Appeal from the Municipal Court of Chicago; the Hon. HENRY C.
FERGUSON, Judge, presiding. Judgment for plaintiff set aside and
reversed. Judgment entered here for defendant.
MR. JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.
This is an action by plaintiff, Felix I. Sinda, upon a mercantile robbery and safe burglary policy issued by defendant, The Home Indemnity Company, to recover for the loss of money alleged to have been sustained through robbery as defined in the policy. The court found the issues in favor of plaintiff and entered judgment for $1,187.80 and costs, from which this appeal is taken.
Defendant contends that the evidence fails to prove a loss occasioned by robbery as defined in the policy and that the trial court should have found the issues for and entered judgment in favor of defendant.
Plaintiff owned and operated a self-service store in Chicago, Illinois, where he sold groceries, produce, meat and packaged liquors. Plaintiff, his wife and five employees worked in the store. On April 11, 1952, at about 10:00 or 10:30 a.m. plaintiff went to the bank and withdrew $2,040 in currency and silver and returned directly to the store. He placed the money in a metal strongbox in the presence of his wife and two customers who were waiting to cash checks and turned the money over to his wife in a small office which was on a raised platform in the northwest corner of the store. It was enclosed by partitions on the south and east sides with panels 2 1/2 to 3 feet from the floor with the upper partition of glass. The north and west walls were solid. It contained a small desk. After giving the money to his wife he went to the back room of the store, took off his jacket and returned to the office. He looked in the box and found two checks which his wife had cashed. He then took the box to the liquor department, which was in the southwest corner of the store. He placed it on top of the counter and cashed two checks for customers, after which he put the box below and behind the counter and covered it with a cardboard container. He talked with one of the customers until the telephone rang in his office and then went to answer it. While so doing he heard a rattle resembling the rattle of the money in his strongbox. However, he did nothing about the rattle he heard but proceeded to the office.
As to the events that took place immediately after this there is a conflict. On direct examination plaintiff testified that he did not observe what his wife was doing while he walked to answer the telephone; that when he heard the rattle he thought she was cashing a check. While he was in the office talking on the telephone the liquor counter was in full view and he did not observe anyone there. On cross-examination he said he did not recall whether he was looking at the liquor counter while he had the telephone conversation and that he did not at that time suspect that the moneybox had been stolen. In April of 1952 he signed a statement which stated that during the time he walked to the office to answer the telephone his back was turned to the liquor counter. It did not occur to him to look to see what caused the rattle because his wife always cashed checks and unconsciously he thought she was behind the counter. He did not look to the liquor counter at all while he was talking on the telephone.
Immediately following the telephone conversation two women came to plaintiff in the office to have checks cashed. He went with them to the liquor counter to get the strongbox. He found the cardboard container but the box with the money was gone. He assumed his wife had taken it to cash checks and on asking her where the box was he was informed by her that she had been busy and had not cashed any checks. For about two hours he searched for the box. He didn't suspect it was stolen but thought it had been placed elsewhere. He searched all over the store, checked the clothing of his employees and finally concluded that the money was stolen. He called the police, reported it to them and also reported it to his insurance agent.
At the trial plaintiff informed the court that his claimed loss arose in connection with Clause 3 of the policy definition of robbery, the relevant portion of which is as follows:
"`Robbery' means the felonious and forcible taking of insured property: . . . (3) by any other overt felonious act committed in his presence and of which he was actually cognizant, provided such other act is not committed by an officer or employee of the Assured; . . ."
On this appeal plaintiff for the first time contends that under Insuring Agreement II, which reads,
"ROBBERY INSIDE PREMISES. To indemnify the assured (if insurance is provided under Sections (c) or (d) of Item 7 of the Declarations but not otherwise) for all loss of or damage (hereinafter called loss) to such property while in the Premises, and for damage to the Premises if the assured is the owner thereof or is liable for such damage, provided such loss is occasioned by:
"(a) Robbery. Robbery or attempt thereat from a Custodian while within the premises;
"(b) Kidnapping. The stealing of such property from within the premises by means of compelling a custodian or messenger by violence or threat of violence while outside the premises to admit a person thereinto or to furnish him with means of ingress into the premises, provided such loss shall occur before the premises are next opened for business;
"(c) Show Window. The stealing of such property from within a show window in the premises while regularly open for business, by a person who has broken the glass thereof from outside the premises, or by an accomplice of such person; . . ."
a broader definition should be given to the term "robbery" and that he is not confined to the definition of robbery as defined in Clause 3. The definition of robbery that plaintiff contends is implied from Insuring Agreement II, is difficult for us to understand. He apparently has patterned it to fit the facts of his case and states it as follows: "We would therefore respectfully submit that, from an examination of the terms and provisions of the policy in question, and the facts as shown by the evidence, the plaintiff sought protection against `robbery' as that term is generally understood, from the inside of his premises, and the defendant undertook to afford that protection on the condition that he exercise due care in guarding against ...