I am not in accord with the holding of Mr. Justice BOYLES that the offense of robbery against Mr. Saks was not consummated until the money had been returned to the building and taken away by the robbers.
In Cartier Drug Co. v. Maryland Casualty Company ofBaltimore, Maryland, 181 Wash. 146 *Page 725 (42 Pac. [2d] 37), cited in Justice BOYLES' opinion, plaintiff was the owner of a drug store. The policy indemnified plaintiff for loss "by robbery or attempt thereat" committed within or without the described premises. By the terms of the policy defendant's liability was limited to $500 for robbery committed within the premises, and $1,000 for robbery committed without. On the night in question plaintiff locked his store and was held up by two robbers. He was forced to unlock the store and all went inside. While there the robbers compelled plaintiff to open the safe and took therefrom about $530, and then took about $473 from the person of plaintiff. The sole question in the case is at what place was plaintiff robbed of the $473. The court held that the robbery was committed within the store and that the crime of robbery was not completed until the money was taken.
In Axt v. London Lancashire Indemnity Company of America (C.C.A.), 131 F.2d 370, plaintiff was insured against robbery by a policy which defined robbery as "a felonious and forcible taking of property by violence inflicted upon a custodian, or by putting him in fear of violence." The premises were defined as follows: "Rooms 211-213, M and M Bank Building." While the policy was in effect plaintiff, a diamond merchant, was visited by three robbers, who forced him out of room 213, across room 211, and into room 212, and there robbed him of certain diamonds. The court there said:
"`Premises', as defined in the policy, means the interior of Rooms 211 and 213, M and M Bank Building, which were occupied solely by the assured in conducting his business. When the diamonds were taken by the robbers from the person of the plaintiff, they were not in the interior of Rooms 211 and 213. They were inside Room 212, over which the plaintiff *Page 726 had no control. Since this part of the robbery was outside the interior of Rooms 211 and 213 of the M and M Bank Building, it was outside the premises of the plaintiff and inside the premises over which the plaintiff had no control, and therefore it was a robbery outside the premises within the meaning of the policy."
In the Cartier Drug Company Case, supra, the court held that the robbery took place where the robbers gained possession of the money; and in the Axt Case, supra, the robbery took place in the room where the possession and control of the diamonds were transferred to the robbers.
In the case at bar the robbers took possession of the money while it was in the automobile. They never released possession of it, even after it had been returned to the store. Plaintiff lost possession and control of it while it was outside of the premises. The indemnity bond provides for loss or damage to property while in the premises. The loss having been occasioned outside the premises, there can be no recovery on the bond.
The judgment should be reversed, with costs to defendant.
WIEST, J., concurred with SHARPE, J. *Page 727