Opinion
Docket No. 4,005.
Decided October 24, 1968.
Appeal from Oakland, Adams (Clark J.), J. Submitted Division 2 April 4, 1968, at Detroit. (Docket No. 4,005.) Decided October 24, 1968.
Complaint by Huron Bowl, Inc., a Michigan corporation, against Security Insurance Company of New Haven, Transamerica Insurance Company, General Casualty Company of Wisconsin and Capitol Indemnity Company for recovery under policies of insurance. Summary judgment for defendants. Plaintiff appeals. Affirmed.
Daniels, Zussman Wienner, for plaintiff.
Sugar, Schwartz Silver, for defendants.
Plaintiff appeals a summary judgment. The dispute centers about the terms of insurance under policies issued by defendants which defendants claim do not cover the loss in question.
The loss occurred on January 7, 1966 at about 5 a.m. when approximately $13,000 was taken from the locked safes on plaintiff's bowling alley premises. Plaintiff had one employee on duty at the time who was forced, by threats of violence, to lie on the floor and be tied up while the intruders made their way to plaintiff's office and opened the locked safes. Essentially, the sole issue presented is whether, under the definitions of the insurance policies, this theft could properly be classified as a robbery or burglary. Plaintiff had "robbery," but not "burglary" coverage. Defendants contended, and the trial court so found, that the theft was a "burglary" (as defined in the policy coverage). Plaintiff contends that the court erred in not finding that its employee was "robbed," but would evidently settle for a holding that a material issue of fact exists as to whether it was robbery or burglary.
The pertinent policy provisions (the language of which is stipulated by the parties) state that:
"`Robbery' means the taking of insured property * * * by putting him [a custodian] in fear of violence."
A custodian is defined thus:
"`Custodian' means the insured * * * 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 within the premises, excluding any person while acting as a watchman porter or janitor." (Emphasis supplied.)
As is evident, the determination of whether the theft was within the definition of these quoted sections must of necessity depend upon the character and quality of the duties and responsibilities of plaintiff's employee who was on duty at the time of the theft. Defendants successfully pursued their motion on the dual grounds that:
(1) money locked in the safe was not within the care and control of the employee who had no access to the money, whose responsibilities did not include the safe or its contents, and who had no knowledge of the amount of money, if any, locked within the safe.
(2) at the time of the theft the employee was acting as a "watchman, porter or janitor" and thus even if he had care and custody, it was within the coverage exclusion.
We are satisfied from the pleadings, record and briefs, that the trial court correctly concluded that, as a matter of law, based on the deposition of plaintiff's officers and employee, the money locked in the safe was not within the "care and custody" of the employee on duty, except insofar as he was acting as a watchman, janitor or porter.
It is elementary that in interpreting contracts of insurance we give the language used its natural and ordinary meaning, Michigan Mutual Liability Company v. Pokerwinski (1967), 8 Mich. App. 475. We will not give words used a forced or strained meaning, nor will we write a new contract for the parties regardless of the desirability of so doing. Edgar's Warehouse, Inc. v. United States Fidelity Guaranty Company (1965), 375 Mich. 598; Sturgis National Bank v. Maryland Casualty Co. (1930), 252 Mich. 426; Topolewski v. Detroit Automobile Inter-Insurance Exchange (1967), 6 Mich. App. 286; Scanlon v. Western Fire Insurance Company (1966), 4 Mich. App. 234.
"Care and custody" connotes dominion over the property which need not attain actual possession. Birgbauer v. Aetna Casualty Surety Co. (1930), 251 Mich. 614. It does imply, however, some temporary right of dominion over, or charge of the property albeit under the direction of another. See Bierman-Danzi Corp. v. Fireman's Fund Insurance Co. (1952 Mun. Ct. N.Y.) 115 N.Y.S.2d 706; Fox West Coast Theatres, Inc. v. Union Indemnity Company (1932), 167 Wn. 319 ( 9 P.2d 78). It is not a term of precise definition and its pertinence to this opinion is only to the extent that it, on its face, includes true "custodians" as well as watchmen, porters and janitors as defined in the policy.
Depositions introduced in the trial court in support of the motion indicate that the employee had no duties with respect to the locked safes or the money contained therein except to keep others away from the area. It is uncontroverted that the employee had no access to the money nor any rights or duties concerning the locked safes. It is evident to our minds that any care and custody being exercised by the employee or exercisable by him was only in the capacity of a watchman, janitor or porter.
Webster's (3d ed, unabridged) dictionary defines "watchman" as:
"One who keeps watch * * * one who is employed to stand watch over or to patrol property for the purpose of protecting it against theft, fire, or other damage."
In Employers Mutual Casualty Company v. Trinity Universal Insurance Company (Tex Civ App, 1964) 376 S.W.2d 766, 767, 768, the court states:
"A `watchman' performs duties which are approximately 90% passive, i.e., merely being in a place to guard premises or personal property where any threat to the safety thereof would in all probability come to his attention — so that affirmative protective action might be taken should occasion therefor arise. Essentially, a `watchman' is `in charge of' property under his observation or protection."
Appellant argues that its employee was not principally employed as a watchman, porter or janitor and therefore was outside the policy exclusion. It argues that to hold the exclusion to apply to the functions being performed at the very moment of the theft would lead to on-again, off-again coverage. The point is well taken, but only where the insured at least can demonstrate the "on-again" aspects of the employment. In this record, insofar as the money locked in the safes, we find nothing but "off-again."
To our minds, the essential ingredient is the employee's over-all responsibilities and duties with respect to the property rather than the particular momentary activity at the instant of the theft. In order to be other than a watchman, one would expect some manner or type of entrustment of the property beyond that of mere passive protection. In the present case, it is quite obvious that the employee had no more right with respect to the money taken than the thieves themselves had. He did not have any possession or rights with respect to the money such as the insured's employee had in Birgbauer v. Aetna Casualty Surety Co., supra. The employee was not to touch or move the property nor was he to let others do so.
We are not persuaded by the claim that on many occasions the employee waited on plaintiff's customers or made bank deposits for plaintiff. The crucial aspect of the employment is that directed to and concerned with the property in question, read within the fair meaning of the policy. In this case the policy expressly excluded any [custodian] while acting as a watchman, porter or janitor.
Appellant's contention that the exclusionary provision is ambiguous and should be resolved in its favor is not well-founded. If every difficult case or dispute could be said to be ambiguous by virtue of the difficulty or dispute, we should no doubt experience a most distasteful revolution in the insurance industry. The policy here is not susceptible of any fair meaning which would serve to extend the coverage to plaintiff. See Topolewski v. Detroit Automobile Inter-Insurance Exchange, supra.
Affirmed. Costs to appellees.
FITZGERALD and McGREGOR, JJ., concurred.