United States Fidelity & Guaranty Co. v. Shields

Bell, Chief Judge. In this suit to recover a monetary loss allegedly covered under the provisions of a mercantile robbery and safe burglary insurance policy, the trial court denied the defendant’s motion for summary judgment and certified the denial for direct appeal. The deposition of an employee of plaintiff’s shows that the employee customarily used his own car to take checks of plaintiff’s to the bank, cashed them and returned the money to plaintiff. On February 10, 1970, the employee went to the bank with checks totalling $1,070, cashed them, placed the money in a bag, left the bank and returned to his car. The car failed to start. He then placed the bag of money on the seat, went to the front of the car and found the hood unlatched. Lifting the hood, he discovered that wires were pulled out of the distributor box which caused the failure to start. He also testified that after determining that someone had been "messing” with his car, he immediately returned to the driver’s — 794 — side, found the money missing and then looked across the driver’s side and saw a person hurrying away. There was no one else in sight at this time. All of this took place in the matter of a few moments. In the policy of insurance robbery is defined as "the taking of insured property (1) by violent infliction upon a messenger or custodian; (2) by putting him in fear of violence; (3) by any other overt felonious act committed in his presence and of which he was actually cognizant.” Held: The recited facts reasonably give rise to an inference that the man observed running away had tampered with the car in order to distract the custodian momentarily and then absconded with the money left on the seat. In Still v. Great Central Ins. Co., 122 Ga. App. 99 (176 SE2d 268), a similar policy provision was held to mean: "Cognizance of the taking at the time it is in process not when the loss is discovered.” In the Still case there is no evidence of any flight or other furtive conduct by anyone in close proximity in point of time to when the loss was discovered and hence no recovery was authorized. While it is true that the custodian testified that he did not see this person enter his car and the initial physical removal of the money, the policy provision does not require that the custodian see the commencement of the overt act or the physical act of the felon’s acquiring possession of the property or that he must observe the technical commission of the crime from beginning to end. Neither the Still case nor Van Keuren v. Travelers Indem. Co., 27 Ga. App. 367 (108 SE 310) requires that there be actual knowledge or visual observation of all facets of the overt felonious act. Here the victim was aware that his car had been tampered with; he was aware that the money was missing; and he was aware of the presence of the apparent thief hurrying away from the very close proximity of his automobile. He was aware or cognizant of wrongdoing while the felonious act of theft was still in process and not merely, by inference, as an afterthought. — 795 — See Annot. 37 ALR2d 1081, 1089. On these facts, a jury would be authorized to return a verdict for the plaintiff. Submitted January 3, 1972 Decided March 1, 1972 Rehearing denied March 24, 1972. G. Thomas Crichton, for appellant. McCurdy, Candler & Harris, George H. Carley, for appellee. See the following cases where coverage was upheld in policies with like provisions under similar factual situations. London v. Maryland Cas. Co., 210 Minn. 581 (299 NW 193); Bourg v. Travelers Indem. Co., (La App.) 15 S. 2d 166; Buffalo Smoketeria v. Metropolitan Cas. Ins. Co., 143 Misc. 894 (258 NYS 581). Judgment denying the defendant’s motion for summary judgment is affirmed. Jordan, P. J., Deen, Quillian, Evans and Clark, JJ., concur. Hall, P. J., Eberhardt and Pannell, JJ., dissent.