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Lawskills.com Georgia Caselaw
CLEVELAND AVENUE LIQUOR STORE, INC. v. HOME INSURANCE COMPANY.
42838.
Action on insurance policy. Fulton Civil Court. Before Judge Webb.
EBERHARDT, Judge.
Cleveland Avenue Liquor Store, Inc. brought suit against Home Insurance Company seeking to recover $2,945.34 under the "money and securities broad form endorsement" of an insurance contract issued by home to plaintiff. The endorsement provides in the "Insuring Agreements" as follows: "Loss outside the premises: This company shall 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 while within the living quarters in the home of any messenger."
In the "Definitions" section the following appears: "(e) 'Messenger' means 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."
On the date of the loss Robert McIntyre was office manager of Southeastern Management Services Company, a management concern providing accounting and other services for plaintiff. McIntyre's duties consisted of performing general bookkeeping services, counting the cash each day and checking it against the cash registers, working up the daily balance sheets, and making bank deposits and withdrawals.
It was McIntyre's routine to arrive at the store around 8 or 9 a.m., count the cash in the safe and cash registers, make up the cash sheet, and pick up the checks and extra money and deposit them in the bank. During the latter part of the week he would withdraw additional cash from the bank for checkcashing purposes at the store, proceed from the bank to his home to eat lunch and leave his son in time to begin his paper route, and then deliver the money to plaintiff's store. On the date of the loss McIntyre, accompanied by his son, drove to the bank and withdrew $2,945.34 which was placed on the front seat of his car between his son and himself in a plastic zipper money bag. Upon arriving home from the bank he parked the automobile in front of his house, and he and his son went inside, leaving the money on the seat of the car and the doors unlocked. After eating lunch McIntyre returned to the automobile and proceeded to the store, where he first discovered that the money was missing. It later developed that the money was stolen from the automobile while parked in front of McIntyre's house.
Plaintiff appeals from an order sustaining Home's motion for summary judgment and entering judgment in its favor.
The issue in this case is whether the money was stolen "while being conveyed by a messenger" within the meaning of the insurance contract. The question appears to be one of first impression in this state, although similar policy provisions have been construed by the courts of other states. In Philip Blum & Co. v. Standard Acc. Ins. Co., 336 Ill. App. 354 (83 NE2d 605) an insurance of money "while being conveyed by chauffeur or driver" was held to mean during the time that the money is under the protective custody of the driver, and it was not covered when locked in a safe left in a garage overnight. In J. & C. Drug Co. v. Maryland Cas. Co., (St. Louis Ct. of App.) 298 SW2d 516, an insuring against loss or theft "from a messenger while conveying money outside of the premises" was held not to cover money carried by the messenger from one of the insured's stores to another (to be deposited in a bank) and there placed in the store safe temporarily while money to be deposited from that store was gotten together, and there was a loss by a holdup and robbery of the store. In Monteleone v. American Employers' Ins. Co., 239 La. 773 (120 S2d 70) an insurance of money "while conveyed by a messenger" was held to afford coverage only while the money is in the personal possession of the messenger. The same result was reached in Sansone v. American Ins. Co., 245 La. 674 (160 S2d 575), where it was held that no coverage was afforded when the messenger, carrying the money in his coat pocket, went into a private club and while engaged in a dice game had a porter take his coat and hang it in the cloak room--where the money disappeared. Similarly in O. K. Express Corp. v. Maryland Cas. Co., 198 NYS2d 105, there was no coverage when the messenger took the money, placed it in his wallet and carried it home with him, where it was lost during the night. Holdings of similar effect are to be found in Trad Television Corp. v. Hartford Acc. & Ind. Co., 35 N. J. Super. 36 (113 A2d 47), and American Indem. Co. v. Swartz, 250 F2d 532 (8th Cir.).
While there are some factual distinctions and some varying policy provisions in these cases (and we have found no others construing this policy provision), collectively they stand for the proposition that the phrase "while being conveyed by a messenger" requires that the stolen or lost money must be in the immediate custody or possession of the messenger at the time of the theft and that the messenger must be "conveying" the money rather than acting as a custodian or repository.
We find it unnecessary to determine whether the money was being "conveyed" at the time of the theft, for we conclude that the custody required by the insurance contract was lacking. "The contract as a whole must be looked to in arriving at the construction of any part." Cotton States Mut. Ins. Co. v. Hutto, 115 Ga. App. 164, 166 (154 SE2d 375). Under the definition of "messenger" set out in the policy it is apparent that the messenger is to have the " care and custody of the insured property outside the premises." (Emphasis supplied).
The requirement of protective custody while being conveyed is further borne out by the additional coverage afforded to the property "while being conveyed by . . . any armored motor vehicle company."
No sufficient reason appears why the money in the plastic zipper money bag 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 money bag 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. We must therefore hold that the requirements of the insuring agreements were not met, and the judgment must be
Affirmed. Felton, C. J., and Hall, J., concur.
Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, Robert W. Patrick, Jr., James H. Keaton, for appellee.
Archer, Patrick & Sidener, Howell W. Ragsdale, Jr., for appellant.
ARGUED JUNE 5, 1967 -- DECIDED JUNE 12, 1967.
Friday May 22 19:12 EDT


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