L. W. Rogers Company brought suit against the Columbia
Casualty Company, and alleged in substance as follows: The defendant was indebted to the plaintiff in the sum of $3,528.81, by reason of the fact that the defendant issued to the petitioner a policy of insurance known as “mercantile safe policy,” and collected the premium thereon. The policy covered the contents of an iron safe, and petitioner had suf*159fered a loss by burglary from the safe of $7,000. Petitioner was conducting the kind and character of business and the safe was of the character described in the policy. During the period covered by the policy the warehouse of petitioner was burglarized; “the combination of the safe on the outer door was worked, the inner door had two holes drilled through it, the holes weakened the fastening of the lock and it was pushed loose and thus enabled the robber to enter the inner door; there was visible evidence of said burglary, consisting of holes drilled through the inner door of the safe; furthermore the locks were broken and pushed outward, hanging on the inner door; these physical evidences of burglary were apparent on the morning following the burglary, and showed violent and burglarious entry into the safe.” The money was stolen from- a receptacle inside the inner door. The petition further alleged notice to the defendant, together with proof of loss as required under the policy, also that the defendant failed to pay the amount of the loss, and that more than sixty days had elapsed since demand had been made therefor; and plaintiff claimed in addition 25 per cent, on the liability of the company for said loss, claiming that the defendant had acted in bad faith and was also liable to the plaintiff for attorney’s fees in a named amount. The prayers were for a judgment for the amount sued for, and for process. The defendant filed a general demurrer, which was overruled, and the defendant excepted. On writ of error to the Court of Appeals the judgment of the trial court was affirmed, and the case is in this court on writ of certiorari to the Court of Appeals. The defendant bases its contention of non-liability, on a clause under the head of “ Special Agreements” contained in the policy, as follows: “The company shall not be liable for loss of or damage to money, . . unless . . entry into such safe or vault has been effected by the usé of tools, explosives, electricity, or chemicals directly upon the exterior thereof.” After careful consideration of the allegations of the petition, this court is of the opinion that the Court of Appeals did not err in affirming the judgment of the trial court overruling the demurrer to the petition.
No. 3532. January 15, 1924. Westmoreland & Smith, for plaintiff in error. Mayson & Johnson, contra.Judgment affirmed.
All the Justices concur, except .Atldnson and Gilbert, JJ., dissenting.