not require the element of physical or manual possession, implying a temporary physical control merely, and responsibility
I am authorized to state that Presiding Judges Bell and Jordan and Judge Pannell concur in this special concurrence.
Hall, Judge, concurring specially. I concur in the judgment reached by the majority opinion; however, I do not agree that Cleveland Avenue Liquor Store v. Home Ins. Co., 115 Ga. App. 864 (156 SE2d 202), should be overruled. That case is distinguishable on its facts. It held: “No sufficient reason appears why the money in the plastic zipper moneybag could not have been manually carried by McIntyre into his home, where it would have been covered under a policy provision relating to the home of the messenger, or why it was necessary to leave the moneybag on the seat of an unlocked car. When he left it unprotected in the car, parked on a public street, as an open invitation to any who passed along to take it, it was not in his custody, within the provisions of the policy.” P. 868. In the present
This insurance policy provides protection for property being conveyed by a messenger. Custody (actual or protective) is a necessary element of the process of conveying. How can one be conveying an object which he has neither on his person nor within his protective custody? Realism and common sense tell us that a messenger in the process of conveying a package does not have to eat, perform his daily body functions and at the same time be grasping his package in order for the same to be in his custody. Realism and common sense also tell us that when a messenger leaves his package totally unprotected in an open car on a public street while he eats lunch in his home, it cannot be said that the messenger has protective custody of the package and is thereby in the process of conveying the same.
The requirements of the insuring agreement were not present in the Cleveland case. They are present in the case sub judice.
I am authorized to state that Chief Judge Felton, and Judge Whitman concur in this special concurrence.
Dissenting Opinion
dissenting.
It seems to me that the majority have grounded their holding upon the language defining the word “messenger” in the policy, and not upon the insuring agreement itself.
The applicable insuring agreement, covering losses outside the insured’s premises, provides that the insurer will “pay for loss of money and securities by the actual destruction, disappearance or wrongful abstraction thereof outside the premises while being conveyed by a messenger or any armored motor vehicle company, or by theft while within the living quarters in the home of any messenger.”
True enough, the word messenger is defined to mean “the insured, a partner therein or an officer thereof, or any employee thereof who is in the regular service of and duly authorized by the insured to have the care and custody of the insured property outside the premises.” This simply describes and delimits the individuals who may serve as messengers within the coverage. As to employees, it covers only those who are in regular service
It is conceded here that the employee involved was regularly employed and that he was duly authorized to have the care and custody of money and securities of the insured. The only provisions of the contract which require construction, if they do, are the phrases “care and custody,” and “while being conveyed.”
We have heretofore researched the same problem in the case of Cleveland Avenue Liquor Store v. Home Ins. Co., 115 Ga. App. 864 (156 SE2d 202), where we concluded that the protective care and custody of money contemplated by the contract is actual personal possession by the messenger. Likewise, “while being conveyed” has uniformly been held by courts of other jurisdictions dealing with the matter to require personal possession of the messenger. That this is a reasonable and proper conclusion as to the meaning of the terms is borne out by the fact that protection is extended to money and securities “while being conveyed” by the insured’s messenger or by “any armored motor vehicle company.” The care and custody of the messenger, described along with that of an armored motor vehicle company, under the rule of ejusdem generis, or under the maxim noscitur a sociis, imports that the care or custody be of like character—not the same, of course, but protective in nature. It has generally been considered that this can appear only where the care or custody of the messenger has been that of personal possession. Cf. Great American Indem. Co. v. Southern Feed Stores, 51 Ga. App. 591 (181 SE 115). We came to the same conclusion in the Cleveland Avenue Liquor Store case and I can see no reason to do otherwise here.
The provisions of the contracts in that case and in this are the same, or substantially so. The facts have some similarity and, as Judge Hall points out, some differences. However, when the messenger parked the car on the lot of a sandwich shop, left
That there is a difference in the treatment to be accorded money or securities and other types of property is a matter too generally and commonly known to admit of cavil. Money in the hands of a thief is generally not identifiable and is immediately negotiable.
The cases cited by Judge Deen do not require a different result. In Kamar Fur. Corp. v. Century Ins. Co., 142 N. Y. S. 2d 904, a clothing salesman left the racks of samples in his locked hotel room while he went for lunch and the room was burglarized. He could not have been expected to carry the racks of clothing with him. These are different in nature from money. In American Indem. Co. v. Swartz, 250 F2d 532, a recovery was held authorized where the messenger was held up while in the car and the money, lying beside her on the seat, was taken, it having been “under the constant observation of the authorized messenger and within her reach” at all times after she received it. The court dealt with an on-the-premises robbery (not involved here) in Fox West Coast Theaters v. Union Ind. Co., 167 Wash. 319 (9 P2d 78) and J. J. Newberry Co. v. Continental Cas. Co., 229 Cal. App. 2d 728 (40 Cal. Rptr. 509). In Birgbauer v. Aetna Cas. & Surety Co., 251 Mich. 614 (232 NW 403) the facts are somewhat more similar to those of the case here. A diamond salesman stopped pursuant to instructions to pick up a diamond gauge. He left a supply of uncut diamonds in a locked brief case, in his locked car, and stepped into the front of the place, 15 feet from the car, when he was held up and forced to surrender the keys to the car and the brief case. But he had not left these out of his sight and gone on a personal mission.
Reference
- Full Case Name
- Atlanta Tallow Company, Inc. v. Fireman’s Fund Insurance Company
- Cited By
- 10 cases
- Status
- Published